Johannesburg - The jury is still out on the chance of success for Communications Minister Ivy Matsepe-Casaburri's appeal against the Altech Autopage High Court ruling on the right of telecommunications companies to build the own networks and not have to use Telkom, Neotel or other infrastructure providers.
Carla Raffinetti, a director for corporate and commercial at Edward Nathan Sonnenbergs Attorneys, says the minister's application for leave to appeal effectively suspends the Altech judgment, but it is by no means certain that this will be granted.
The Pretoria High Court - in other words, Justice Davis, who made the original ruling - must decide whether the appeal has any merits before granting leave to appeal.
If the Pretoria High Court refuses the application for leave to appeal, then Raffinetti says the minister may petition the judge president of the Supreme Court of Appeal (SCA) to grant leave to appeal: "If the SCA refuses, then the matter will die there."
Lisa Thornton, of Lisa Thornton Inc, which acts for ECN Telecommunications, said Altech could ask the court to order that the application for leave to appeal should not suspend the judgement: "Without such an order, the licence conversion process could go ahead without the conversion of value-added network service (Vans) to ECNS (electronic communications network aervice) licences."
ECN CEO John Holdsworth says it will ask telecommnucations regulator Icasa to decouple the issue of service (ECS or electronic communications service) and network (ECNS) licences, so that the ECS licences can still be issued in the meantime, pending the outcome of the appeal process.
He says the I-ECS licence is a "very powerful" one that entitles the licensee to take advantage of geographic numbers, carrier pre-selection, fixed-line number portability; cost-based interconnection of calls and local-loop unbundling (where other operators can access the exchange which takes calls into homes and offices, infrastructure over which Telkom has a monopoly).
"This combination of regulatory enablers will fundamentally change the SA telecommunications industry beyond recognition in a fairly short space of time," Holdsworth says.
But, the danger is that the incumbents could lobby the Department of Communications and Icasa to link entitlement of such rights to an I-ECNS licensee.
Thornton believes that Justice Davis correctly interpreted the law, and so it was unlikely that his judgement would be overturned in appeal. But, anything could happen with an appeal court, however, she warned.
This, along with the minister's announcement that she would ask parliament to amend the law, meant there was likely to be more confusion for the industry before there was clarity, Thornton told her client.
Kathleen Rice, a director at Werksmans, meanwhile, says it seems unlikely the appeal would be thrown out summarily, as there are some grounds that another judge could differ with Justice Davis on. One of these is whether or not the minister's policy directives amounted to administrative action (a direct order, as opposed to general guidance).
Rice says the minister's reference to amending the law means she'd probably have to say that that licensees were not entitled to conversion on equal terms, which in fact amounted to some form of expropriation.
Some industry participants have suggested that if this happens, they'll take the matter all the way to the Constitutional Court.
- Fin24.com