Communications minister Ivy Matsepe-Casaburri denies she has ever granted value-added network services (VANS) the right to self-provide and that any interpretation otherwise would be incorrect.
She stated this in her answering affidavit to the applications brought by Altech Autopage last month. The applications asked the Johannesburg High Court to rule that VANS are allowed to build their own infrastructure and therefore, the regulator, ICASA, must award them an individual-electronic communications network service (I-ECNS) licence.
Altech's argument goes back to the ministerial determinations of September 2004, issued under the old Telecommunications Act. These were initially interpreted as having lifted the restrictions on VANS being able to self-provide and no longer being forced to rely on Telkom for networks.
That interpretation caused ICASA to issue a set of regulations stating VANS were allowed to self-provide. But the minister never signed the regulations into effect, as she subsequently issued a media statement in January 2005 stating it was not her intention that VANS self-provide.
"Specifically I deny that I issued ministerial determinations indicating that VANS licensees would be entitled to self-provide their own telecommunications facilities with effect from 1 February 2005," Matsepe-Casaburri states in her affidavit.
She also states that her request to ICASA to consider the matter whether any, or only certain VANS, could be entitled to an I-ECNS licence, as stated in her 2007 budget speech, was necessary for the regulator to independently consider this matter. The minister adds that she still did not believe that VANS have the right to self-provide.
'Absurd situation'
The legal arguments also swirl a subsequent ministerial determination issued in September 2007, in which conditions are set for the conversion of licences from the old Telecommunications Act to the Electronic Communications Act.
Matsepe-Casaburri and ICASA admit in their affidavits that rather than having issued licence conversion requirements, an invitation to apply for such conversion should have been issued instead.
ICASA states that if all 600 licensed VANS were granted I-ECNS licences, it would lead to an absurd situation and there was not enough radio spectrum for them all to use.
Smile Communications was the only VANS that responded to the Altech application and its affidavit, signed by CEO Irene Charnley, focused heavily on the legal process.
In her statement, Charnley says 180 days as mandated by the Promotion of Administration of Justice Act to bring an application had expired and that Altech has delayed unreasonably in instituting the review.
A lawyer close to the process says reading the various statements highlights the regulatory malaise the country faces.
"The danger we have here is that we go back to where we were five years ago, or we end up in some kind of regulatory never-ending loop. A ruling by the court will be very important for the future of the industry," he says.
The Altech application is scheduled to be heard from 29 to 31 July.
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