The Pretoria High Court has dismissed the urgent interdict application by certain Value Added Network Service (VANS) providers. The applicants were seeking relief from a Telkom decision to withhold additional services from VANS refusing to make certain written commitments.
Mr Acting Justice Nick Coetzee ruled that the court was not competent to judge the issue, and referred the matter back to the South African Telecommunications Regulatory Authority (SATRA). A SATRA investigation is pending, and the court ruled that the regulator first had to complete its inquiry.
But according to Telkom the SATRA investigation can only start once another legal dispute between the two parties has been settled. Telkom has applied to the court to set aside an earlier SATRA section 53 determination that ordered the company to refrain from "making statements to VANS customers regarding the legal status of VANS operators". That application is still pending, with no date as yet set for a hearing.
The legal tangle centres around Telkom`s exclusivity. The company says certain VANS are operating in a way that infringes on its monopoly, and Telkom CEO Sizwe Nxasana recently estimated that his company may be losing as much as R1 billion per year to "illegal services".
Bypassing
Telkom argues that private company telecommunications networks are being used to bypass the public infrastructure. "A call that originates in the public network may not be passed into a private network and back into the public network," says Gabriele Celli, Telkom executive in charge of regulatory relations. The company says such bypassing is illegal, and that VANS and Virtual Private Networks (VPNs) do exactly that.
VANS filed a complaint with the SATRA, asking the regulator to restrain Telkom from implying that their services are illegal. SATRA issued its determination, but Telkom is opposing it in court on the grounds that it shows bias against the company.
The ruling did not, however, prevent Telkom from refusing existing VANS further services. The Value Added providers are dependent on Telkom for many of its services, and say they cannot conduct their business if requests for new lines are refused. And that is exactly what Telkom is doing. Unless VANS operators enter into a Telkom contract that states that they will not provide illegal services, Telkom is refusing any requests for additional services.
Many VANS operators refused to sign such agreements, and filed the application in question with the High Court. With the recent ruling, the matter must now once again go before SATRA, from where further legal action can be taken.
Mike van den Bergh, chairman of the South African Value Added Networks Service Providers Association, known as SAVA, has expressed his disappointment in the ruling. "The court application was intended to provide SAVA members with interim relief until such time as SATRA makes its ruling."
He says that Telkom is gaining an unfair advantage over its VANS competitors while the legal process takes its course. "While SATRA`s investigation is underway, Telkom continues to refuse to provide new facilities to private VANS. Some have not received any new facilities from Telkom since July."
Telkom has welcomed the ruling, and reiterated that existing services will not be cut while the matter is in dispute.
SATRA, on which all attention is now focused, has yet to respond to the ruling.
Related stories:
SATRA, Telkom, SAVA battle hots up (15 September)
Tough times for Telkom, VPNs suffer too (14 September)
Telkom`s exclusivity: A matter of interpretation? (25 August)
Share