Surreptitious meetings and buried reports in third cell case

Johannesburg, 14 Jul 2000

The application for a final interdict to prevent communications minister Ivy Matsepe-Casaburri from issuing the third cellular licence is to continue on Tuesday, after argument by applicant Nextcom dominated the hearing on Friday.

Nextcom has turned to the High Court in a bid to prevent the minister from making a final decision on the winning cellular consortium, a bid Matsepe-Casaburri is opposing. Nextcom intends to apply for a full judicial review of the process that saw Saudi-backed Cell C being recommended as the preferred bidder.

Nextcom council on Friday argued that executive interference by Matsepe-Casaburri and the office of the President influenced the South African Telecommunications Regulatory Authority (SATRA) to recommend Cell C as its preferred bidder. Nextcom also says SATRA failed to apply its collective mind the choice.

A newspaper report submitted by Cell C council led presiding judge Nico Coetzee to request the media to report accurately on events in the case, and he also cautioned participants to comment accurately and with caution when speaking to the press. The report inaccurately described an interdict granted to Nextcom, when in fact the hearing was postponed.

Various media reports have been submitted as hearsay evidence in the application.

Nextcom led the court through evidence of surreptitious midnight meetings, buried or ignored reports and unlikely chance encounters between SATRA councillors and bidders. The consortium contends that there is enough hard and hearsay evidence of such irregularities to cause concern about the selection process and that the minister should be prevented from acting on tainted information.

Among other contested facts is the report that the decision to recommend Cell C was taken unanimously by the SATRA council. Nextcom says one councillor did not sign the recommendation and another did so only as indication of the majority decision while opposing it.

Another issue raised was the withdrawal of SATRA chairman Nape Maepa from the selection process. Nextcom argued that his withdrawal was voluntary, but only after undue pressure from the minister and the President. Had he not been forced to recuse himself, the consortium says, the final recommendation decision could have been tied in a three-to-three split.

Maepa has submitted three affidavits in the case.

The minister and her legal team has asked the court to strike the matter on the grounds that the legal process has not been completed until Matsepe-Casaburri has taken and announced a decision, saying it is premature for Nextcom to assume that Cell C will emerge as winner. Nextcom, however, says the SATRA recommendation and the ministerial decision are separate processes, with the latter depending on the former. No decision can be made, it says, before a valid final recommendation is presented to the minister.

The consortium says the newly formed SATRA successor, the Independent Communications Authority of South Africa (ICASA), can give such a recommendation, based on the same information supplied to SATRA. The only SATRA councillor appointed to the ICASA board is William Currie, who is linked by Nextcom to selection irregularities.

Experts say a full judicial review, if granted, could last between three months and one year. At least one bidder does not expect an outcome of the licence saga before early next year.

The hearing is to continue on Tuesday, with evidence from more evidence from Nextcom and submissions by Cell C and the department of communications expected.