Telkom SA Soc Limited and Another v Independent Communications Authority of South Africa and Others (66778/2020) [2021] ZAGPPHC 120 (8 March 2021)

Telkom SA Soc Limited and Another v Independent Communications Authority of South Africa and Others (66778/2020) [2021] ZAGPPHC 120 (8 March 2021)

The court found that ICASA's decision to publish and implement the ITAs for spectrum licensing in the IMT 700 and IMT 800 bands was unlawful and irrational. ICASA changed its position regarding the availability and commercial use of the spectrum without proper notice or consultation with affected parties, including incumbent broadcasters. The licensing of spectrum that was not yet available due to incomplete digital migration contravened statutory requirements and created procedural unfairness. The applicants established a prima facie right to relief, demonstrated irreparable harm, and showed that the balance of convenience favoured the granting of an interim interdict. The urgency of the...

Citation
[2021] ZAGPPHC 120
Parties
Applicant: Telkom SA SOC Limited; Applicant: e.tv (Pty) Limited; Respondent: Independent Communications Authority of South Africa; Respondent: Chairperson: Independent Communications Authority; Respondent: Vodacom (Pty) Limited; Respondent: Mobile Telephone Networks (Pty) Limited; Respondent: Cell C (Pty) Limited; Respondent: Wireless Business Solutions (Pty) Limited; Respondent: Liquid Telecommunications South Africa (Pty) Limited; Respondent: Minister of Communications and Digital Technologies; Respondent: Competition Commission of South Africa; Respondent: South African Communications Forum; Respondent: South African Broadcasting Corporation Limited; Respondent: Sentech SOC Limited; Respondent: National Association of Broadcasters
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 March 2021
Case Number
66778/2020
Procedural Posture
Urgent Application / Interim Interdict (part B) Pending Review (part C)
Outcome
Interim interdict granted; implementation of the ITAs for spectrum licensing suspended pending review.
Judges
BAQWA
Legal Topics
Spectrum Licensing, Procedural Fairness, Digital Migration, Interim Interdict, Irrationality, Audi Alteram Partem
Administrative Law Telecoms and Media Civil Procedure Spectrum Licensing Procedural Fairness Digital Migration Interim Interdict Irrationality +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 14 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Telkom SA SOC Limited

Applicant

e.tv (Pty) Limited

Applicant

Independent Communications Authority of South Africa

Respondent

Chairperson: Independent Communications Authority

Respondent

Vodacom (Pty) Limited

Respondent

Mobile Telephone Networks (Pty) Limited

Respondent

Cell C (Pty) Limited

Respondent

Wireless Business Solutions (Pty) Limited

Respondent

Liquid Telecommunications South Africa (Pty) Limited

Respondent

Minister of Communications and Digital Technologies

Respondent

Competition Commission of South Africa

Respondent

South African Communications Forum

Respondent

South African Broadcasting Corporation Limited

Respondent

Sentech SOC Limited

Respondent

National Association of Broadcasters

Respondent

Procedural Posture

Urgent Application / Interim Interdict (part B) Pending Review (part C)

Legal Issues

  1. 1 Whether ICASA's publication and implementation of the ITAs for spectrum licensing was lawful and rational.
  2. 2 Whether affected parties, including incumbent spectrum holders, were properly consulted before the change in licensing approach.
  3. 3 Whether the applicants are entitled to interim interdict relief pending the review application.

Ratio Decidendi

The court found that ICASA's decision to publish and implement the ITAs for spectrum licensing in the IMT 700 and IMT 800 bands was unlawful and irrational. ICASA changed its position regarding the availability and commercial use of the spectrum without proper notice or consultation with affected parties, including incumbent broadcasters. The licensing of spectrum that was not yet available due to incomplete digital migration contravened statutory requirements and created procedural unfairness. The applicants established a prima facie right to relief, demonstrated irreparable harm, and showed that the balance of convenience favoured the granting of an interim interdict. The urgency of the...

Court Disposition

Interim interdict granted; implementation of the ITAs for spectrum licensing suspended pending review.

Orders

  • The first respondent is interdicted from assessing or adjudicating any applications received pursuant to the ITA for licensing spectrum in the IMT 700, IMT 800, IMT 2600, and IMT 3500 bands issued on 2 October 2020 under gazette No 43768 [notice 535 of 2020].
  • The closing date for submission of applications for the licence to operate a Wireless Open Access Network as stated in the ITA issued on 2 October 2020 under government gazette no. 43767 [Notice 534 of 2020] is suspended.