Telkom says "Stuff the Constitution"!

[jabu]

http://www.rights-watch.org/Love_complaint_to_ICASA.html

Listen to the Real Audios. They just about sum up Telkom's absolutely sickening attitude to our Constitution.

That's part of a message I posted in another thread. But that was a thread about the ANC not having a formal position on ICASA filings, so I thought I'd start a new thread about this here.


Stripping out the legalese from the page I linked to, here's what happened:


1. The ex wife of one of our forumites, Sian Alachouzos, needed to apply to Telkom for a phone line. To do that, she had to fill in a standard Telkom application form.


2. The application form says "I ... accept Telkom's conditions of contract". But Mrs Alachouzos was a law student and she found out that the conditions of contract contain stuff which is inconsistent with your rights under the SA Constitution.


3. So she altered the wording on the form to say: "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".


4. That's the only alteration she made. In other words, the only change she made was to protect her rights under the Constitution (Bill of Rights). But because of that Telkom refused to provide her with a phone line.


5. She then got her ex husband Michael Alachouzos (who is an advocate) to ring up Telkom's legal department to protest about this.


6. Telkom's legal department said (basically): "Stuff the Constitution, and stuff your ex wife's constitutional rights"!


7. You can hear them saying it here:

http://www.rights-watch.org/I_Coetzee_170502_excerpt.ram

and there's more here:

http://www.rights-watch.org/I_Coetzee_220502_excerpt.ram


Any comments, anyone?

 

[reech]

Classic!

 

[Siembambaa]

Typical Telkom ... their arrogance is simply mind boggeling.

PS: As a general rule dont post personal info (even names) on the net if you can avoid it.

 

[BTTB]

R6 Billion = Arrogant

They can afford to be arrogant with R6 Billion to spend on Dividends and Attorneys Fees.

Telkom is not the only Company that does this sort of thing. But telkom is the point of discussion on MyADSL.

It reminds me of a similar situation when my wife was in hospital for a surgical operation and the form we had to sign that quite plainly waives away your rights, if the hospital is negligent.
I drew a fat line through this clause and initialled it, before I signed the form at the bottom. The Nurse acknowledged the alteration and they carried on with the operation with no further ado.

The story with Telkom, albeit do to with our constitution smacks of Antitrust.
Like they can do anything they want and if you don’t like it, leave it.
Where else can you get a telephone line from anyway?

I back the Alachouzos family and as far as I am concerned they were not asking for anything more that what is entitled to everyone in our country under the constitution.
If Telkom provided a wholesome service, they would have nothing to fear by the alteration of that clause in any event. It shows that they have something to hide.

 

[SianA]

PS: As a general rule dont post personal info (even names) on the net if you can avoid it.

That may be right, but I'm Sian Alachouzos and I don't mind.

Also, I'm sure that Michael won't mind (we still live together but he's out now, so I can't ask him), as he helped draft Debbie2's ICASA complaint about this incident (which mentions both of us by name).

And as for the person in Telkom's legal department who he was talking to, I think that her name OUGHT to be posted. It's ILONKA COETZEE --- and may she go to hell!!


SR Alachouzos

 

[stoke]

Xcuze my ignorance, but isn't the constitution the top level of the law ?
i.e. If I sign a contract that does away with my constitutional rights, are my constitutional rights not upheld anyway, no matter what the contract says ?

So - <Q>the conditions of contract contain stuff which is inconsistent with your rights under the SA Constitution</Q> is irrelavant. You could sign the contract and then force them to provide the service according to your constitutional rights.

Or am I off ?

 

[jabu]

They can afford to be arrogant with R6 Billion to spend on Dividends and Attorneys Fees.

It reminds me of a similar situation when my wife was in hospital for a surgical operation and the form we had to sign that quite plainly waives away your rights, if the hospital is negligent.

I drew a fat line through this clause and initialled it, before I signed the form at the bottom. The Nurse acknowledged the alteration and they carried on with the operation with no further ado.

OK, BTTB. But apart from the main difference which you've pointed out, which is that the hospital did in fact allow you to change the form (+ they don't have a monopoly of surgical ops), there's another relevant difference between these two situations.

The point is that constitutional rights, and especially ones in the Bill of Rights, are on a slightly different footing to ordinary rights in private law. I'm not trying so say that your ordinary rights against a hospital (in a case of negligence) aren't important. Of course they are. But rights in the Bill of Rights are additionally important because there's a political status attached to them.

In fact, the Bill of Rights (which is part of the Constitution) is described in the Constitution itself as "a cornerstone of democracy in South Africa". So telling people that they must give up their rights under that in order to get a phone line comes pretty close to saying "Stuff democracy in South Africa".

And that's not just arrogant. It's very, very arrogant. The sort of arrogance (I may be over-dramatizing a bit here, but I don't really think so) of which tyrants and despots are made. (Which may explain a lot about Telkom and why we all hate it so much, actually)

Also, by the way, I don't think it's necessarily true that R6 Billion = Arrogance. I know some very rich people who aren't arrogant, and also some poor ones who are. Having a lot of money may allow you to be arrogant with impunity (for a while), if you're the sort of person who's basically arrogant anyway. But it's not what makes you arrogant.

Telkom are arrogant because the people who control the show there are the sort of people who are arrogant anyway. And because they're arrogant they're also unjust. And by being unjust they've become very rich. And because they're now so rich, people kow-tow to them and don't want to challenge them. And that may reinforce their arrogance. But they're an arrogant bunch anyway.

 

[mancombseepgood]

Thats what I thought

</Q> So - the conditions of contract contain stuff which is inconsistent with your rights under the SA Constitution is irrelavant. You could sign the contract and then force them to provide the service according to your constitutional rights. <Q>

 

[kaspaas]

Xcuze my ignorance, but isn't the constitution the top level of the law ?
i.e. If I sign a contract that does away with my constitutional rights, are my constitutional rights not upheld anyway, no matter what the contract says ?

So - <Q>the conditions of contract contain stuff which is inconsistent with your rights under the SA Constitution</Q> is irrelavant. You could sign the contract and then force them to provide the service according to your constitutional rights.

Or am I off ?

Your constitutional rights are only worth the size of your pocket you are prepared to spend on lawyers.

It is extremely expensive to go that route.

 

[antowan]

I am not familiar with the particulars of this case, but AFAIK you would be daft not to accept anybody's request that you don't infringe on their constitutional rights. But on the other hand, you cannot AFAIK sign away your constitutional rights. Even if you don't insist on it, it is there to be protected by the relevent bodies of law. If Telkom transgresses, they should be held accountable whether they try and pretend you are signing it away or not...

The lady from Telkom, whose voice we hear is typical of the standard hoard of office droans at Telkom who feel empowered to "boss" other people around because they have the interest of the monopoly at heart. As long as she does that, she knows that the millions of rands that Telkom has in its litigation budget is available to protect her. No matter how low in the ranks she is...

To top it all off, she is not even held accountable if things like this go to court... She was just doing her "job"...

 

[alacos]

Xcuze my ignorance, but isn't the constitution the top level of the law ?
i.e. If I sign a contract that does away with my constitutional rights, are my constitutional rights not upheld anyway, no matter what the contract says ?

So - <Q>the conditions of contract contain stuff which is inconsistent with your rights under the SA Constitution</Q> is irrelavant. You could sign the contract and then force them to provide the service according to your constitutional rights.

Or am I off ?

Actually, stoke, you're a bit off. Some constitutional rights -- even quite important ones -- can be signed away. It depends on the circumstances.

I'll give you an example.

Let's say that I have a claim against you in which I say that you owe me R10,000. You say that I'm misinterpreting the facts/contract/situation (or whatever), and that you don't actually owe me anything. That's a legal dispute, right?

Now, the Constitution says (in section 34) that I have a right to have this dispute "decided ... in a court [or similar forum]". That means I have a constitutional right to sue you. And that right is part of the Bill of Rights, in fact.

But I can certainly sign away that right. I can sign an agreement with you to the effect that if you pay me R3,000 (even though you really believe that you owe me nothing) then I won't sue you for the rest (even though I still think that in fact you owe it me).

That's a perfectly legal and binding agreement. But what it means is that I've signed away my right -- my constitutional right -- to take you to court.

I could give you many other examples. Constitutional rights to privacy, for instance, can be (and very often are) contractually signed away. If you're a bank and I have an account with you, and I sign a document consenting to your revealing details of my financial situation to (e.g.) some other financial institution from whom I want to borrow money, then I can't raise a complaint (after you've done that) that you've violated my constitutional right to (financial) privacy! The right has been signed away.

And so on.

I'm not going to go into the legal details of this here, but I actually think that Sian was right in thinking that Telkom's standard conditions involve a waiver of certain constitutional rights. However, there's another thread (concerning a complaint to ICASA) which deals with the issues raised in her particular matter. Here, we're talking about Telkom and the Constitution generally.

I hope that that has clarified things a bit for you.

Michael Alachouzos

 

[jabu]

The lady from Telkom, whose voice we hear is typical of the standard hoard of office droans at Telkom who feel empowered to "boss" other people around because they have the interest of the monopoly at heart. As long as she does that, she knows that the millions of rands that Telkom has in its litigation budget is available to protect her. No matter how low in the ranks she is...

No, that's not right. The woman whose voice we hear is a Telkom lawyer. This was a conversation with Telkom's legal department, and near the end of the second audio snip you can hear her saying that the next day she's going to be in an arbitration. So she's a lawyer (i.e. not low in the ranks at all).

What's more, if you go to the page which I've linked to at the top of my first posting here, you'll see that it has other links, including two to copies of letters which Mrs Alachouzos wrote complaining about this to the Telkom CEO's office. And they, it seems, did nothing at all about it.

So I think that we have to assume that "Stuff the Constitution" is actually part of Telkom POLICY, apparently even at the highest level.

 

[Kei]

FYI: Telkom has plenty of money available to defend itself in litigation... It reminds me of your typical massive American corporate.. you are warned...

Class action lawsuits are pointless in SA, unless you have the patience of 20 years

 

[alacos]

FYI: Telkom has plenty of money available to defend itself in litigation... It reminds me of your typical massive American corporate..

Well, there are cases in America of individuals successfully litigating against large corporates. Admittedly, these are David-and-Goliath situations and in real life the odds must always be on Goliath to win. But he doesn't win always -- even here in SA. Justin Nurse, after all, won in the Laugh-it-Off case.

But I do agree that, for most individuals, taking on an outfit like Telkom in litigation is not a very realisic option.

Michael Alachouzos

 

[Simple Twist Of Fate]

1000 posts

FYI: Telkom has plenty of money available to defend itself in litigation... It reminds me of your typical massive American corporate.. you are warned...

Class action lawsuits are pointless in SA, unless you have the patience of 20 years

ok, you made it

 

[Byrd]

Should this not be directed to the office of the Public Protector?

http://www.polity.org.za/html/govt/pubprot/pubprot.html?rebookmark=1

I can't think that they would look to kindly on this sort of thing. It may also give a bit of a press boost if Telkom were to be found deregating the constitution.

 

[stoke]

Actually, stoke, you're a bit off...

Thanks mike - a real eye opener - sneaky law !!!