The National Consumer Commission (NCC) has been found to have, yet again, acted unlawfully when it issued two compliance notices against fixed-line operator Telkom.
The NCC, which was set up to enforce compliance with the Consumer Protection Act, issued two notices against Telkom in 2011 to force it to amend its contracts to be in line with the consumer law. One of the notices concerned Telkom's bundling of voice lines with ADSL contracts.
Under the law, suppliers cannot force consumers to accept bundled products, unless it can show the convenience outweighs the limits to a consumer's right to choose; the bundling leads to an economic benefit; or the goods are offered individually at separate prices.
Former commissioner Mamodupi Mohlala-Mulaudzi said in September 2011 that bundling was only allowed if it fitted in with the Act's requirements. However, if that is not the case, then Telkom's practice of forcing consumers to take a voice line when signing up for ADSL must come to an end, she said.
Telkom argued the NCC's notice was "premature in light of certain undertakings given by Telkom to the NCC". Telkom took the notice to the National Consumer Tribunal (NCT) in a bid to have it set aside and was successful at a hearing held in February.
Procedures ignored
The recently published judgement found that the NCC's conduct in issuing the compliance notices "was unlawful, because [it] did not follow the procedures as required by the Act". In particular, the NCC did not conclude an investigation before issuing the compliance notices, nor did it consult with the regulator, the Independent Communications Authority of SA (ICASA), which is a requirement.
Although the NCC initially indicated that it intended to oppose Telkom's application, it did not file a replying affidavit or attend the hearing. "As the matter has never been opposed by the respondent [the NCC], the applicant's [Telkom's] allegations must be regarded as common cause," notes the judgement.
Ebrahim Mohamed, who was acting commissioner until this week, when he was appointed permanently for five years, explains that the NCC has come to an informal arrangement with the NCT to not be present when technical matters such as the Telkom one are argued.
Several tribunal decisions have gone against the NCC because it did not follow its own procedures. As a result, the merits of the cases have never been tested and no precedent has been set.
Mohamed says many of the filings against notices are for the same reasons that other compliance notices have been thrown out. He says he believes that great circumspection should be used before notices are issued.
"I haven't issued a single compliance notice."
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