About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2016
>>
[2016] ZAECPEHC 77
|
|
Norocraft (Pty) Ltd t/a Corporate Cost Cutters v Trudon (Pty) Ltd and Another (818/2016) [2016] ZAECPEHC 77 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No.: 818/2016
Date
Heard: 8 December 2016
Date
Delivered: 15 December 2016
In
the matter between:
NOROCRAFT
(PTY) LTD
t/a
CORPORATE COST
CUTTERS
First
Applicant
and
TRUDON
(PTY)
LTD
First
Respondent
TELKOM
SA SOC
LIMITED
Second
Respondent
JUDGMENT
EKSTEEN
J
:
[1]
The
applicant seeks to review and set aside a decision by the first
respondent to raise administrative charges in respect of certain
listings included in the white pages telephone directory published by
the first respondent.
[2]
The
second respondent is the majority shareholder in the first
respondent. The first respondent is the sole agent for the
second respondent responsible for the compilation and publication of
the white pages and yellow pages telephone directories.
It does
so in terms of a licence issued to second respondent under
section 36
of the
Telecommunications Act, 1996
. In terms of its licence
conditions it is required to publish certain information of customers
of the second respondent in
the white pages directory free of
charge. The licence condition provides for the first respondent
to raise charges in respect
of the publication of additional
material. I shall revert to these issues below.
[3]
The
applicant describes itself as an independent telephone directory
consultant and intermediary to consumers who place entries
in
numerous telephone directories published by the first respondent in
various regions of South Africa. It seeks to offer
advice to
customers of the second respondent to reduce their exposure in the
first respondent’s directories, typically resulting
in a
reduction of advertising costs. It would appear that the
applicant, and certain other intermediaries, have a substantial
measure of success in this endeavour. The papers reveal that
the first respondent receives a substantial number of requests
from
the applicant and other intermediaries for the publication of
information on behalf of customers of the second respondent.
[4]
On
21 April 2015 the first respondent resolved to raise an
administrative fee in respect of each such entry in respect of which
it contends that it is entitled to charge under its licence
conditions. It addressed a letter through its attorneys to the
applicant,
and to other intermediaries, setting out the basis for the
charge. It recorded:
“
Trudon
has increasingly experienced difficulty in processing requests from
intermediaries. The administrative charges that
Trudon are
faced with, include the following:
1.
requests
are not on letterheads of customers;
2.
the
necessary powers of attorney are usually not signed;
3.
the
copies received containing the instructions are in some instances
illegible;
4.
requests
are often duplicated;
5.
the
cover sheet of the requests submitted does not necessarily correspond
to the actual request to which it is annexed;
6.
Trudon’s
staff have to spend a significant amount of time processing the
requests;
7.
requests
for changes to contracts with existing billing instructions are also
received and have to be processed;
8.
Trudon,
in any event, has to make contact with its existing customers on an
annual basis. This results in duplicate (and often
conflicting)
instructions, particularly when a substantial period of time has
elapsed between the receipt of your client’s
publication
requests and the subsequent contract with our client’s
customers.
The administrative
burden in resulting costs incurred by Trudon to process requests
received from intermediaries, has increased
substantially.
Accordingly, Trudon
has decided to levy an amount of R300 (excl. VAT) per customer
processed by Trudon, in order to recover its
administrative costs.
To be clear, this levy is to recoup Trudon’s administrative
costs incurred and does not include
the actual advertising fee for
publishing in the directories. The administrative fee will need
to be paid in advance into
Trudon’s bank account …”
[5]
It
is this resolution which offends the applicant and which it seeks to
review and set aside.
Issues
in limine
[6]
Two
points
in
limine
arise. Firstly, the application proceeds in terms of provisions
of the Promotion of Administrative Justice Act, 3 of 2000
(PAJA).
It was launched after the lapse of 180 days as prescribed in section
7(1) of PAJA and the applicant accordingly seeks
condonation for the
late prosecution of the application.
[7]
Secondly,
the function of the first respondent is performed, as alluded to
earlier, in terms of a licence issued under the
Telecommunications
Act which
is to be read together with the
Independent Communications
Authority of South Africa Act, 13 of 2000
. In terms of the
regulations which find application a party aggrieved by an alleged
contravention or failure to comply with
the provisions of a licence
or agreement may lodge a complaint in writing with the authority
(ICASA) setting out in full the nature
of the alleged contravention
or non-compliance.
[8]
By
virtue of these provisions the first respondent contends that the
applicant has failed to comply with
section 7(2)
of PAJA which
prescribes that no court or tribunal shall review an administrative
action unless any internal remedy provided for
in any other law has
first been exhausted.
[9]
Much
argument was presented to me in respect of these issues. In
view of the conclusion to which I have come below I do not
consider
that it is necessary to make any definitive finding in respect of
either of these issues.
The
review
[10]
On
the papers there are a number of disputes which have not been pursued
during argument before me. Mr
Preis
SC
on behalf of the first respondent, acknowledged, notwithstanding the
averments on the papers, that the first and second respondents
are
both organs of state and that PAJA finds application.
[11]
In
the applicant’s founding papers reliance is placed on the
provisions of
section 6(2)(b)
and (c) of PAJA. These grounds of
review were not pursued in argument before me. Mr
Beyleveld
SC
,
who appeared on behalf of the applicant, confined his argument to the
grounds of review set out in
section 6(2)(a)(i)
and (e)(i) and (ii).
I shall revert to these grounds below.
[12]
The
review relates solely to the white pages directory and the central
dispute between the parties flows from the terms of the licence
conditions. The material portion of the licence conditions provides:
“
5.
DIRECTORY
SERVICES
5.1
Minimum Directory Services
5.1.1
The Licensee shall provide or make available, free of charge,
printed directories to
each Customer, the form and content of which
shall be determined by the Licensee from time to time.
5.1.2
The directories referred to in condition 5.1.1 shall include, at a
minimum, for each of
the customers in the relevant areas, other than
those customers who have specifically asked not to be included, their
names, addresses
and telephone numbers and a list of national and
international dialling codes. The Licensee may not charge for
publishing
the relevant data about a Customer in a directory but may
charge for advertising and for providing enhanced directory
listings.”
[13]
The
first respondent’s practice and its contention in respect of
the licence conditions is that it is required only to publish
the
name, address and telephone number of a customer free of charge.
The first respondent does not levy any administrative
or other fee
from intermediaries or from the public for accepting and processing
such information. This information is published
in light type
print and the first respondent refers thereto as “free light
type entries”. In addition to the
free light type entries
the first respondent publishes in light type print additional
telephone numbers, fax numbers, cellular
telephone numbers, website
addresses and email addresses which it contends constitute “enhanced
listings” for which
it argues that it is entitled to charge a
fee. These it refers to as chargeable light type entries.
[14]
The
applicant, on the other hand, contends that “enhanced listings”
as referred to in the licence conditions relate
only to bold type
listing such as those which appear in typographical boxes rendering
them more prominent than the light type listings.
For this
reason the applicant contends that raising a charge in respect of the
publication of light type entries of customers data
which exceed the
minimum free publication set out in para 5.1.2 of the licence
conditions constitutes a breach of clause 5.1.2
of the licence
conditions. It is accordingly argued that raising a fee in
respect of such publication is not authorised by
the empowering
provision being the licence (compare
section 6(2)(a)(i)
of PAJA).
[15]
It
is therefore necessary to consider paragraph 5.1.2 of the licence
conditions. Paragraph 5.1.2 of the licence conditions
requires
the first respondent to publish the stipulated data relating to
customers who wish their information to be published as
well as a
list of national and international dialling codes. The first
respondent is precluded from raising charges for publishing
the
“relevant” data about a customer in a directory.
The relevant data, it seems to me, is the stipulated data
which
relates to the customers being their names, addresses and telephone
numbers. Where a customer requests the publication
of
additional information such publication constitutes an enhancement of
the information which would otherwise have been published.
It
is therefore an enhanced listing. This interpretation accords
with the practice which the first respondent has adopted
for some
time and which appears to have been accepted by all. In
Trudon
(Pty) Ltd v Directory Solutions CC and Another
(case
no.: 99/CAC/April 2010) the Competition Appeal Court remarked
in respect of the licence conditions in issue as follows:
‘
The
licence enjoins Telkom to publish annual telephone directories in
each geographic area of subscribers to its telephone lines,
listing,
in light print, minimum information, being the names, addresses and
telephone numbers of subscribers.
In terms of the
licence no charge may be levied to subscribers for publishing the
minimum information set out above in light print;
however,
subscribers may be charged for “enhanced” directory
listings or advertising entries in which is included information
additional to the minimum information; e.g. fax numbers, e-mail
and web addresses.
Enhanced listings
are usually in bold type and are presented in typographical block,
which makes them more prominent to readers
of telephone directories.
The Appellant charges its customers approximately R300.00 per annum
per enhanced listing entry.’
[16]
These
remarks were obiter in the context of the appeal before the
Competition Appeal Court, however, I consider them to be correct.
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at 603E-604D and 608E-F, para [18] and [23] it
is pointed out that in matters of interpretation the context is
important.
A sensible “business like” approach that
gives effect to the purpose of the legislation is to be preferred
over a technical
interpretation which does not. The same
considerations apply in the interpretation of the licence
conditions. The second
respondent operates predominantly line
land services to its customers. The purpose of the licence is to
compel the second respondent
to publish information relating to the
identity of its customers and the services which it provides to them,
free of charge, to
all customers. Where for example cellphone
numbers, web addresses and email addresses are to be published they
would have
no connection with the services which the second
respondent provides and, adopting a business-like approach to the
interpretation
of the licence conditions, I do not think that it was
expected of the second respondent to provide such information free of
charge.
In all the circumstances I consider that the first
respondent is correct in the interpretation which it attaches to
paragraph 5.1.2
of the licence condition. Raising a fee in
respect of such “enhanced directory listings” (or
chargeable light
type entries) does not constitute a breach of the
licence condition. Nor can it be said that doing so is not
authorised by
the empowering provision.
[17]
Mr
Beyleveld
,
however, argues that, even if the first respondent is entitled to
raise a fee in respect of the publication of such additional
entries
as chargeable light type entries it is not empowered to raise, in
addition, an administrative fee to the applicant’s
customers,
as opposed to members of the public.
[18]
There
is some dispute on the papers as to the merit of the reasons set out
by the first respondent for its decision to raise an
administrative
charge. For purposes of the present application in which final
relief is sought the version set forth by the
first respondent must
prevail where disputes of fact arise. (See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A).) In doing so, it must be accepted that the fee
is raised by virtue of the volume of requests received from
intermediaries
and the difficulties which arise in the processing of
such requests as enunciated in the letter of 21 April 2015 which is
set out
earlier herein. The licence conditions permit the first
respondent to raise a charge in respect of the provision of such
enhanced directory listings and it lays down no limitation in respect
of the manner in which the charge may be computed. In
these
circumstances I do not consider that the raising of an administrative
fee to recover costs actually incurred in respect of
the provision of
listings for which charges may be raised constitutes a contravention
of the licence provisions. In my view
the empowering provision
does provide for it.
[19]
Finally,
it is submitted that the decision to impose the administrative fee is
taken for an ulterior purpose
(section 6(2)(e)(ii)
of PAJA).
The foundation for this averment is contained in the founding
affidavit in the following terms:
“…
[T]he
First Respondent’s decision to levy an administrative fee does
not fall within the authorization to “
charge
for advertising and for providing enhanced directory listings
”.
This charge relates to the actual cost of enhanced listings and/or
advertising and does not relate to what the First
Respondent contends
is chargeable light type entries. In any event Clause 5.1.2
does not authorise the charging of an administrative
fee in addition
to the charge for enhanced and advertised listings. In any
event, approximately 90% of the Applicant’s
applications it
sends through to the First Respondent (as an intermediary on behalf
of its customers) is in respect of free light
type entries and
whatever administrative burden the First Respondent contends for in
processing the applications, the burden to
process free light type
entries is the same, if not more, than for processing lessor entries
in respect of addition listings for
which the First Respondent
charges. The levying of the administrative fee is clearly
designed to frustrate the Applicant’s
business practices and
its operations and the First Respondent has the ulterior motive of
preventing and/or dissuading the Applicant
from placing as an
intermediary, publications in the telephone directors (
sic
)
for enhanced listings.”
[20]
I
have already held that the publication of additional information in
light print constitutes an enhanced listing as envisaged in
the
licence conditions and that the licence conditions do not lay down
any limitation on the manner in which such charges may be
computed.
It may be true that the processing of free light type entries
requires the same administrative process as chargeable
light type
entries. The first respondent, however, does not charge for the
processing of free light type entries as that
is precluded by the
licence conditions. The charge in issue in the present application
relates to those light type entries which
are chargeable by virtue of
them being “enhanced listings”. There is, in my
view, no factual basis upon which
to conclude that the decision was
taken for the ulterior purpose advanced by the applicant.
[21]
In
the result, I make the following order:
1.
The
application is dismissed.
2.
The
applicant is order to pay the costs of the application.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Adv Beyleveld SC instructed by Jacques du Preez Attorneys, Port
Elizabeth
For
First Respondent:
Adv Preis SC instructed by Adams & Adams c/o Mike Nurse
Attorneys, Port Elizabeth