Johannesburg, 17 Apr 2008
Telkom is challenging the right of the Competition Commission to refer a market dominance complaint, lodged by the Value-Added Network Service Providers Association, to the Competition Tribunal.
The case will be heard at the High Court on 24 and 25 April, in Pretoria.
Telkom's case centres on a complaint by VANS that the Competition Commission referred to the Competition Tribunal in 2004.
VANS accused the fixed-line operator of abusing its market dominance by refusing to supply them with backbone and access facilities, unless they met Telkom's conditions.
VANS also complained that Telkom was refusing to "peer" with AT&T, and refusing facilities for AT&T to "peer" with satellite networks.
In addition, VANS also accused the fixed-line operator of refusing to lease access facilities to them directly and that it insisted VANS be agents of its customers and discriminated against independent VANS, charging them more than for telecoms facilities connecting to its own VANS network.
The heart of Telkom's case against the competition authorities lies in whether the Competition Commission had the right to refer the VANS complaint to the Competition Tribunal, and whether the Competition Tribunal has the competence to rule on the matter.
Telkom also contends the VANS complaint falls within the jurisdiction of the Independent Communications Authority of SA (ICASA).
ICASA was authorised by the Telecommunications Act of 1996, and later by the Electronic Communications Act of SA, to preside over the matter, the company says.
Telkom's third argument is that the Telecoms Act gave it the right to set out the conditions of interconnecting with VANS as outlined in the complaint.
Competition laws matter
The Competition Commission says it accepts that competition authorities have no competence to condemn Telkom over conduct it is entitled to by the Telecoms Act, and that such an act by the competition authorities would be reviewable as unlawful.
It also concedes that competition authorities have no competence to decide whether Telkom's conduct constitutes compliance with, or a breach of, the Telecoms Act, the regulations promulgated under it or Telkom's licence.
An attempt to exercise such a power would constitute an invasion of ICASA's exclusive jurisdiction and be reviewable as such, it says.
However, Telkom must still comply with the Competition Act and if the Telecoms Act entitled it to a certain action, it does not mean the Competition Act gives it such leniency, the Competition Commission says.