SAVA wins Telkom case

By Phillip de Wet for Telkom
Johannesburg, 28 Jun 2000

The South African Telecommunications Regulatory Authority (SATRA) has ruled that Telkom does not have the right to withhold facilities or services from value added network service (VANS) providers without regulatory authority.

SAVA, the South African Value Added Networks Service Providers Association, submitted a complaint in September last year after Telkom required written undertakings from VANS providers that they would not use facilities provided in contravention of the Telecommunications Act. The Act grants Telkom exclusive rights to provide a wide range of telecoms services and facilities.

The ruling gives Telkom 45 days to process all applications made by the affected VANS during the dispute. It also orders Telkom not to withhold facilities in future even when it suspects those services are being used illegally, except if SATRA gives written consent for such an action.

Telkom is not pleased.

"SATRA clearly misdirected itself, and this is evident in the fact that the ruling is not only self contradictory but is also flawed in many other instances," says Telkom regulatory and government relations executive Victor Moche. "This has been a gross miscarriage of the adjudication process, and we are definitely taking this matter on review."

SAVA is more pleased with the decision, although it has expressed concern about the length of time the resolution of the matter has taken. It has also not ruled out legal action of its own.

"Following SATRA`s ruling today, individual members of SAVA may decide to institute claims for damages against Telkom in a court of law as SATRA does not have the power to award damages," says SAVA chairman Mike van den Bergh.

Free flowing competition

The Pretoria High Court in November last year referred the tangled legal situation back to SATRA, saying the matter fell outside of its jurisdiction. SAVA had applied for interim relief from the Telkom suspension of services.

In its judgement SATRA found that Telkom cannot act as regulator and withhold or suspend services on any suspicion, but must refer matters of illegality to the Authority for investigation.

"It is the view of the Authority that this [VANS provision] is the arena of the industry where the legislature had envisaged free flowing competition, which would result in lower tariffs and prices, and higher quality of service," reads paragraph 21 of the judgment. "It would then in our view be absurd to expect one of the major competitors to this very industry to be vested with the discretion of deciding which request is reasonable and which one is not."

Telkom on Monday successfully defended an urgent application in the Pretoria High Court by Skyway Management to restore its telecommunications facilities. Telkom took action against Skyway after determining the company was transmitting voice over Internet Protocol (IP) connections, illegal according to the Telecommunications Act. Telkom also referred SATRA to the case of Digital Express Network against it, a case similar to that of Skyway.

But both SATRA and SAVA disagree that the cases are similar. "An argument has been made that the judgements contained in these cases have a binding effect on the Authority and this we graciously accept," SATRA says in its judgement. "We however would like to point out that we do not read these judgements to mean what the respondent [Telkom] would have us believe is their true meaning."

Mike van den Bergh says SAVA agrees that voice over IP is illegal, but that the cases are not related. "This is a completely different matter," he says.