Feelings of elation, vindication and disappointment that it has taken so long greeted the High Court ruling that value-added network services (VANS) are allowed to build their own telecommunications networks.
"My feeling is one of total vindication," says Uninet director David Jarvis, founder of the low-cost WiFi communications provider that has faced a nine-year uphill battle to build its own networks.
On Friday, the Transvaal Division of the High Court ruled in favour of an urgent application brought by Altech Autopage Cellular on the question of whether VANS are allowed to self-provide (build their own networks or lease these facilities from companies such as Telkom).
Dogged opposition
Communications minister Ivy Matsepe-Casaburri has doggedly opposed this concept since her ministerial declarations of September 2004.
The Independent Communications Authority of SA (ICASA) originally interpreted the determinations as saying VANS were allowed to self-provide. But this was never published in the Government Gazette, and Matsepe-Casaburri effectively overturned that interpretation via a press release in January 2005, saying it was not her intention that VANS self-provide.
"It is declared that the applicant [Altech Autopage] was entitled to self-provide its own telecommunications facilities from 1 February 2005," acting judge AJ Davis wrote in his judgment.
He also ruled in favour of Altech Autopage that Matsepe-Casaburri had exceeded her powers by directing ICASA to examine whether selected VANS could receive Independent-Electronic Communications Network Services (I-ECNS) licences - the licence that allows the holder to build a telecommunications network.
Davis also said Altech Autopage's application was in line with the Promotion of the Administrative Justice Act, in terms of pointing out that ICASA's licence conversion process was illegal. Finally, he awarded costs to Altech Autopage.
Altech's flack
Altech CEO Craig Venter says the court's decision shows the company was right in pursuing its standpoint that the conversion process was only going to favour some companies and that it would continue the trend of keeping the market dominated by a few companies.
"There were a select few, who were unfairly selected and, while we came in for a lot of flack for bringing this application, we have been shown to be right," he says.
Venter would not be drawn into commenting on when, or if, Altech would develop its own network, but pointed to the fact that Autopage had one million subscribers and a further 500 000 were housed in the group's Tracker division.
"We have always had local ambitions," he says.
Siyabonga Madyibi, head of regulatory affairs at Altech Autopage, says the court's decision shows the ministry and ICASA are out of touch with the spirit of the market.
"We are delighted at the outcome. It will be a landmark judgment. At the end the day, only a few companies will be able to build their own national telecommunications networks, because of the cost, but it means that small players will be able to develop niche markets that the larger companies will not go for," he says.
Hooray for the High Court
Madyibi says ICASA must now concentrate on asymmetrical pricing - where the larger company pays more than the smaller rival - for interconnection between the large telcos and the smaller players to ensure that fairness prevails.
"It is a pity that we have wasted three years. The market would have been on a different level if this point had been sorted out earlier. It has potentially put the country behind on its preparations for the 2010 World Cup," he says.
Madyibi says the ruling is timely because ICASA has until the end of January to convert the licences from the old Telecommunications Act to the stipulations of its replacement the Electronic Communications Act, and all those entitled to them will be done at the same time.
The only political party to react to the ruling was the Democratic Alliance (DA), whose communications spokesperson Dene Smuts says: "Hooray for the High Court for upholding the law. The law says we liberalise and it should never have been necessary for anyone to go to court. May we hope that the minister and her department will get out of the way and stop frustrating the will of the legislators."
Implement now
Alan Levin, COO of ISP Vanilla and a prominent Internet activist, says: "The ruling has restored my belief in the justice system. Now with this under our belts, we can get down to the real business of bridging the digital divide."
ICASA spokesman Sekgoela Sekgoela says: "The authority has learnt of the High Court ruling in favour of Altech. We are studying the contents of the judgment in order to chart a way forward."
Matsepe-Casaburri's spokesman, Joe Makhafola, says: "We [the Department of Communications] note the ruling and we are studying the contents of the judgment."
Paul Swart, another DA communications committee member, says: "The DOC and ICASA must implement the ruling now. There is a tendency by government departments to have a go slow when a ruling goes against them."
Related stories:
VANs go without
High legal fees deter court participation
VANS were never allowed to self-provide - Ivy
ICASA, Altech await judgement
Autopage takes ICASA, DOC to court
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