{"id":5424,"date":"2008-10-01T15:31:00","date_gmt":"2008-10-01T13:31:00","guid":{"rendered":""},"modified":"2008-10-01T15:31:00","modified_gmt":"2008-10-01T13:31:00","slug":"ivy-says-judge-erred","status":"publish","type":"post","link":"https:\/\/mybroadband.co.za\/news\/telecoms\/5424-ivy-says-judge-erred.html","title":{"rendered":"Ivy says judge erred"},"content":{"rendered":"

Communications minister, Ivy Matsepe-Casaburri, recently announced that she would appeal the recent value added network services (VANS) judgment where it was ruled that VANS may self-provide. <\/p>\n

According to the official notice-to-appeal document, Matsepe-Casaburri’s legal team argues that Justice Davies “ventured into the area of policy making contrary to section 5 read with 96 of the Telecommunications Act which empower the Minister to make regulations.”<\/p>\n

They further argue that the effect of the judgment is that he has defined the scope and content of the "managed liberalisation policy" which is greatly contested in the market. “This is a violation of the separation of powers principle,” the document reads.<\/p>\n

The full notice to appeal includes the following points:<\/p>\n

    \n
  1. The Learned Judge erred in setting aside paragraph 3 of the Ministerial Policies and Policy Directions. <\/li>\n
  2. The Learned Judge should have only set aside paragraph 3 of the Ministerial Policies and Policy Directions to the extent that that paragraph purported to regulate the conversion process (Chapter 15). <\/li>\n
  3. The Learned Judge erred in setting aside paragraph 3 to the extent that that paragraph regulated new licences. <\/li>\n
  4. The Learned Judge should have set aside paragraph 3 to the extent it was ultra vires and should have referred it back to the third respondent to rectify the unlawful part. <\/li>\n
  5. The Learned Judge erred in declaring that the applicant was entitled to self provide its own telecommunication facilities with effect from 1 February 2005. <\/li>\n
  6. The Learned Judge erred in making the above declaration without declaring the May 2005 regulations unlawful. Infact, to this extent, the Learned Judge ventured into the area of policy making contrary to section 5 read with 96 of the Telecommunications Act which empower the Minister to make regulations. The effect of the Learned Judge’s Judgment in that he has defined the scope and content of the “managed liberalisation policy” which is greatly contested in the market. This is a violation of the separation of powers principle. <\/li>\n
  7. The Learned Judge erred in finding that the Ministerial Policies and Policy Directions were administrative action in terms of PAJA. Consequently, the Learned Judge erred in granting the extension of the period in terms of section 9(1) of PAJA.”<\/li>\n<\/ol>\n

    Matsepe-Casaburri was criticised by both consumers and industry for her decision to appeal this ruling which looked set to liberalise the telecommunications industry.<\/p>\n

    It was even suggested by some commentators that she may be protecting vested interests, including the DoC’s Telkom shareholding, by holding competition back with her "managed liberalisation" policy.<\/p>\n

    Altech fights back<\/strong><\/p>\n

    Altech is, however, not taking this appeal lying down. The company said yesterday that it would oppose the minister’s appeal.<\/p>\n

    According to a Fin24 article<\/a> by Belinda Anderson "Altech – and the industry – may even proceed with a class action suit against her ‘unconstitutional’ attempt to change the Electronic Communications Act."<\/p>\n

    “[Altech CEO Craig] Venter reiterated that Altech’s fight was a matter of principle, the outcome of which could positively impact the entire industry and give it greater clarity.”<\/p>\n

    ICASA has yet again put the licence conversion process on hold awaiting the result of Matsepe-Casaburri’s appeal.<\/p>\n

    Altech court case discussion<\/strong><\/a><\/p>\n

     <\/p>\n","protected":false},"excerpt":{"rendered":"

    Altech vows to fight back<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[],"class_list":["post-5424","post","type-post","status-publish","format-standard","hentry","category-telecoms"],"_links":{"self":[{"href":"https:\/\/mybroadband.co.za\/news\/wp-json\/wp\/v2\/posts\/5424"}],"collection":[{"href":"https:\/\/mybroadband.co.za\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mybroadband.co.za\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mybroadband.co.za\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/mybroadband.co.za\/news\/wp-json\/wp\/v2\/comments?post=5424"}],"version-history":[{"count":0,"href":"https:\/\/mybroadband.co.za\/news\/wp-json\/wp\/v2\/posts\/5424\/revisions"}],"wp:attachment":[{"href":"https:\/\/mybroadband.co.za\/news\/wp-json\/wp\/v2\/media?parent=5424"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mybroadband.co.za\/news\/wp-json\/wp\/v2\/categories?post=5424"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mybroadband.co.za\/news\/wp-json\/wp\/v2\/tags?post=5424"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}