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:
[email protected]
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
