ICASA handed a well deserved slap in court

[Paul Hjul]

Telkom welcomes court interdict against ICASA over spectrum auction

The company says the decision affirms its view that there are concerns regarding the lawfulness of the ICASA process.

www.itweb.co.za

Its worth pointing out that both the ITA (that is profoundly inept and would follow Vodacoms representations almost to the letter at the expense of the industry) and the WOAN process have now be restrained.
During the WOAN workshop ICASA were expressly warned that the path being taken on the ITA made it likely that the WOAN licensing would be disrupted and so on. The attitude of ICASA was that they could not possibly be derailed and if an interdict against finalizating would not result in a refund until the process was set aside.

It is also worth pointing out that this is the first punch from Telkom. MTNs case concerning Tier 1 and Tier 2 is an even bigger hole in the scheme and one ICASA were warned about.

 

[Paul Hjul]

Something else from the order -the reasons aren't given during an interlocutory order like this - ICASA have been ordered to pay costs on "Part B" which is the interlocutory interdict. Usually in a multpart application costs are stood over until the main application is disposed of ("costs reserved") and Telkom's Notice of Motion place costs only in Part C so the judge is signally displeasure with ICASA or their handling of the litigation so far.

 

[Johnatan56]

Like I said, the entire auction was done to raise money quickly without following due process, this part basically cements Telkom/All mobile operator's cases:

According to Telkom, the first fundamental flaw made by ICASA is that the auction ITA involves the auction of portions of spectrum in the 703-733MHz paired with 758-788MHz (the 700MHz) and the 791-821MHz paired with 832-862MHz (the 800MHz) frequency bands, which it argues are not immediately available for use on a national basis by a licensee who may ultimately succeed in its bid during the auction process.

[...]

“This is because the 700MHz and 800MHz frequencies are not yet available for use and are not likely to be available for use for a long period after the auction.

Was such a waste of money for ICASA to even attempt to challenge this in court and rather not just fold and get their stuff sorted.

 

[Paul Hjul]

Like I said, the entire auction was done to raise money quickly without following due process, this part basically cements Telkom/All mobile operator's cases:

Was such a waste of money for ICASA to even attempt to challenge this in court and rather not just fold and get their stuff sorted.

What is particularly frustrating is that ICASA are working against governments own plans and objectives.

Sadly the donkey alliance are so busy trying to undermine the Minister (and regardless of one's political stance it is generally a problem when an opposition politician views the job as running a personal feud with a cabinet minister and having an agenda of making the Minister look bad rather than letting governments own incompetence and stupidity make it look stupid) that they engineered a grossly undercapacitated ICASA.

Only one operator is fully on board with this process and it has produced no commitment from new entrants (who are actively scared off) and that really speaks volumes as to crisis.

 

[Paul Hjul]

The reasons of the judge are even more damning than I expected:

https://www.ellipsis.co.za/wp-content/uploads/2021/03/SIGNED-TELKOM-JUDGMENT1.pdf

 

[Johnatan56]

The reasons of the judge are even more damning than I expected:

https://www.ellipsis.co.za/wp-content/uploads/2021/03/SIGNED-TELKOM-JUDGMENT1.pdf

Just screenshotting notable bits:









.

 

[Johnatan56]

And conclusion:

71.3 I am guessing they will award costs to Telkom/etv once Part C is heard.

 

[Paul Hjul]

Costs in Part B already due. The wording of costs orders is a little peculiar and esoteric but it stems from terms of art arising in practice.

So 71.3 reads: The first and second respondent shall pay the costs of the applicants jointly and severally, the one paying, the other to be absolved in respect of Part B, including costs of two counsel.
Breaking it down:

"The first and second respondent" - That is ICASA and the office of the Chairperson of ICASA (he'd need to be given notice and the like if he were to become personally rather than as an office on the hook) . But it isn't all respondents just those two.

"shall pay the costs of the applicants" - that is eTV and Telkom, not the other respondents, and ICASA is to pay the costs. Importantly here though a "scale" isn't stated so it will be "party and party" costs rather than "attorney own client" this means that ICASA (and the chairperson) has to pay Telkom and E-TV for the legal costs on the scale set out in the rules of court (frequently amended) but its a lot less that what Telkom and E-TV have paid their attorneys (in many suits it is about a quarter to a third of the costs involved).

"the one paying, the other to be absolved" - so there are two parties responsible for costs (ICASA and the ICASA Chairperson which would be paid by ICASA) and it doesn't matter which one pays but once one pays the other is no longer liable (is absolved).

"in respect of Part B" - so the interdict is Part B (Part A was an odd initial step that was removed by agreement), Part C still needs to be heard that is the review.

"including costs of two counsel." - okay so earlier I said that the scale of costs concerning attorneys can matter a lot because of the gap between what an attorney charges their client (which is agreed to by the client when they take up the attorney's services) and what the court tariff scale is. Also the tariff is for work concerning the litigation and doesn't include all aspects of what an attorney could be working on. Advocates costs (counsel) is quite different. The full amount of an advocates court fees (whatever they charge) is recovered in party party costs. However only one advocates costs is usually covered in "motion court" the court here says "costs of two counsel" so Telkom and ETVs 4 advocates and a chunk of their attorney costs as well as all of ICASAs legal costs are already due.

The next step is for Telkom and eTV to submit a bill of costs and if ICASA object to the bill for the matter to be set down for taxation (which here means determination) by the Taxing Master (who is the Registrar).

Making quite a bit of a stink on LinkedIn on this issue. Happy to cut and paste commentary here if there is appetite but am assuming anybody following it will be taking a look there.

 

[Lara]

ICASA Chairperson said they will appeal the ruling.

What are their chances of it being successful?

 

[Johnatan56]

ICASA Chairperson said they will appeal the ruling.

What are their chances of it being successful?

Zero. If you look at the judgement, they're pretty much all based on precedent. Note how even in this ruling it states how ICASA lawyers said not do so.
Waste of taxpayer money again appealing.

 

[Paul Hjul]

ICASA Chairperson said they will appeal the ruling.

What are their chances of it being successful?

Depends what you mean by successful. But beyond stalling the process and undermining the Minister there is emphatically zero prospects of success.

There are a couple of steps and issues here. The first thing to keep in mind is that the proceedings are still ongoing. What has happened is that Telkom (and eTV joining them) have gone to court asking the court to interdict ICASA from wrapping up the ITA to award spectrum (which spectrum isn't available) and the WOAN licensing process until judicial review on the decisions leading up to those processes is complete. This is therefore an interim interdict. Generally interim orders are not appealable, the specific rubric is that an order must be of final effect to be appealable but questions of the interests of justice are ultimately determinative. There are interim operative execution orders that have been held appealable but this is the reverse so it is unchartered territory to grant leave. ICASA have to ask the judge for leave to appeal, after which they have to ask the SCA. Leave to appeal proceedings will take weeks to months by which time the court a quo should hear the main application. It would be different if the court on a narrow solitary finding on a point of law granted an interdict and it is common cause that if that finding is erroneous that the main application would fail. However there is no dispositive question of law here. The SCA does not like piecemeal appeals and the better practice is to expeditiously conclude the pending proceedings in the judicial review. In this case ICASA are stalling the conducting of the review by failing to deliver the record. There may be a case to defend the final judicial review but if ICASA was committed to the rule of law on receipt of the correspondence from Telkom they would have undertaken not to cause an irreparable situation provided Telkom launch the judicial review within 72 hours and persist in an expeditious approach. This would have made the interdict wholly unnecessary and could have had the review completed by early May.

ICASA have made several more missteps and have failed to learn from previous proceedings. Assume that the SCA decides that Telkom's case is weak there is still MTNs stronger issue (fair disclaimer I pointed the defect out to ICASA as well) and the related bone headed Vodacom counter-application. Vodacom's application reeks of desperation and justifies suspicions that ICASA employees have enabled a Vodacom executive to have improper influence. It gets worse when an idiosyncratic language choice of a clause that is found advanced by Vodacom in relation to the HDI requirements found verbatim in an amendment instrument that otherwise deals with an entirely different issue and which produces a legal absurdity - the spectrum regulations when amended to allow for light regulation of the v-bands which helps Wisps had a snuck in change to the disqualification criteria that disqualifies any company meeting the BBBEE criteria or which has more the 30% black ownership. In my view the competition analysis issue is still secondary to the contravention of spectrum regulations strictures of requiring applicants not have a financial interest in any other applicant and that each range of spectrum must have a cap on the amount of spectrum a party can hold.

The Constitutional Court might (but shouldn't and it would join a tranche of criticized and peculiar decisions) hear the direct access application and even take on the matter. But unless the ConCourt is prepared to throw out the ECA and the entire schema of spectrum management it is going to have to step away from giving ICASA what it wants. Moreover the sort of fluffy law and administrative oddity that the ConCourt tends to delve into ( https://adminlawblog.org/2019/10/03...-of-administrative-decisions-in-south-africa/ as both a shameless plug on some peri-academic work and a primer of some of the discussions) to the frustration of classicists would all militate in favour of the courts enforcing PAJAesque standards which doesn't bode in for ICASA.

 

[Paul Hjul]

And ICASA have been pushed to capitulate:

Icasa to withdraw spectrum auction ITA %

Communications regulator Icasa on Tuesday moved to avoid a lengthy court battle over the planned spectrum auction, saying it believes it could still happen by January.

techcentral.co.za

 

[Johnatan56]

@Paul Hjul

Keabetswe Modimoeng, who chairs the Icasa council, said he is concerned about “new issues” that have been raised by the litigants during negotiations.

“We noted with grave concern that some parties at the negotiations have sought to introduce matters that were not related to the issues in dispute,” he said.

Do you have a list of the "new" stuff? Guessing it's obvious stuff that ICASA should have already addressed but failed to do so again?

 

[Paul Hjul]

I actually don't really know what he is talking about. What I suspect has happened is as follows:
Telkom secured an interdict on the basis of the snafu that ICASA is auctioning spectrum which won't be available for use until the broadcasters return it.
MTN then entered the fray to also challenge ICASA around the "tier 1" and "tier 2" mobile operator distinction. Vodacom rushed to support ICASA as against MTNs contention - largely because they want to devise their own interpretation which will undermine Telkom and which hurts MTN. Whether it's also because former employees of Vodacom are responsible for the error in how ICASA set this up and the playbook ICASA used came straight from what Vodacom in 2017 and 2018 intimated must be done is not not entirely clear on the facts so I am not going to allege it to be the case just yet. What I will say is that an appearance of impropriety on the part of both Vodacom and ICASA certainly arises and further that at least one employee of Vodacom boasted as to being able to circumvent the ECAs framework because of the dynamics at ICASA. It is worth adding that this moron was instrumental in destroying Telkom during his stay there.

That pesky Hjul character didn't take any matter to court but did draw ICASAs attention to a fatal flaw adjacent to MTNs issue. MTN complain as to the unreasonableness and lack of rational forethought into the mechanism, Hjul pointed out that it is illogical facially and contains a profound grammatical mistake (Hjul can spot grammar mistakes party because he makes them so often) which cannot be resolved unambiguously.

ICASA rather than saying "okay the ITA is fatally flawed let's restart the process" or undertaking structured mediation sought to negotiate only with the incumbent MNOs. Hjul contends that this is manifestly unlawful because any flaw in what amounts to an exercise of public power for which there was an invitation to the prospective entrants cannot be negotiated away - if a government entitity puts of a tender designed to give the work to a specific cadre they can't when it's proven that the tender was illegally designed simply negotiate with five cadres to split up the work amongst them.

I suspect that ICASA wanted to negotiate in bad faith and that in negotiation proceedings MTN or Telkom wanted to discuss interconnect or spectrum sharing issues or something like that - which they are at full liberty to do outside of the litigation regardless - but ultimately pointed out that they cannot negotiate an illegality into a legality.

 

[Paul Hjul]

And back to court we go:



Busy perusing the papers properly. I'll post the papers when all parties have been served or it is otherwise appearing in the public domain

Telkom launches legal strike against spectrum auction

Telkom has filed High Court papers to block Icasa from auctioning sought-after radio frequency spectrum in March.

mybroadband.co.za

Telkom throws spectrum auction into disarray - again - TechCentral

Telkom has again filed papers to try to stop the upcoming spectrum auction, a move that will likely see the company heavily criticised.

techcentral.co.za

Are two press reports. Sadly both authors are falling for the spin. Regardless of Telkom's history of boneheadedness this issue is squarely the fault of ICASAs boneheadedness and if any operator is at fault it is Vodacom

 

[Johnatan56]

And back to court we go:
View attachment 30950
View attachment 30951

Busy perusing the papers properly. I'll post the papers when all parties have been served or it is otherwise appearing in the public domain

Telkom launches legal strike against spectrum auction

Telkom has filed High Court papers to block Icasa from auctioning sought-after radio frequency spectrum in March.

mybroadband.co.za

Telkom throws spectrum auction into disarray - again - TechCentral

Telkom has again filed papers to try to stop the upcoming spectrum auction, a move that will likely see the company heavily criticised.

techcentral.co.za

Are two press reports. Sadly both authors are falling for the spin. Regardless of Telkom's history of boneheadedness this issue is squarely the fault of ICASAs boneheadedness and if any operator is at fault it is Vodacom

I've called out rpm out on it every single time, he doesn't ever reply. Do remember that Vodacom is one of MyBB's largest sponsors, they should be forced to declare that.

 

[Paul Hjul]

O absolutely. The worst thing about the current Vodacom situation is that the individual who was responsible at Telkom for opposing LLU is now at Vodacom; most of the market dynamic Telkom of today is complaining about arose in the situation where Telkom was a major Vodacom shareholder and so the market was being structured in that line.

And before anybody accuses me of being anti-Vodacom I have publicly repeatedly defended Vodacom's legitimate interests. The problem doesn't lie (at least in my view but disclaimer I get on with and like the guy) the CEO but rather a selection of connected upper middlers who are tied to ol Alan.

Amusingly MyBB will not actually name the parties involved, they won't seek comment - the Observatory's interest in this matter is fascinating. I am very tempted to post a list of the respondents and ask have they bothered to seek comment.

 

[Johnatan56]

I bet no reply:

Telkom launched a pre-emptive legal strike to selfishly serve its bottom-line - Icasa

Telkom launched "pre-emptive strike" — serves "narrow and selfish commercial interests" The Independent Communications Authority of South Africa (Icasa) tore into Telkom on Wednesday after the network operator filed papers in the Pretoria High Court to once again block the auctioning of...

mybroadband.co.za

Posted this as 4th post:

Note that Paul is pro-Telkom on this one, @rpm and @Jan still fail to seek comment from Telkom for half these pieces, at least they now mention some of the reasons Telkom is opposing like:

And there are more reasons than just that, but every single MyBB article comes with select quotes that seek to say how terrible Telkom is for trying to get an interdict.
Was also interesting how @rpm and @Jan did not publish the previous court case result where the judge basically said ICASA's entire auction was unlawful since:

And a host of other issues, you can read it here:

https://www.ellipsis.co.za/wp-content/uploads/2021/03/SIGNED-TELKOM-JUDGMENT1.pdf

And the digital migration is still not complete, this auction cannot proceed.

@rpm you should actually declare in the article that you have been paid quite a bit in regards to add space from Vodacom and your cloud conference only key partner:
View attachment 1222646

 

[Paul Hjul]

Ja Jan's response misses the mark - but I think he misunderstood Telkom. A big part of the problem here is that the court granted the interdict - the funding in para 46 is a finding of law and it matters - but prior to determining all of the merits the matter was correctly settled with ICASA conceding that the ITA as issued was unlawful. However because all of the merits were not fleshed out what was ordered was to withdraw the ITA and reissue after remedying which means that through twisting the order and playing dishonesty gymnastics ICASA are pretending that there were minor things to remedy. The big issue here is ICASA have not ever actually held any public engagement in good faith. Not sure if I've shared this here before:

Can a chair of a public process eject a speaker because he doesn't like the colour of language in use.

One of the privileges of being somewhat freelance and having a public persona that includes being engaging and having a candid demeanor is that I am able to tactically use colourful language and more often allude to wanting to use it for rhetorical effect. Some people really do feign offence, but th

www.linkedin.com

(still some proof reading to do)

 

[Johnatan56]

Ja Jan's response misses the mark - but I think he misunderstood Telkom. A big part of the problem here is that the court granted the interdict - the funding in para 46 is a finding of law and it matters - but prior to determining all of the merits the matter was correctly settled with ICASA conceding that the ITA as issued was unlawful. However because all of the merits were not fleshed out what was ordered was to withdraw the ITA and reissue after remedying which means that through twisting the order and playing dishonesty gymnastics ICASA are pretending that there were minor things to remedy. The big issue here is ICASA have not ever actually held any public engagement in good faith. Not sure if I've shared this here before:

Can a chair of a public process eject a speaker because he doesn't like the colour of language in use.

One of the privileges of being somewhat freelance and having a public persona that includes being engaging and having a candid demeanor is that I am able to tactically use colourful language and more often allude to wanting to use it for rhetorical effect. Some people really do feign offence, but th

www.linkedin.com

(still some proof reading to do)

I literally quoted the fact that it was stated as unlawful by the judge and he ignored it, he also ignored sponsorship bit, I'll reply a bit later to it.