High Court judges differ on Airtel Malawi’s K2.1bn fine case

By Chancy Namadzunda:

High Court of Malawi Judge Ken Manda of the Commercial Division has sent back to General Division a case in which Airtel Malawi is challenging a K2.1 billion fine by the Competition and Fair Trading Commission (CFTC).

CFTC fined Airtel Malawi for engaging in “unconscionable conduct” in the trade of goods and services through its KhetheKhethe customer loyalty bonus programme.

The company then took out an application at the High Court without notice seeking the suspension of an enforcement order of the fine.

Airtel Malawi further wanted CFTC to be restrained from publicizing the fine in the media pending the determination of the appeal.

Upon hearing the arguments, General Division Judge Ruth Chinangwa transferred the case to the Commercial Division because there was a fine imposed.

However, in his ruling, Commercial Division Justice Manda overruled the decision and referred back the case to the general division.

“At the outset, I must state that it is not the intention of this court to overrule a decision of a fellow judge. However, it must be stated that a decision at this level do create precedent and this must be borne in mind when we as judges make our decisions.

“The point however remains that the dispute between the appellant and the respondent in this instance does not arise out of a commercial transaction. The dispute, if I can call it that, is arising from the fact that the appellant is aggrieved with the decision of the respondent imposing a penal sanction on them without the respondent having the pre-requisite criminal jurisdiction and without affording the appellant a criminal trial.

“The imposition of a fine by a tribunal or a body is not a commercial transaction, it is a matter of sanction. The sanction having been imposed in this insistence, by law does provide for a right to appeal to a ‘Judge in Chambers’. For purposes of order made by the Commission and which are lodged with the Registrar, it is imperative that there should be a definition of ethos that Judge in Chambers is. This is especially when it comes to appeals because surely one cannot appeal against a ‘judgment of the High Court’ in the High Court.

“In the final analysis and in looking at the reliefs which the appellant is seeking in its appeal, this matter cannot be before the Commercial Court and it must be referred back to the General Division for appropriate action,” reads part of the ruling.

Announcing the fine, CFTC acting Executive Director, Apoche Itimu said Airtel Malawi failed to pay KhetheKhethe bonuses to deserving consumers who reached a minimum of K1,000 threshold for voice calls.

Itimu said the commission made investigations following complaints, partly alleging that Airtel stopped crediting customers automatically but required them to redeem the bonuses on 14 every month.

“Consequently, customers, who for no reason or another did not redeem their bonuses, had it forfeited,” Itimu said at a press briefing in Lilongwe.

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