November 2008

Minister of Communications not to petition the Supreme Court in the Altech matter

The Minister of Communications, Dr. Ivy Matsepe-Casaburri has decided not to petition the Supreme Court of Appeal in the Altech matter, in the interest of the Information and Communications Technologies (ICT) sector. The Minister has been made the villain over the past few months for opposing Altech’s court action to obtain a network license. But perhaps reference should be made to some of the Minister’s reasons in this regard. Every citizen expects that the laws enacted in Parliament, Parliament being the elected representatives of the people, will be upheld and enforced, and that any action against such laws must be defended.
Government’s policy on managed liberalization is encapsulated in the Electronic Communications Act, 2005. Previously only a few major operators had the right to provide telecommunications networks. That right has been expanded in the ECA where class licenses can be obtained from ICASA through a simple registration process. These class electronic communications network service (class-ECNS) licenses can be obtained by anyone at any time and allows building of networks of a small scale and networks that do not have significant impact on socio-economic development. The ECA however recognises a separate and distinct type of licence, the individual lincence. In line with international best practice, the granting of these individual licences is specifically provided for in law. This process of having both individual and class licences is what represents the managed liberalization of the sector.
As part of managed liberalization, ICASA can only grant individual electronic communications network service (I-ECNS) licenses once the Minister authorized it in terms of the ECA (s. 5(6)). There are good reasons why managed liberalization is the policy approach decided upon by Government, such as the fact that full liberalisation has failed in many other countries to the detriment of the consumer, but whether managed liberalization in the correct policy approach is not the current debate. That debate was already held in Parliament in 2005 where the legislator adopted the continuation of managed liberalization as explained above.
So it was expected of the Minister of Communications, to protect the ECA and the policy underlying it as every citizen expects of Government to give effect to the law.
If the Minister continues with a petition, the risk is that ICASA will not be able to convert licenses by 19 January 2009 as required under the ECA, irrespective of the outcome of the petition. This will then require an amendment of the ECA to extend the license conversion period, and may effectively delay license conversion to late 2010. This result is not in anyone’s interest and will not best serve the ICT sector, operators and consumers.
It is for this reason that the Minister of Communications has decided not to petition the Supreme Court of Appeal on the matter. The Minister will continue to issue policy and policy directions to support the growth and investment in the sector as well as the other objects of the ECA such as the promotion of universal service and access in order to make communications affordable and accessible to all. ICASA is encouraged to complete the license conversion process before 19 January 2009.

Issued by Joe Makhafola, Minister of Communications' spokesperson. Contact: 071 290 1735 or 012 427 8010 or e-mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it

ENDS.