Johannesburg - 24 JANUARY 2001

The Independent Communications Authority of South Africa (ICASA) has filed its affidavit in the third cell phone court case.

 The affidavit is a response to NextCom's court application for an order setting aside the recommendation on the awarding of the third cell licence to Cell C made by the South African Telecommunications Regulatory Authority (SATRA) to the Minister of Communications.

SATRA recommended to the Minister of Communications, Dr Ivy Matsepe-Casaburri, on 30 June 2000 that the licence be awarded to Cell C. On the following day, SATRA and the former Independent Broadcasting Authority (IBA) were dissolved and replaced by ICASA. In terms of the applicable legislation, ICASA is the legal successor to SATRA and the IBA and any ruling given by SATRA or the IBA before the establishment of ICASA is deemed to be a ruling made by ICASA. 

In terms of the Telecommunications Act, the final decision in respect of the awarding of the third cellular licence rests in the hands of the Minister of Communications. Shortly after SATRA had made its recommendation, NextCom (one of the applicants) applied for and obtained an interdict from the Pretoria High Court, prohibiting the Minister from awarding the licence pending the outcome of NextCom's application for a judicial review of the licensing process conducted by SATRA. 

In an effort to have SATRA's recommendation declared invalid, NextCom alleges that SATRA's adjudication of the licence applications was characterised by a number of procedural irregularities. NextCom does not, however, question the substantive grounds on which SATRA recommended that the licence be awarded to Cell C. 

In its affidavit, which was filed with the Registrar of the Pretoria High Court on Friday 19 January 2001, ICASA asks the Court to make a finding that SATRA did not commit any reviewable irregularity in considering the licence applications. Nevertheless, ICASA states that it actively opposes only two aspects of NextCom's 
review application. More particularly, ICASA opposes NextCom's application to the
ICASA last

extent that NextCom alleges that ICASA's predecessor, SATRA, acted in bad faith in relation to the licensing process. (In essence, NextCom alleges that SATRA decided, early in the licensing process, to recommend that the licence be awarded to Cell C and that, subsequently, SATRA acted with the "improper motive" of ensuring that nothing should interfere with that decision.) ICASA also opposes NextCom's application to the extent that NextCom seeks an order directing ICASA to pay the costs of the High Court proceedings. 

As far as the remainder of NextCom's application is concerned, ICASA states, in its affidavit, that it will abide by the High Court's decision. In the affidavit the Authority has outlined factual information relating to the charges in order to assist the Court in making its determination. 

Although ICASA's active participation in the court proceedings will be limited, ICASA has, in its affidavit, provided a lengthy factual exposition of the procedure that was adopted in considering the applications for the licence. The purpose of doing so is to enable the presiding judge to determine whether or not the allegations made in NextCom's court application are justifiable and whether any grounds exist for setting aside SATRA's recommendation. ICASA asks the Court to direct that NextCom must pay the legal costs incurred by ICASA in filing affidavits to put the correct facts before the Court.

ICASA's decision to adopt the approach set out above was motivated principally by the belief that it is in the best interests of the telecommunications industry that the matter be brought to finality as soon as possible. In this context, ICASA's decision was motivated by a desire to facilitate the expeditious conclusion of the court case. 

It is hoped that the hearing will take place during February or March 2001.

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