Ivy 'well advised to lay off'

By Paul Vecchiatto, ITWeb Cape Town correspondent

Cape Town, 07 Nov 2008

Communications minister Ivy Matsepe-Casaburri would be well advised to cease her legal challenges against Altech getting an electronic communications network service (ECNS) licence, says Altech CEO Craig Venter.

Yesterday, a second High Court ruled in Altech's favour and upheld the right of value-added network service providers (VANs) to obtain ECNS licences and so self-provide, or build their own networks.

The latest ruling followed an urgent application made by the minister last month to stop the regulator, the Independent Communications Authority of SA (ICASA), from issuing ECNS licences to VANs. It was also due to an overall legal strategy of attempting to overturn an initial ruling of the same effect by a different judge.

“We have been vindicated three times in a row,” Venter says. “We sincerely hope the minister of communications is advised not to carry out this fight any further, and allows the industry and its regulator to get on with the business of lowering the South African consumer's telecommunications tariffs.”

Venter says the cost of the legal fights has already meant taxpayers' money - between R3 million to R4 million - has been spent in what has turned out to be fruitless legal challenges by the minister.

Protection game

He says if it were not for Altech originally challenging the minister's stance that the South African telecommunications sector was in danger of being completely dominated by only two companies, it would have been a severe constraint on the growth of the sector and the country's gross domestic product.

Venter refused to say which companies these are; however, he did point out that Matsepe-Casaburri's challenges appeared to focus on protecting incumbent Telkom. Government owns 39.42% of Telkom's shares and has the right to appoint board members.

“I won't confirm or deny that Altech is looking at building its own telecommunications network; that is a strategic decision for the board to take. However, our stand that VANs are allowed to self-provide was a principled one and not an easy decision for a listed company to take,” he says.

Altech has already written to ICASA asking for its licence, as ruled by the court yesterday, and is expecting it to be issued soon. However, it is unclear when the company will actually receive its licence, because the ICASA council is only due to meet on Tuesday. The normal procedure is for the council to ensure it understands the court's ruling completely before acting.

Broken arrows

Matsepe-Casaburri's last legal hope, petitioning the Supreme Court of Appeal, appears to have a limited chance of being heard, never mind actually succeeding, Venter says.

“Two different courts have presented emphatic rulings about the issue and the chances of the minister's appeal to be heard are virtually nil,” he says.

Other arrows in Matsepe-Casaburri's legal quiver also seem to be blunted. She had expressed her intention of having the Electronic Communications Act amended to clear up the “ambiguity” of the licences. However, with the end of the parliamentary year looming and the fact that politicians' attention will be focused on the run up to next year's general elections, this seems to be a distant prospect.

Venter has also dismissed chances of anyone filing a legal action challenging ICASA's competency or right in terms of the regulator's governing Act, or the Electronic Communications Act, to make regulations.

“If someone does press such a legal challenge, and even if it does succeed, it means that every regulation that ICASA has passed over the past 10 years or so is void. And they are the ones who licensed Neotel (the second national operator), and that would be a situation that would really be absurd,” he says.