The hearing on the Nextcom application for an interdict to prevent communications minister Ivy Matsepe-Casaburri from awarding the third cellular licence ended today.
Presiding judge Nico Coetzee would make no promises on when he would deliver judgement, saying only that it would be before 16:00 on Friday 28 July.
The day was highlighted by argument by council for Nextcom that Matsepe-Casaburri does not have a free hand in awarding the licence, as claimed by the Department of Communications and the SA Telecommunications Regulatory Authority (SATRA).
SATRA and the department during the week said that Matsepe-Casaburri could accept the SATRA recommendation to grant the licence to the Cell C consortium, could reject the recommendation out of hand, could refuse to act and refer the decision back to SATRA or could grant the licence to any group of her choosing, regardless of their status in the bidding process.
Nextcom says the latter two options are not legally open to the minister.
"The minister thinks she has these powers, but she is mistaken," junior council for Nextcom Derek Spitz told the court. "She cannot act as if she were a court of review."
Spitz said the Telecommunications Act allows the minister to reject or accept the recommendation, but not to grant the licence out of hand or to refer the matter back to the Independent Communications Authority of SA (ICASA), which has assumed the powers of SATRA.
"There is no power whatsoever that would allow the minister to do that," he said. "It is simply not there. It is there for a very good reason. It is an absurdity."
Spitz argued that such power would allow the minister to grant the licence to a consortium that had not taken part in the SATRA selection process, which would "make a nonsense" of the process that cost Nextcom more than R20 million. It is not the intention of the Act to negate the power SATRA holds, he said.
SATRA council earlier this week said that the Nextcom application was baseless, as the SATRA decision alone could not remove any bidder from the process and that the race was still open to all. Nextcom says the decision has already deprived it a spot in the finals, and that only a full judicial review of the entire process will open the field to all the applicants again.
Judge Coetzee, in a hypothetical question, noted that the lack of an interdict preventing Cell C from starting its network rollout could close the market to any third operator. If a review is granted, he said, and if such a review takes years, Cell C could gain millions of customers in the finite market. Should Cell C lose its licence on review, it could sell its business to incumbents MTN or Vodacom, in which case there would be "no customers left" for the successful bidder.
Relates stories:
Minister argues interference vs concern in cell case
SATRA slams ex-chairman
Nextcom application baseless - Cell C
Surreptitious meetings and buried reports in third cell case
Share