Minister argues interference vs concern in cell case

Johannesburg, 20 Jul 2000

Advocates acting for the department of communications and communications minister Ivy Matsepe-Casaburri today defended the minister's involvement in the South African Telecommunications Regulatory Authority (SATRA). It was not executive interference as claimed by Nextcom, SC Essop Patel told the court, it was simply the minister doing her job.

Involvement by Matsepe-Casaburri, he said, started only after an inconclusive report by the Auditor General, which cast doubt on the independence of SATRA councillors. "We submit that before the report neither the minister nor the President's office was involved in the process," he told presiding judge Nico Coetzee.

Nextcom, the consortium backed by Hong Kong based Distacom, has filed for an interdict to prevent Matsepe-Casaburri from making a decision on the award of the licence, citing executive interference and a failure by SATRA to apply its collective mind as proof that the process is flawed. Nextcom intends to ask for a full judicial review of the selection that led to SATRA's recommendation of rival Cell C.

The Auditor General report caused legitimate concern with the minister, Patel said, as she has a constitutional duty to maintain high ethical standards in the ranks of the regulator.

"The minister's concern was well place and can not be characterised as executive interference," he said. "The ministerial concern was, in fact, intended to ensure the independence of SATRA."

He described the action by Nextcom as "disingenuous", and said the consortium was up to mischief.

Patel holds that the minister need not "rubber-stamp" the SATRA recommendation of Cell C, but could award the licence to any applicant or consortium of her choice. "From the minister's point of view, if she had any improper motive to interfere she could easily have waited," he said. "The path of the process comes to her, she could have waited for all the material to come to her and then do whatever she wanted."

Maepa's summersault

He also joined council for Cell C and SATRA itself in condemning former SATRA chairman Nape Maepa for his various affidavits, on which much of Nextcom's case rested. Maepa, Patel said, is part of a plot to discredit the minister and the president's office, and that seeks to frustrate the bid process. "He makes a summersault a few days before the Nextcom motion is filed," Patel said, and suggested that Maepa could have turned to either the minister or the Public Protector for help, instead of making use of Nextcom legal help to compile affidavits.

In response to the department and earlier submissions by Cell C and SATRA, Nextcom council Cassie Badenhorst said Nextcom had reason to ask for an interdict to prevent a decision, as it believes the minister is only entitled to accept or reject the SATRA recommendation, not to award the licence to any other contender.

Badenhorst came to the defence of Nape Maepa, calling attacks on his credibility "animated" and "hysterical", but without factual basis. Maepa did not change his mind on executive interference, Badenhorst contended, but was polite about the pressure on him to recuse himself from the process at the time.

He also rejected any suggestion by Patel that Nextcom had sought to show that the minister had tried to sway SATRA's decision. "Nowhere is there a suggestion of impropriety on the part of the minister," he said, arguing that any interference, even with good intentions, was enough to make the selection unlawful.

Telia/Telenor, the eighth respondent in the case, chose not to make any submissions to the court, saying there had been no argument that its bid had been unlawful, and that it therefore had nothing to defend. Telia/Telenor ranked second in SATRA's initial analysis of the bids, ahead of Nextcom.

The hearing is expected to conclude on Friday with final submissions by Nextcom.