bitch
Keep it up Ivy... we're all very much enjoying watching you prove to us what a fool you really are. Ag shamepies do you just keep trying and keep getting told no? The rest of us do this very clever thing called learning a lesson when that happens, and we stop trying. Maybe it's time you disappear.
[Cape Town | ITWeb, 6 November 2008] - The Pretoria High Court today ruled against communication minister Ivy Matsepe-Casaburri's urgent interdict against the Independent Communications Authority of SA (ICASA), to prevent it from issuing telecommunications licences to value-added network services (VANS).
The interdict was filed on behalf of the minister on 17 October, as part of a strategy to prevent Altech, and the rest of the VANS, from gaining individual-electronic communications network service (I-ECNS) licences. The licences would have given VANS the same rights to build telecommunications infrastructure as those held by incumbent operators, such as Telkom, Neotel, Vodacom, MTN and Cell C.
Lawyers say the case was heard in chambers, meaning that only the legal representatives and the judge were present.
Also granted by the court was that Altech has a right to receive its I-ECNS licence from ICASA immediately. The court ruled that the Department of Communications (DOC) has to bear the legal costs of the application for all parties.
This is now the third time in a row that the courts have struck down Matsepe-Casaburri's arguments that VANS are not allowed to self-provide, namely build their own infrastructure. The first time was when the Johannesburg High Court ruled that Altech was allowed its licence. That court then also refused the minister leave to appeal its original decision by saying it could not see any other judge ruling differently.
However, today's ruling is not the end of Matsepe-Casaburri's legal options.
“This is all turning out to be very embarrassing for the minister,” says e-lawyer Dominic Cull, who represents the Wireless Application Providers Association (WAPA).
WAPA has had a similar case against Matsepe-Casaburri, but is not directly involved in the Altech case.
“The minister has until 21 November to petition the Supreme Court of Appeal on the decision by the Johannesburg High Court. However, they had better not wait even that long as I am sure Altech is already knocking on ICASA's door for its licence,” Cull says.
A highly-placed industry source has told ITWeb that Matsepe-Casaburri is now trying to meet with justice minister Enver Surty.
“It seems as though she is really annoyed,” the source says.
No official comment has been received from Altech or the DOC; however, statements are expected later today.
- chukaman's blog
- Login or register to post comments
- Read more
Ivy loses Altech appeal
[Johannesburg, 31 October 2008] - Allied Technologies (Altech) has won yet another coup in its battle against the Department of Communications.
After two days of legal submissions at the Pretoria High Court, acting judge N Davis refused communications minister Ivy Matsepe-Casaburri the right to appeal a judgement which found in favour of Altech last month.
The judge heard the application for leave to appeal arguments from the minister and the opposing arguments from Altech yesterday, and today delivered his decision that the minister's application for leave to appeal would be refused on all points, with costs.
The initial battle
The case follows the ongoing battle between the department and the value-added network service (VANS) providers on whether the latter should be entitled to the coveted electronic communications network service (ECNS) licences.
The Transvaal Division of the High Court ruled in favour of an urgent application brought by Altech Autopage Cellular on the question of whether VANS are allowed to self-provide (build their own networks or lease these facilities from companies such as Telkom).
The initial legal action was aimed both at the Independent Communication Authority of SA and the DOC; however, only the communications minister decided to appeal the decision. The DOC lodged papers with the Johannesburg High Court on 18 October.
On 19 September, the DOC issued a statement saying it would appeal the 29 August ruling handed down by acting High Court judge Dennis Davis that VANS have the right to self-provide, or build their own networks.
Justice is delayed
Matsepe-Casaburri's actions caused much chagrin in the telecommunications industry. The application for leave to appeal meant the industry was not able to go ahead with planned investments to develop infrastructure that would likely bring down the domestic cost of telecoms by increasing competition against the established operators, such as Telkom, Vodacom, MTN, Cell C and Neotel.
“It has been incredibly frustrating for us to have to wait again,” says Siyabonga Madyibi, senior regulatory officer for Internet Solutions, one of the companies investing in infrastructure in the hopes it will receive an i-ECNS licence.
Altech CEO Craig Venter commented: “This is a powerful affirmation of our original court victory, and indicates there is little prospect of any other court coming to a different conclusion. This brings Altech, the industry and the consumer within touching distance of a level playing field and fair market competition.”
To see the full judgement, click here.
Communications minister Ivy Matsepe-Casaburri has lodged an urgent interdict with the Johannesburg High Court against the Independent Communications Authority of SA (ICASA) and Altech, to prevent the latter from gaining an electronic communications network services licence.
Papers were filed on Friday and the two respondents had until 10am this morning to reply with their own affidavits. The minister wants the interdict to be heard by 28 October.
This is an unusual step for Matsepe-Casaburri, as it is the first time under the present constitution that a ministry has taken an independent regulator to court.
Matsepe-Casaburri wants the court to declare ICASA may not issue Altech with an individual-electronic communications network service (i-ECNS) licence while she appeals another High Court judgment that found the communications group was entitled to such a licence.
She states that if every value-added network service operator were to be issued an ECNS licence, it would devalue the licence held by Neotel. The second national operator paid R100 million for its licence.
While ICASA opted not to appeal that judgment, Matsepe-Casaburri decided she had to appeal, otherwise it places the policy of “managed liberalisation” in jeopardy. She also claims the judgment blurs the lines between the executive and the judicial arms of government.
“This means the issue has now become a bare-knuckle fight,” says Dominic Cull, a lawyer with Elllipsis. Cull, while not directly involved in this matter, has represented the Wireless Applications Providers Association in a similar motion against Matsepe-Casaburri.
Not ICASA's fight
ICASA spokesperson Sekgoela Sekgoela says the regulator would not oppose the minister's urgent appeal, because she is asking for clarification on whether ICASA can go ahead and issue i-ECNS licences to value-added network services.
“This is not really our fight. If the High Court orders that, while the minister's appeal is being heard that we must issue licences, then we will have to do so. If the court says the judgment of the earlier decision is suspended, then we have to stop the conversion process,” he says.
Matsepe-Casaburri states in her affidavit that Altech has written a letter to ICASA saying it is still entitled to its licence, even though she is appealing the initial judgment.
Altech CEO Craig Venter has gone on record saying he believes his group is entitled to the licence, even though there is an appeal.
Tyrone Reis, Altech's group legal manager, says: “We are concerned that ICASA could be forced to stop issuing the licence and we are preparing our papers.”
He notes that the minister's intentions were made clear in the press release she issued on 19 September. In the release, Matsepe-Casaburri stated she wanted the licence conversion process stopped and that she would institute a process of amending the Electronic Communications Act.
Crisp intentions
Lawyers say it is a well known legal tactic by government to appeal a court ruling it does not like and then amend the affected legislation in the hopes it is passed before the issue can be finalised, and then say the courts do not have to rule as circumstances have overtaken the matter.
The leave to appeal the September High Court ruling, which found in favour of Altech's stance that value-added network services be allowed to build their own networks, is set to be heard in the Pretoria High Court, on 30 October.
Suzanne Vos, communications spokesperson for the Inkatha Freedom Party, says the latest turn of events shows the minister must detail what she actually means by “managed liberalisation”.
“For too long this so-called policy has left us with high telecommunications costs and now she must crisply state what her intentions are,” she says.
For the full text of Matsepe-Casaburri's affidavit, click here.