Complaint to ICASA

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Debbie

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The following is a copy of a complaint I intend of lodging with Icasa. Please read it, and be informed about what Telkom's contracts actually mean to the consumer. WARNING: Blood may boil.

This correspondence constitutes an official complaint lodged by myself, Debbie Love, with the Independent Communications Authority of South Africa (ICASA) about Telkom’s Standard Terms and Conditions for the provision of Public Switched Telecommunication Services. The complaint is made in my personal capacity as a citizen of South Africa, and as a Telkom customer.

I object to clause 10 (ten) of Telkom’s Standard Terms and Conditions for the provision of Public Switched Telecommunication Services. I furthermore believe that my complaint is extremely serious; I believe that it is serious enough to warrant close scrutiny by ICASA, which has a mandate to protect the interests of the consumer in such matters.

Clause 10 of the above-mentioned contract requires the customer to sign away the Constitutional right to have disputes with Telkom resolved in a Court of the Republic of South Africa. This constitutional right is covered under section 34 of the Constitution (“Access to Courts”). Clause 10 of Telkom’s contract forces the customer to consent to an arbitration process in the place of a hearing before a court. This, I argue, is unreasonable, unconstitutional, and amounts to monopoly abuse.

Complaint Number 1:
My first complaint is that Telkom’s Standard Terms and Conditions are unconstitutional. Section 34 of the Constitution guarantees citizens the right to have their grievances heard in an open court. Arbitration proceedings are, by definition, closed and are therefore not accessible to outside but interested parties.

An attorney I consulted advises that, in certain instances, it is perfectly legal and constitutional to agree – by way of contract signed before such disputes arise – to subject disputes to an arbitration process, provided that both parties willfully agree. So whilst arbitration is thus, in certain cases, an appropriate and constitutional means of resolving legal disputes, in this instance there is no willful entering into of such a clause. The customer is forced to relinquish the constitutionally guaranteed right to have disputes resolved in a court in an open and publicly accessible manner, or not have a fixed telephone line.

Customers have no choice on this matter: the monopoly fixed-line environment does not permit consumers a choice of service providers. Thus when a customer consents to an arbitration procedure in the place of a court’s authority, this is not entered into willfully. The end effect of this is that it becomes mandatory for a customer to surrender a constitutional right if they want a fixed telephone line.

Complaint Number 2:
My second complaint, related to my first complaint, is that Telkom’s abridged contract of the above-mentioned Standard Terms and Conditions is designed to deliberately deceive unsuspecting customers.

When a customer applies for a fixed telephone line from Telkom, they are presented with an abridgement of the full Standard Terms and Conditions. There are incongruencies between the full Standard Terms and Conditions, and what Telkom presents as the abridged version of the Standard Terms and Conditions.

The abridged version informs that “the services provided by Telkom SA Limited (‘Telkom’) are subject to Telkom’s standard conditions for public switched telecommunication services (PSTS)” and that “this order form contains only an abridged version of certain of the standard conditions”.

The abridged version does not inform customers that they are relinquishing the constitutional right to have disputes resolved in a court. In fact, the abridged version actually implies directly the opposite. Clause 46 of the abridged version states the following:

“Apart from the provision of paragraph 10.3 of the standard conditions, Telkom and I/we consent to the jurisdiction of the Magistrate’s Court in respect of the settlement of any dispute and/or claim arising between us, regardless of whether the amount in dispute or the value of the matter in dispute might otherwise exceed the jurisdiction of such Court.”

This is (almost) contradictory to what is stated in the complete version of the contract, which says the following in clause 10.3.6:

“The provisions contained in 10.3 shall constitute the irrevocable consent of the parties to the arbitration proceedings in terms hereof…” (emphasis mine).

The “terms hereof” are stated in clause 10.3.1 (i), (ii) and (iii), which requires a customer to consent, on application for a fixed telephone line, to arbitration in the place of an open court in the event of a dispute which “does not involve a complicated issue of law” or “a sum greater than such sum as the Authority may from time to time determine”. Basically, this means that so long as the dispute does not involve a complicated issue of law or a large amount of money, the customer is consenting to the substitution of arbitration in the place of a court’s authority.

In essence, the abridged version leads the consumer to believe that s/he is consenting to the jurisdiction of the Magistrate’s Court, yet the full version of the Standard Terms and Conditions unequivocally requires the customer to agree to arbitration in the place of a Magistrate’s Court. The full Standard Terms and Conditions provides for disputes to be resolved by a court only in exceptional circumstances. Customers are thus contractually precluded from taking disputes with Telkom to, for example, a small claims court (which would be ideally suited to deal with the average Telkom customer's disputes).

I ask that ICASA take serious consideration my complaints and investigates the legality of Telkom’s contracts.

Sincerely,
Debbie Love
Click to expand...
 
That consent to "Magistrates Court" thing is also standard to any lease,HP agreement.
I bet that 99% of telkom customers dont realize that they are waiving there rights under that clause.
So the way i understand it is that a "DEFAULTER" has to "face the wolves alone"?
without representation in the "arbitation" ?
OK, nice :( my question then is "Who then is the arbitrator who makes a so called unbiased decision on judgement"?
A telkom person?......... or an impartial adjudicator?
Very interesting point, beacause if and i assume your attorney friend is 100% correct this contract (or at least the long version one) is a valid contract.
 
I am totally for this complaint. Very interesting facts and keep us informed. go debbie :)
 
Go Debbie! But you are approaching the wrong people. I suggest that you take this up with the Public Protector's Office. This is a consumer issue, not specifically a telecomms one.
 
arf9999999999999999, this is both. I expect the PPO will ask me to go through ICASA first.

STOF, I am charging, in the first complaint, that the contract is unconstitutional and therefore invalid. In the second complaint I am saying that Telkom's wording is sneaky and misleading to the consumer.

Ideally, I am aiming for Telkom to be hauled over the coals for deception, as well as I want ICASA to force them to change their contract (as I believe it is not valid). It is not ok to me that Telkom forces a grievience procedure that is conducted behind closed doors. Why does Telkom do this? I think its so that other people cannot use prior judgements against Telkom to support new cases. Think of this, for example, from the perspective of those who experience infinitcall disconnections.

I wil expand on this if you want me to.
 
I don't think you can take Telkom to the small claims court, there is a condition about no being able to take action against, Government, Municipality and Semi (Quasi) Government. Don't know if that still stands. Someone needs to look into that

One thing anyone could do with any contract is to cross out any clause you are not happy with, or write one in. If they do not want to give you a phone because of that, then you can take action against them
 
DragonLogos said:
One thing anyone could do with any contract is to cross out any clause you are not happy with, or write one in. If they do not want to give you a phone because of that, then you can take action against them
Click to expand...

DragonLogos I have seen people being refused a Telkom phoneline because they amended that contract to read "I accept these terms and conditions subject to my rights as contained in chapter two of the Constitution's 'bill of rights'".

Further - see W1z4rd's post in offtopic that is titled something like "What Telkom thinks of our Constitution".
 
Just quote the offending clauses verbatim so there can be no dispute about the wording.

I'm pretty sure there are a number of versions of these documents floating araound and Telkom will most certainly pick the version they like best.
 
I did not know this myself.

Debbie, you are a gem.

I wonder if Chris Gibbons would be interested in this ?
 
Debbie2 said:
arf9999999999999999, this is both. I expect the PPO will ask me to go through ICASA first.
Click to expand...
...you talking to me? :D

4 nines is ok forme, but 'cos we're all friends here you can call me arf.

Seriously though, I suggest that you copy the same letter to the PPO.
 
Hello.


I am a lawyer, and am helping Debbie with these ICASA complaints. In fact, I am the person who suggested these compaints to her as complaints which ought to be made. (The complaints still need to be knocked into good legal shape, and I'm going to help her with that over the weekend).


In the abridged version of Telkom's standard terms and conditions which Debbie has referred to (in posting #1 above), it is stated that "The standard conditions [i.e. those set out in the full version] are available for perusal at any Telkom customer service branch and can be inspected free of charge during normal office hours".


If anyone here wants to get involved in this matter and would like to help, here's something which you can do:

1. Go to your nearest Telkom customer service branch (during normal office hours), and announce to the staff there that you have come to peruse the full version of the standard conditions.

2. See what reaction/help (if any) you get. [NB: Don't allow yourself to get fobbed off with a copy of the "Abridged conditions of contract". Instead, make it clear that you want to inspect the full standard conditions]

3. Post a description here of what happens.

4. [Optional] Send an email, describing your experience, to me at [email protected] -- giving (if possible) your real name + contact details and indicating whether you would if necessary be prepared to present evidence in this matter (either by appearance in person or by means of affidavit) in support of the complaints to be presented (by Debbie) to ICASA.

5. If you have enough time (and enthusiasm), go to another Telkom customer service branch and repeat the above. And then another. And another ...

6. Preferably, do the above as soon as possible -- before Telscum see this posting and have time to respond to it by briefing all their customer service branches to be atypically helpful to people asking to peruse the standard conditions!


Michael Alachouzos
 
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Well if Telkom does refuse to give someone a landline because they have changed the conditions in a contract that takes away their constitutional rights, then as I said, that person can take action against them.

What form of action that will be I am not sure, I would imagine Civil action with costs and a trip to the constitutional court. But you have to call them out on it and take action against them.

I'm not too sure what ICASA's stand on this would be, as it's more of a business practise rather than regulatory issue, a bit of buck passing can get a lot of work of a desk.

However companies that answer to ICASA might have to have good governance and fair business practises, perhaps you might want to help ICASA with looking for that

So what you need to do is get someone to sign up, get Telkom to refuse, get legal advice, send Telkom letter of demand. Sit back and wait.

Check to see what ICASA's duties are with regards to the companies they govern
 
BTW

I wrote the above off-line and posted after 7PM as I am on dial-up infinet call (so I did not see Michael's post)

I will pop into Telkom offices on Monday
 
DragonLogos said:
One thing anyone could do with any contract is to cross out any clause you are not happy with, or write one in.
Click to expand...

My ex wife Sian tried that (on my advice) in 2002. At the end of the application/order form which she filled in and submitted to get a telephone line, she changed the words "I ... accept Telkom's conditions of contract" to "I accept Telkom's conditions of contract in so far as they do not prejudice (or prevent the exercise of) any of my rights under Chapter 2 ("Bill of Rights") of the Constitution of the Republic of South Africa, 1996".

The result was that Telkom refused to provide her with a telephone line until she signed the application form without making any such change to reserve her rights under the Bill of Rights! I have been in a boiling rage with Telkom ever since.

As to your suggestion that people in her position can take legal action (if necessary in the Constitutional Court) to vindicate their constitutional rights -- you are, in theory, correct. But have you any idea of the cost (in time, energy, stress and money) of litigation of this nature? For most people, it is simply out of the question.

I, personally, have taken Telkom on in complex litigation (to which some reference has been made both in the press and in another MyADSL thread) and am continuing to pursue it -- in the public interest, as I myself have little or nothing to gain by this -- at considerable risk not only to my purse but also to my sanity! And there are others (e.g. Gregg Stirton; Debbie Love) who seem to be prepared to take similar risks. But no ordinary consumer should, in my view, have to do so merely in order to get a telephone line without compromising his/her constitutional rights.

Michael Alachouzos


PS: Don't forget to post here, DragonLogos, the results of your visit to Telkom on Monday!
 
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Indeed Michael, I hear what you are saying, and agree. But you have to see what happens when they get a letter of demand, they might just cave and say.... ohhh sorry, it was just some sort of misunderstanding. And not just one instance, you need to establish that this is company policy.

The way that things are supposed to work is that we the people have legal recourse, and to stop the entire population from being shunted from pillar to post, bodies like ICASA - The Public protector, all the Ombudsmen organisation - should keep things in check.

But in practise this is not always the case, and for anyone to get legal action is a long haul. Ask Justin Nurse, or ask me, get to court.... ohhh we are not doing that one today, see you in three months. And there are companies that I would love to nail to the wall but they get away with their transactions because they know that it is too much PT (and money) to get them

An interesting thing, sort of off topic, I was in the UK a while back and was talking to my Brother, he was telling me a mate of his is doing great work fixing chairs. Fixing chairs says I...

Turns out he does all the chairs for offices and shops as part of the occupational safety act, all the chairs that people have to sit in all day for work must be in tip top order, so that they don't get a bad back from sitting in a chair that leans to the right.

Now here is the interesting bit, they reason why the dude is so busy is because if the chair is not up to scratch, the CEO or Manager of the company concerned is the one that has to appear in court, no sending in someone else.

Perhaps they should try that here, I was in a supermarket the other day and sat in the empty cahiers chair while I was waiting for a price, the chair leaned to the one side and was uncomfortable, often if I am working in an office a lot of the chairs are not right.
 
Just thought - should the complaints fail (which i hope they won't) would it be possible for, lets say, myadsl or antitrust as organisation be able to take this up in a court without members being subject to telkom calling it a breach of the T&C - or does the organisation need to be registered or could it just be done as is?

Sorry for any mixing up - idea still jumping around in head :p
 
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