A recent High Court judgement has declared that access to essential network infrastructure is vital to ensure competition in the telecommunications space that ultimately stimulates investment and ensures a level playing field.
The decision, delivered by the High Court at the end of July this year, also directly benefits consumers with more choice and better-quality services.
The High Court delivered the judgment on 31 July 2025 regarding the tripartite lease agreement emanating from June 2012 between MTC, Telecom Namibia and NamPower.
The court ruled that clause 3.2 of the agreement, the automatic renewal clause, was invalid under Regulation 17(2)(b) of the Infrastructure Sharing Regulations and thus confirmed that the agreement legally terminated on 31 May 2022 when its 10-year term expired.
“This judgment provides clarity on the application of Namibia’s Infrastructure Sharing Regulations. It affirms that exclusive agreements for access to essential facilities, such as fibre networks, are not permissible. Such exclusivity undermines competition and prevents other licensed operators from gaining fair access to critical infrastructure, contrary to the principles of fairness, non-discrimination and open access.
“The ruling ensures that operators seeking access to infrastructure are accommodated on equitable terms. This will stimulate investment, accelerate the deployment of broadband and next-generation technologies, and expand coverage into underserved areas. Consumers will benefit directly from greater choice, improved service quality and more affordable connectivity” stated Emilia Nghikembua, CEO of the Communications Regulatory Authority of Namibia (Cran).
Infrastructure sharing is critical to Namibia’s digital transformation agenda.
By reducing duplication and lowering costs, it accelerates the rollout of broadband and mobile networks.
Sharing also improves the quality of service by enabling broader coverage, better reliability and faster deployment of new technologies such as 4G and 5G.
Importantly, it enhances access and affordability, ensuring that consumers benefit from lower prices, wider service availability and improved connectivity in both urban and rural areas.
In a statement issued this week, Cran added that, ultimately, the judgment strengthens Namibia’s digital ecosystem and supports the country’s national digital transformation and economic development goals.
It also reinforces Cran’s mandate to promote competition, ensure equitable access and advance the growth of a dynamic and inclusive digital economy.
Cran plays a central role in ensuring fair and transparent infrastructure sharing in the telecommunications sector.
Sections 48 and 50 of the Communications Act, 2009 (Act No. 8 of 2009) empower the authority to mandate infrastructure sharing among carriers, broadcasters and utilities.
These provisions require all operators to share passive infrastructure, such as towers, ducts and poles.
Dominant operators are further obliged to provide access to active infrastructure such as antennas, base stations and transmission links.
Cran enforces these provisions by issuing regulations, monitoring compliance and resolving disputes to ensure that infrastructure sharing is conducted on reasonable and non-discriminatory terms.
In 2012, NamPower, MTC and Telecom Namibia entered into a tripartite agreement for the lease of NamPower’s dark fibre for telecommunications services.
This agreement granted MTC and Telecom exclusive access to NamPower’s fibre and included an automatic renewal clause that perpetually extended the agreement.
In 2022, Cran received a complaint from MTN Business challenging the legality of the agreement.
Cran intervened by declaring the exclusivity and automatic renewal provisions void, refusing to recognise the continuation of the agreement beyond its initial term.
The agreement entrenched dominance and undermined consumer welfare by restricting competition, delaying infrastructure rollout and limiting affordable access.
Cran declared the agreement void under Regulation 17(2)(b) of the Infrastructure Sharing Regulations, 2016.
MTC and Telecom Namibia challenged Cran’s decision before the High Court, alleging procedural unfairness and disputing the validity of Regulation 17(2)(b).
Cran filed a counterapplication, seeking confirmation that the automatic renewal clause was void and that the agreement had legally ended on 31 May 2022.
“Through this intervention, Cran acted to uphold the integrity of Namibia’s regulatory framework, safeguard consumer interests and promote fair competition by ensuring that access to fibre infrastructure is governed by openness and non-discrimination,” the authority stated.