Council for the South African Telecommunications Regulatory Authority (SATRA) and its new guise as the Independent Communications Authority of SA (ICASA) yesterday agreed with Cell C on the credibility of Nape Maepa.
Advocate Vincent Maleka told the court that the former SATRA chairman is at best twisting the truth while collaborating with Nextcom.
The Nextcom consortium brought an application for an interdict to prevent communications minister Ivy Matsepe-Casaburri from making a decision on which bidder should receive the third cellular licence.
"If Maepa was independent, as is required by his office, he would not be so committed to the cause of Nextcom as to support its application with statements contrary to the facts," Maleka said. He dismissed Maepa as a witness with anything to offer, and agreed with recommended bidder Cell C that Maepa's concern of executive interference with the selection process had only emerged after Nextcom filed its application.
Both SATRA and Cell C allege that Maepa had worked with Nextcom in drafting the affidavits he submitted in the case.
Maleka rejected allegations by Maepa that the final recommendation of Cell C had not been unanimous, as announced at the time. SATRA has five affidavits from the five council members that show they supported the decision, he said, even if some of them did so with reservations.
Maepa would not respond to these or earlier allegations, saying the matter is sub judice.
SATRA repeated earlier arguments that Nextcom was not entitled to prevent the minister from making a decision, or to ask for a full judicial review of the process before a decision had been made. "The role of the court is to control the exercise of public power, not to prevent the exercise of public power," Maleka said.
He contended that Matsepe-Casaburri should be allowed to make and announce a decision before legal action is taken. ICASA, he said, must still issue the licence after the minister's decision, and the time for a judicial review would be then.
If a review is granted now, Maleka said, the third licence will never be issued. "If recommendations are reviewed, then by the end of this decade, by 2010, we will still have the matter under review."
SATRA holds that the issue of consultant reports, reportedly ignored by the body when making its decision, does not in itself prove bias in the process. Maleka said the regulator was never bound to consider the reports, especially as some consultants overstepped their brief in ranking contenders. SATRA is entitled to give its reasons for partially or completely ignoring the reports, he said, and is by rights to treat them in that way.
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