I finally have the Aerosat ruling!

http://wwwserver.law.wits.ac.za/echc/judgment.php?case_id=13033

The judge was J Sandi
Bruce John Gie, Ryan Gavin Goss and Nicola Smith (Smith) are the only
three members.

It's a lot to read. TEK you might want to read section 99 concerning the
rights of inspectors. They can't just kick down your door, and start connecting cctv's all over the place.
I quote:
"
(2) A warrant contemplated in subsection (1) shall be issued by a
judge or a magistrate who has jurisdiction in the area where the
premises in question are situated, and shall only be issued if it
appears from information on oath that there are reasonable
grounds for believing that the provisions contemplated in
subsection (1) are being contravened on those premises."

The PE magistrate issued a warrant to STephanus Arnold an Icasa
employee to confiscate their PCMCIA cards, PC's and 'radio towers'.
Aerosat appealed this in the High Court where it lost it's case.

12 May 2004 in a letter from Icasa to Aerosat it is clear that Aerosat
broke the court ordered seals of it's four towers and resumed services.
Interesting, I would presume that they would be nailed by the police
for ignoring a court order? TEK in your case might the fact that Icasa
did not have a warrant be that the judge did not want to issue such an order? This whole procedure is unfair, council can send data across roads with impunity but the public gets selectivly targeted.

Ladies and gentleman Bruce simply ripping off the Court ordered seals
shows us how to deal with Icasa. The equipment is so cheap that I will
just replace the parabolic and meshbox. Judge Sadi ruled that leaving the
original seals intact and installing additional equipment is a violation of a
court order. Bruce I solute you as 'dapper muis', you are an inspiration to
us all. I mean you can't have it more blatant than ripping up a court order!
What also angered judge Sadi was Aerosat's council Pillay trying to
deceive the judge by witholding relevant information, this probably contributed to awarding Icasa the case.

The judge ruled agains Aerosat in section [81]:
The current position is that the radio apparatus may not be used to
provide telecommunication to another person without a licence. It also says
that Local Area Networks (LAN’s) should be confined to the same
premises/buildings which the applicant did not adhere to in this matter.
[82] Mr Van der Linde conceded that if the applicant contravened the
provisions of the Act, before the withdrawal of Government notice no. 1790 of
17 November 1995 it cannot now benefit from the provisions of Government
notice no. 26193 of 24 March 2004.
[83] In my view the application is devoid of merit and cannot succeed.
In the result I make the following order:
The rule is discharged with costs.
======
So there we have it, you can't provide a telecoms service to another person
without a licence. Why don't we setup a community company and partner
with a VANS license holder or with Council ? And why can't such a Vans
license holder cut through tar roads?
Government notice no. 26193 of 24 March 2004 clearly states that
nobody and that includes Maria Ramos, CBD video surveillance networks
manned by the very same SAPS who criminally investigated Aerosat, shall NOT send data across boundaries(VANS or no VANS). So what I want to know from the honourable judge Sandi why are only the soft targets harassed? ACt.96 is clear about data crossing boundaries. It is simply not allowed period, and it is simply ignored by Icasa who knows full well that www.uninetwork.co.za will use their Vans license to send data across the street. It seems Icasa has compromised and would rather receive money and 'allow' Wisp's to break the plain meaning of Act.96 than have the Wisp's provide a telecoms service in anycase and receive nothing in fees.

If Aerosat had been prosecuted and found guilty, the consequences would
have been devastating:
1) CBD surveillance networks would have to be shut down(plunging the JHB CBD into chaos), as well as everybody sending data across the street with/without a VANS license. Everybody in possesion of an Access point would be in danger. This would be an outrageous situation. And notice that
Bruce broke court ordered seals and the police did nothing to him!

2) Thus if I cut through that tar road and publish a video of the event
the police won't touch me! Why would they wan't to plunge the entire
country into turmoil ? It will never happen and www.aerosat.co.za knows this don't you Bruce?
I am convinced that should they prosecute me David Jarvis would rush to my defence. I can just see that R2.5mil contract stalled with Stellenbosh council as the undiluted wrath of the SAPS is poured out on me for daring to
upset the business model of the Wisp's.


3) It seems that Telkom are taking civil action against commercial wisp's
without a Vans license who resell a Telkom ADSL service. There is zip
Telkom can do if you resell a satellite Internet service or that they can do
about people cutting through tar roads. Only if you were to send Telkom
data over such a DSLAM network would they be able to take legal action.
South-Africa we are being played for the fool. Wisp's ripping up
court orders have the gal to warn us about the 'dangers' of cutting through
roads. The reality are that you can do whatever you want.

So what was the outcome? Who lost and who had to pay up?

What does this mean for the rest of us?

I am also excited to know the outcome, does it mean we can cut through the tar roads?

Oh my word. The number of contradictory insanities in this post are just too precious.

ElCapitano said:

1) CBD surveillance networks would have to be shut down(plunging the JHB CBD into chaos),

Click to expand...

Plunging the city into chaos? Not having cameras? Wow. That's a bit prophetic, even for you...

ElCapitano said:

I am convinced that should they prosecute me David Jarvis would rush to my defence.

Click to expand...

Shall we test this one? Once again, I'll have my camera ready, at highspeed shutter waiting for Jarvis to rush to your assistance the moment you wind up that angle grinder and start cutting...


Regardless of the above:

The most salient part of the judgement is a snippet of letter by ICASA to Aerosat, wherein they state:

ICASA letter to Aerosat said:

Your letter confirms that the entity "Aerosat" is providing internet services. Your letter further confirms that in providing internet services to third parties, wireless means are being used. Our records further confirm that Aerosat is not in posession of a value-added network service licence, which is required for the provision of internet services

Click to expand...

From this, a few things are still unclear, and debatable.
1. ICASA confiscated/sealed Aerosat's equipment, because ICASA considered wireless means of provision as being confiscatable.
2. ICASA don't like it if you provide IP without having a VANS licence.
3. ICASA don't like it if you do both 1 & 2.

According to the judgement ICASA confiscated the equipment because they were "rendering a telecommunication service by the applicant" without a license. What license, exactly, is required, is still unclear.

This would indicate that the reason for the confiscation was the illegal provisioning of a telecommunications service without a license to do so. It still does not clear up whether doing so with, or without a VANS license is illegal or not. As far as the telecommunications act is concerned, No. As far as ICASA is concerned: No. As far as Ivy is concerned: No.

The judge also found, that ICASA has full authority to seize equipment, under the interpretations of the telecommunications act, and not the SAPS.

In the end, this judgement means nothing, as nothing was made any clearer, except for the fact that ICASA is allowed to confiscate equipment, and that Aerosat operated without a VANS license or type approved equipment.

Whether these are the reasons ICASA confiscated their kit, is still unclear.

One thing is clear. Lying to a judge about the purpose of a linux box attached to two PCMCIA wifi cards will land you in the crapper.

The entire issue still remains technically unchallenged. I believe we'll see something when Jarvis makes his case against Telkom, or Telkom makes their case against Jarvis.

where to start...

captain and all those considering ripping off seals or cutting through roads on the basis of posts above - whatever turns you on but i would advise against it

no seals were ripped off....gospel & no non type-approved equipment was used; no court orders were ripped up and believe me, as bad as law enforcement in this country may be, you will get your ass kicked if you do this

as regards withholding info to deceive a judge - no lawyer in their right mind would go there; at the time of the hearing criminal charges had been pressed and aerosat exercised its right not to place evidence in the hands of the prosecution; i was not involved in the civil hearing but would regard this as being the only sensible thing to do

the letter from aerosat to icasa and return was written after aerosat first became aware they needed to be licensed (it started off as a student project)...icasa came to visit were all very friendly and said write to head office and ask for a grace period, i.e. they played completely open cards with icasa and were no met with much sympathy

otherwise The RoDent's analysis of where things stand is accurate; the Uninet case when it arises + a matter in CT dealing with self-provision (non-wireless) (cannot be specific or name names) will hopefully bring a degree of finality to all of this

captain - please accept that interpreting judgements and applying legal rules is a specialised activity as is understanding the technical items in your posts

I'm gently interested in that mention about that "There is zip
Telkom can do if you resell a satellite Internet service."
If that's so, then...
A little bit of 'advanced magic' (high technology without wires)
might be the way to bypass the copper and fiber-optic cable-loving,
street-protecting hot monkey love of Telkom..

QUESTION to Rodent:
Do you really believe Icasa will get the police to wait for me with my grinder at the road and arrest me for cutting through a road with permission from council? Be specific, you probably mean arrested for sending data across the road. But then why are all the members of JAWUG then not arrested for sending data across the road ?

QUESTION TO www.nicciferguson.co.za (dominic)
Tel 021 465 9175 :
Why can't a VANS license holder send data across the street via FIBER but can send data via 5.8GHZ , both clearly violating the intent of ACT.96?
Is not perhaps that Uninetwork wants to be in absolute control of a data network and once he lays a fiber across my garden that fiber becomes mine for ever and I don't need him anymore?


1)Act.96 states clearly that no signal may cross roads either via 2.4ghz or
copper wire.
2) David Jarvis pointed out in the ITWEB article that VANS are simply not referred to in Act.96, you effectively have a legal loophole for
a Vans license holder to send data across the street. Act.96 makes clear no data transmission is allowed: copper,fiber,radio.
So a VANS license holder has the right to send data across the road using ANY Medium, copper, fiber,www.zyxel.com Dslam or 5.8ghz in Uninetwork's case. This at least is the legal argument.
3)Because SBC communications and Jay Naidoo didn't draft Act.96 correctly Telkom now has a huge problem on his hands with Wi-fi technology becoming so advanced that soon David will be his own Telecoms company with Wi-max. And might I add to the great joy of Pres. Thabo Mbeki. Pres. Mbeki recently gave Telkom the mother of all warnings by threatening to declare the undersea Fiber cable an essential service.
5) ANC MP's itself might want to allow residents to
send data across boundaries, but simply have no idea how easy it is to lay fiber and the
relatively low costs involved. Do you really think the Police will arrest Frank Chikane for sending data across a road via fiber?
6) What we as bandwidth starved peasants must to is to LOBBY ANC MP's and
7) As stated elsewhere Koos de Wet from roads division has given me and everybody
else permission to cut through a road. ACT.96 six says nothing of fiber crossing roads
it says DATA CROSSING ROADS. Technically Icasa has to prove that fronting company
cutting through the road at that exact moment sent data across the street. All Icasa
can do is to stand there helplessly watching the fiber cable being buried under ground
8) Whole blocks of houses can joyfully dig ditches and lay fiber, as long as no
data has flowed then technically we are withing the parameters of the Act.96.
9) After we have built the network we will partner with a VANS license holder.
10) If you really want to become technical, the fronting company 'selling' us the
fiber network won't officially 'allow' any data to flow over the perimeters of houses
until it has found a VANS license holder. In the mean time we will just 'unofficially'
browse the net via two-way www.intersatafrica.com satellite data.
Telkom and Icasa's legal departments will contact the residents individually and 'warn' them about not allowing the Vans license holder/fronting company to cut through tar roads. Just like Uninet laughed off Telkoms empty threat on the Knysna wi-fi so should we.

The real reason Uninet is getting away with building a Network in Knysna is because Thabo Mbeki supports it and the SAPS is not going to look for trouble with the president. Aerosat's stuff was confiscated before the Government gazetted that you don't need an equipment license. Your comments Rodent are even more pertinent now that you don't need an equipment license. The Act also states that the Icasa councilor has to swear under oath before a judge that a terrible crime is being committed in order to confiscate your stuff. This is just a hunch but I don't think judges are actively handing down confiscation orders to Icasa to take legal Wi-fi equipment. dominic would obviously know.

One must understand the background to this Telkom/Icasa data crossing streets fiasco. Mbeki, Naidoo with very good intentions allowed Telkom to bill the living daylights out of Gauteng to fund a roll-out of services to unserviced areas. And now Telkom is disconnecting most of those connections!

This obviously wasn't the idea. What Uninetwork is doing by providing cheap Wi-fi phone services to the rural communities around Knysna
is exactly what the ANC wants.

There is a secret agreement between Mbeki and SBC communications. Nobody knows what the terms are. Speculation is that Naidoo fell out of
favor with Mbeki over it. SA was plunged into a telecoms abyss where black people are still cut-off from data networks and the SA economy is
forfeiting 1% GDP growth because of Telkom's pricing policies.

One can also understand Telkom's point that they are forced to service uneconomical areas and therefore can't be expected to lower ADSL
prices.

"People are to afraid to question authority which is good for my
business model" -- David Jarvis www.uninetwork.co.za

aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaarrrrrrrrggggggggggggggggggggghhhhhh

the tragedy is that within the conspiracy, inaccuracy and misrepresentation there are some good ideas

but your take on the law is very wrong

& even tho it is indirectly accessible from my profile i will not thank you for publishing my telephone number [any number of personal insults deleted]

NOTE: dominic is refusing to answer my question.
The greatest fear that the Wisp's/ISP's have are not Icasa/Police/ Telkom, it is the public finding out that we can cut through roads
and build our own phone exchanges. Come on David and Bruce why don't you rebut my arguments, what are you afraid of?
The truth perhaps? Or are you chicken David, hiding behind your impenetrable support staff, never available to take a call mmh?
Why don't you comment on this forum ? Let me put it bluntly: You and M-web and IS are engaging in a vast conspiracy to keep the fact
that anybody can cut through roads with/without a Vans a secret.

Your worst nightmare David would be a chap in a clown suite walking around with a board that says
www.stuffIcasa.co.za right in front of Icasa's offices. And on the website he begs Icasa to arrest him for cutting through at tar road, but
NOT SEDING DATA ACROSS THE Road. There is a difference isn't there David ?

Icasa made a huge mistake in pressing criminal charges against Bruce/White. Just like Telkom must be smoking crack in taking on Uninetwork I
presume in a Civil case? I am confused here dominic, Telkom can't press criminal charges, only Icasa can , so it must civil ?
It is easy to make threats but if those threats don't result in actual prosecution by a prosecutor then the public will take notice.

Members of this forum you know what is the problem with us South-Africans? When a 'sprinkaan beampte' says jump we reply with “Hoe hoog
my baas.” The people that get somewhere in life, like David combines their bravery with inside knowledge.
From the very moment Uninetwork started operations they HAD NO VANS LICENCE. Notice that they operated and
applied for a VANS license, which was eventually awarded. And so can you, simply have your fronting company apply for a VANS license and
joyfully commence with cutting through roads.

Dominic you are contradicting your self. On another thread you told me that the sergeant who investigated Aerosat had no interest in the case
and that the charges were withdrawn. Now you tell us Aerosat was prosecuted, which is nonsense. A criminal prosecution would send shock waves
through the ICT industry and this forum would immediately pick up on it. How much longer do you think you can keep silent the fact the
SAPS wouldn't dream of swooping down in a Blitzkrieg on residents laying fiber ?

captainwifi said:

QUESTION to Rodent:
Do you really believe Icasa will get the police to wait for me with my grinder at the road and arrest me for cutting through a road with permission from council? Be specific, you probably mean arrested for sending data across the road. But then why are all the members of JAWUG then not arrested for sending data across the road ?

Click to expand...

No, the cops will lock you up because you are damaging public property.

Goodness Rodent how many times must I say that we, all of us have been given
permission by Mbombela council to cut through roads. Koos de Wet head of roads
gave me permission. Japie from Engineering at Hazyview said he will organise the
Traffic police specially just for me to lay a fiber across the road! Must I PM you and give you their cell numbers? The property agent I spoke to told me that council would even be willing to cover half the cost of setting up a CCTV surveillance system for Numbi park who are bein stalked by crookes. Council is not our problem: Moronic backwards South-Africans to useless to challenge authority and their assumptions are our main problem in solving the crime/bandwidth issue.

One of my own friends who pays R300/month for a security company has refused
me permission to lay a fiber through his yard. He says my idea is great but he
'doesn't feel like doing it'. I patiently explained it won't cost him anything, I just
want to dig the ditch, but to no avail.

As you always so eloquently verbalize: Proof please.

I have PM'd Rodent the Cell numbe of Koos de Wet. Please phone him during
office hours and report back to this forum ASAP.

captainwifi said:

NOTE: dominic is refusing to answer my question.

Click to expand...

apologies for the oversight..the answer to the question

captainwifi said:

Why can't a VANS license holder send data across the street via FIBER but can send data via 5.8GHZ , both clearly violating the intent of ACT.96?

Click to expand...

see Rodent's take on the law above...unless you have the required licence you can't and the majority and currently official view is that a VANS licence is not sufficient.

captainwifi said:

Is not perhaps that Uninetwork wants to be in absolute control of a data network and once he lays a fiber across my garden that fiber becomes mine for ever and I don't need him anymore?

Click to expand...

I don;t belive so, no.

captainwifi said:

The greatest fear that the Wisp's/ISP's have are not Icasa/Police/ Telkom, it is the public finding out that we can cut through roads
and build our own phone exchanges. Come on David and Bruce why don't you rebut my arguments, what are you afraid of?
The truth perhaps? Or are you chicken David, hiding behind your impenetrable support staff, never available to take a call mmh?
Why don't you comment on this forum ? Let me put it bluntly: You and M-web and IS are engaging in a vast conspiracy to keep the fact
that anybody can cut through roads with/without a Vans a secret.

Click to expand...

No I think ICASA & the SAPS are probably more of a worry for the wisps. Otherwise classic conspiracy theory. Calling someone chicken is rich when you call yourself captainwifi and have resisted calls for your identification and the revelation of your agenda

captainwifi said:

Your worst nightmare David would be a chap in a clown suite walking around with a board that says
www.stuffIcasa.co.za right in front of Icasa's offices. And on the website he begs Icasa to arrest him for cutting through at tar road, but
NOT SEDING DATA ACROSS THE Road. There is a difference isn't there David ?

Click to expand...

LOL at the image - you perchance volunteering for the position?

captainwifi said:

Icasa made a huge mistake in pressing criminal charges against Bruce/White. Just like Telkom must be smoking crack in taking on Uninetwork I
presume in a Civil case? I am confused here dominic, Telkom can't press criminal charges, only Icasa can , so it must civil ?
It is easy to make threats but if those threats don't result in actual prosecution by a prosecutor then the public will take notice.

Click to expand...

telkom i guess can lay a complaint which may lead to criminal charges & on the civil side i would imagine it would consider suing for damages for loss of revenue

captainwifi said:

Dominic you are contradicting your self. On another thread you told me that the sergeant who investigated Aerosat had no interest in the case and that the charges were withdrawn. Now you tell us Aerosat was prosecuted, which is nonsense.

Click to expand...

like i say that damn legal language can be tricky...when the director of public prosecutions decides to proceed with charges against you then you are being prosecuted. once the matter has been finalised in court then you will either be convicted or acquitted. In this case neither happened - the charges were dropped before the matter came to trial.

captainwifi said:

A criminal prosecution would send shock waves
through the ICT industry and this forum would immediately pick up on it. How much longer do you think you can keep silent the fact the
SAPS wouldn't dream of swooping down in a Blitzkrieg on residents laying fiber ?

Click to expand...

well with you shouting about it all over the place not much longer i guess...

captainwifi how can anyone believe what you are saying anymore. In all your post you go off topic. DSLAM in WISP? Cutting roads (Although I would love to do it myself but im sure it illegal)?

By the time im finished reading this stuff, I know less than when i started.

Sorry if im missing the point, but i dont think i am.

captainwifi said:

I have PM'd Rodent the Cell numbe of Koos de Wet. Please phone him during
office hours and report back to this forum ASAP.

Click to expand...

ASAP now Rodent.

My original question:
Why can't a VANS license holder send data across the street via FIBER but can send data via 5.8GHZ , both clearly violating the intent of ACT.96?
Is it not perhaps that Uninetwork wants to be in absolute control of a data network and once he lays a fiber across my garden that fiber becomes mine for ever and I don't need him anymore?

see Rodent's take on the law above...unless you have the required license you can't and the majority and currently official view is that a VANS license is not sufficient.

Click to expand...

Your answer skillfully avoids the thrust of my question. Icasa is not actively trying to forbid Uninetwork from sending data across the street using
5.8ghz , why would they actively try and forbid them from cutting through tar roads (Knysna council would obviously give permission) ?
Views, views we all have views but what concrete action would Icasa take to actually stop data from flowing through that fiber buried under bitumen. Let me put it this way.

Without a Vans license Icasa does attempt confiscate radio equipment, with a Vans license your radio equipment is safe. So obviously Icasa's view is that a Vans license IS sufficient to send data over boundaries via Wi-fi, why
would they refuse that exact same data from crossing boundaries via Fiber with a VANS license.

Sure Icasa might not be thrilled with the fact that the drafters of Act.96 didn't mention the word 'Vans' in it, which means that Uninetwork as a Vans license holder must be given the benefit of the doubt when sending data across the street using any medium: fiber , copper or Wi-fi.

i get your point that you see no qualititative difference between data carried wirelessly or over fibre...the majority view is that both are illegal under the act and ICASA have put their view on record - it is more a problem of enforcement i.e. the inability of icasa to enforce the law (which works both for and against telkom, who proceed to go around enforcing their interpretation of the law).

the definition of VANS was inserted into the act by a later amendment

So for all intents and purposes Uninetwork is a telephone company who has the right to cut through roads etc. Note that Telkom is taking on Uninetwork not Knysna council. As ITWEB states:” Uninetwork takes full responsibility”
So why does nobody comprehend my idea that all Knysna has to do is run a fiber cable through everybody's garden connecting their municipal offices ? And Uninetwork will have to take full responsibility for it, But because nobody are even discussing this with council, nothing is being done. I am not saying that Uninet should not setup the 5.8ghz towers, I am just saying that council could insist any fiber network built by residents should come under the 'protection' so to speak of Uninetwork. Could I ask all the 'lurkers' on this forum who obviously are following this thread with great interest to please give us your views. Why ,why will this idea of mine not work?
Just give me one legal way Telkom would be able to hunt down residents who signed a contract with Uninet to become the 'patron saint' of their self-built fiber network. No insults please, just crisp clear logical arguments preferably with reference to court cases.

My shiny 2c coin ...

1. A lawyer friend of mine explained to me that in judgements with regard to written law, the grammer/wording of the law is not as important as the intent of the author of the law. That means if the intent of the law was to only allow the holder of a PSTN license to facilitate communication across a road, then thats how the judgement will go, even if specific references to VANs, WiFi etc. were omitted.

2. That said, I dont understand why in a concentual situation (e.g. guy on the left side, the road owner & guy on the right side all agree to lay a fiber) any licensing is required at all? If however the left guy wants to provide the right guy with a communiction service for financial gain using the fiber, I do believe the left guy should have a license. The license would be for service provision bit (i.e. consumer protection), not for the communications medium.

3. I do however agree with ICASA's current ruling that the use of ISM bands (WiFi 2.4 & 5 Ghz) be restricted to individual dwellings/plots/buildings. If a VAN, WISP or anyone else saturated a suburb with high power ISM signals so as to render individual users (home) WiFi APs inoperable due to interference, that would be unfair, wrong and contrarty to the general accepted usage of the ISM bands.