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[2014] ZAGPJHC 418
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Wireless Business Solutions (Pty) Ltd v Mobile Telephone Networks (Pty) Ltd (2014/14291) [2014] ZAGPJHC 418 (11 December 2014)
REPUBLIC OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION
OF THE HIGH COURT, JOHANNESBURG
CASE NO: 2014/14291
DATE: 11 DECEMBER 2015
In the matter between:
WIRELESS BUSINESS SOLUTIONS PTY
LTD APPLICANT
And
MOBILE TELEPHONE NETWORKS PTY
LTD RESPONDENT
J U D G M E N T
TWALA AJ
[1] The applicant applies for leave to
appeal the judgment and order of this court granted on the 17 June
2014 dismissing the applicant’s
action with costs.
[2] The grounds for the application for
leave to appeal are as follows:
1. The learned Judge erred and
misdirected himself in finding and placing emphasis upon such finding
that:
1.1 The Judgment of Mundell AJ,
delivered in the matter between the Applicant and the Independent
Communications Authority of South
Africa under Case No 2013/11/814 in
the above Honourable Court, correctly found that the applicant is not
entitled to engage in
the operation of a network as it is not in
possession of Radio Frequency Spectrum Licences.
1.2 As such applicant is not entitled
to be provided with an Interconnection Service by a person licensed
to provide same.
2. The learned Judged erred in fact and
in law:-
2.1 In not finding that the Interim
Agreement between the applicant and the respondent dated 27 February
2012 was entered into between
them out of the provisions of the
electronic Communications Act No 36 of 2005, as amended (“the
EC Act”);
2.2 In not finding that the Interim
Agreement is not governed by the EC Act;
2.3 In not finding that , inasmuch as
the EC Act does not apply to the interim Agreement, the same is not
affected by Section 39(32)
thereof which provides that an
Interconnection Agreement will become effective and enforceable upon
filing thereof with the authority
in the prescribed manner;
2.4 In not finding that the Authority,
being the author of its own Regulations enjoyed authority to condone
non-compliance with
such Regulations.
2.5 In not finding that the Authority
condoned the failure on the part of the parties to submit the interim
Agreement to it in terms
of the EC Act and its Regulations;
2.6 In not finding that the Interim
Agreement is valid and enforceable as between the applicant and the
respondents.
2.7 In not finding that, the applicant
and the respondent having honoured and observed the Interim
Agreement, the respondent is
precluded from denying its validity.
[3] At the hearing of this application,
applicant provided proof that the issue between itself and the
Independent Communications
Authority of South Africa (Icasa) under
case no 2013/11814 has been settled. Icasa has on the 4 November
2014 issued the applicant
with Radio Frequency Spectrum License.
Further applicant’s counsel confirmed that the appeal against
the judgment of Mundell
AJ has been withdrawn as part of the
settlement between the applicant and Icasa.
[4] It is apparent that as at the 17
June 2014 the applicant did not have a Radio Frequency Spectrum
License and therefore was not
entitled to be provided with an
interconnection service by a licensed person to provide same in terms
of the EC Act. Therefore
this court correctly found that applicant
did not have a Radio Frequency Spectrum License at the time. The
application falls to
be dismissed on this ground since there is no
merit in it and there are no prospect that another court may come to
a different
decision.
[5] I now turn to consider the second
ground of the application for leave to appeal.
The applicant argues that the interim
interconnection agreement of the 27 February 2012 was entered into by
and between the parties
outside the EC Act and therefore it is
binding between the parties even if it does not comply with the Act.
Applicant refer
to the matters of Verryne vs Van Zyl & Another
1963 (1) 592 at 593H and Tompkins vs Goltz 1978 (1) 90 at 90G.
[6] In the matter of Tompkins the court
stated the following:
“A person may contract out of the
provisions of a statute if
(a) Such contracting out is not
expressly prohibited, or
(b) It would not be against public
policy to allow him to do so”
In the Verryne matter, the full bench
of this court (then known as Transvaal Provincial Division) Claassen
J said:
“It is clear in my opinion that
if two parties wish to contract out of the provisions of a section,
there is nothing in law
to stop them. If they do, there is no other
person, authority or agency that can step in and claim that the
contract or term thereof
is illegal, void or contra bonos mores,”
[7] I agree with the respondent that
the present matter is distinguishable from these two mattes. When
the parties conducted the
interim interconnection agreement, the
intention was not to contract out of the legislation governing the
airwaves of the country.
The intention was to comply with the
Electronic Communications Act – hence the interim
interconnection agreement was replaced
by the agreement concluded on
4 September 2012. The intention of the parties was that the
agreement of 4 September 2012 shall
replace the agreement of 27
February 2012 and it was submitted to the authority as required by
the Act. Applicant’s argument
falls to be dismissed on this
point. It is irrelevant that the parties did perform in terms of the
interim interconnection agreement.
[8] Applicant argues further that the
Icasa has condoned the late submission of the September 2012
agreement between the parties.
Applicant refers to the matter of S
A Eagle Insurance Co Ltd vs Bavuma 1985 (3)42. It is a Supreme Court
of Appeal (then Appellate
Division) decision wherein Vivier AJA
stated as follows:
“It is a well-established
principle of our law that a statutory provision enacted from the
special benefit of any individual
or body, may be waived by that
individual or body provided that no public interest are involved.”
[9] Icasa is a creative of statute and
is confined to the four corners of the statute that created it.
Icasa is empowered to make
its own regulations but nothing in those
regulations or the Act empowers it to condone non-compliance with the
Act. Icasa had
an issue with the applicant at the time regarding the
Radio Frequency Licence. It is absurd to suggest that Icasa could
have condoned
non-compliance with the Act by someone who does not
even have a Radio Frequency License at the time. The application for
leave
to appeal falls to be dismissed on this ground.
[10] Therefore, I am of the view that
there are no prospects that another court may come to a different
conclusion in the present
matter. I therefore make the following
order:
Application for leave to appeal is
dismissed with costs.
TWALA AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION JOHANNESBURG
DATE OF HEARING: 20 November 2014
DATE OF JUDGMENT: 11 DECEMBER 2014
COUNSEL FOR APPLICANT: C. ZIMAN
ATTORNEYS OF APPLICANT: CYRIL
ZIMAN&ASSOCIATES INC
011 880 9363/4/5
COUNSEL FOR RESPONDENT: Adv
MORRISON SC
ATTORNEYSOFRESPONDENT: MASHIANE
MOODLEY MONAMA ATTORNEYS
011 303 7900