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Cell case goes to Constitutional Court

By Phillip de Wet, ,
Johannesburg, 23 Aug 2000

The communications ministry says it has applied to the Pretoria High Court for leave to appeal a decision that is preventing the issue of the third cellular licence.

Judge Nico Coetzee in July granted third licence bidder Nextcom an interdict preventing minister Ivy Matsepe-Casaburri from issuing the licence before a full judicial review of the process that led to the recommendation of the Cell C consortium. At the time, Matsepe-Casaburri expressed disappointment that she was being prevented from exercising her powers.

The ministry said in a statement last night that it will ask the Constitutional Court to rule on what Nextcom characterised as executive interference, but which Matsepe-Casaburri says was simply good governance. Also to be appealed is the central legal issue of whether the recommendation by the SA Telecommunications Regulatory Authority (SATRA) constitutes a decision or is simply advice.

Should the Constitutional Court agree that SATRA did not make a decision, the basis for a review of its recommendation would fall away and the review process, scheduled to start in October, could be halted.

Insiders also do not rule out the possibility that the licence could be issued immediately if the court finds that Matsepe-Casaburri was unconstitutionally interdicted.

"This does not stand in the way of the review process," says ministerial spokesman Brian Sokutu, who expects the constitutional matter to be heard in tandem with the review.

Sokutu says the appeal also serves as an attempt to restore the minister`s powers and to clarify the relationship between the judiciary and the executive. "Because of the verdict, she [the minister] is not even allowed to make up her mind on the licence issue," he says.

Sokutu could not say how long the appeal process might take, but others believe the judiciary has shown that it regards the matter as very urgent and that the matter could be concluded before the end of the year.

The review case will be before court in early October.

Cell C, recommended by SATRA as the preferred bidder, said it would like to see the review and appeal run in tandem. "Cell C would like to see the process concluded as speedily as possible," says spokesman Zwelakhe Mankazana. "But we have always maintained that the minister has acted both within her right and her duty in the whole process."

Nextcom could not immediately be reached for comment, but CEO Bushy Kelobonye was quoted as saying there were no grounds for the appeal.

Related stories:
Casaburri disappointed, Nextcom confident
Casaburri not out of loop, says comms department

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