The High Court has yet again ruled in favour of Telkom in the ongoing dispute between the Company and Value Added Network Service providers (VANS) who are breaching Telkom`s five-year exclusivity.
This week, the Pretoria High Court dismissed for the second time in three months an urgent application by Skyway Management Limited, a VANS provider, for an order compelling Telkom to restore its telecommunications services.
The services were terminated by Telkom on 26 June 2000 as the company was illegally carrying voice over their data network facilities. This included the provision of international voice telecommunication services over which Telkom has exclusivity.
Skyway first brought an urgent application before the High Court on June 27, requesting the Court to order Telkom to re-instate its services.
The Court dismissed the application with costs and held that Skyway did not have a prima facie right, which warranted the Court`s protection (interim relief).
The Judge found that the fact that Skyway was conveying voice, in whatever form, meant that Skyway was acting in contravention of both the Telecommunications Act, 103 of 1996 and their VANS licence.
The Court also dismissed as erroneous, the argument by Skyways that the act of converting data, which it had received via the internet, into a voice signal that is then sent into the Public Switched Telecommunications Network operated by Telkom, should not be seen as "carrying voice".
On 10 August 2000, Skyway brought a second urgent application in the High Court requesting the Court to order Telkom to restore its services, and further prohibit Telkom from interfering with its activities.
The matter was argued over three days and judgement was reserved.
Skyway argued that in terms of the Telecommunications Act, Telkom must first lodge a complaint with the Independent Communications Authority of South Africa (Icasa), and wait for a ruling from that body before Telkom can act against companies which it believes are using its services for illegal activities.
Telkom argued that the Act did not compel it to refer a complaint to Icasa. Telkom can rely on its contractual remedies in terms of the contract between itself and the company which is its customer.
The carrying of voice traffic on VAN services was expressly prohibited by the Telecommunications Act, Telkom argued.
The Court gave judgement this week and held that Skyways` interpretation of the Act is erroneous. It could never have been the legislature`s intention that Telkom cannot rely on its standard conditions, but is obliged to wait for Icasa to make a decision, he said
The Court ruled that Section 100 of the Telecommunications Act does not take away Telkom`s rights in terms of its contract with its customers.
The Court also found that Telkom had convincingly proved that Skyway in fact utilized their ISDN lines for an illegal purpose, and further held that Skyway had abused their licence and had indeed infringed on Telkom`s exclusivity.
Their application was dismissed with costs.
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