A competition complaint against Telkom, claiming it allegedly abused its dominance between 2004 and 2009, has moved a step closer, after a Competition Tribunal ruling around discovery of documents.
The Competition Commission served a notice of motion on Telkom in October 2009, in which it referred complaints against Telkom filed by MWeb and Internet Solutions, as well as the Internet Service Providers' Association and Verizon, to the tribunal.
The commission alleges Telkom abused its dominance in various product markets concerning wholesale Internet access between 2004 and 2009. The compliant was referred to the tribunal in October 2009 and pleadings closed last March.
The commission is seeking a fine of about R3.5 billion in total. Telkom reported an operating profit of R179 million from continuing operations in the year to March. Profit from continuing operations in 2010 was R3.3 billion, and in 2011 it was R2.4 billion.
The matter has been set down for hearing between 18 June and 5 July.
Tainted hearing?
However, Telkom was not happy that the commission refused to provide it with certain documents, which the commission said were protected by rules relating to conduct of proceedings. It lodged an application with the tribunal, seeking access to the documents, which it lost.
Telkom and the commission had agreed that Telkom would supply the commission with certain documents. The discovery hearing around Telkom's request for documents was held towards the end of January after being postponed in November.
Telkom argued that the documentation it sought, which related to e-mails between the commission's members and external expert opinion, were not protected. Telkom also argued that, if it did not receive the documents as part of discovery, the tribunal hearing would be prejudiced.
The tribunal ruled that the documents Telkom sought were protected and that Telkom would not be prejudiced if the paperwork was not handed over. It said the evidence has yet to be filed in the form of factual and expert witness statements.
"If the commission fails to provide Telkom with the underlying information that it relies upon to advance its case, then Telkom might have some cause for complaint."
Last year, in another matter, Telkom was fined R449 million by the tribunal for abusing its monopoly between 1999 and 2004. Telkom is appealing the fine, as is the commission, which wants a heftier penalty.
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