Mandamus Order for Icasa

:) i recalled incorrectly

alacos i will give you a shout during the week

i will be at ICASA on Tuesday and Wednesday and will go and speak to them about what is causing a delay
 
Freshy-ZN said:
I would have thought this thread would have more support?
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I think we are all waiting for the legal boys to come up with a workable plan!
:)

alacos said:
Can anyone fill me in on the context of the thread? What was it that prompted anyone, in May of this year, to ask whether we could "throw a Mandamus Order at Icasa"?
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Tsimo was the one who brought it up - I think it started somewhere around this thread:

http://mybroadband.co.za/vb/showthread.php?t=76154&page=7
 
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Alacos and dominic, could you please keep us updated as to how this progress`s please.
 
Could you legal guys confirm whether or not one could take an entity such as Telkom to the small claims court? I know there is a limit for claims (R16 000 or something).
 
dominic said:
i will be at ICASA on Tuesday and Wednesday and will go and speak to them about what is causing a delay
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dominic- I spoke to Sakkie Redlinghys, CCC co-ordinator, on Friday afternoon. He says that ICASA is waiting for the outcomes of a particular case at the Constitutional Court. I asked him for the details of this case. He didn't know off hand but has promised me he'll email me the details on Monday.
 
Freshy-ZN said:
Could you legal guys confirm whether or not one could take an entity such as Telkom to the small claims court? I know there is a limit for claims (R16 000 or something).
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as long as you approach the small claims court as a natural person (i.e. an individual not a company) then it is doable

not sure what the limit is but 16k sounds about 10k too high

thanks d2 - will badger them
 
Some useful info here.

Who may institute a claim?
Anyone except juristic persons such as companies, corporations or associations.

Against whom may a claim be instituted?
With the exception of the State, against anyone, including companies, corporations, municipalities or other entities within the area of jurisdiction of the court

What amount can be claimed?
An amount not exceeding R7 000.

So hundreds of people take Telkom to the SCC each case claiming one months line rental back from Telkom or something else that we can find based on the Gov Gazette where the ADSL regs were?
 
Pulled this off "Law of South Africa" while checking something for an exam.

MANDATORY ORDER

Or mandamus. A mandatory order is one requiring the performance of an act of duty, ie ad factum praestandum, and is most commonly sought to enforce the discharge of a statutory duty. See Minister of Finance v Barberton Municipal Council 1914 AD 355-356. Such an order may be granted against the Crown, under Act 1 of 1910 (ibid). See Basner v Clark 1943 TPD 428. An order to a judge, see Anglo American Corporation of SA Ltd v Sierzputowski 1973 3 SA 709 (T). Such an order will only be granted if the facts are not in dispute, see NG Kerk van Natal v Administrator, Natal 1954 4 SA 763 (N); An order to a local authority, see Aziz v Vryburg Municipality 1954 1 SA 427 (GW).

A mandamus is a remedy whereby an administrative authority may be compelled to exercise a statutory duty; if the administrative authority has a discretion as to how to carry out this duty, the applicant for a mandamus can only compel him or her to exercise the discretion but cannot stipulate how it should be exercised.14 A mandatory interdict15 can be granted both where the permit was refused as a result of the disregard of the rules of natural justice, and where the permit was granted as the result of the disregard of these rules.16

14: Moll v Civil Commissioner of Paarl (1897) 14 SC 463 468; Bonnievale Wine & Brandy Co Ltd v Gordonia Liquor Licensing Board 1953 3 SA 500 (C); Nangutuuala v Gebiedsmagistraat, Ondangwa 1973 4 SA 650 (SWA); Goncalves v Addisionele Landdros, Pretoria 1973 4 SA 587 (T); Minister of Home Affairs v Dabengwa 1984 2 SA 345 (ZS). An order to refrain or desist from acting, if such action will be irreparably detrimental, is granted in the form of a prohibitory interdict which can be seen as a negative mandamus: Bula v Minister of Education 1992 4 SA 716 (Tk); if other conditions are met, a declaratory order may be requested in order to ensure that an administrative body performs its statutory duty: West Rand Bantu Affairs Administration Board v Jaques 1976 4 SA 903 (A).

15: See also Vulindlela Furniture Manufacturers (Pty) Ltd v MEC, Department of Education & Culture, Eastern Cape 1998 4 SA 908 (Tk) in which the applicant claimed relief in the form of a mandatory interdict, directing the respondents to perform a statutory duty imposed by them. The court found that the applicant had no locus standi to seek a mandamus based upon an alleged failure by the respondents to perform the statutory duty.

16: Transnet Bpk h/a Coach Express v Voorsitter, Bpk Nasionale Vervoerkommissie 1995 3 SA 844 (T).
 
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Interesting... sad that we would have to go to this level to get them to do their jobs though :( Still, i am all for nailing these lazy useless bastards if it prompts them into action!
 
Such an order will only be granted if the facts are not in dispute
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We are covered there at least :)

A mandamus is a remedy whereby an administrative authority may be compelled to exercise a statutory duty; if the administrative authority has a discretion as to how to carry out this duty,
the applicant for a mandamus can only compel him or her to exercise the discretion but cannot stipulate how it should be exercised.
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Don’t know if that it good or bad. I'll leave it up to the legal people to post something is Plain English.
 
ld13 said:
Don’t know if that it good or bad. I'll leave it up to the legal people to post something is Plain English.
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It's a good thing.

The reason why the courts cannot instruct the administrative authority on how the decision must be made is derived from the principle of seperation of powers. If the courts could do that, why have administrators in the first place?

In this regard, the courts form a kind of watchdog over the other branches of government, but those other branches are still important and shouldn't be usurped. If the "administrative authority" is dragging its feet, a mandamus should be enough to get the ball rolling. If the decision that is made after the mandamus is given is defective, it can still be taken to court for review.
 
Mandamus Order

Wouldn't a Mandamus Order be better served on Ivy? She is the one with the power to make change happen, but she doesn't.

Earlier this year President Mbeki himself stated publicly that the country must have competition in Telecoms in order to bring costs down for the consumer. Ivy has taken it upon herself to do the opposite, (blocking landing rights on undersea cable projects, issuing of licences etc).

Surely we could build a case against her?
 
To be on the safe side, and to prevent any buck passing, I would issue a mandamus against three - 1. Ivy, 2. Paris Mashile, and 3. Lyndall

That way they won't be able to pass the buck.
 
Here's an article from 13 Feb 2007, shortly after Mbeki's state of the nation address: http://mybroadband.co.za/nephp/?m=show&id=5640.

As Ivy is at the top of the food chain as far as telecoms go, it is her failure to have implemented changes as mentioned by the ol' president. If a Mandamus Order lands on her lap then, and only then, things will start to improve.

I would wholeheartedly support any application that would force the powers-that-be to do their jobs.

I'm sure we could raise funding to back an application through the forumites, and probably through industry players whith a vested interest (Neotel, IS, MTN etc).

It just seems as though all our ranting and raving over the years has fallen on deaf ears where it counts, and I'm not sure of any other avenues we could explore.

If we can get this going, lets hope for a Judge who uses the internet and can see it's value more than Ivy, Lyndall and the others in office who rely on their PC's for solitaire and the odd e-mail about a lunch appointment.
 
I'm not sure under what law this was ordered, but it might be relevant:

Johannesburg - Justice minister Brigitte Mabandla is an embarrassment to the judiciary and should be dismissed after being ordered by the High Court to do her work, the Inkatha Freedom Party (IFP) said on Monday.

"This is without a doubt the only country in the world where the Minister of Justice has not only been found guilty of the violation of human rights, but also been ordered by the High Court to do her work.
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http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2268564,00.html

See this thread:
http://mybroadband.co.za/vb/showthread.php?t=105117
 
I haven't seen the court case itself, but I'd guess that the basis for the court case was the fact that she was not properly doing her administrative duties.

Edit : and personally, all things considered, I think she should be charged with criminal negligence.
 
Would opening access to SAT3 be such a duty that they have failed to complete? Or are we just waiting for some contract/agreement to expire before Neotel et al. will get access?
 
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