If the South African Post Office (SAPO) and the Independent Communications Authority of South Africa (ICASA) is successful in stopping private courier companies from delivering packages under 1kg in South Africa, it can have devastating consequences.
This is the warning from Nortons director, Anton Roets, who is representing PostNet and the South African Express Parcel Association (SAEPA) in a legal battle regarding this issue.
The battle started in 2018 when the SA Post Office lodged a complaint against PostNet for transporting and delivering packages under 1kg.
The SA Post Office argued that it is the only licensed provider which can deliver reserved postal services in terms of the Postal Services Act 124 of 1998.
Reserved postal services include all letters, postcards, printed matter, small parcels, and other postal articles up to and including 1kg.
ICASA’s Complaints and Compliance Commission (CCC) ruled in late 2019 that PostNet had indeed contravened the Postal Services Act by transporting and delivering packages under 1kg.
“No one is permitted to transport or deliver reserved postage as set out in the Schedules to the Act, unless licensed to do so in terms of the Act,” the CCC said.
ICASA also sent PostNet a cease-and-desist order in October 2019 for violating the Postal Services Act 124 of 1998.
This ruling and the cease-and-desist order shook the private courier industry as it prohibited private courier companies from delivering packages under 1kg in South Africa.
The SA Post Office also confirmed that the law, and therefore the ruling, applies to all courier companies operating in South Africa.
PostNet, alongside the South African Express Parcel Association (SAEPA), challenged the lawfulness, constitutionality, and validity of the ruling.
SAEPA represents courier companies like FedEx, DHL, UPS, CourierIT, RAM, and Globeflight in South Africa.
PostNet also approached the Gauteng High Court for interim relief against ICASA’s desist order, pending the outcome of its main challenge.
It argued that stopping the delivery of packages under 1kg will cause significant and irreparable harm to their business and to South African consumers.
The Gauteng High Court ruled in favour of PostNet, which means it can continue delivering packages under 1kg until the main challenge is concluded.
ICASA is opposing PostNet’s legal challenge against the CCC ruling.
ICASA spokesperson Paseka Maleka said the regulator’s mandate was to implement what the law required, and it was doing exactly that.
“The law in terms of schedule 1 [of the Postal Act] is clear that letters and parcels between zero and 1kg are reserved for SAPO,” he said.
Commenting on the matter, Roets disputed that the Postal Services Act prohibits the delivery of packages under 1kg by private courier companies.
He said the court needs to decide what the Act truly says and whether the Post Office’s argument infringes on constitutional rights.
“If the Post Office’s interpretation of the Act is correct, it will have various constitutional implications. It will infringe on freedom of expression, privacy, and dignity,” he said.
“You will be required to use the services of a state-owned enterprise without certainty of when, and even if, the package will arrive.”
He said courier services deliver various important packages under 1kg to people, including passports, visas, or bank cards.
Couriers are also used to deliver sensitive documents like letters which can be very important to people.
“I am now being compelled, according to the Post Office’s argument, to rely on a state-owned enterprise to do it which may or may not get it there in the time that I want,” he said.
Roets said rationality should be taken into account when looking at this case.
He cited former Post Office CEO Mark Barnes who said in their corporate plan that “SAPO has regressed so far technologically, that it simply cannot offer a competitive service”.
“Essentially what we are asked to do as South Africans is to rely on an enterprise which, itself said, cannot offer a competitive service.”
“That does not sound rational to me.”