Telkom SA Soc Limited v Mncube NO and Others; Mobile Telephone Networks (Pty) Ltd v Pillay NO and Others; Cell C (Pty) Limited v The Chairperson of ICASA and Others; Dimension Data Middle East & Africa (Pty) Ltd t.a Internet Solutions v ICASA and Others (55311/2015; 77029/2015; 82287/2015) [2016] ZAGPPHC 93 (26 February 2016)

Telkom SA Soc Limited v Mncube NO and Others; Mobile Telephone Networks (Pty) Ltd v Pillay NO and Others; Cell C (Pty) Limited v The Chairperson of ICASA and Others; Dimension Data Middle East & Africa (Pty) Ltd t.a Internet Solutions v ICASA and Others (55311/2015; 77029/2015; 82287/2015) [2016] ZAGPPHC 93 (26 February 2016)

ICASA's decision to approve the transfer of control of Neotel's licences to Vodacom was unlawful on multiple grounds. The court found that ICASA was reasonably suspected of bias due to private meetings with Vodacom outside the public process, which undermined the fairness and transparency required of administrative action. ICASA failed to consider competition issues as required by the EC Act, improperly deferring these to the Competition Commission, which was a material error of law. The statutory notice published by ICASA did not comply with section 9(2)(b) of the EC Act, as it omitted reference to the mandatory 30% equity ownership requirement. Furthermore, ICASA's approval subject to...

Citation
[2016] ZAGPPHC 93
Parties
Applicant: Telkom SA SOC Limited; Applicant: Mobile Telephone Networks (Pty) Ltd; Applicant: Cell C (Pty) Limited; Applicant: Dimension Data Middle East & Africa (Pty) Ltd t/a Internet Solutions; Respondent: Dr Stephen Mncube N.O.; Respondent: Ms Katharina Pillay N.O.; Respondent: The Chairperson of ICASA; Respondent: Independent Communications Authority of South Africa; Respondent: Neotel (Pty) Ltd; Respondent: Vodacom (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 February 2016
Case Number
55311/2015; 77029/2015; 82287/2015
Procedural Posture
Review Application / Judgment
Outcome
ICASA's decision to approve the transfer of control of Neotel's licences to Vodacom is reviewed and set aside in its entirety.
Judges
D S Fourie
Legal Topics
Promotion of Administrative Justice Act, Transfer of Control of Licences, Black Economic Empowerment, Competition in Ict Sector, Bias in Administrative Action, Regulatory Procedure
Administrative Law Telecoms and Media Competition Law Promotion of Administrative Justice Act Transfer of Control of Licences Black Economic Empowerment Competition in Ict Sector Bias in Administrative Action +1 more

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Parties

Telkom SA SOC Limited

Applicant

Mobile Telephone Networks (Pty) Ltd

Applicant

Cell C (Pty) Limited

Applicant

Dimension Data Middle East & Africa (Pty) Ltd t/a Internet Solutions

Applicant

Dr Stephen Mncube N.O.

Respondent

Ms Katharina Pillay N.O.

Respondent

The Chairperson of ICASA

Respondent

Independent Communications Authority of South Africa

Respondent

Neotel (Pty) Ltd

Respondent

Vodacom (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether ICASA's decision to approve the transfer of control of Neotel's licences to Vodacom was lawful.
  2. 2 Whether ICASA's process was procedurally fair and free from bias.
  3. 3 Whether ICASA was required to consider competition issues and the 30% equity ownership requirement under the EC Act.

Ratio Decidendi

ICASA's decision to approve the transfer of control of Neotel's licences to Vodacom was unlawful on multiple grounds. The court found that ICASA was reasonably suspected of bias due to private meetings with Vodacom outside the public process, which undermined the fairness and transparency required of administrative action. ICASA failed to consider competition issues as required by the EC Act, improperly deferring these to the Competition Commission, which was a material error of law. The statutory notice published by ICASA did not comply with section 9(2)(b) of the EC Act, as it omitted reference to the mandatory 30% equity ownership requirement. Furthermore, ICASA's approval subject to...

Court Disposition

ICASA's decision to approve the transfer of control of Neotel's licences to Vodacom is reviewed and set aside in its entirety.

Orders

  • The decision of the Independent Communications Authority taken on or about 11 June 2015 and published in General Notice 684 on 2 July 2015, approving the transfer of control of Neotel's individual and radio frequency spectrum licences to Vodacom, is reviewed and set aside in its entirety.
  • Neotel (Pty) Ltd, Vodacom (Pty) Ltd, and the Independent Communications Authority are ordered to pay the costs of all four applications, jointly and severally, including costs of two counsel.