Communications minister Ivy Matsepe-Casaburri has been accused of dragging her feet with respect to the appeal lodged by her ministry against the High Court ruling in favour of value-added network services (VANS) having the right to self-provide.
On Friday, 19 September, the Ministry of Communications issued a statement saying it would appeal the 29 August ruling handed down by acting High Court judge Dennis Davis that VANS have the right to self-provide, or build their own networks.
This means they have the right to receive individual-electronic communications licences (i-ECNS) in terms of the Electronic Communications Act.
Altech Autopage originally brought the application and telecommunications regulator, the Independent Communications Authority of SA (ICASA), did not oppose the ruling.
However, ICASA has taken the view that the appeal has automatically suspended the licence conversion process. It now refuses to hand over i-ECNS licences to applicants who were not licensed public telephone switched network service operators, as defined in the old Telecommunications Act.
No go
This means the industry is not able to go ahead with planned investments to develop infrastructure that would likely bring down the domestic cost of telecoms by increasing competition against the established operators, such as Telkom, Vodacom, MTN, Cell C and Neotel.
“It has been incredibly frustrating for us to have to wait again,” says Siyabonga Madyibi, senior regulatory officer for Internet Solutions, one of the companies investing in infrastructure in the hopes it will receive an i-ECNS licence.
However, since indicating the appeal had been lodged, the ministry has not asked for a date or a judge to be appointed to hear the appeal.
Because of this, Altech has approached the judge president of the High Court in order to push the issue and get a court date as soon as possible.
“We have been told that acting judge Davis will be re-appointed to hear the appeal and that we should contact the state's senior counsel over a date,” says Tyrone Reis, Altech's group legal manager.
In terms of the normal process when an appeal is lodged, the judge who made the initial ruling decides whether another judge may have found differently. If the judge decides this is not the case and rejects the appeal, then the plaintiff has the right to petition the Supreme Court of Appeal, where a number of judges sit behind closed doors and deliberate the merits of the case. No new evidence is presented.
Legal tactic
The legal waiting game is a tactic that has been used in the past when government has had to find a way to change a ruling it does not like, say lawyers who are not directly involved in the case.
“The minister has indicated she wants the law to be changed and the longer it takes for the appeal to be heard, the better chance she has of then going to the court and saying that events have overtaken the matter as the law has been changed and the court no longer has to hear the matter,” one lawyer says.
Another says: “This is really a case of dragging one's feet so that the status quo will remain.”
David Jarvis, founder and executive director of telecommunication utility Uninet, says: “It is business as usual for us. We don't believe that our right to self-provide has been tested and we will continue to operate as we have been for the last four or five years.”
Uninet has set up telecoms services in Knysna using that municipality's operating licence.
The Department of Communications had not responded to queries at the time of publication.
Related stories:
Ivy derails conversion process
DG allegedly drives VANS appeal
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