Big day for Vodacom and MTN battle

Vodacom’s case against South Africa’s telecoms regulator over what it contends are unlawful spectrum pooling deals completed a key step on Monday, 12 May 2025.

Vodacom launched legal action against the Independent Communications Authority of South Africa (Icasa) in May 2024 over the regulator’s silent approval of the agreements between MTN, Cell C, and Liquid Intelligent Technologies.

The mobile network complained that the deals were unlawfully approved because Icasa did not hold public consultations about them.

Vodacom wants the Pretoria High Court to declare the agreements unlawful and set them aside.

Its major issue with the agreements is that they enabled MTN and its partners to use guard band spectrum to drastically improve their network performance.

These bands separate operators’ radio frequency spectrum assignments so that their networks do not interfere with each other.

MTN was able to use the guard bands without hurting another operator because it concluded deals to pool its spectrum with theirs, effectively creating a large contiguous frequency band.

As a result, despite investing more than MTN in its South African network in recent years, Vodacom has remained the country’s second-best network in terms of download and upload speeds.

Vodacom suspected something untoward and conducted its own tests, which showed that MTN was making substantial use of guard band spectrum to improve its network speeds.

Due to the pooling agreements, MTN and Cell C have been able to use a large chunk of contiguous spectrum since 2022.

However, South Africa’s telecoms regulations determine that spectrum licensees must pay for the spectrum they use.

MTN, Cell C, and Liquid have not been licensed to use the guard band spectrum and are not paying for it, even though it does not directly impact the performance of Vodacom’s network.

Telkom has also joined the case and submitted that Icasa’s approval had allowed MTN to override spectrum caps that the regulator imposed in the 2022 spectrum auction.

On Monday, the respondents in the matter — including Icasa, MTN, Cell C, and Liquid — filed their answering affidavits in Part B of Vodacom’s application.

Vodacom will then be given time to file its responding affidavit.

“Once all papers are filed, then the court will be approached to confirm a hearing date,” a spokesperson said.

Vodacom has a point, but we cannot be hasty — Court

The High Court previously denied Vodacom an interim interdict against the approval of the pooling arrangements in the hearings on Part A of the operator’s application.

That was despite the court agreeing with Vodacom that Icasa’s approval of the spectrum pooling applications was unlawful and that Vodacom had established a case for an interdict.

Judge Etienne Labuschagne agreed that Icasa should have held public consultations and amended MTN, Cell C, and Liquid’s spectrum licences.

“The process followed was flawed, and the need to assign the guard bands to make the pooling efficient places the need for public participation beyond doubt,” the judge said.

“I am satisfied that Icasa erred in not following a process of public participation,” Labuschagne continued.

“The sharing arrangements approved by Icasa has the capacity to adversely affect the rights of other mobile network operators who have licences for spectrum.”

However, Labuschagne did not grant the interdict as he found there was no inevitable and obvious resolution of the dispute based on the facts required by the Outa principle.

The principle is from case law about interim interdicts, where the separation of powers between the government and the judiciary is concerned.

Separation of powers was a major theme in the arguments over the interdict because Icasa is an independent regulator that falls under a government department.

Judge Labuschagne also considered the impact that the reversal of Icasa’s decision would have on MTN and Cell C’s network performance and their customers.

“To deprive the public of such benefit is no small matter. They would be prejudiced. It is the grass that gets trampled when elephants fight,” Labuschagne said.

Vodacom dethroned as second best network

Vodacom’s legal action comes after several years in which MTN’s mobile network had dominated MyBroadband Insights’ quarterly and annual network performance reports.

The latest Mobile Network Quality Report showed that even Cell C — which also benefits from the spectrum pooling deal — had overtaken Vodacom to become the second-best network in the country in the first quarter of 2025.

MTN maintained the top position it has held for several years, while Vodacom was the only operator whose overall network quality score decreased quarter-on-quarter.

A Vodacom spokesperson told MyBroadband that Cell C’s achievement was due to its spectrum pooling agreement with MTN.

“It is important to emphasise that this is largely on the back of the spectrum-sharing arrangement between Cell C and MTN, which is currently under legal scrutiny,” the spokesperson said.

They said that Vodacom would continue to advocate for “continue to advocate for fair competition and transparency within the industry while delivering cutting-edge technology and exceptional customer service.”

MTN refused to comment on Vodacom’s response to the Mobile Network Quality Report allegations as the matter was before the court.