MTN saving R286 million from Icasa delay

[Wimbo]

The simple fact is that ICASA was provided with a straightforward means of tying MTNs urgency component of the application up in court and on the face of it have declined to use it.

Please explain, Paul.

 

[Paul Hjul]

MTN served a defective notice of motion that provides an inadequate provision for and flagrantly is not in sync with the current rules of court. In most divisions the error shouldn't matter - I've checked the 8Km vs 15Km distance would have no implication on a Respondent in Grahamstown but in South Gauteng it makes a BIG difference - and was the motivation for the change in the Rule.

The Notice of Motion as a whole shows a propensity to jump the gun (looking at the annexures thereto) and fails to afford a prospective respondent the full right to read the papers and determine whether to oppose and to then exercise their right to be heard in accordance with the rules and practices of court. Instead the Applicant has, in defiance of a repeatedly rebuked practice of using urgency as licence to unreasonableness, drafted their own procedure which flies far outside of the Rules. The failure is both with respect to distance and with respect to providing prospective respondents with channels of communication (email).

As I said on the face of it they have declined to use it because it may well be that the situation we are facing is that the ICASA lawyers spotted the error and leveraged the situation to getting a 2 month period for litigation - which is a good win, provided it doesn't become a practice of postponing implementation when there is a delay at court.

ICASA received a carbon copy of the following:

Mr McCafferty

As you are no doubt aware the founding papers in MTNs suit against ICASA in connection with the gazetted call termination rates (CTRs) are of great public interest and during the course of this afternoon have appeared on MyBroadband. On reading over the papers I detected a defect in the Notice of Motion as served on the 31 Respondents. I am writing to you (and your client) as a courtesy to appraise you of the defect and am also writing to key respondents (ICASA, Telkom and CellC). I am also furnishing a journalist for MyBroadband with this correspondence and will be publishing the contents of this correspondence on same forum.

The defect takes the form of the Notice of Motion affording the Respondents a right of opposition on condition that same "notify the applicant's attorney in writing on or before 16h00 on Friday, 14 February 2014 and in such notice to appoint an address with 8 kilometers of the office of the Registrar of this Honourable Court". Same restriction is in-congruent with the Uniform Rules of Court. The procedural right to be heard in opposition is regulated (restrained) by the provisions of Rule 6(5)(d) which obliges a respondent with intent to oppose to furnish an address within 15 kilometers of the office of the registrar.

Furthermore I submit that as the defect does not lend itself to the latitude afforded to deviate from the times, forms and service consequent upon urgency and provided for within the parameters of Rule 6(12).

I submit that the peremptory nature of Rule 6(5) to give sufficient notice to the every Respondent of their right to be heard and the requirements incumbent upon them by the Uniform Rules to exercise that right may well render the notice a nullity. Consider Gallagher v Norman's Transport Lines (Pty) Ltd 1992 (3) SA 500 (W); Simross Vintners (Pty) Ltd v Vermeulen 1978 (1) SA 779 (T) and Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A). Also consider the Memorandum to Practitioners re: Procedure in the Pretoria Urgent Motion Court "Urgency mainly involves the abridgment of times prescribed by the rules and secondarily the departure from established filing and sitting times" applicable in Pretoria (I am not aware of a similar memorandum in other divisions). I therefore submit that the defect exceeds a mere lack of urgency and the approach of removing the matter from the roll in Commissioner for the South African Revenue Service v Hawker Air Services (Pty) Ltd [2006] SCA 55 (RSA).

An additional defect in the Notice of Motion is a failure to furnish the Respondents with the Applicants "postal, facsimile or electronic mail addresses where available", while same can be gleaned through trawling through the documentation I submit that it is salutary for same to appear in the Notice of Motion for the same reasons that Practice Notes call for such information. In particular I submit that the failure to provide an email address where less than 60 hours is afforded to give notice of an intention to oppose is deeply problematic.

I suspect that the defect is a consequence of failing to afford cognizance to the provisions of R. 464 Amendment of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa (as found in Government Gazette 35450 of 22 June 2012 and attached hereto) as well as Practice Directive 02/2013 (replacing Chapter 9 of the Practice Manual on the 21 June 2013) of the South Gauteng High Court.
For what it is worth let me fully disclose my attitude towards the suit brought in motion: I am opposed to MTNs action in this respect and regard the suit as entirely anathema to the public interest. The extent of my monumental disgust at the suit is well documented on the MyBroadband forum. It is patently clear to me that the action is not in the long term protection of the rights of MTN shareholders but rather a consequence of a failure by management to strategically plan for an era of greatly diminishing voice revenues and lower asymmetric CTRs. I am of the opinion that the suit does not carry urgency as the averred harm if the ordinary course follows can readily be remedied by Telkom and CellC timeously paying over the amounts due under whatever determination a court may make. The consequence of having to preserve contingency for higher CTRs than provided for in the regulations for the duration of suit is that CellC and Telkom will not be half tied to the outcome desired by MTN, I moreover find the bringing of suit opportunistic in light of the Public Hearings on Local Loop Unbundling (LLU) commencing on the 17th February (Monday) whereat issues relating to the "wireless local loop" will inevitably arise as well as the general question the "costs to communicate" project which both LLU and CTRs forms part of.
Notwithstanding my disagreement with the approach of the regulator, my current notes for presentation include specific references to the issue of the CTRs and the bringing of suit and the insistence on opposing parties identify before the commencement of the hearings smacks of a legal SLAPP (strategic litigation against public participation) stratagem - dampening the public hearings next week where I am a participant.

I trust that on the defect being brought to your attention that appropriate steps to remedy will be taken.

I find it a wonderful dose of irony that in a suit challenging the procedures followed by ICASA a failure to adhere to the Rules of Court is made.

Kind Regards

(the irony of spelling and grammatical errors in a letter complaining of making a mistake notwithstanding)

 

[Musicmp3]

anything "green" change hands here with the sudden reversal - can anyone be trusted in this country?

 

[entrepr]

MTN’s R286 million gift from Icasa

Nope, the *Gift* is entirely (albeit unwittingly) from customers

 

[entrepr]

Where I work mtn have the best coverage, they use the best radio's "ericsson", so I will stay.

There's a better than even chance you're camping on a Huawei cell/radio right now, whether you use MTN or another operator. Sad reality.