Telkom SA Soc Limited and Another v Independent Communications Authority of South Africa and Others (66778/2020) [2021] ZAGPPHC 120 (8 March 2021)

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[2021] ZAGPPHC 120
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Telkom SA Soc Limited and Another v Independent Communications Authority of South Africa and Others (66778/2020) [2021] ZAGPPHC 120 (8 March 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED:
8/3/2021
CASE NUMBER:
66778/2020
In
the matter between:
TELKOM
SA SOC
LIMITED

First Applicant
e.tv
(PTY)
LIMITED

Second Applicant
and
INDEPENDENT
COMMUNICATION AUTHORITY

First Respondent
OF
SOUTH AFRICA
CHAIRPERSON:
INDEPENDENT COMMUNICATION
AUTHORITY

Second Respondent
OF
SOUTH AFRICA
VODACOM
(PTY)
LIMITED

Third Respondent
MOBILE
TELEPHONE NETWORKS (PTY)
LIMITED

Fourth Respondent
CELL
C (PTY)
LIMITED

Fifth Respondent
WIRELESS
BUSINESS SOLUTIONS (PTY)
LIMITED

Sixth Respondent
LIQUID
TELECOMMUNICATIONS SOUTH AFRICA (PTY)
LIMITED

Seventh Respondent
MINISTER
OF COMMUNICATIONS AND DIGITAL
TECHNOLOGIES

Eighth Respondent
COMPETITION
COMMISSION OF SOUTH
AFRICA

Ninth Respondent
SOUTH
AFRICAN COMMUNICATIONS
FORUM

Tenth Respondent
SOUTH
AFRICAN BROADCASTING CORPORATION
LIMITED

Eleventh Respondent
SENTECH
SOC
LIMITED

Twelfth Respondent
NATIONAL
ASSOCIATION OF
BROADCASTERS

Thirteenth Respondent
JUDGMENT
(Handed down
electronically to the parties’ legal representatives by email,
uploading on Caselines and release to SAFLII.
The date and time for
delivery of judgment is deemed to be 10h00 on the day.
BAQWA
J
Introduction
[1]  This is an
application set down in the urgent court in which the applicant,
Telkom SA (“Telkom”) seeks interim
relief against the
Independent Communications Authority of South Africa (“ICASA”).
[2]  E.tv (Pty)
Limited seeks to make common cause with Telkom and has simultaneously
lodged an application to intervene as
the second applicant and the
application to intervene has not been opposed. At the commencement of
these proceedings I granted
e.tv’s application and the matter
proceeds with e.tv as the second applicant.
[3]  The main
issue is ICASA’s publication of an invitation to Apply (“ITA”)
for the licensing and auctioning
of spectrum in the IMT 700; IMT 800;
IMT 2600 and IMT 3500 bands issued by ICASA on 2 October 2020.
[4]  Telkom has
brought the application in parts A, B and C but Part A has been
removed by consent between Telkom and The First
and Second
Respondents.
[5]  In Part B,
Telkom seeks to interdict The Authority from implementing the
licensing steps and processes referred to or
contemplated in the
ITAs. The relief is intended to operate pending the determination of
Part C.
[6]  In Part C
Telkom seeks an order declaring that the two decisions of the
Authority are unlawful, and stand to be set aside,
namely:
6.1
The decision to publish the composite ITA for an individual
electronic communications network
services (I-ECNS) and Radio
Frequency licences for the purposes of operating a Wireless Open
Access Network published as Notice
534 of 2020 in Government Gazette
No 43767 of 2 October 2020: the WOAN ITA.
6.2
The decision to publish the ITA for licensing process for
international mobile telecommunications
in respect of the provision
of mobile broadband wireless access services for urban and rural
areas using the complimentary bands
IMT 700, IMT 800, IMT 2600 and
IMT 35000 spectrum frequency through an auction published as Notice
535 of 2020 in Government Gazette
43768 of 2 October 2020: the
Auction ITA.
[7]  This
Court, therefore has to determine whether the applicants have made
out case for an interim interdict.
Background
[8]  The ICASA
publication of the ITA was preceded by a market inquiry on the data
services market by The Competition Commission
(“The
Commission”). A report in that regard was published on 2
December 2019.
[9]  The
findings of the Competition Commission can be summarised as follows:
the Commission found that the lack of competition
in the mobile
market had a negative effect on the consumers in that it impeded the
achievement of lower prices and that addressing
that issue and
assigning spectrum would not only result in the lowering of prices
but also impact on the levels and extent of competition
in the mobile
market.
[10] The Commission
also found that a larger assignment of spectrum would result in the
entrenchment of the duopoly constituted
by Vodacom and MTN and that
an asymmetric assignment to the smaller operators would assist in
levelling the playing field whereas
a symmetric assignment would lock
the large operators into their current market shares thus entrenching
the currently existing
uncompetitive market structure.
[11]
The Commission found it imperative that spectrum assignment be
designed to achieve a pro-competitive
outcome in order achieve lower
prices.
[12]
Lastly, the Commission found that any wireless open-access network
licensee needs to be competitive
and that Telkom’s lack of sub
1GHZ spectrum relative to its competitors creates a risk that
competition can be weakened if
Telkom is unable to compete for that
band effectively.
The
Radio Frequency Spectrum
[13]
The issue of a lawful and rational licensing process was recently
considered in the matter of
The Minister of Telecommunications
and Postal Services v Acting Chair, Independent Communications
Authority of South Africa; Cell
C (Pty) Ltd v Acting Chair,
Independent Communications Authority of South Africa
.
(2016/59722; 2016/68096)
[2016] ZAGPHC 883
(30 September 2016)
(“Minister of Telecommunications”),
where the
importance of Radio Spectrum Frequency was commented upon by
Sutherland J as follows:
1.
“
[10] Our
everyday experience of telecommunicatons in the form of radio,
television, internet and cellular telephones and so on,
is made
possible by the service providers utilising a portion of the radio
frequency, which exists naturally, to transmit electronic
signals.
The radio frequency spectrum, like water and electricity is a crucial
dimension of social life. Access to the utility
of the frequency
spectrum implicates the optimal achievement of several constitutional
values and rights, including the freedom
of trade, modern education
and the dissemination of information pursuant to freedom of
expression. Achieving effective access to
its utility implicate
equality too because of its role in facilitating these several
rights. The regulatory regime owes, as alluded
to earlier, in part,
its lineage to The Constitution. Accordingly, radio frequency
spectrum is a highly regulated affair because
of its scarcity and
critical role in the communications industry and the importance, in
turn, of that industry to modern economic
and social activity.
[11]
This resource is optimally usable when a single provider has
exclusivity over a band of the frequency spectrum; were it otherwise,

transmission would overlap and render the communications network
incoherent and unreliable. Spectrum bandwidth is finite and is
the
object of keen competition by servicer providers. The spectrum is
therefore “allocated” to various uses in three
regions
worldwide by the International Telecommunications Authority (UTA) of
which South Africa is a member and locally by MOT
in the radio
frequency plan. ICASA is responsible for licensing its use and in
that context assigning bandwith.”
[14]
The quoted paragraphs succinctly set out not only the context in
which the present application
has been brought but also underlines
the intensity of the competitive environment in which spectrum is
assigned.
The
Information Memorandum
[15]
On 1 November 2019 ICASA published The Information Memorandum
(“2019IM”) in which
it outlined its “intentions
with regard to the licensing process for International Mobile
Telecommunications (IMT) spectrum
pursuant to consideration of the
Policy on High Demand Spectrum and Policy Direction on the Licensing
of a Wireless Open Access
Network dated 26 July 2019.”
[16]
A consultation process was conducted by ICASA and parties made
submissions about draft rules
for assigning spectrum as per 2019 IM.
ICASA was criticised in those submissions for failing to conduct a
competition assessment
which would have contributed to formulation of
the rules for assignment of spectrum.
[17]
ICASA submits that it did conduct a competition assessment prior to
making a decision to publish
the ITAs but this is contradicted by its
own assertion in its answering affidavit where it states that “
ICASA appointed
Acacia Economis, Cenerva and Real Wireless to advise
it on all competition matters relevant to the current auction
process.”
[18]
The report of these experts confirms that they encouraged ICASA to
conduct its own competition
assessment before publication of the ITAs
and that they identified “The lack of comprehensive analysis of
the state of competition
in the mobile sector in South Africa”
as a risk in the proposed auction process. They advised that ICASA
should ensure that
a competition assessment is finalised before the
conclusion of the issuing of the final ITA.
[19]
It is common cause that the competition assessment as advised by the
experts was not conducted
by ICASA until the issuing of the final
ITA.
Unlawfulness
of the ITAs
[20]
In the 2019 Information Memorandum it was stated that “the
obligation set for IMT 700 and
IMT 800 are to be synchronised with
the Analogue Switch-off” and that the three year period to
comply with the conditions
would commence running “from the
date that the 700 MHZ and 800 MHZ spectrum becomes available to
provide services”
[21]
Further, ICASA’s reasons document of 4 December 2020 states
categorically that “
The authority extended the licence
period of the RFSL from 15 years as it was stipulated on the IM to 20
years, in order to accommodate
the delays in the availability of the
spectrum in IMT 700 and IMT 800 bands which are subject to digital
migration process which
is currently underway.”
[22]
The above references are but just a few examples of many documents
issued by ICASA in which it
was made abundantly clear that ICASA’s
position was that IMT 700 and IMT 800 spectrum being utilised by the
broadcasters
would only become available after the completion of the
digital migration process. This is how the applicants herein
understood
the position.
[23]
It is submitted by the applicants that the auctioning of the spectrum
is irrational for various
reasons, one of which is that the spectrum
is still being used by the broadcasters and would not be available to
a potential bidder
until after the digital migration process had been
completed. They further point out that the digital migration process
had stalled
and that it is unlikely to occur in the near future.
[24]
In response to these submissions ICASA states in its answering
affidavit that successful bidders
for the IMT 700 and IMT  800
spectrum bands would immediately following the auction become
entitled to enjoy the full commercial
benefits of the spectrum.
[25]
ICASA’s new position is a direct contradiction to what it had
stated previously, namely,
that IMT 700 and IMT 800 spectrum was to
be auctioned at a “discount” because mobile operators
would have to wait the
terrestrial television broadcasters migration
of the frequencies.
[26]
The departure from the preceding position was not discussed by the
affected parties. Its affidavit
does not suggest that it did. Etv
also submits that even though it is the incumbent occupant of the
spectrum it was also not consulted.
[27]
ICASA’s belated change in approach would seem to point to the
unreasonableness of its decision
to continue with the ITA. It would,
for example interfere with etv’s usage of its licensed spectrum
in that it would result
in the degradation and interference with its
broadcast signal and dilute its commercial exclusivity and
competitive strength in
proportion to the “full commercial
benefits” that ICASA promises to the mobile operators. The
interference factor is
mentioned in etv’s founding affidavit
and admitted by ICASA in its answering affidavit.
[28]
In the words of etv’s expert: “It is simply factually
impossible for a telecommunications
company to “share”
spectrum in any meaningful manner with a broadcaster as suggested by
ICASA. A broadcast transmitter
is very powerful and operates on a
significant scale. A cellular transmitter, by contrast, is weak in
comparison. The signal of
the mobile operator will be obliterated by
the strong broadcast signal, but it will also cause degrading to the
broadcaster’s
signal.” This demonstrably illustrates
ICASA’s error which is further explained by Sutherland J in
Minister of Telecommunications
(
supra
) as follows: spectrum is
“
optimally usable when a single provider has exclusivity
over a band of the frequency spectrum; were it otherwise,
transmissions
would overlap and render the communications network
incoherent and unreliable.”
Similarly in the present case
ICASA’s new position signifies an intent to add additional
users onto etv’s spectrum resulting
in overlapping
transmissions and rendering the communications network incoherent and
unreliable. Such conduct by ICASA can only
be described as
impermissible and irrational.
[29]
ICASA’s change of stance is tantamount, to use a colloquial
phrase, to changing horses
midstream which would seriously impact the
interests of not only the parties who had responded to the ITA but
also those who had
decided not to respond. The actions of ICASA in
the change of stance are unlawful because in tenders or processes
which are tender-like
in their application, the rules of the process
can generally not be changed after the process has commenced as this
is fundamentally
unfair:
See
Allpay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer of the South African Social Security Agency
and
Others
(CCT48/13)[2013] ZACC 42;
2014 (1) SA 604
(CC); 2014(1)
BCLR 1(CC) (29 November 2013).
[30]
Given the large amounts of money that the bidders have to expend when
participating in the ITA
process, ICASA promises them “full
commercial benefits for the amounts paid [by] them.” What that
means in real terms
is not clear at all given that the successful
bidders will get spectrum which they will largely be unable to
utilise until completion
of the digital migration process. A proper
consultation process could possibly have avoided this potential
impasse. The situation
created by ICASA’s decision was aptly
described in
Minister of Communications para 59:
“
In
summary I conclude that, first, the assignment of spectrum already
assigned to other operators is of questionable validity and
secondly,
to assign now and defer access to an unknown future date, which is
dependent on a host of process-dependent happenings
has the look of a
reckless decision and for that reason an irrational decision.”
[31]
Icasa ought to have given notice of its intention to institute an
alteration to the fundamental
tenets of the ITA, the digital
migration process and the policy direction previously conveyed to the
stakeholders and the public.
ICASA failed to do that.
[32]
In AllPay (
supra
) para 40 the following was stated: “
Once
a particular administrative process is prescribed by law, it is
subject to the norms of procedural fairness codified in PAJA.

Deviations from the procedure will be assessed in terms of those
norms of procedural fairness. That does not mean that administrators

may never depart from the system put into place or that deviations
will necessarily result in procedural unfairness. But it does
mean
that, where administrators depart from procedures the basis for doing
so will have to be reasonable and justifiable, and the
process of
change must be procedurally fair.”
[33]
In the present case I am not persuaded that ICASA’s about-turn
was reasonable, justifiable
or procedurally fair. Consequently, the
impact on the fate of the IMT 700 and IMT 800 spectrum subsequent to
the auction renders
the ICASA decision to pursue the ITA unlawful and
irrational.
[34]
This view is endorsed in
Premier, Province of Mpumalanga and
Another v Executive Committee of The Association of Governing Bodies
of State-Aided School:
Eastern Transvaal
1999 (2) SA 91
(CC) Para
41 where the following was stated:
“
[C]itizens
are entitled to expect that government policy will ordinarily not be
altered in ways which would threaten or harm their
rights or
legitimate expectations without their being given reasonable notice
of the proposed change or an opportunity to make
representations to
the decision-maker.”
[35]
ICASA had a duty to apply the fundamental principles of hearing the
other side (
audi alteram
partem
) and ensure that all
the affected parties were informed of the proposed change. One of
those parties was e.tv which not only had
a clear interest in the
matter by was also possessed of significant expertise in the field.
It is difficult to understand how ICASA
came to ignore etv’s
letter on 29 September 2020 in which concerns were raised about the
spectrum auction. When ICASA failed
to respond, a follow up letter
was addressed to ICASA and it also failed to elicit a response.
[36]
ICASA failed to respond to e.tv’s concers even in the
clarification document and the reasons
document which were
subsequently published by ICASA. This single failure by ICASA to
address the concerns of a significant stakeholder
in the industry
does not speak well of ICASA’s willingness to uphold is
statutory duties such those prescribed in section
3(3) of the ICASA
Act: “
The Authority is ….. subject only to The
Constitution and the law, and must be impartial and must perform its
functions without
fear, favour or prejudice.”
[37]
ICASA’s actions in ignoring one of the key stakeholders was
blatant and unfair. It falls
to be strongly deprecated.
Interim Relief
[38]
The principles applicable in an application for an interim interdict
have been established in
numerous court decisions including
National
Treasury v Opposition to Urban Tolling Alliance
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) (“OUTA”). In terms of
those principles the applicants must establish a
prima facie
right (though open to some doubt); a well grounded apprehension of
irreparable harm if the interim relief (Part B) is not granted
and
the ultimate relief (Part C) is eventually granted; whether the
balance of convenience favours the granting of an interim interdict

and whether there is no other satisfactory remedy. In weighing these
requirements the court has to consider the prospects of success
of
the review application on the following basis. The stronger the
prospects of success, the less need for the applicants to show
that
the balance of convenience favours the grant of the interdict and the
weaker the prospects of success, the stronger the case
of the balance
of convenience should be.
See
Olympic
Passenger Services (Pty) Ltd v Ramlakan
1957 (2) SA 382
(D) at
383 D-E.
Prima Facie
Right
[39]
The applicants have to prove a
prima facie
right on a balance
of probabilities. In
South African Informal Traders Forum v City
of Johannesburg and Others; South African National Traders Retail
Association v City
of Johannesburg
2014 (4) SA 371
(CC);
2014 (6)
BCLR 726
(CC) The Constitutional Court held that “
a prima
facie right may be established by demonstrating prospects of success
in the review.”
[40]
The applicants submit that they had a right to know the rules of the
game. As alluded to above,
ICASA amended the rules after the ITA
process had been set in motion. This was done without notice to the
affected parties and
in that way created an unfairness. This creates
a right which entitles the applicants to the relief sought. The
experts employed
by ICASA warned the Authority about consultation as
follows: “we judge the legal risks (judicial review) due to no
re-consultation
(after the last 1
st
of November 2019 IM)
to be VERY HIGH.” This warning was ignored by ICASA.
[41]
The duty to involve the parties who have a special interest or
expertise before an important
and far - reaching decision is made was
emphasised in
EarthLife Johannesburg and Another v Minister of
Energy and Others
(19529/2015) [2017] ZAWHC50;
[2017] 3 All SA
187
(WCC);
2017 (5) SA 227
(WCC) 26 April 2017 where Bozalek J and
Baartman J said:
“
[50] In
the present matter NERSA must have been aware that there were sectors
of the public with either special expertise or a special
interest
regarding the issue of whether it was appropriate for extra
generation capacity to be set aside for procurement through
nuclear
power. In addition, in taking the decision, NERSA was under a
statutory duty to act in the public interest and in a justifiable
and
transparent manner whenever the exercise of their discretion was
required but also to utilise a procedurally fair process giving

affected persons the opportunity to submit their views and present
relevant facts and evidence. These requirements were clearly
not met
by NERSA in taking its far reaching decision to concur in the
Minister’s Sec 34 determination. It has failed to explain,
for
one how it acted in the public interest without taking any steps to
ascertain the views of the public or any interested or
affected
party. For these reasons I consider that Nersa’s decision fails
to satisfy the test for rationality based on procedural
grounds
alone.”
[42]
The sentiments expressed by the Court in the Nuclear case apply with
equal force in the present
case. ICASA did not play open cards with
the stakeholders. It was not transparent when making a decision with
significant consequences.
This gives the applicants a
prima facie
right to apply for an interdict.
[43]
ICASA concedes that after the auction etv will be forced to share
licenced spectrum with other
successful bidders and that this would
result in the degradation of its broadcast signal. ICASA is
dismissive of this possibility
and as a solution suggests that
parties must “co-operate” and “share.” ICASA
proffers no clear plan to
eliminate the potential interference as it
licences both telecommunication companies and broadcasters in the IMT
700 – 800
spectrum. Etv has a
prima facie
right to
utilise its licence without interference.
[44]
ICASA is currently concluding a Chapter 10 inquiry into Mobile
Broadband Services (MBSI). This
is intended to ensure that the
assignment of spectrum post-auction should not have a negative impact
on competition. The inquiry
is supposed to inform ICASA on “the
state of competition in the mobile market” It is therefore
unreasonable and irrational
to publish the auction ITA prior to the
completion of the inquiry. A review on this ground alone has very
good prospects of success
and it affords the applicants a
prima
facie
right to apply for an interdict.
Incomplete
Digital Migration
[45]
The radio frequency spectrum in the bands IMT 700 and IMT 800 will
only become available on completion
of the digital migration process.
Despite its unavailability ICASA has included the IMT 700 and IMT 800
bands of spectrum in the
spectrum to be licenced in terms of the
auction ITA. This is likely to result in successful bidders deriving
no commercial benefits
upon being awarded a licence. This bidders
have invested huge sums of money. The decision of ICASA is
intrinsically irrational.
[46]
Sections 30 and 31 of ECA empower ICASA to issue licences in respect
of spectrum that is available.
ICASA’s actions are therefore in
direct contravention of the quoted sections and are therefore
unlawful.
[47]
For the reasons stated above ICASA has acted unlawfully and
irrationally and there are good prospects
of success in the review
application.
Irreparable
Harm
[48]
Irreparable harm is defined in
City of Tshwane Metropolitan
Municipality v Afriforum and Another
2016 (9) BCLR 1133
(CC) at
para 54 as follows:
“
Irreparable
implies that the effects or consequences cannot be reversed or
undone. Irreparable therefore highlights the irreversibility
or
permanency of the injury or harm. That would mean that a favourable
outcome by the court reviewing allegedly objectionable conduct
cannot
make an order that would effectively undo the harm that would ensue
should the interim order not be granted.”
[49]
Bidders like Telkom would be forced to expend not less than R1
billion in acquisition costs immediately
after the auction in the
event of it being successful. It would however not be able exploit is
acquisition fully due to the unavailability
of spectrum nationally.
Even if the review application were to succeed, the lost opportunity
would be total and irreversible hence
the need for an interdict.
[50]
One of the outcomes envisaged by the spectrum offering is to try and
level the competitive playing
field due the current stark dominance
of the duopoly consisting of Vodacom and MTN. If the ITA is allowed
to proceed as presently
structured, the assignment of spectrum would
give the duopoly an opportunity to entrench their position by
increasing the spectrum
they currently hold supplemented by sharing
arrangements they presently have with smaller operators. Their
offering to customers
would thus be enhanced and reinforce their
advantage against applicants like Telkom. This skewed positioning
would not be remedied
by the review application.
[51]
The 700 MHz and 800 MHz frequency bands are on for sale at the
auction. Considering that e.tv
is the incumbent licence holder in
those bands, once they are sold, that will send a negative message to
the market (advertisers)
and e.tv’s financial and commercial
interests will be permanently and irreversibly harmed in a manner
that cannot be cured
by the outcome of the review process.
[52]
For the above stated reasons it is quite evident the dangers
highlighted in
City of Tshwane v Afriforum
are present and
real and that unless the interdict is granted irreversible and
permanent harm will ensue.
Balance of
Convenience
[53]
This application calls for interference with the exercise of power by
an independent chapter
9 institution and in a sense touches on the
doctrine of separation of powers. In
Doctors for Life
International v Speaker of the National Assembly
[2006] ZACC 11
;
2006
(6) SA 416
(CC) para 200 The Constitutional Court endorsed the fact that the
separation of powers often requires judicial intervention as
follows:
“
While the
doctrine of separation of powers is an important one in our
Constitutional democracy, it cannot be used to avoid the obligation

of a court to prevent the violation of the Constitution. The right
and the duty of this Court to protect the Constitution are derived

from the Constitution, and this Court cannot shirk from that duty.”
What this means is
that court ought to intervene when the need arises to protect against
unlawful invasion of rights. Put differently,
respect for the
doctrine of separation of powers must not be mistaken for judicial
passivity or undue deference.
[54]
A further basis for judicial intervention arises from need to protect
the cornerstone of our
democracy. In
Electoral Commission v
Mhlophe
CCT55/16;[2016] ZACC15;
2016 (8) BCLR 987
(CC) The
Constitutional Court held;
“
The rule
of law is one if the cornerstones of our constitutional democracy.
And it is crucial for the survival and vibrancy of our
democracy that
the observance of the rule of law be given the prominence it deserves
in our constitutional design. To this end,
no court should be loathe
to declare conduct that either has no legal basis, or constitutes a
disregard for the law, as inconsistent
with legality and the
foundational value of the rule of law. Courts are obliged to do so.
To shy away from this duty would require
a sound jurisprudential
basis. Since none exists in this matter, it is only proper that we do
the inevitable.”
[55]
A number of instances have been referred to above in which ICASA has
not complied with the provisions
of ECA or the Constitution and other
statutory obligations. In the circumstances there is no room to allow
ICASA to continue with
the implementation of the auction process.
[56]
Reference was made earlier to a decision which mirrors the facts of
this case in a unique manner,
that is, Minister of
Telecommunications. The similarity of the context and the facts in
both cases sadly suggests that ICASA
has not learnt
from its mistakes but instead repeated the same mistake by issuing a
similar ITA without properly considering the
incumbent licencees and
other stakeholders by seeking to re-allocate spectrum already
allocated to analogue broadcasters.
[57]
In its answering affidavit ICASA submits that if the review succeeds
the review court can under
its remedial powers provide relief to
those that have submitted bids in the unlawful auction. This
submission is a repeat of what
was said in Minister of
Telecommunications and to which Sutherland J commented as follows:
“
82 One
response offered by ICASA on the balance of convenience is that at
worst, if the ITA is set aside, a court can fashion appropriate

remedial relief for the industry actors. This is not a good answer.
In my view, to throw the responsibility onto a court to craft
a
pragmatic solution to ameliorate the fall-out from an irregularity is
simply wrong; a court cannot be likened to a proto –
team sent
into a colliery to rescue miners trapped by a collapsed hanging. The
better approach is to examine the hanging before
initially entering
the mine. That approach, in this matter, is to look coldly at the
alleged risks and the strength of the facts
adduced to substantiate
the alleged risks.”
Sutherland J went on
to conclude as follows regarding the balance of convenience
:
“[84] ICASA  qua regulator suffers no irreparable harm,
but of course, as guardian of the public interest is entitled
to
advance that concern. The critical contention on that score is the
justifiable impatience of consumers to get access to better
services.
Can the envisaged delay undermine this interest? In my view it
cannot. First, a messy process is undesirable. Second,
ICASA itself
has twice since publishing the ITA, postponed the deadlines to apply,
the most recent being to February 2017 This
points the direction of
an absence of prejudice by the delay. The deadline for 2020 is, in
any event, a specious target given the
deferment of a need to achieve
full roll out until access to 100% of the assigned spectrum is made
available. The balance of convenience
favours a grant of the relief.”
[58]
Considering the fact that none of the bidders and major stakeholers,
including the Minister of
Telecommunications are opposing this
application for an interdict, I also come to the conclusion that the
balance of convenience
favours the grant of the relief sought.
Absence of any
other satisfactory remedy
[59]
The applicants have endeavoured to engage ICASA with a view reaching
common ground and avoiding
litigation without success.
[60]
ICASA has made it public that its going forward with the auction.
There is no other conceivable
method in which the applicants can stop
ICASA from implementing its intended action in breach of its
statutory and constitutional
obligations other that by way of the
relief sought in this application.
Urgency
[61]
ICASA produced the reasons for the ITAs on 4 December 2020 and this
application was lodged on
22 December 2020, 12 days after the reasons
were furnished.
[62]
The reasons were furnished after Telkom had requested ICASA for the
basis for the publication
of the ITAs. From that sequence of events
it is apparent that Eskom acted expeditiously in launching the
application.
[63]
As explained above spectrum plays a critical role in all spheres of
life in the modern world.
It is a scarce resource that has to be
dealt with efficatiously by all the stakeholders and on that basis an
application such as
the present one ought to be treated as inherently
urgent. At the same time assignment of spectrum must be done
transparently, efficiently,
fairly and most of all in terms of the
law. The inherent urgency is underlined by the fact that the auction
of the spectrum is
scheduled to begin on 24 March 2021.
[64]
The present application for an interdict is Part B, to be followed by
Part C which is the review
application. The necessity and the urgency
of the court’s intervention is further emphasised by the
further need to protect
the integrity of the review application.
[65]
In
Pikoli v President of the RSA
2010 (1) SA 400
GP at 404 the
court held:
“
the
requirements for an interim interdict are well established, and I
shall in due course deal with each of them. More in general,
one of
the aims of an interim interdict is to preserve the status quo
pending the final determination of the rights of the parties
to
pending litigation. The interim interdict does not involve a final
determination of the parties rights, and it does not affect
such
final determination. When considering whether to grant or refuse an
interim interdict, the court seeks to protect the integrity
of the
proceedings in the main case. The court seeks to ensure, as far as is
reasonably possible, that the party who is ultimately
successful will
receive adequate and effective relief. The court itself has an
interest to ensure that it will ultimately be in
a position to grant
effective relief to the successful party. For reasons that will
appear in due course, the issues in the main
application and also in
this application are constitutional issues, in such cases the court
considering whether to grant or refuse
an interim interdict must also
bear in mind that the courts have a constitutional obligation to
uphold the constitution and to
‘declare that any….conduct
that is inconsistent with the constitution is invalid to the extent
of its inconsistency’
The court must also bear in mind that not
only the parties but society as a whole have an interest in upholding
The Constitution
and that relief in cases of constitutional breaches
must vindicate The Constitution.”
[66]
Evidently from the above dictum, even though there are various
factors which establish the urgency
of the matter, the need “to
protect the integrity of the proceeding in the main case” alone
justifies the urgency of
the matter. The consequences of the auction
would be devastatingly far reaching and long lasting that even if the
applicants were
to succeed in the review, irreparable harm would have
been caused in such a manner that no just and equitable order by the
review
court could cure it or ameliorate it.
Conclusion
[67]
It is true that ICASA has to navigate numerous legal prescripts and
weigh a number of policy
considerations in the execution of its
mandate. We have just entered the twenty seventh year of our
democracy and the digital migration
issue has been on the table now
for about fifteen years. Despite the importance of the spectrum
issue, government has been dithering
and not moving swiftly on the
issue.
[68]
ICASA has been in existence as a chapter 9 institution since the
advent of a Constitutional State
and I have no doubt that it has
gathered considerable amount of experience during that time. One
would expect that where the institution
has made mistakes, it would
use such instances to reflect and ensure that they are not repeated.
This would ensure growth and development
at a significant pace in all
spheres of development in the country. The technological developments
that have occurred and can still
occur, spear – headed by ICASA
and other stakeholders since its establishment are phenomenal. Still,
much more can be done.
It is concerning therefore that ICASA can
still find it possible to repeat exactly the same mistakes as it has
done after these
had been spelt out in very clear terms a mere five
years ago. Whilst a finger can be pointed at government regarding the
digital
migration issue, ICASA is not making things better in the
manner it is handling the spectrum issue. The questions it should
have
asked itself are well set out in the judgment of Sutherland J. I
can do no better than refer thereto where he stated as follows
in
Minister of Telecommunications (
supra
):
“
58. First,
the concern is a matter of interpretation of the plan and its
enabling legislation. Is a ‘re-allocation’
implicated?
Should the ‘allocation by MOT, for exclusive use by mobile
operators, not precede a decision by ICASA to ‘assign’
a
licence, ‘exclusively’ for only one of the eligible
usages? Should the assignments ICASA contemplates be restricted
only
to unassigned spectrum? Is such an assignment out of kilter with the
prescribed ‘allocations’? Second should MOT
not defer
such an amendment until a secure harbour is found for the operators
who are to exit this spectrum, especially given the
uncertainty as to
when that can be effected? On the facts at a practical level, does it
make sense to assign space in the spectrum
that is, at present
inaccessible on the basis that at a future unknown date, access will
be made available when two other have
to take place to give effective
access to the newcomers, ie, first, the migrated operators need to
have another spot assigned to
it they have to make do with a reduced
bandwidth and second, in terms of the amended Broadcasting Digital
Migration Policy of 18
March 2015, the analogue – to –
digital Migration Policy of 18 March 2015, the analogue –to –
digital migration
process is subject to a switch off date which is to
be determined by MOT in consultation with the Cabinet, a decision
which shall
be made after a process of engagement with the affected
parties has been concluded and is not expected to be soon.
Accordingly,
ICASA cannot migrate the current non-mobile users
without MOT’s participation and an orderly process requires
co-ordination
between them. This gives rise to a highly problematic
set of circumstances not capable of being managed by ICASA on its
own.
59. In summary I
conclude that, first the assignment already assigned to other
operators is of questionable validity and secondly,
to assign now and
defer access to an unknown future date, which is dependent on a host
of process-dependent happenings has the
look of a reckless decision
and for that reason an irrational decision.”
[69]
Counsel for the first respondent submits that the ITA process was
embarked upon at the instance
of the Minister of Telecommunications.
To me, that instruction to embark upon the publishing of the ITAs
ought to have presented
ICASA with an opportunity to engage the
Minister regarding an orderly process with a view to responding to
the concerns raised
by Sutherland J. In that way the current impasse
could have been avoided. Be that as it may the irrationality of the
ICASA decision
to publish the ITA’s without addressing the
concerns that have been raised before and which it is aware of or
ought to have
known remains.
Costs
[70]
The applicants seek costs in respect of Part B including the costs of
two counsel. I have considered
the fact that there is still Part C to
come and the possibility of ordering the costs to be costs in the
review. Given the facts
of this application, particularly the fact
that ICASA ought to have been aware of the pitfalls of proceeding
with the ITA process
I have decided against that option.
ORDER
[71]
Having considered all of the above, I make the following order:
Pending
the final determination of the order sought in Part C, the following
order is made:
71.1
An order interdicting the first respondent from assessing or
adjudicating any applications received by it
pursuant to the ITA for
the licensing spectrum in the IMT 700, IMT800, IMT2600 and IMT 3500
bands issued by the first respondent
on 2 October 2020 under gazette
No 43768 [notice 535 of 2020].
71.2
An order suspending the closing date for the submission of
applications for the licence to operate a Wireless
Open Access
Network as stated in the ITA issued by the first respondent on 2
October 2020 under government gazette no. 43767 [Notice
534 of 2020].
71.3
The first and second respondents shall pay the costs of the
applicants jointly and severally, the one paying,
the other to be
absolved in respect of Part B, including the costs of two counsel.
SELBY
BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA