The department of communications says communications minister Ivy Matsepe-Casaburri will on Friday argue against an interdict preventing her from issuing the third cellular licence.
The interdict application by the Nextcom consortium is piece-meal, premature and is causing irreparable damage to the South African economy, the department says.
"It is both presumptuous and speculative for the applicant to seek an interdict preventing me, after the lapsing of the full five-day period, from acting on the final recommendation of the second respondent (SATRA)," Matsepe-Casaburri says in a statement. "There is no factual basis for the applicant to presume and speculate that I will act on the final recommendation of the second respondent."
Nextcom was awarded an interdict in April that forces the minister to delay the issue of the licence by at least five days after a recommendation is made. That period has since been lengthened to Friday, when argument for and against a longer-term interdict will be heard in Pretoria.
The minister is expected to affirm the choice of the South African Telecommunications Regulatory Authority (SATRA), but has the option to reject its recommendation. Matsepe-Casaburri says she is applying her mind on the "several options" open to her.
"The proper procedural course for the applicant (Nextcom) would be to seek appropriate relief in due course once I have made a determination," she says.
Nextcom CEO Bushy Kelobonye says that was not an option his consortium ever considered. "We don`t want a situation where the minister acts on information from SATRA which is tainted," he notes. "She says we must wait for her determination. On what will she make her determination? The process and information are flawed."
Kelobonye is confident that Nextcom will be able to produce enough proof that the selection process was inconsistent to convince High Court Judge Nico Coetzee to grant a long-term interdict and, eventually, a full judicial review.
Matsepe-Casaburri says the delay in issuing the licence is adversely affecting SA as a preferred investment destination, a sentiment she shares with recommended consortium Cell C. "The determining and awarding of the third cellular licence is a matter of serious economic consideration for the South African government," she says.
A full judicial review could last between six months and one year, experts say.
Ministerial spokesman Brian Sokutu has confirmed that Matsepe-Casaburri has consulted with finance minister Trevor Manuel, department of trade and industry minister Alec Erwin and public enterprises minister Jeff Radebe on her decision. "But the decision finally comes down to the communications minister," he says, although she is sure to take into consideration the opinions of the financial experts in cabinet.
Nextcom argues that it has a patriotic duty to challenge the decision, and also cites foreign investment as a reason for its action. "There is not more than one foreign investor that will be happy to recommend SA as an investment destination [after this process]," Nextcom director Anthony Glass said earlier this month.
The Telia/Telenor consortium is said to be evaluating its options on legal action, but for the time being seems content to let Nextcom lead the battle. Telia/Telenor is expected to start its own court challenge should Nextcom fail. Sources say it has become a matter of pride for the Norwegian companies not to lose the licence to Saudi-backed Cell C.
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