The Internet Service Providers’ Association of South Africa (ISPA) has welcomed the news that the High Court has denied the Minister of Communications, Ivy Matsepe-Casaburri, leave to appeal a recent judgment by the court which found in favour of telecom group, Altech.
ICASA is now required to issue all VANS licences issued prior to 19 July 2008 with an IECNS licence as well as an appropriate ECS licence. However, because the Minister still has the right to petition the Supreme Court of Appeal before 21 November 2008, it is advisable to wait until after this date before the matter can be regarded as settled. Thereafter, VANS’s entitlement to an IECNS licence can be regarded as certain.
Acting Judge N. Davis ruled on Friday that the Minister’s application for Leave to Appeal would be refused on all points, with costs.
This move effectively opens South Africa’s telecoms market to much greater competition by allowing value-added network service licensees to build their own networks in competition with the incumbent operators.
The original judgement meant that the court found that VANS licensees effectively had the right to "self provide" their own infrastructure since 1 February 2005, according to the Electronic Communications Act. This is despite the Minister’s attempt to "clarify" the Act and nullify the self-provisioning clause by issuing an extra-legal press statement two days before it took effect.
Says Mike Silber, regulatory advisor of ISPA: "We are delighted that Altech has been successful in opposing the Minister’s application for Leave to Appeal against the original judgement. ISPA hopes that the latest ruling by Judge Davis will bring this chapter to an end so that the telecom industry can move forward in an environment characterised by regulatory certainty and by a fair and even playing ground."
ISPA held that the Minister’s grounds for an appeal against the judgment were based on deeply flawed reasoning, and sees the court’s decision as a vindication of this stance, adds Silber.
"The judgement indicates that there is little chance any other court will rule in favour of the Minister," he says.
"We therefore urge Minister Matsepe-Casaburri to allow the liberalisation envisaged by the Act to move ahead so that South African consumers and businesses can start to enjoy more competition and lower prices in the telecom market."
According to ISPA the failed policy of managed liberalisation has strangled choice and competition for South African telecom users.
“If the Minister truly has the interest of South Africa’s telecom industry, economy and citizens at heart, she will not seek to further impede the introduction of more competition at the infrastructure level of the telecoms market,” concludes Silber.