Cell C today replied to the application brought by Nextcom for an interdict to prevent communications minister Ivy Matsepe-Casaburri from making a final decision on the third cellular licence.
Nextcom has brought the action as prelude to requesting a full judicial review of the selection process, which it says has been deeply flawed.
Council for Cell C told High Court judge Nico Coetzee that Nextcom has "poisoned" court papers with hearsay evidence on one hand, and on the other is relying on affidavits by former South African Telecommunications Regulatory Authority (SATRA) chairman Nape Maepa that show a "suspicious commonality of purpose".
"There is no substance to the two pillars of Nextcom`s application," advocate Chris Loxton told the court.
Nextcom last week argued that it had reasonable grounds to suspect that Matsepe-Casaburri had illegitimately interfered in the SATRA selection process. The consortium also said SATRA had been shown not to have applied its collective mind to the process because it had ignored various expert reports commissioned to help in the selection.
Loxton says the argument of executive interference rests entirely on affidavits by Maepa, whom he has sought to discredit as witness. "Mr Maepa`s recollection of executive interference seems to grow more vivid as time passes," said Loxton. Cell C alleges that Maepa compiled his three affidavits with legal help from Nextcom under suspicious circumstances, and that Maepa`s statements clearly back the Nextcom case. Loxton says earlier documents by Maepa on the matter do not show evidence of executive interference, but that his viewpoint apparently changed when Nextcom initiated legal action.
Cell C has also dismissed the matter of consultant reports, saying that Nextcom had not seen it fit to presented these documents to the court, with the exception of selective quotes, and that such arguments are therefore baseless. Instead, says Loxton, Nextcom has chosen to rely on newspaper stories about the reports, which he claims is inadmissible as hearsay evidence.
In fact, Cell C argued, selective leaks have been made to the press with the exact purpose of producing statements that Nextcom could use in court papers, suggesting a lengthy and continuous manipulation of the media.
"This sort of smear tactic is really quite professional," Loxton told the court. "It looks very similar to other professional attempts to discredit a certain point of view [through the media]." By quoting such reports in court papers, he said, Nextcom has tried to establish subliminally that it should receive the licence and that it would be a travesty if any other bidder were selected.
The hearing is to continue tomorrow with further argument from Cell C. A ruling on the interdict is expected this week.
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