Communications minister Ivy Matsepe-Casaburri has lodged an urgent interdict with the Johannesburg High Court against the Independent Communications Authority of SA (ICASA) and Altech, to prevent the latter from gaining an electronic communications network services licence.
Papers were filed on Friday and the two respondents had until 10am this morning to reply with their own affidavits. The minister wants the interdict to be heard by 28 October.
This is an unusual step for Matsepe-Casaburri, as it is the first time under the present constitution that a ministry has taken an independent regulator to court.
Matsepe-Casaburri wants the court to declare ICASA may not issue Altech with an individual-electronic communications network service (i-ECNS) licence while she appeals another High Court judgment that found the communications group was entitled to such a licence.
She states that if every value-added network service operator were to be issued an ECNS licence, it would devalue the licence held by Neotel. The second national operator paid R100 million for its licence.
While ICASA opted not to appeal that judgment, Matsepe-Casaburri decided she had to appeal, otherwise it places the policy of “managed liberalisation” in jeopardy. She also claims the judgment blurs the lines between the executive and the judicial arms of government.
“This means the issue has now become a bare-knuckle fight,” says Dominic Cull, a lawyer with Elllipsis. Cull, while not directly involved in this matter, has represented the Wireless Applications Providers Association in a similar motion against Matsepe-Casaburri.
Not ICASA's fight
ICASA spokesperson Sekgoela Sekgoela says the regulator would not oppose the minister's urgent appeal, because she is asking for clarification on whether ICASA can go ahead and issue i-ECNS licences to value-added network services.
“This is not really our fight. If the High Court orders that, while the minister's appeal is being heard that we must issue licences, then we will have to do so. If the court says the judgment of the earlier decision is suspended, then we have to stop the conversion process,” he says.
Matsepe-Casaburri states in her affidavit that Altech has written a letter to ICASA saying it is still entitled to its licence, even though she is appealing the initial judgment.
Altech CEO Craig Venter has gone on record saying he believes his group is entitled to the licence, even though there is an appeal.
Tyrone Reis, Altech's group legal manager, says: “We are concerned that ICASA could be forced to stop issuing the licence and we are preparing our papers.”
He notes that the minister's intentions were made clear in the press release she issued on 19 September. In the release, Matsepe-Casaburri stated she wanted the licence conversion process stopped and that she would institute a process of amending the Electronic Communications Act.
Crisp intentions
Lawyers say it is a well known legal tactic by government to appeal a court ruling it does not like and then amend the affected legislation in the hopes it is passed before the issue can be finalised, and then say the courts do not have to rule as circumstances have overtaken the matter.
The leave to appeal the September High Court ruling, which found in favour of Altech's stance that value-added network services be allowed to build their own networks, is set to be heard in the Pretoria High Court, on 30 October.
Suzanne Vos, communications spokesperson for the Inkatha Freedom Party, says the latest turn of events shows the minister must detail what she actually means by “managed liberalisation”.
“For too long this so-called policy has left us with high telecommunications costs and now she must crisply state what her intentions are,” she says.
For the full text of Matsepe-Casaburri's affidavit, click here.
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