The council of the South African Telecommunications Regulatory Authority (SATRA) has resolved to reinstate the interconnection guidelines published in the Government Gazette in March. The move is a slap in the face for communications minister Ivy Matsepe-Casaburri, who in April attempted to withdraw the regulations, illegally according to SATRA.
"They had two choices: either ignore the minister or take her to court. I think they made a very brave choice."
A telecommunications lawyer who wished not to be named
SATRA believes the withdrawal notice the minister published was ultra vires, outside the law and beyond her powers. Telecommunications legal experts agree.
"Under the Telecommunications Act such regulations cannot be withdrawn once they are published, not even by SATRA," an expert says. "The minister exercised her power by publishing [the regulations] and that power is now exhausted."
The interconnect and facility leasing guidelines lay down the rules that would force all network operators to allow connections between their networks and provide a framework for the leasing of facilities such as data lines. It is widely seen as a measure to control large telecommunications companies, specifically Telkom, and force fair play among all involved in the field after deregulation.
SATRA called the guidelines a coup and Mike van den Bergh, chairman of the South African Value-Added Networks Service Association, described it as a "good document".
Matsepe-Casaburri was less impressed and published a notice withdrawing the guidelines in April. There had been a misunderstanding, she explained. The ministry had believed the guidelines were compiled after public input, but apparently there had been no such process and SATRA had to start from scratch.
Andile Ngcaba, director general of the department of communications, subsequently said that the guidelines had been withdrawn as SATRA was on the point of a merger with the Independent Broadcast Authority and it "would not make sense" to release regulations shortly before a new regulator was established.
During a conference in May, SATRA chairman Nape Maepa implied that owning Telkom had pressured the government to make the regulator impotent. The government retains the majority shareholding in Telkom and Telkom's business would be affected by the guidelines.
"It is almost as if the PSTN [public switched telephone network or Telkom] and government see SATRA as a mistake," he lashed out. "Not that I am saying this is the case."
A telecommunications lawyer who wishes not to be named says the principal of administrative justice forces SATRA to apply the guidelines, or face court action by industry players. Regulations can only be withdrawn if the minister approves a withdrawal notice by SATRA, but she cannot do so unilaterally. Because they are not validly withdrawn, the lawyer says, the industry has a right to expect the guidelines to be applied and can sue SATRA if it does not do so.
"They had two choices: either ignore the minister or take her to court," the lawyer says. "I think they made a very brave choice."
The ministry and department of communications could not immediately be reached for comment.
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