ICASA's Orange Farm seizure illegal?

Johannesburg, 23 Mar 2009

Independent Communications Authority of SA (ICASA) inspectors, who confiscated telecoms equipment from an Aids orphanage, an Internet cafe and a skills centre in Orange Farm last month, ignored key parts of telecommunications legislation and proper procedure.

Staff at all three sites confirmed to ITWeb last week that the inspectors arrived at each location on 13 February, stating that equipment had to be confiscated because of "interference" with a Telkom link.

Staff at the sites also say inspectors failed to provide receipts for the seized equipment on the day, instead returning three weeks later with the correct forms.

Investigations

Section 17G(7) of the ICASA Act of 2000, as amended, states that an inspector "who removes a document or thing from any premises under this section must issue a receipt to the person who is the owner or in possession or in control thereof”.

No receipts were given to anyone on 13 February, but all staff questioned remembered the inspectors returning three weeks later with the forms. Vehicle access logs at the Orange Farm Skills Centre confirm that at least one of the inspectors returned on 5 March to deliver a Seizure/Removal Receipt.

However, ICASA is adamant the processes followed were legal. “If they have queries about the way things were handled, they should bring the information to us. We cannot act unless we have all the information,” says ICASA spokesman Sekgoela Sekgoela.

The reasons for the seizure given by ICASA on the forms delivered to the Orange Farm Skills Centre and Internet caf'e, Orange Communications, make no mention of interference. Instead, ICASA inspector D Makhubu accuses Dabba of contravening the ECA Sections 7, 31, 32(i) and 35(i), essentially claiming Dabba was providing service without a licence and using unapproved equipment.

Sekgoela explains that the process of seizure started out with a complaint from Telkom. However, the complaint escalated into an investigation, once it was discovered that the equipment was not type-approved. “We then found out that Dabba does not have an electronic communications network services licence [ECNS],” he adds.

Licence confusion

According to Dabba MD Rael Lissoos, Dabba has a valid ECNS licence under the name Magnolia Wireless, and has been legally providing services with type-approved equipment from Miro and Cisco for over eight months. Dabba's lawyer, Dominic Cull, says as he understood it, ICASA is saying the licence is in the name of Magnolia Wireless, and there was no reference to Dabba Telecom thereon.

"This has caused the confusion, which is probably understandable, but could have been very easily cleared up," says Cull. Lissoos is yet to receive any formal notification as to why his company's equipment was confiscated.

Sekgoela notes the equipment and network should have been built under the correct company name. He explains that even a shareholder in a company with a licence must use the licensed company name in the implementation of a network. “As it stands, the company, Dabba, does not have a licence.”

Hands tied

The ICASA inspector also gave as reasons for the confiscation under the Radio Frequency License Exemption Regulations and the Regulations in Respect of Labelling of Telecoms Equipment. The forms were backdated to 13 February, despite having been delivered three weeks later.

"The guy turned up again on 5 March, delivered the receipt and made me sign it," said Aubrey Cwathi, head of IT at the Orange Farm Skills Centre. "It was only later that I realised it was backdated to 13 February."

The security guard at the front gate confirmed Cwathi's story, recalling the inspector had had to look at his previous log entries to confirm the date of the original seizure.

Sekgoela explains that ICASA cannot comment on the processes that were followed by the inspectors, since the parties involved have not brought a complaint to ICASA. “They should bring the complaint to us and we can then decide whether the inspectors followed the proper process. Until we have that information, we can't comment.”