landmark high court ruling opens up sa telecoms sector

On 29 August 2008, the Transvaal Division of the High Court ruled in favour of an urgent application brought by Altech Autopage ("Altech"), ruling that value-added network service providers ("VANS") are allowed to self-provide (build their own networks or lease these facilities from companies such as Telkom).

The ruling essentially means that all network service providers may now provide their own networks instead of having to rely on the incumbents. Acting judge AJ Davis also held that Minister of Communications, Matsepe-Casaburri had exceeded her powers by directing ICASA to examine whether selected VANS could receive Independent-Electronic Communications Network Services ("I-ECNS") licences - the licence that allows the holder to build a telecommunications network. Davis also held Altech's application was in line with the Promotion of the Administrative Justice Act, stating that ICASA's licence conversion process was illegal.

This landmark ruling effectively means that the telecommunications regulator Icasa (unless it appeals the decision) would have to cast aside its competitive process for determining which VANS qualify for I-ECNS licenses under the Electronic Communications Act, and grant these to any operators that want to build their own networks.  It is still not clear whether regulator Icasa would appeal the judgment.

Webber Wentzel Newsletter, 01 September 2008