[7] In terms of Regulation 1 the expression "Local Bandwidth usage", unless the context
otherwise indicates, means ''the data that can be transferred from South African
based Internet protocol addresses."
[8] There are no defInitions in the regulations of the expressions "monthly cap" or ''the
cap."
[9] Collins Dictionary of the English Language provides the following relevant meaning
of the noun "cap": "an uppermost surface or part," and of the verb "cap": ''to impose
an upper limit on the level of increase of (a tax, such as rates): rate-capping".
[10] In view of the fact that regulation 3.1 expressly refers to ''the contract for the
service" while regulations 3.2 and 3.3 impliedly refer thereto, one would, in
interpreting the regulations, to my mind, be entitled to have regard to the meaning
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which parties to such contracts have attributed to words like "capping", "cap period"
and "cap". In my view, the regulations envisage that such words, appearing in
contracts between subscribers on the one hand, and Telkom, SNO or ISPs, on the
other would bear the meaning assigned thereto in such contracts.
[11] The parties are agreed that the contract entered into between them electronically
accords with the contents of exhibit "A". On page 4 thereof Telkom's Capping
Policy is sent out under the heading "Access capping details" as follows:
"To offer a fair service for all, Telkom Internet currently monitors and tracks all ADSL
users' online usage which, when added up, constitutes your cap or usage. The usage is
measured in Gigs.
· Capping -Please note we do not monitor what you do or where you go, but
how much traffic you produce in your use of the Internet. Your ADSL usage
is determined by all traffic you generated by a given user name and includes
the upload (sending), download (receiving) as well as network and protocol
overheads. The same process applies to both the shaped and unshaped
service. The accumulated data can be viewed at HTTP:ADSL.telkomsa.net
and is updated each day after the forced network timeouts.
. What's a Gig - In short,
application on the Internet.
MS Word or MS Excel
it is the amount of Bytes or size of a file or
This is approximately 300 songs, 1 500 average
documents or about 10000 E-mails without
attachments.
· Cap period -Capping is determined over a given period, normally a calendar
month. As such, monthly usage is accumulated during the period and reset
according to your service subscription. At the beginning of each period the
usage tracker is reset and any restrictions that might have been imposed would
be lifted.
--- - _..-
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· What is a cap -A cap is the amount of traffic or Gigs per service a subscriber
may use or consume over a given period and is determinedby the product you
have subscribed to initially. An example would be two, three or four Gig.
Capping has no relation to the ADSL speed that you have chosen."
[12] The "monthly cap" referred to in regulations 3.1, 3.2 and 3.3 would, therefore, mean
the amount of traffic or Gigs per service a subscriber may use or consume over a period
of one month and is determined by the product to which the subscriber has subscribed to
initially, e.g. two or four Gigs.
[13] It is also important to note that according to the introductory sentence to the
"Access capping details", Telkom Internet currently monitors and tracks all ADSL users'
online usage which when added up constitutes the subscribers cap or usage, which is
measured in Gigs. The word "all" indicates that not just traffic generated from or to
South African based Internet protocol addresses are monitored and tracked, but also "all
traffic" from or to international protocol addresses.
[14] Mr Maritz submitted that the correct interpretation of regulation 3.4 is that a
subscriber's local bandwidth usage may never be capped, Le. cut off or restricted, but that
both local and international bandwidth may be counted and may accumulate for the
purpose of calculating the total bandwidth usage and thus determining when the cap
(which is to be imposed only in respect of internationalbandwidth usage) is reached.
[15] Mr Cleghorn agreed with Mr Maritz's interpretation of regulation 3.4, but submitted
that Telkom's actions were not in accordance therewith. He asked the Committee for
leave to call witnesses to testify that Telkom has indeed capped local bandwidth usage in
the sense of cutting off or restricting access thereto. However, the Committee refused to
allow Mr Cleghorn to do so since it has never been a part of his complaint that Telkom
had done so, and Telkom has never been afforded a reasonable opportunity to respond to
such an allegation, as intended by s17C(2)(c) of the Act.
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[16] In my view, Mr Maritz's submission in regard to the interpretation of regulation 3.4
is correct. None of the regulations throws any light on the question how the usage which
contributes towards the capped amount of data is to be calculated. If the intention of
ICASA in promulgating regulation 3.4 was to provide that "local bandwidth usage shall
not count towards the cap", it would have been a simple matter to state this in clear and
unambiguous terms. ICASA chose rather to use the words "local bandwidth usage shall
not be subject to the cap."
[17] In Pangbourne Properties Ltd v Gill &Ramsden (Pty) Ltd 1996 (1) SA 1182(A) at
11871to 1188A the Appellate Division held that the phrase "subject to" has no a priori
meaning. The court, referring to the decision in Rennie NO v Gordon and another NNO
1988(1) SA l(A) at 21D-22D, pointed out that in statutory contexts the phrase is often
used to establish what is dominant and what is subordinate.
[18] Applying this meaning to the phrase "subject to" in regulation 3.4, the regulation
means that local bandwidth usage will take precedence over the predetermined cap. The
word "cap" as used by the parties to the contract, exhibit "A", is clearly intended to mean
the "maximum" data traffic permitted" over a given period. Accordingly, the proper
interpretation of regulation 3.4 is that when the total data traffic reaches the amount of the
cap, no limit or restriction may be placed on local bandwidth usage, but all other
bandwidth usage may be limited or restricted. Local bandwidth usage is accordingly
given precedence over the cap, and may continue despite the cap being reached.
[19] Mr Maritz submitted that regulation 3.4 is clearly ambiguous. He suggested that its
other meaning would be that local bandwidth usage should not count towards a cap. On
this interpretation, only data transferred from or to international Internet Protocol
addresses would accumulate for the purpose of calculating the subscriber's bandwidth
usage and thus determining when the cap is reached.
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[20] It would appear that this is the interpretation of regulation 3.4 which Mr Cleghom
had in mind when he raised his complaint. See his e-mails dated 27 and 28 March 2007,
29 May 2007, 18 June 2007 (items 12, 14, 3 and 2 annexed to the complaint). Although
Mr Cleghorn denied this under cross-examination by Mr Maritz, his denials are
unconvincing.
[21] As indicated, Mr Cleghom no longer supports the interpretation he originally gave to
regulation 3.4 and now supports Mr Maritz's interpretation. If regulation 3.4 is
ambiguous regard should be had to the equities (Hansen v Venter and Another I957( 4)
SA 422(0) at 427 A). In my view, it could lead to injustice to Telkom if local bandwidth
should not count towards the cap. (n effect, the subscriber would in such a case not pay
for his use of local bandwidth. Probably it was this consequence which led Mr Cleghom
to abandon this interpretation.
[22] Accordingly, the complaint is dismissed.
Committee Members. Council/or JCW van Rooyen, N.Ntanjana. and D.Moa/osi
concurred.
LW.B. de ViIliers (Acting Chairperson)
