Complaint to ICASA

[Debbie]

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

[AcidRaZor]

i want to have your childrens...

[Page]

viva debbie!
you got my support

[Simple Twist Of Fate]

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.

[brucel]

I am totally for this complaint. Very interesting facts and keep us informed. go debbie :)

[arf9999]

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.

[Debbie]

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.

[Celemasiko]

i want to have your childrens...


I want to have a child with you...:D

[DragonLogos]

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

[Debbie]

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 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".

[Perdition]

I want to have a child with you...:D

Yikes, better get the vaseline noone :D

[kaspaas]

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.

[qDot]

I did not know this myself.

Debbie, you are a gem.

I wonder if Chris Gibbons would be interested in this ?

[arf9999]

arf9999999999999999, this is both. I expect the PPO will ask me to go through ICASA first.


...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.

[alacos]

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 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 smda@mkohlhaas.org -- 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

[DragonLogos]

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

[DragonLogos]

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

[alacos]

One thing anyone could do with any contract is to cross out any clause you are not happy with, or write one in.

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!

[DragonLogos]

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.

[kilps]

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

[Debbie]

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


Michael, want to get this one?

[alacos]

Michael, want to get this one?

Well, the ideal complainant to a court (as opposed to to ICASA) would, I think, be someone who (a) has applied for a telephone line with an application form modified (like Sian's) so as to reserve his/her constitutional rights, (b) has been denied the line because of the modification, (c) still genuinely wants the line and -- preferably -- (d) has not yet signed the (unmodified) form (and is therefore not contractually bound by the standard terms and conditions and cannot be argued to be breaching them by going to court).

Such a complainant -- which could in principle be any person (including, in fact, any company or voluntary association) -- could initiate legal action against Telkom for (e.g.) an appropriate declaratory order. But I'd like to give the matter some thought before even suggesting this as a possible way forward. The problem is that -- as you know by now -- litigation is an expensive, financially perilous and very time-consuming business. It does not necessarily provide the best bang (in terms of public awareness, publicity etc) for your buck, and my view for the time being is that ICASA should be the forum of first choice -- if only because it is a great deal cheaper.

Meanwhile, I'd like to reply to DragonLogos's points (in posting #19 above) about a "letter of demand" and about the need to "establish that this is company policy".

In my view, letters of demand/complaint etc to Telkom are unlikely, on their own, to achieve anything of worth. Sian, when her application for a phone line was refused, complained in writing to the Telkom CEO's office -- who referred her complaint to their legal department. But thereafter Telkom simply refused to budge. Both I and an attorney whom Sian had instructed attempted in vain to persuade the legal department that their insistence upon her signing the unmodified application form (and to that extent compromising her constitutional rights) was both unreasonable and legally objectionable -- and it was made quite clear to both of us that Telkom's intransigence in this matter was in fact company policy.

Michael Alachouzos

[Debbie]

Interesting reading.

/me wishes she knew the law

[mbs]

.. somebody once said 'the law is an ass, sir!'
/don't have the energy to check who...

[kaspaas]

Well, the ideal complainant to a court (as opposed to to ICASA) would, I think, be someone who (a) has applied for a telephone line with an application form modified (like Sian's) so as to reserve his/her constitutional rights, (b) has been denied the line because of the modification, (c) still genuinely wants the line and -- preferably -- (d) has not yet signed the (unmodified) form (and is therefore not contractually bound by the standard terms and conditions and cannot be argued to be breaching them by going to court).

What would the effect be if one signed such a contract with an addition like "Signed under duress regarding para xyz as this is the only way I can get the service under de facto monopolistic conditions."?

I'm regularly adding "Vorms was nie in Afrikaans, my amptelike taal van voorkeur beskikbaar nie. Ek ontken dat ek die nodige taalvaardigheid het om die dokument na behore te verstaan."

I'm getting two reactions: Either the ability to translate pages of legalese into Afrikaans by walking to the cupboard, or it is ignored.

[Debbie]

kaspaas, please can you rewrite that sentence in English?

My apologies.

[kaspaas]

kaspaas, please can you rewrite that sentence in English?

My apologies.

Vorms was nie in Afrikaans, my amptelike taal van voorkeur beskikbaar nie. Ek ontken dat ek die nodige taalvaardigheid het om die dokument na behore te verstaan.

Forms were not available in Afrikaans, my official language of preference. I deny that I have the required lingual abilities to understand this document as is required" or something like this...

[MaryJane]

You go girl! Very well written.

[alacos]

What would the effect be if one signed such a contract with an addition like "Signed under duress regarding para xyz as this is the only way I can get the service under de facto monopolistic conditions."?

Well, I actually think that it is quite arguable -- even if you don't add that -- that the particular contract condition that we're talking about here (i.e. the one which seems to dilute/prejudice your rights under section 34 of the Constitution) is in fact so unconscionable and/or contra bonos mores as to be unenforceable, precisely because it is forced upon you as the only way in which you can get a telephone service.

The reason, however, why I said (in posting #22) that "the ideal complainant to a court ... would, I think, be someone who ... (d) has not yet signed the (unmodified) form [etc]" is that if the form hasn't yet been signed then there's no need even to argue about the enforceability or non-enforceability of the objectionable condition: it hasn't been agreed to (and the complainant is coming to court because he/she objects to being required to agree to it in order to get a telephone) -- and so it's clearly not (yet) binding on the complainant and (therefore) represents no obstacle at all to his/her coming to court.

In other words, I was expressing an opinion within the specific context of the contemplation of possible litigation (untertaken with a view to establishing the constitutionally-objectionable nature of Telkom's conduct in requiring this particular condition to be agreed to by consumers) -- and in litigation it's usually good tactics to try to avoid having to engage in arguments which are conceptually distinct from the main issue and which one may lose.


As regards your further point about the form's not being available in Afrikaans, I would say that if you genuinely don't understand the English-language version (but have had it forced upon you in order to get a telephone) then the whole contract may -- and I stress "may" (since I don't actually know) -- be unenforceable (as against you) for reasons quite other than those already discussed in this thread. Unfortunately, though, it's pretty clear to me from your above postings that you actually understand English at least as well as most English-speaking South Africans -- which means that you are likely to face an uphill struggle in attepting to avoid the contract (in a court) on the basis of the language point alone. In my view, if one wanted to bring a "test case" about the possible unenforceability of consumer contracts written in a language which the consumer doesn't understand then it would best to do so with a plaintiff/applicant consumer who really doesn't understand the language of the contract which he/she has been obliged to sign.


Michael Alachouzos

[DragonLogos]

Right first things first.

I managed to get the Chairperson of a Local the Computer Club to go into Telkom and ask about the Terms and Conditions.

Basically what happened is this:

Full terms and conditions asked for, Abridged Conditions presented, it was pointed out that it was the full terms and conditions (as per written on a note) the Telkom person disappeared into the back office, perhaps to look for this document. After a while the Telkom person came back empty handed, but reached over the desk and gave the Full terms and conditions to the Chairperson, they were still warm. How is that for good service

Alas these documents are not allowed to be removed from the premises, but can be studied on site. And so they were, paragraph 10.3 clearly states that you have to arbitrate - Which of course taken in context of the abridged version, is misleading

There are a few other issues that was brought up by Club members but that can wait for later

[alacos]

After a while the Telkom person came back empty handed, but reached over the desk and gave the Full terms and conditions to the Chairperson, they were still warm.

OK -- Thanks, DragonLogos. I doubt, though, that that's the norm.

[Debbie]

That is not the norm.

It took me 7 MONTHS to finally be allowed to see the full Std Terms and Conditions. And the only reason they finally gave them to me was because I went in there and made a hoo-ha about something (and when I make a hoo-ha, I MAKE A HOO-HA). Telkom gave me a copy because they wanted to point out the complaints procedure that I had unknowlingly agreed to.

Just by the way, anyone interested in reading the full terms and conditions: search these forums. Under the Announcements section I posted a link (not a Telkom link, mind you) to the full Std Terms and Conditions. I started the thread, and I think its called "Telkom's Std Terms and Conditions - finally!".

Just a side note - Telkom once denied to me that there was even such a document in existence.

[DragonLogos]

I think you must have softened them up Debbie

[Debbie]

Wait until the day I really get the nerve at a Telkom shop. Oh, the (non-violent, non-destructive) anger that will be unleashed!

[AcidRaZor]

calm down already...

prosperous

[Debbie]

Yeah noone, the spelling mistake has been bugging me for ages, I just forgot how to change the sig :(

[Page]

well well, I don't have a telkom account, but I will have to get one to get ADSL.
Since this involves signing a questionable contract, I was wondering...
If anybody wants to use this opportunity to engage telkom in some legal action, let me know what to do, I'm all for it. Ofcourse funding any legal action would be near impossible :/

[Debbie]

Page, please pm me your contact details.

[Debbie]

And here is the lawyer-speak version, which will be submitted today:


I, Debbie Love, hereby submit the following complaints (and the following
information relevant thereto) for formal consideration by ICASA.


Full name of complainant: Deborah Anne Love.

Locus standi of complainant: Complainant is (a) a present customer of
Telkom, about to move to a new residential address in Johannesburg and
anticipating a need to apply to Telkom for a new telephone service at such
address, and (b) a South African citizen acting (in the matter of the
present complaints) in the public interest.

Email address of complainant: bluerabbits1981@yahoo.com


INTRODUCTION TO THE COMPLAINTS:–

Applicants for telephone services from Telkom are required to submit their
applications by filling in and signing a standard form (hereinafter: “the
Telkom application form”) which binds them to acceptance of Telkom’s
“Standard Terms and Conditions for the Provision of Public Switched
Telecommunication Services”. I shall hereinafter refer to these “Standard
Terms and Conditions [etc.]” as “Telkom’s full conditions”, thereby
distinguishing them from the abridged version thereof (“the abridged
conditions”) which is annexed to (and thereby incorporated in) the Telkom
application form.

The first of the complaints hereby made is that paragraph 10.3 of Telkom’s
full conditions is such that acceptance of it involves a contractual waiver
or dilution of a constitutional right forming part of the Bill of Rights
(Chapter 2 of the Constitution of the Republic of South Africa, 1996 (“the
Constitution”)) — namely the right, granted by section 34 (“Access to Courts”)
of the Constitution, to have “any dispute that can be resolved by the
application of law” decided in “a fair public hearing in a court or, where
appropriate, another independent and impartial forum”. As is apparent from
the case of applicant Sian Rowan Alachouzos discussed below, Telkom permits
no “opting out” (by applicants) from the said contractual waiver or dilution
of this important constitutional right, which waiver or dilution is
therefore — given the present monopoly status of Telkom in the provision of
fixed-line telephone services to South African consumers — effectively made
a condition precedent of the obtaining of any fixed-line telephone service.

The second complaint is that the abridged conditions make no mention of the
fact that the applicant’s constitutional rights are in any way prejudiced by
acceptance of Telkom’s full conditions. They thus fail to give applicants
clear warning of the fact that their rights under section 34 of the
Constitution are (to the extent explained below) effectively being compromised
or signed away.


FIRST COMPLAINT:–

Section 34 of the Constitution provides that everyone has “the right to have
any dispute that can be resolved by the application of law decided in a fair
public hearing in a court or, where appropriate, another independent and
impartial forum”. Clearly, there are three elements to this right. In the
first place, the person invoking section 34 is ordinarily entitled —
assuming the existence of a dispute that can be resolved by the application
of law (that is to say, a legal dispute) — to a hearing in "a court or, where
appropriate, another independent and impartial forum". Secondly, the hearing
must be fair. And, thirdly, the hearing must be public. As is explained
below, the paragraph now complained of (viz. paragraph 10.3 of Telkom’s full
conditions) imposes (upon the applicant who is obliged to accept it) a
waiver of the protection of the third of these three elements.

By paragraph 10.3 of Telkom’s full conditions, a Telkom customer who is “not
satisfied with the provision of a service or the charging and billing
thereof” is obliged to have any consequent complaint — including (as is
clear from the content of paragraph 10 considered as a whole) any such
complaint giving rise to a legal dispute — dealt with in the first instance
by means of “the complaints handling procedure as contemplated in condition
10.2”. Whilst there may be nothing inherently objectionable about this
“complaints handling procedure”, paragraph 10.3 effectively acknowledges
that such procedure may fail to resolve the relevant complaint/dispute; and it
contains certain provisions which are to have contractual force in that
event. These provisions have the effect (inter alia) that, unless the matter
in dispute involves both “a complicated issue of law” and “a sum greater
than such sum as [ICASA] may from time to time determine”, Telkom may —
simply by stating that it “wishes to resolve the matter by means of a low
cost procedure” and thereafter “declar[ing] a dispute” and “request[ing]
that the dispute be referred ... to arbitration ...” (para. 10.3.1) — oblige
the customer to have the dispute determined finally and bindingly (para.
10.3.5) by an arbitrator. And arbitration — even where independent,
impartial and fair — simply does not involve a “public hearing” within the
contemplation of section 34 of the Constitution. Indeed, the current website
of the Association of Arbitrators (Southern Africa) makes a point of stating
that “arbitration and ADR proceedings are confidential and conducted in
private, without the publicity that often surrounds court litigation”. The
following is a link to the relevant part of the website:

http://www.arbitrators.co.za/arbsnew/arbadr.htm#arb3

Part of the evident intent of section 34 of the Constitution is to afford to
anyone who wants it (and who is a party to a legal dispute) the protection
of publicity in the form of a hearing which is open to the public (and
conducted in a place — such as a court — where members of the public may
ordinarily expect to find hearings of a public nature going on). But
paragraph 10.3 of Telkom’s full conditions effectively enables Telkom to
deprive its customers of this protection — at any rate as regards any
dispute not involving “a complicated issue of law”. By paragraph 10.3.6,
“the provisions contained in condition 10.3” are declared to constitute — in
the circumstances envisioned in the last foregoing paragraph of the present
submission — “the irrevocable consent of the parties” to arbitration.

It is not contended, for the purposes of this complaint, that the
right enshrined in section 34 of the Constitution is inalienable in the
sense of its being incapable of being contractually “signed away” — for if
that were the case there could be no such thing in South African law as a
binding arbitration clause in a commercial contract. What is disputed,
however, it that Telkom — a monopoly provider of fixed-line telephone
services in this country — should be permitted to compel its prospective
customers to sign away the protection of part of the Bill of Rights (Chapter
2 of the Constitution) as a condition of having a fixed-line telephone.

The likely attitude of Telkom to any prospective customer who actively
OBJECTS to being required to sign away such protection may perhaps best be
gauged by reference to the case of Ms Sian Alachouzos, who in May 2002
completed the Telkom application form and submitted it to Telkom by way of
application for a telephone service. On the advice of her ex-husband Adv.
Michael Alachouzos — a constitutional lawyer who had become familiar with
various parts of Telkom’s full conditions (including paragraph 10.3) as a
result of an earlier dispute with Telkom concerning his ISDN-line telephone
account — Ms Alachouzos altered the wording of the “Agreement” section of
the form (before signing it) so that instead of reading simply “I ... accept
Telkom’s conditions of contract” it read as follows: “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”. A copy of the relevant
“Agreement” section as thus altered by Ms Alachouzos is available on the
Internet at the following location:

http://www.rights-watch.org/Telkom_application_p2e_clip.jpg

Ms Alachouzos made no material amendment or alteration to the form, other
than that stated above. A copy of the full form as completed and submitted
by her may be accessed or downloaded from the following link:

http://www.rights-watch.org/SRA_application.pdf

The submitted form was accompanied by a letter from Adv. Alachouzos (the
ex-husband), who was thereafter (on 17 May 2002) informed by one Ilonka
Coetzee of Telkom’s legal-services department (by telephone) that Ms
Alachouzos’s application would not be processed unless Ms Alachouzos signed
an application form accepting Telkom’s full conditions in toto and WITHOUT
RESERVATION. A streaming-Real-Audio-format excerpt from the relevant
telephone conversation between Ilonka Coetzee and Adv. Alachouzos may be
listened to from the following link:

http://www.rights-watch.org/I_Coetzee_170502_excerpt.ram

The above excerpt is also available for download in MP3 format from here:

http://www.rights-watch.org/I_Coetzee_170502_excerpt.mp3

On 21 May 2002 Ms Alachouzos wrote to Venessa Bosman in the office of
Telkom’s CEO, complaining about Telkom's refusal to process her existing
application. A copy of the text of her faxed letter of complaint is accessible
here:

http://www.rights-watch.org/SRA_to_Bosman_210502.htm

A PDF-format copy of the same letter may be accessed or downloaded from
here:

http://www.rights-watch.org/SRA_to_Bosman_210502.pdf

[Debbie]

Continued....


[The reader will doubtless notice that the letter contained a statement to
the effect that Ms Alachouzos’s ex-husband appeared to have been wrong in
his view of the precise manner in which (and degree to which) unconditional
acceptance of Telkom’s full conditions might be prejudicial to her
constitutional rights. In fact, he was NOT wrong — and the reason why Ms
Alachouzos thought that he WAS is explained in that part of the present
submission which deals with the second of the two complaints hereby made. In
any event, though, Ms Alachouzos continued — as is clear from the content of
her letter — to be reluctant to sign the Telkom application form without
reservation of her rights under Chapter 2 of the Constitution]

On 22 May 2002, there was another telephone conversation between Adv.
Alachouzos and Ilonka Coetzee — during which Ms Coetzee continued to insist
that no telephone service would be provided to Ms Alachouzos unless she
signed the Telkom application form WITHOUT any alteration/amendment
reserving her constitutional rights. A relevant excerpt from the
conversation may be listened to (as streaming Real Audio) and/or downloaded
(as an MP3 file) from the following links:

http://www.rights-watch.org/I_Coetzee_220502_excerpt.ram

http://www.rights-watch.org/I_Coetzee_220502_excerpt.mp3

On 7 June 2002, Ms Alachouzos’s attorney Mr Duchen ((011) 483 2930) spoke by
telephone to Ilonka Coetzee, who confirmed to him that Telkom was not
prepared to provide a telephone line for Ms Alachouzos unless she agreed to
Telkom’s full conditions without any alteration or amendment whatsoever —
even an alteration or amendment having the sole effect of reserving Ms
Alachouzos’s rights under the Bill of Rights.

On 10 June 2002 Ms Alachouzos faxed another letter of protest/complaint to
Venessa Bosman — to which letter, however, it seems that she never received
any response. A copy of the text of this 10-June letter is available at the
following Internet location:

http://www.rights-watch.org/SRA_to_Bosman_100602.htm

A PDF-format copy can be accessed or downloaded from here:

http://www.rights-watch.org/SRA_to_Bosman_100602.pdf

Later in June 2002, Ms Alachouzos finally gave up and stated that she
accepted Telkom’s full conditions unreservedly. As may readily be
appreciated from the foregoing, the fact is that she really had no choice.
[NB: She was, at the time, still recovering from a serious car accident which had
resulted in injury to her hand (as well as a more serious head injury), and
a cellphone was not an option as she was unable to operate one with her
injured hand]


SECOND COMPLAINT:–

Prior to handing in her original application (with the altered “Agreement”
section) in May 2002, Ms Alachouzos went to Telkom’s then customer service
branch in Rosebank (Johannesburg) and asked to see a copy of Telkom’s full
conditions — which, according to paragraph 3 of the abridged conditions
annexed to the Telkom application form, “are available for perusal at any
Telkom customer service branch and can be inspected free of charge during
normal office hours”. The Rosebank branch did not have a copy. But Ms
Alachouzos insisted upon seeing one, and in the end the supervisor of the
branch — a Mr Ehlers — got one emailed to the branch from Telkom’s legal
department and gave Ms Alachouzos a print-out of it.

Ms Alachouzos — a former law student (who had successfully completed an LLB
at the University of the Witwatersrand) — examined the print-out, looking
for the arbitration clause which her ex-husband (Adv. Alachouzos) had warned
her was included in Telkom’s full conditions and would (if agreed to) be
prejudicial to her rights under section 34 of the Constitution. She failed
to find one — for there was none, in fact, in the print-out which Mr Ehlers
had given her. She therefore suspected that the print-out might be
incomplete. Mr Ehlers assured her that it was not — and at Ms Alachouzos’s
request he in fact confirmed as much by signing the last page of the
print-out and writing under his signature the words “Last page. 2002/05/08.
Handed to SR Alachouzos”. A copy of the relevant page (as signed in this
manner by Mr Ehlers) is available on the Internet at the following location:

http://www.rights-watch.org/Telkom_conditions_lastpage.jpg

Ms Alachouzos took the print-out to her attorney, who — in reliance upon it
— advised her that her ex-husband must have been wrong, as Telkom’s full
conditions in fact contained no arbitration clause at all. And that is what
she still believed at the time (in June 2002) when she eventually said that
she accepted Telkom’s full conditions unreservedly.

In fact, Telkom’s full conditions contain (and contained) all of the
prejudicial provisions concerning arbitration which have already been
discussed in that part of the present submission which has to do with the
contents and effect of paragraph 10.3 thereof. But the print-out stopped at
the end of paragraph 9.

In the result, Ms Alachouzos — having been actively misled by Telkom
(whether deliberately or not) in this regard, and having contracted with
Telkom (as a customer) on the basis of the printout — is quite possibly the
ONLY Telkom customer who is NOT bound by paragraph 10.3. Few prospective
Telkom customers (if any) can expect to be so lucky. Most do not have LLBs,
or access to the free legal advice of ex-husbands who are advocates. They are
unlikely to ask to “peruse” Telkom’s full conditions at a customer service
branch — and if they do, and are given access to a copy which is in fact
complete, they will have no option but to accept them unreservedly or do
without a telephone. But few will even ask. They will rely, instead, upon
the abridged conditions annexed to the Telkom application form. And the
abridged conditions contain no indication whatsoever that any constitutional
right — let alone one so important as the right to a fair public hearing of
any legal dispute in a court or other appropriate forum — is being waived or
signed away.

In fact, all that the abridged conditions actually say about legal disputes
is that “Apart from the provisions of paragraph 10.3 of the standard
conditions” — which provisions are nowhere explained or summarised in the
abridged version — “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”. And the likely effect of THAT, of course, is to create in the mind
of the prospective customer an impression virtually the OPPOSITE of that
which would in fact correspond with the truth of the matter — which is that
unless the dispute/claim involves “a complicated issue of law” (and “a sum
greater than such sum as [ICASA] may from time to time determine”) the
customer will have no right (in the face of objection by Telkom) of recourse
to any court at all.


CONCLUSION:–

On a casual reading, all of the above may seem to be in the nature of a mere
technical quibble — an academic exercise in “lawyers’ law”. But it is not.
For the purposes of its interaction with consumers, Telkom has been
judicially held to be a “public body” (as defined in section 1 of the
Promotion of Access to Information Act 2 of 2000) — and the complaints made
in the present submission touch upon matters which go to the very root of
the question what is, and what is not, acceptable practise on the part of
public bodies in a constitutional democracy. The present complainant would
therefore urge ICASA — on pain of otherwise appearing quite nonchalant about
what actually amounts to a most serious example of contempt on Telkom’s part
for the values underlying such a democracy — to treat the above complaints
with the degree of seriousness and urgency which they actually warrant. It
is, in fact, somewhat questionable whether a company displaying such
flagrant disregard as this for any of the rights enshrined in our Bill of
Rights — a Bill of Rights which, as Ms Alachouzos rightly pointed out in her
21-May-2002 letter (linked above) to Telkom’s Venessa Bosman, is declared by
section 7(1) of the Constitution to be “a cornerstone of democracy in South
Africa” — should be permitted to continue to hold a licence to provide any
telecommunications services in South Africa at all. In the circumstances, it
would perhaps be appropriate for ICASA to specify (publicly) a limited period within
which the matters hereby complained of are to be rectified — and the
individuals responsible for them identified by Telkom and removed from their
positions in that company (or otherwise appropriately dealt with) — if the
existing license is not to be suspended or revoked altogether.

[kilps]

wow - very long, but good luck :D

[alacos]

well well, I don't have a telkom account, but I will have to get one to get ADSL.
Since this involves signing a questionable contract, I was wondering...
If anybody wants to use this opportunity to engage telkom in some legal action, let me know what to do, I'm all for it. Ofcourse funding any legal action would be near impossible :/

PM me your contact details, and I'll tell you what to do. And it needn't cost you a cent (but it probably will delay your getting a Telkom account).

Michael Alachouzos

[alacos]

And here is the lawyer-speak version ...

For those who may be interested, I've posted an OT message concerning "lawyer-speak" generally — a sort of apology for lawyers' language — here: http://mybroadband.co.za/vb/showthread.php?t=24518


Michael Alachouzos

[Debbie]

Just an update - I have received an email from Icasa saying that they will be looking into my complaint in due course. I will be calling them every week so that my complaint does not go unnoticed.

[R4tt3xx]

Very nice. Do you perhaps know when the conditions were written ?

[Debbie]

No idea R4tt3xx.

OT: Telkom claims, in their 2005 SEC 20f, that Icasa requires the arbitration process. It will be interesting to hear what Icasa's response to the compliant is.

[alacos]

Telkom claims, in their 2005 SEC 20f, that Icasa requires the arbitration process.
ICASA may well have required Telkom to make it possible for customers to have their disputes dealt with by means of such a process. It would surprise me, however, if they required Telkom to adopt (as part of the Telkom "standard conditions" of contract) provisions which have the effect of enabling Telkom to force customers to do so. That's a very different proposition.

Michael Alachouzos

[CyberMatix]

@Debbie

Your first complaint is very strong, and very well put.

Your second complaint, well, it's a little woosey, not as strong and direct as the first one. Maybe you are diluting the power of the first complaint by combining it with the second one. Just my opinion, you are obviously welcome to ignore it.

[kaspaas]

Hi Debbie,

anything happening on this?




And here is the lawyer-speak version, which will be submitted today:

I, Debbie Love, hereby submit the following complaints (and the following
information relevant thereto) for formal consideration by ICASA.


Full name of complainant: Deborah Anne Love.

Locus standi of complainant: Complainant is (a) a present customer of
Telkom, about to move to a new residential address in Johannesburg and
anticipating a need to apply to Telkom for a new telephone service at such
address, and (b) a South African citizen acting (in the matter of the
present complaints) in the public interest.

[Debbie]

Hi Debbie,

anything happening on this?

Hi kaspaas,

This is moving forward very slowly, but it is moving forward.

[mavx]

I hope that you get some sort of success with this, keep us posted! I also hope that everyone is keeping en eye out for more information to add to their own sort of case, anything that could perhaps be used by Debbie2 in future to strengthen her case. I know that a local was denied a landline in the area a while ago, she is diabled woman in a wheelchair and Telkom refused to install a landline to her house because it was "unprofitable or uneconmically viable". Never mind the fact that the line run right past her house, by that I mean within a couple hundred metres!

[Debbie]

Hey, here is an update on this issue. It now appears that ICASA wants to hold public hearings based on my complaint. I will keep MyADSL informed as new information comes to me.

[Karlientjie]

Hi Debbie,
In 2005 you submitted a complaint about Telkom to ICASA. What was the outcome? I'd like to know as I want to submit a complain, albeit not as serious as the one you had.
Thanks
Karlientjie

[HapticSimian]

Debbie is offline
Banned

Good luck.