The shareholder agreement among SAT3 stakeholders is explicitly described as confidential, yet signatories are also expected to abide by the law of national jurisdiction and to provide information to government agencies when required to do so, says Balancing Act.
The UK-based company says it has a copy of the shareholders` agreement for the SAT3 undersea cable in its possession.
The 76-page document, which was signed on 17 June 1999, matches the document Balancing Act CEO Russell Southwood says he has seen from another source, convincing him it is the genuine article.
"This undercuts Telkom SA`s argument that it is bound by confidentiality and exposes its long campaign of not revealing the agreement to the South African government for what it is: simply obstruction of something it was able to do, but chose not to do for its own self-interested reasons," Southwood alleges.
Telkom`s position unchanged
MyADSL founder Rudolph Muller says: "With the latest information, it looks like there is no need for the Independent Communications Authority of SA (ICASA) to delay the investigation into the current bandwidth provisioning costs from Telkom on the SAT3 system or to wait until Telkom`s monopoly on the cable expires next year."
Telkom is, however, not changing its position regarding whether it will share the contents of the agreement with the Department of Communications to facilitate government`s objective of lowering international gateway costs.
Lulu Letlape, Telkom`s group executive of corporate communications, says despite the leaking of the agreement, Telkom is still bound by the confidentiality clause in the shareholders` agreement and must abide by it.
Casting doubts
While confident of the authenticity of the agreement he has, Southwood questions whether it is the full agreement, as it is enforced. There appears to be no mention of the national exclusivity period that Telkom says exists, he notes.
In addition, the signatories to the agreement include parties such as Burkina Faso`s Onatel and Gambia`s Gamtel, which were initially not part of the system, he says.
Regardless of the status of the agreement, Telkom`s activities on South African soil fall under the jurisdiction of South African law, says Geoff Rehmet, business development manager at Internet Solutions.
ICASA can, therefore, still apply whatever regulatory measures are necessary in order to compensate for the market failure in the provision of international bandwidth, he says.
ICASA chairman Paris Mashile, and Albi Modise, communications director at the Department of Communications, say their institutions are still investigating the validity of the media reports, and will make statements in due course.
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