IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
REPORTABLE: YES/WG
OF INTEREST TO OTHER JUDGES: YES/WG
REVISED.
21/02/2025
SIGNATURE DATE
In the application of:
VODACOM (PTY) LIMITED
and
INDEPENDENT COMMUNICATIONS AUTHORITY OF
SOUTH AFRICA ("ICASA")
CHAIRPERSON , INDEPENDENT COMMUNICATIONS
AUTHORITY OF SOUTH AFRICA
MOBILE TELEPHONE NETWORKS (PTY) LTD ("MTN")
CELL C (PTY) LTD ("CELL C")
LIQUID TELECOMMUNICATIONS SOUTH AFRICA
(PTY) LTD ("LIQUID")
TELKOM SA LIMITED
RAIN (PTY) LTD CASE NO: 054724/2024
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
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JUDGMENT
LABUSCHAGNE J
[1] Vodacom applies for interim relief in Part A of proceedings set down for a
special allocation on the basis of semi -urgency. In Part A, Vodacom seeks,
pending final determination of Part B proceedings, an interdict:
1.1 Interdicting MTN from using or transmitting on the following radio
frequency spectrum (“RFS” or “spectrum”);
1.2 In the 1800 MHz band, from 1749.7 to 1759.9 MHz paired with 1842.9
to 1854.9 MHz , which is licen sed to the fourth respondent (Cell C) ;
1.3 In the 1800 MHz band, from 1710.3 to 1722.3 MHz paired with 1805.3
to 1817.3 MHz, which is licen sed to the fifth respondent (Liquid);
1.4 In the 1800 MHz band, from 1722.3 to 1722.7 MHz paired with 1817.3
to 1817.7 MHz, which is the guard band;
1.5 In the 2100 MHz band, from 1935 to 1950 MHz paired with 2125 to
2140 MHz, which is licen sed to Cell C; and
1.6 In the 900 MHz band, from 880 to 890 MHz paired with 925 to 935
MHz, which is licen sed to Cell C ;
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1.7 It seeks an interim interdict against Cell C, restraining it from
transmitting on the following spectrum :
1.7.1 In the 2100 MHz band, from 1950 to 1965 MHz paired with
2140 to 2155 MHz, which is licensed to MTN; and
1.7.2 In the 900 MHz band, from 905 to 915 MHz paired with 950 to
960 MHz, which is licensed to MTN .
1.8 Interim relief is sought against Liquid restraining it from transmitting
the following spectrum:
1.8.1 In the 1800 MHz band, from 1722.7 to 1734.7 MHz, paired
with 1817.7 to 1829.7 MHz , which is licensed to MTN; and
1.8.2 In the 1800 MHz band, from 1722.3 to 1722.7 MHz, paired
with 1817.3 to 1817.7 MHz, which is the guard band, for which
each of MNT, Cell C and Liquid do not hold licenses issued
by ICASA.
[2] In Part B proceedings, Vodacom seeks an order declaring that:
2.1 The decision taken by ICASA on or about 14 June 2022 to approve
the applications by MTN and Liquid and by MTN and Cell C for RFS
sharing in the form of RFS pooling is unlawful, reviewed and set aside.
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2.2 Any decision taken by ICASA on a date unknown to Vodacom,
authorising MTN, Cell C and Liquid to use and transmit on guard
bands , whether done implicitly or otherwise , is reviewed and set aside.
RELEVANT BACKGROUND
[3] Radio frequency spectrum is the tool that mobile network operators (MNOs)
use to compete. It is a finite resource under state control , to be used for the
benefit of all. Lower frequency bands provide broader geographic coverage
for mobile service communications. Higher frequenc y band s offer higher
capacity and faster data speeds but cover smaller areas.
[4] Three radio frequency bands are relevant to this application , namely the
2100,1800 and 900 MHz bands . The guard bands (buffers in between
allocated spectrum ) in the 900 MHz spectrum band have been removed by
ICASA and the issued licences of the respondent MNOs have been amended
to cater for the effect of the removal of guard bands.
[5] A special spectrum sharing dispensation applied during the pandemic. On 24
April 2020 ICASA approved an application by MTN and Liquid to temporarily
pool their radio frequency spectrum in the 1800 MHz band. The duration of
the approved spectrum pooling arrangement would be from date of approval
until three months after the end of the National State of Disaster.
[6] There w ere legal dispute s between cell phone companies and ICASA
regarding spectrum allocation . The wrangling culminated in an auction of
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spectrum which was held during March 2022. Billions were paid by MNOs for
obtaining licences from ICASA for assigned spectrum .
[7] In the period 4 to 11 April 2022 MTN, Cell C and Liquid applied to ICASA in
terms of Regulations 18(3) and 18(4) for approval of spect rum pooling
arran gements .
[8] On 12 April 2022 ICASA asked MTN, Cell C and Liquid to “provide more
information/details on how the pooling arrangements as applied for will in
particular promote the objects set out in terms of section 2(f) of the Electronic
Communications Act No. 236 of 2005. ” The subsection states as one of the
objects of the ECA the promotion of competition in the Information
Communications and Technology Sector.
[9] On 4 May 2022 MTN, Cell C and Liquid submit ted a response to ICASA’s
request in terms of section 2(f) of the ECA.
[10] On 10 June 2022 ICASA’s CEO sign ed a memorandum to the Council,
recommending approval of the applications.
[11] On 14 June 2022 ICASA’s Council approve d “the application submitted by
(MTN and Cell C) to share their respective assigned radio frequency spectrum
in the IMT 900 MHz; IMT 1800 MHz and IMT 2100 MHz bands” and “the
application submitted by (MTN and Liquid) to share their respective assigned
radio frequency spectrum in the IMT 1800 MHz band.”
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[12] On 21 June 2022 ICASA wrote to MTN, Cell C and Liquid, advising them that
their applications have been approved subject to certain conditions.
[13] On 30 June 2022 the temporary spectrum pooling arrangement between MTN
and Liquid came to an end.
[14] In the latter part of 2022, Vodacom contends that it started noticing anomalous
results being yielded by its tests of the relative performance of MNOs in the
market, especially as to speed relative to spectrum holding and site
infrastructure.
[15] In March 202 3 Vodacom contends that it noticed that MTN’s download and
upload speeds consistently and increasingly outperformed other MNOs
downloa d and upload speeds.
[16] In August 2023 Vodacom conducted further tests. Vodacom addressed a
letter to ICASA requesting information about MTN’s entitlement to transmit on
spectrum not licensed to it by ICASA.
[17] ICASA did not respond to Vodacom’s letter and Vodacom made a formal
request on 5 December 2023 for access to information in terms of the
Promotion of Access to Information Act, 2 of 2000 (PAIA).
[18] On 22 February 2024 Vodacom addressed a follow -up letter to ICASA,
following up on the PAIA request.
[19] On 28 February 2024 ICASA responded seeking an indulgence, contending
that it is considering the request and has requested MTN, Cell C and Liquid’s
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consent in terms of sections 47 and 48 of PAIA and would respond on or
before 26 March 2024.
[20] On 4 March 2024 Vodacom agreed to ICASA’s request ed indulgence.
[21] On 14 March 2024 ICASA responded and informed Vodacom that it received
applications from MTN, Cell C and Liquid on 4 April 2022 and approved them
on 14 June 2022 (and ICASA attached a red acted copy of the Council’s
meeting minutes and copies of the letters dated 21 June 2022, informing MTN,
Cell C and Liquid of the approval of their applications). ICASA undertook to
respond to the balance of the requests in response to Vodacom’s 4 March
2024 letter by 29 March 2024.
[22] On 29 March 2024 ICASA responded by refusing access to MTN, Cell C and
Liquid’s applications.
[23] On 8 and 22 April 2024 Vodacom contends that it conducted further tests,
which showed that the pooling arrangements were s kewed in MTN’s favour.
[24] On 17 May 2024 Vodacom launched the current two -part application. Part A
was set down for the hearing of urgent interim relief on 13 August 2024.
[25] Answering affidavits were filed by Liquid (on 26 June 2024) , ICASA (on 28
June 2024) and Telkom filed its explanatory affidavit on 27 June 2024.
[26] On 4 July 2024 Vodacom wrote to the DJP requesting a special allocation for
Part A.
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[27] On 1 July 2024 Cell C filed its answering affidavit to Part A proceedings. M TN
followed soon, on 5 July 2024. Vodacom filed its replying affidavit in Part A
proceedings on 18 July 2024 and ICASA filed its answer to Telkom’s
explanatory affidavit in Part A proceedings on 30 July 2024. A meeting was
secured with the DJP in August , a week after the set down of 13 August . The
matter was removed from the urgent court roll and that meeting gave rise to
the hearing befo re this court.
THE CASE FOR VODACOM
[28] The licensing and the use of radio frequence spectrum is governed by the
Electronic Communications Act, 36 of 2005 (“the ECA”). High Demand
Spectrum (HDS) is a finite resource in the ICT sector . The demand fo r HDS
far outstrips the supply .
[29] Section 31(1) of the ECA provides that no person may transmit any signal by
radio or use radio apparatus to receive any signal by radio except under and
in accordance with a radio frequence spectrum licen se granted by ICASA to
such person in terms of the ECA.
[30] In terms of the aforesaid section an individual applies for and is granted a
license for a specific block of spectrum in a frequenc y band, measured in MHz.
What Vodacom impugn s in Part B proceedings is the approval by ICASA of
the pooling of high density spectrum between MTN, Cell C and Liquid.
Vodacom contends that particularly MTN is favoured in respect of its available
spectrum bandw idth to the “serious competitive prejudice of Vodacom (and
Rain and Telkom)” .
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[31] Vodacom advances the following propositions :
First,that MTN and its pooling associates have been permitted to unlawfully transmit
on significant blocks of HDS for which they are not licensed as required by the ECA in
the regulatory framework. Vodacom contends that this was done in secret without
notice to Vod acom and without public participation.
Second, an application for sharing has resulted in impermissible pooling – i.e. creation
of a new block of spectrum tha t includes the previously unassigned gu ard bands – i.e.
buffer zones between licensed spectrum bands . Without the incorporation of the
unlicensed guard band into the pool of spectrum, the pool ing in question would not
work effectively . On th is latter issue there is agreement between Vodacom and t he
respondent MNOs.
Third, that allowing the pooling parties to transmit on these guard bands without having
had these license d to them under the process prescribed for the licensing of H DS (i .e.
Regulation 7) , is unlawful. The application is aimed at directing MTN, Cell C and Liquid
to refrain from transmitting on spectrum for which they are not lawfully licensed,
pending the review and setting aside of ICASA’s approval of the pooling arrangement s
in Part B.
[32] Vodacom posits the need for licences based on sec 31 and Regulation 18 for
each pooling pa rticipant for the shared spectrum, after following a process of
public pa rticipation ,ie. a transparentl y consultative process with role players
in the ICT sector . The latter flows fro m the high demand and public interest
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in HDS and the effect its assignment has on c ompetition between MNOs .The
need for public participation flows from the ECA and its regulations.
Alternatively it flows from sec 3 or 4 of PAJA .
Vodacom contends that ICASA does not have the power to approve spectrum
pooling arrangements under the spectrum sharing Regulations. Vodacom
further contends that ICASA could not approve the use of guard bands in the
1800 MHz band without following a similar spectrum harmonization process
and issuing or reissuing spectrum licenses, including the guard bands as it did
in respect of the 900 MHz band.
URGENCY
[33] ICASA , MTN , Cell C and Liquid dispute that the application is urgent,
contending that Vodacom has been dragging its feet. They contend that
Vodacom was already aware in November 2022 of Vodacom’s enhanced
performance. MTN contends that Vodacom has unreasonably delayed the
commencement of the application contending that Vodacom knew in April
2022 of the pooling agreement . ICASA raises the same point , using April 2022
as starting date . MTN further contends that Vodacom can obtain substantial
redress in due course.
[34] Vodacom points a finger at ICASA , contending that ICASA as regulator is to
blame for the delay. The glacial pac e at which it dealt with Vodacom’s request
for information in terms of PAIA caused an undue delay. In the end, the
information sought was refused .
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[35] The application was launched in M ay 2024 . The hearing dates of this matter
before this Court (13 and 14 February 2025) were determined following the
case management meeting with the Deputy Judge President in August 2024
as set out in the chronology above.
[36] Vodacom did tests to determine the reason behind MTN’s upload and
download speed and it is contended by the respondents that the information
derived from such tests should have caused the earlier institution of these
proceedings. Vodacom contends that it was required to determine from
ICASA whether there were licensed amendments to MTN’s spectrum holdings
and to determine how this was possible without a public participation process.
Vodacom therefore engaged with ICASA as regulator and the regulator first
delayed the process and then refused to provide the information as requested.
[37] Vodacom contends that there is clear unlawfulness in the utilisation of pooled
spectrum, which includes guard bands, and it is contented that the rule of law
on its own could justify the Court being approached on the basis of urgency.
[38] In Pharmaceutical Ma nufacturers Association of S A and Others: In re:
Ex parte application of President of the RSA and Others 2000 (2) SA 674
(CC) at paragraph [40], the Constitutional Court held that:
“The rule of law is specifically declared to be one of the foundational values of
the constitutional order, fundamental rights are identified and entrenched, and
provision is made for the control of public power including judicial review of all
legislation and conduct in consistent with the Constitution.”
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[39] In Mogalakwena Local Municipality v Provincial Executive Council,
Limpopo and Others [2014] 4 All SA 67 (GP); 2016 (4) SA 99 (GP) at
paragraph [65] the following was stated regarding urgency in vindicating the
rule of law:
“The case for the applicant is that the respondents are seeking unlawfully to
take away its lawfully derived power to govern the municipality at a local
government level. That case, if ultimately substantiated, is directed at
redressing nothing less than a serious violation of the rule of law. The
prejudice to the applicant is manifest. Every action taken by someone who is
in law a usurper of power is unlawful and, especially where third parties are
involved, might give rise to complex questions of fact and law.”
[40] The grounds for urgency raised by Vodacom include the following:
40.1 Vodacom suspected over time that there was something untoward
with the enhanced performance of MTN’s network. However, it had
no evidence nor any other basis on which it could approach a Court
for relief until after 14 March 2024 when ICASA eventually disclosed
that it had approved spectrum sharing and pooling arrangements by
MTN, Cell C and Liquid;
40.2 This was after a protracted engagement since October 2023 by
Vodacom trying to extract th is information from ICASA;
40.3 The shortage of information and ICASA’s refusal to make the
applications that it had approved available, resulted in further delays.
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The application was brought as soon as ICASA had responded, and
the respondents were provided with reasonable time periods to file
their responses.
[41] In my assessment it would be premature to launch an application without
obtaining information from the regulator . It is not unreasonable to seek clarity
from ICASA on whether MTN or any other MNO was licenced to transmit and
receive signal on spectrum bands not reflected in the public licence register.
The regulator is the repository of public information on who is licensed for use
of spectrum . A significant period of time was wasted by ICASA avoiding its
duty to be transparent in the face of a reasonable request for information.
[42] It is also correct that a significant amount of time has elapsed since the
application was instituted. It was envisaged to be heard in August 2024.
However, the delay since then in hearing the matter is a function of the
administration of justice. The papers were too voluminous for hearing in the
urgent court in August 2024 . The duration of argument was also two days. In
terms of current practice directives as to the volume of papers and the duration
of argument a special allocation was the only way fo r this matter to be heard
on an expedited basis. If the matter were not heard in this special allocation
on the basis of semi -urgency , a change in status quo that would set in and the
establishment of entrenched rights before the proceedings are heard, may
evolve .
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[43] The applicant contends that the advantage that MTN has gained cannot be
quantified in a damages claim. If Part A is not heard it will not obtain substantial
redress in due course . The mere passing of time may result in review relief in
Part B , though established, being declined (see The Chairperson: Standing
Tender Committee and Others v JFE Sapela Electronics (Pty)(Ltd) 2008
(2) SA 638 (SCA) at apr [20] and [29] ). This is a valid consideration.
[44] On balance, I am satisfied that the matter should proceed to be heard on the
merits insofar as there are allegations of unlawful transmission arising from
the pooling of spectrum. This is a rule of law issue which is sufficient to
establish at least semi -urgency.
THE OUTA PRINCIPLE
[45] As a defence the respondents raise the OUTA principle, contending that the
relief sought will cause separation of powers harm. It will interfere in the
functioning of ICASA as regulator. Vodacom counters this contention by
pointing out that it does not seek relief against ICASA in Part A . It seeks to
prevent the implementation by private beneficiaries “of an administrative
authorisation given to them that was unlawfully given. This does not entail the
OUTA principle at all” (paragraph 36.3 of Vodacom’s heads of argument).
[46] As an alternative it is contended by Vodacom that the unlawfulness is so
manifest that it meets the “clearest of cases” threshold applied in the OUTA
context.
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[47] In EFF v Gordhan (Economic Freedom Fightrs v Gordhan and Others;
Public Protector and Another v Gordhan and Others ) 2020 (6) SA 325
(CC) at paragraph [59] and [60] the Court held:
“[59] While I acknowledge that OUTA is distinguishable on the facts from the
present matter, it is this very distinction that highlights the lack of
prospects of success in the present case. In OUTA, this Court held:
‘The order prohibits SANRAL from exercising statutory powers flowing
from legislation whose constitutional validity is not challenged. In
particular, the order prevents it from raising revenue through tolls, a
power the statute vests in it … At the behes t of a court order, the National
Executive is prevented from fulfilling its statutory and budgetary
responsibilities for as long as the interim order is in place. ’
[60] What is evident from the above is that the interim order sought in OUTA
would thwart the Executive from carrying out its statutory and budgetary
duties as required by statute. Plainly put, it would prevent the Executive
from doing what it was meant to do. Here, the interim interdict sought is
different. The Public Protector has already performed the duties and
functions that the Constitution requires of her. As I have stated before,
the SARS Report has been completed. Her powers have been exercised
and the SARS Report has been published. The interim interdict sought
in the High Court therefore did not have the effect of subverting her
constitutional powers.”
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[48] In Eskom Holdings SOC Ltd v Va al River Development Association (Pty)
Ltd 2023 ( 4) SA 325 (CC) at paragraph [303] the Constitutional Court stated:
“OUTA must be read in the context of the fact that what was at issue there
was a highly policy laden decision by a member of the Executive arm of
government and violations of fundamental rights protected in the Bill of Rights
were not at issue. In the mai n, it is those two considerations that informed the
Court’s final conclusion. I believe that the role to be played by this factor must
depend on the nature of the Executive decision. Ordinarily, this factor must
apply on a sliding scale. The more policy laden or poly centric the decision,
the more the role this factor must play in influencing the court’s determination.
The lesser the policy -ladenness or polycentricity, the lesser the influence of
this factor.”
[49] Vodacom stresses that the Court is not requested to assess and weigh the
decisions made by ICASA in Part A proceedings. The unlawfulness in
question is a matter for the Court to determine, rather than ICASA. The
question whether procedural fairness was required and properly afforded is
not a question that in any way engag es the need for deference on the part of
the Court to any polycentric expertise driven or policy la den decision on
ICASA’s part (see Vodacom’s heads of argument, paragraph 39).
[50] My assessment of this defence appears later.
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FAILURE TO EXHAUST INTERNAL REMEDIES
[51] The applicant approaches the Court on the basis of PA JA, contending that the
decision in Part B is administrative action.
[52] Section 7(2)(a) of PAJA provi des that no Court or tribunal shall review an
administrative action in terms of the Act unless any internal remedy provided
for in any other law has first been exhausted. The Court will however permit
in exceptional circumstances an application to be e xempted from this
requirement – section 7(2)(c) of PAJA.
[53] In Deng etenge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Co mpany Ltd and Other 2014 (5) SA 138 (CC) the
Constitutional Court stated:
“[119] In clear and peremptory terms, s ection 7(2) prohibits courts from
reviewing 'an administrative action in terms of this Act unless any
internal remedy provided for in any other law has first been
exhausted'. Where, as in this case, there is a provision for internal
remedies, the section imposes an obligation on the court to satisfy
itself that such remedies have been exhausted. If the cou rt is not
satisfied, it must decline to adjudicate the matter until the applicant
has either exhausted internal rem edies or is granted an exemption.
Since PAJA applies to every administrative action, this means that
there can be no review of an administrative action by any court where
internal remedies have not been exhausted, unless an exemption has
been granted in te rms of s ection 7(2)(c). This is apparent from the
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terms of s ection 7(2)(a) which begins with the words ‘[s]ubject to
paragraph (c).”
[120] Section 7(2) (c) empowers a court to grant an exemption from the duty
of exhausting internal remedies if, as observed by the Supreme Court
of Appeal in Nichol , two pre -conditions are established. These are
exceptional circumstances and the interests of justice.”
[54] MTN, Cell C and ICASA contend that Vodacom should have employed
ICASA’s own complaints procedure . Section 17C(1)(a) of the ICASA Act
provides for disputes to be referred to the Complaints and Compliance
Committee (the “ CCC ”). Vodacom contends however that the complaints
procedure does not encompass instances where the complaint is against
ICASA itself. The challenging of administrative action by ICASA is based on
the contention that ICASA’s decisions purport to authorise violations of the
ECA and the RFS Regulations. Any such complaint could not be refe rred to
an internal body such as CCC. ICASA cannot review its own approvals. I
agree.
[55] Liquid and Cell C contends that Vodacom complains about the anti -
competitive elements of the pooling arrangements (including that they amount
to prohibited practices (including pre -implementation of an unnotified merger,
as understood in Chapter 2 of the Competition Act ) and contends that this
Court lacks jurisdiction to determine this dispute. It is contended that
Vodacom ought to have proceeded in the Competition Tribunal to enforce its
allegations that the arrangements entail the prohibited implementation of
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unnotified merges. Liquid contends that Vodacom should have applied for
interim relief before the Competition Tribunal in terms of section 49 C of the
Competition Act.
[56] Vodacom’s counter argument to these contentions is that it has not founded
its case thereon that MTN, Cell C and Liquid have engaged in prohibited
practices in terms of the Competition Act. The statutory violations relied upon
by Vodacom are to be found in the licensing framework of the ECA and
attendant Regulations, and not in a violation of the Competition Act.
[57] I accept as correct the submissions by Vodacom. While Vodacom initially
considered approaching the Competition Tribunal, and requested the
respondents to respond, the respondents were not amenable. To now suggest
otherwise loses sight of the nature of the complaint of Vodacom. It is a legality
issue framed in terms of PAJA, not a complaint about unlawful pre-
implementation of an unnotified merger or prohibited practices under the
Competition Act.
[58] None of the suggested internal remedies are adequate remedies, and none of
them stands in the way of these Part A proceedings. This issue will also
feature in Part B proceedings. I deal with the exhausting of internal remedies
as precursor to the establishment of the prima facie right to review relief as
there is no High Court review jurisdiction unless internal remedies have been
shown to have been exhausted, or, in exceptional circumstances, where an
exemption in terms of sec tion 7(2) of PAJA is granted.
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[59] Even if I am wrong in this regard, the raising of this defence is to my mind
premature. It is truly a matter for the review court. And the internal remedies,
if established, may be exhausted even after initiating review proceedings (see
section 7(2)(b) of PAJA) .
[60] It is necessary to understand the legislative landscape pertaining to radio
frequency spectrum in order to assess the requirements for an interim
interd ict.
THE LEGISLATIVE FRAMEWORK OF RADIO FREQUENCY SPECTRUM
[61] The radio frequency spectrum is a national asset . Deriving benefit from it
through improved electronic communication is central to the attainment of
social upliftment and the realisation of enshrined fundamental rights.
[62] “Fast and reliable electronic communication services have the po tential to
improve the quality of life of all people in S outh Africa ”- see City of Tshwane
Metropolitan Municipality v Link Africa (Pty)(Ltd) 2015 (6) SA 440 (CC ) at
para121. ICASA is the broadcasting authority envisaged by section 192 of the
Constitution. Its constitutional mandate is to regulate broadcasting in the
public interest and to ensure fairness.
[63] ICASA is established by means of the ICASA Act, 13 of 2000, which Act
restates the constitutional mandate of section 192 in the objects of the Act as
formulated in section 2(a).
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[64] The ICASA Act requires a public register (section 4A) of licenses to be kept
by ICASA, that also reflects amendments to such licenses. The public, against
payment of a prescribed fee, has access to the public register of licenses.
[65] Complaints about misuse of licenses may be lodged with ICASA and, where
ICASA deems it appropriate, such complaints will be referred to the
Complaints and Compliance Committee (CCC) . Such complaints may relate
to use of spectrum by licensees or non -licensees. The complaints and
Compliance Committee has the authority to investigate such complaints in
terms of section 17 C of the ICASA Act. It is this remedy which the respondents
contend constitutes an alternative remedy to Vodacom.
[66] The primary source of ICASA’s powers pertaining to radio frequency spectrum
is to be found in the Electronic Communications Act ,36 of 2005 ,the RFS
Regulations and the ICASA Act . In what follows reference is made to those
portions of the ECA that deal with the interests of the public and the issue of
fairness as envisaged by section 192 of the Constitution and section 2(a) of
the ICASA Act.
[67] The provisions of the Electronic Communications Act are instrumental in
securing reliable electronic comm unications . Access to these services are
important for the achievement of constitutional rights and values . In The
Minister of Telecommunications and Postal Services v Acting Chair,
Independent Communication s Authority of South Africa [2016 ]
ZAGP PHC 883 (30 Se ptember2016) Sutherland J (as he then was) explained:
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“Access to the utility of the fr equency spectrum implicates the optimal
achievement of several constitutional val ues and rights, incl uding the freedom
of trade, modern educatio n and the dissemination of information pursuant to
freedom of e xpression. Achieving effective access to its utility implicate
equality too because of its role in facilitating th ese several rights.”
[68] The objects of the Electronic Communications Act (ECA) include:
68.1 To promote and facilitate the development of interoperable and
interconnected networks (section 2(b));
68.2 To ensure the efficient use of radio frequency spectrum (section 2(e));
68.3 To promote competition in the ICT sector (section 2(f));
68.4 To promote open, fair and non -discriminatory access to broadcasting
services (section 2(g));
68.5 To refrain from undue interference in the commercial activities of
licensees while taking into account the electronic communication
needs of the public (section 2(y)).
[69] The means by which ICASA regulates radio frequency spectrum is through a
system of licensing. Unless services have been exempted by ICASA in terms
of section 6, no person may provide any service (as defined) without a license
– section 7.
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[70] A license confers on the holder the privileges and subjects the licensee to the
obligations in the Act and as specified in the license (section 5(12)).
[71] When an application for an individual license is made, there is a process of
public participation. ICASA is required to give notice of the application in the
Government Gazette and the interested parties are offered an opportunity to
submit written respon ses, which must be considered by ICASA (sections 9(2)
and 9(5) of the ECA).
[72] The renewal of licenses also attracts a public participation process (section
11(3) read with section 9(2)).
[73] In licensing and assigning the use of radio frequency spectrum, ICASA must
take into account the efficient utilisation of spectrum, including allowing shared
use of spectrum when interference can be eliminated or reduced (section
30(2)(b) of the ECA).
[74] Central to the issues in Part A of these proceedings is section 31. Section
31(1) makes it clear that no person may transmit any signal by radio or use a
radio apparatus to receive any signal except in accordance with a radio
frequency spectrum license.
[75] The discretionary power of ICASA in prescribing procedures and conditions
regarding applications for licenses appears from section 31(3). In terms
thereof, the authority may take into account the objects of the Act in
prescribing procedures and conditions for:
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75.1 RFS licenses where there is insufficient spectrum available to
accommodate demand (section 31(3)(a);
75.2 The amendment of a license or the transfer of control of a license
(section 31(3)(b);
75.3 Where an application is made for sharing (section 31(3)(c)).
[76] ICASA may amend a radio frequency license if requested and may grant such
amendment if it is fair and does not prejudice other licensees (section 31(4)).
[77] The interests of the public is apparent not only from the Act but from the
published Radio Frequence Spectrum Policy of the government which was
published in terms of section 3(1) of the ECA (Government Notice 306 in
GG3119 of 16 April 2010). In terms of paragraph 2.1.2 of the policy the
management of radio frequency spectrum is subject to government authority
“and spectrum must be managed efficiently so to be of greatest benefit to the
entire population. ”
[78] The Radio Frequency Spectrum Regulations (RFS Regulations of 2015)
speaks of RFS assignments being exclusive or shared (Regulation 3(4)).
[79] ICASA may subject even a standard application to a public consultation
process (Regulation 5(5)).
[80] More to the point in these proceedings is Regulation 18 which pertains to an
application for sharing radio frequency spectrum. The concept of sharing is
defined in Regulation 18(1). It relates to an instance where “two or more
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licensees have been granted licenses for or part of same frequency
assignment. ”
[81] Even where a party seeks to have exclusive use of radio frequency spectrum,
ICASA may require licensees to share in assigned frequency with other
licensees (Regulation 18(2).
[82] Where parties seek to apply for a sharing of radio frequency spectrum, they
may apply to ICASA in terms of Regulation 18(3) based on an application form
– Form D.
[83] All radio frequency spectrum sharing agreements are subject to approval by
ICASA and to a non -discriminatory approach (Regulation 18(3)).
[84] High Density Spectrum (HDS) is a scar ce commodity. This is evidenced by
the proceeds of the auction conducted by ICASA in 2021 where the parties to
these proceedings paid billions of Rands for specific allocations of RFS
spectrum. The auction was preceded by litigation in which the competitive
nature of public participation in acquiring such sp ectrum was required as a
matter of legal principle (see the Telkom cases referred to below) .
[85] The history preceding the aforesaid auction evidenced ICASA placing
spectrum caps on the larger players so that an equitable distribution of radio
frequency spectrum can take place. Caps were placed on Vodacom and MTN
to prevent market domination to the exclusion of other role players.
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[86] The imposition of such caps is consistent with the obligation upon ICASA to
ensure that the radio frequency spectrum is utilised to the benefit of the entire
population as a scare commodity under the control of the State.
PRIMA FACIE RIGHT
[87] Vodacom contends that section 31(1) requires a new or an amended license
to be issued to the parties to a sharing agreement. MTN,accepting the need
for a licence, contends that the approvals are extensions of the e xisting
licences.
[88] Section 31 of the ECA reads:
“Radio frequency spectrum licence
(i) Subject to subsections (5) and (6), no person may transmit any signal
by radio or use radio apparatus to receive any signal by radio except
under and in accordance with a radio frequency spectrum licence
granted by the Authority to such person in terms of this Act.”
[89] In advancing the interpretation in favour of new or amend ed licences Vodacom
contends that :
89.1 The ECA must be read as a whole, and section 31 in particular must
be read as a whole.
89.2 It cannot be assumed that the legislature intended to do away with the
right to procedural fairness.
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89.3 The ECA is meant to be rational , i.e. taking into account all the other
laws which the legislature is presumed to have known when passing
the ECA.
89.4 ICASA is entrusted with management of a public asset – the radio
frequency spectrum – it must do so in the public interest and in
accordance with the values and principles enshrined in the
Constitution and expressly provided for in the ECA (Vodacom’s
heads , paragraph 57).
[90] ICASA contends that as long as the applicants for sharing each has a licence
for its spectrum bands, sharing is competent. It is evident from section 31(1)
of the ECA that no person may transmit any signal by radio or use any radio
apparatus to receive any signal by radio without a radio frequence spectrum
licence granted by the Au thority. ICASA contends that there is already a
licence for each sharing participant and no new licence is required .
[91] Vodacom contends that, when MTN transmits on spectrum licensed to Cell C:
91.1 It is not doing so “under and in accordance with” a license issued by
ICASA to MTN; and
91.2 It cannot do so “under and in accordance with a license issued by
ICASA to Cell C”.
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[92] Vodacom therefore contends that ICASA is wrong in suggesting that, because
MTN, Cell C and Liquid hold spectrum licenses, they are free to transmit on
the frequencies for which they are not themselves licensed.
[93] Vodacom contends that spectrum sharing as defined in Regulation 18(1)
refers to an act of licensing to use the same spectrum. It is contended that it
cannot be effected without licensing on such basis.
[94] Regulation 18(1) reads:
“(1) Radio frequency spectrum sharing is where two or more licensees have
been granted radio frequency spectrum licences for all or part of the
same frequenc y assignment.”
[95] ICASA’s interpretation of the Regulation is that, where radio frequency
spectrum licenses have been issued, those with adjacent spectrum may apply
to share in terms of Regulation 18(1).
[96] But the issue is not who is competent to apply . Having licences for adjacent
spectrum b ands is a locus standi issue when applying to share spectrum .
[97] Regulation 18(3) refers to applications for licenses. The approval that MT N,
Cell C and Liquid applied for was for approval in terms of RFS Regulation
18(3). They accordingly applied “for radio frequency spectrum licences for
spectrum assignments on a shared basis” .
[98] Vodacom contends that the word “licences” in Regulation 18(3) indicates that
the application in respect of sharing is an application for a license . Where
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licensees already had licenses for the respective individually assigned
spectrum, so Vodacom contends, this means that they needed amended or
new spectrum licenses for the shared spectrum.
GUARD BANDS
[99] MTN admits that it is using the guard band, claiming that “ICASA has approved
and authorised the transmission of signal on the guard band frequency
between MTN and Liquid and Cell C’s adjacent spectrum assignments that
are the subject of the pooling applications.” (MTN, AA, paragraph 176,
CaseLines 02 -614).
[100] Liquid does not address the question of guard bands at all. Cell C accepts
that the spectrum pooling cannot be achieved without entailing the assignment
of unassigned and unlicensed spectrum in the form of the guard band in the
1800 MHz range.
[101] The respondents play down the significance of the guard bands as a
technological relic , contending that it stands in the way of pooling (Cell C, AA,
paragraph 18, CaseLines 02 -736).
[102] Vodacom contends that the creation of a new block of pooled spectrum that
has swallowed up guard bands is not what section 31(1) and regulation 18(1)
and (3) contemplated.
[103] The papers reflect ICASA’s po sition to be the following:
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103.1 The applications by MTN, Cell C and Liquid for sharing of radio
frequency spectrum do not expressly refer to the inclusion of the guard
bands;
103.2 ICASA, in granting its approvals in ICASA 1 , ICASA 2 and ICASA 3
makes no reference to an approval that includes use of the guard
bands. The only relevant guard bands in this instance are indeed in
the 1800 MHz spectrum;
103.3 ICASA has annexed tables reflecting the approved radio frequency
spectrum after the approval of the applications for sharing by MTN,
Cell C and Liquid. Those tables do not reflect the guard bands as part
of the approved sharing. The position advanced by ICASA is
therefore that the approval granted merely provides the parties to
sharing agreements to transmit and receive signal on the previously
licensed radio frequency spectrum, but on a shared basis.There is no
official approval by ICASA for the utilisat ion by MTN, Cell C and Liquid
of the guard bands in question.
[104] When Vodacom stated in its founding affidavit (paragraphs 12 and 13) that
MTN, Cell C and Liquid are using the guard bands, this was expressly denied
by ICASA. However, MTN, Cell C and Liquid are in agreement with Vodacom
regarding the question whether t hey are using the guard bands or not. Cell C
contends that ICASA had utilised an implied power to consent to the use of
the guard bands as, without the guard bands, the pooling would not be
effective. However, as ICASA has ostensibly not applied its mind to assign
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the guard bands to the applicants for sharing, the question of whether an
implied power was used or not does not arise.
[105] Vodacom advances the following propositions based on section 31(1) of the
ECA and RFS Regulation 18:
105.1 Whether or not RFS Regulation 18 contemplates “pooling” as a form
of “sharing” , it requires this to be done by means of licensing the
shared spectrum, something that was not done in the instant case;
105.2 RFS Regulation 18 in any event does not authorise pooling of the kind
at issue in these proceedings , which includes the guard bands.
105.3 Even on ICASA’s interpretation of RFS Regulation 18(1), the pooling
arrangements could not have been lawfully approved under that
Regulation.
[106] I agree with the first proposition. The clear wording of sec 31(1) is consistent
with the interpretation of Vodacom and MTN. A successful application to share
spectrum must be reflected in a license. But such licence must be issued by
ICASA and registered in the public register - sec 4A, ICASA Act.
[107] The other two propositions are not accepted. The sharing regi me in the ECA
is governed by sec 31 and Regulation 18. As sharin g contiguous assigned and
separately licensed spectrum bands cannot be effective without including the
guard bands, the assignment of such guard bands must form part of the
application and the approval. However, as the guard bands are unassigned
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spectrum, the need for public participation and the extent thereof must be
considered. The process is akin to an amendment of a licence in terms of RFS
Regulation 9(3) .
PUBLIC PARTICIPATION
[108] Telkom SA and Vodacom ma ke common cause in contending that the sharing
or pooling arrangements require public participation as a precursor to the
decision made by ICASA in granting such applications.
[109] Telkom SA filed a notice to abide but filed an explanatory affidavit in which it
advances the position that consultation by ICASA was required. It is
contended by Telkom SA that ICASA, as an organ of state, must adopt a
procedurally fair process, which rationally required consultation. This is
because of the nature of HDS spectrum arrangements and the allocation
thereof having an impact on competition between mobile network operators.
[110] If the sharing of spectrum is required to be done by means of licensing, that
opens the door for the requirement of public participation. Licensing of HDS
entails requirements, including a competitive process and a public
participation process. Vodacom invokes RFS Regulation 7 which reads:
“The Authority will at all times publish an ITA where a radio frequency
spectrum licence will be awarded/granted on a competitive basis and where it
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determines that there is insufficient spectrum available to accommodate
demand in terms of section 31(3)(a) of the Act.”
[111] ICASA contends that HDS once assigned lo ses its character as HDS and
thereby the need for public participation in respect of sharing falls away. This
position by ICASA is based on its contention that Regulation 18 does not entail
a new act of licensing.
[112] In section 31(3) (a) of the ECA, the spectrum at issue is insufficient spectrum
available to accommodate demand – i.e. spectrum which is scar ce and that
licensees would, if made available, pay billions for to be able to use under
section 31(1). Vodacom contends that other licensees would apply for this
spectrum and be willing to pay large amounts for spectrum at auction were it
to be surrendered by the licensee. Even if the control of the spectrum
changes, it remains scar ce when it is then licensed to be u sed between
licensees under RFS Regulation 18.
[113] Regulation 9(3) provides for public participation when a license amendment
relates to HDS (a license that was subject to an extended application
procedure).
[114] Vodacom contends that, even if it is found that the ECA and the RF S
Regulations do not envisage public participation, then, independent thereof,
such public participation is imposed upon the process by section 3 of PAJA.
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[115] Section 192 of the Constitution enjoins ICASA to act in the public interest.
ICASA, so contends Vodacom, must be open and transparent whenever it
exercises its powers. That is the constitutional framework against which the
provisions of the ICASA Act and the ECA must be understood and interpreted.
[116] Vodacom contends that, where proposed administrative conduct affects the
rights and interests of role players like Vodacom, they have a right to be heard.
Vodacom had the right “to administrative action that is lawful, reasonable and
procedurally fair in terms of section 33(1) of the Constitution.”
Conclusion on public participation
[117] The approvals by ICASA meet the definition of administrative action.
Administrative action which materially and adversely affects the rights or
legitimate expectation of any person must be procedurally fair. Section 3(2)(b)
sets out the process for a procedurally fair administrative action, requi ring
adequate notice, a reasonable opportunity to make representations, a clear
statement of the admin istrative action, adequate notice of any right of review
of internal appeal where applicable, and adequate notic e of the right to request
reasons in terms of section 5.
[118] The impact of section 3(5) of PAJA is that ICASA can only be excused from
complying with PAJA if the ECA empowers it “to follow a procedure which is
fair but different form the provisions of subsection (2).”
[119] ICASA contends that it did not follow a public participation process in respect
of the sharing of spectrum applications in question since the applicable
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provisions did not provide for public participation. It further contends that in
terms of Regulation 5(5), ICASA retained a discretion, even where a standard
application for RFS licensing and assignment is concerned, on whether such
application should be subjected to a public consultation in terms of sections 3
and 4 of PAJA (ICASA AA, paragraph 100, CaseLines 02 -430).
[120] This indicates that even where a case is not dealing with HDS, ICASA would
have a discretion to impose public participation processes in terms of sections
3 and 4 of PAJA. ICASA however does not advance any evidence that in this
instance it exercised the discretion not to hold public participation processes.
[121] In 202 1/22 ICASA applied a spectrum cap in respect of the auctioning of
HDS in order to avoid an unfair advantage to the bigger players. Vodacom and
MTN were capped . This took place in the period precedi ng the auction in
March 2022 . It is contended by Telkom SA that the spectrum arrangements
now make a mockery of those caps as spectrum assignments through sharing
can exceed the caps previously imposed.
[122] I accept this proposition. When ICASA was considering approving
arrangements that would materially deviate from the outcomes of the auction
process, that on its own triggered a need for consultation with Vodacom, as it
is intimately affected by the outcome and its interest in the HDS at issue (see
Vodacom Heads, paragraph 117, CaseLines 19 -56). On the facts that would
constitute a legitimate expectation to be heard.
[123] I am satisfied that ICASA erred in not following a process of pu blic
participation. While regulation 18 and sec 31 do n ot expressly prescribe such
Page 36
a process, there are cogent reasons for it . The spectrum in question is HDS.
ICASA must act in the public interest in determining how spectrum is allocated
and used. As an organ of state, ICASA must follow procedures that are fair to
all affected parties. ICASA did not assess the fairness of the process as
against competito rs and the public in general when it was so obviously
required. The right to fair admin istrative acti on protects rights that are
adversely affected by the exercise of power by ICASA . In considering and
approving the sharing arrangements applied for , sec 3 in general and sec 3(5)
of PAJA require a fair process .
[124] The sharin g arrangements approved by ICASA has the capacity to adversely
affect the rights of other MNOs who have licence s for spectrum.What makes
it clear that there should have been publ ic participation in this instance is the
procedural rationality consideration refe rred to by TelkomSA. ICASA imposed
caps on Vodacom and MTN. But the s haring applied for has the effect of
enlarging the spectrum available to the sharing participants ,particularly MTN .
Vodacom and aff ected parties have a right to be heard in the application
process on the impact this will have on competition between th e MNOs. The
process followed was flawed. And the need to assign the guard bands to make
the pooling efficient places the need for public participation beyond doubt.
[125] As the guard bands are not available or of use to parties other than the licence
holders of contiguous spectrum band, the interest of the public in assigning
such spectrum relates to the impact of the pooled spectrum on outside parties
like Vodacom. The larger the spectrum pooled the faster the service provided
by means of it. It provides a competitive edge for the po oling participants. And
Page 37
affected parties are required to be notified of their right to make submissions
and to be heard on this.This was not done.
ASSESSMENT OF THE IMPACT ON COMPETITION
[126] There are two con siderations in this regard.The first is that ICASA did not
consider the impact of sharing arrangements applied for on com petition in the
ICT sector. It is limited to the question whether ICASA in fact considered the
information on competitiveness su bmitted by the applicants for sharing
approval. This is the issue I deal with first.
[127] It is accepted by most parties (excluding Liquid that was silent on the topic),
that ICASA should have conducted a competition assessment, and the
respondents contend that such an assessment was in fact done.
[128] The duty to conduct a competition assessment arises from section 2(f) of the
ECA that enjoins ICASA to achieve the purpose of “promotion of competition
in the ICT sector” .
[129] ICASA contends that “it was alive to the issue of keeping alive the
competitiveness of each party” . To this end, the applicant for sharing of
spectrum were requested to provide details on how the pooling or sharing
arrangements as applied for , in particular, would promote competition as per
the object of the ECA in terms of section 2(f).
Page 38
[130] The need for ICASA to take into account competitiveness was established in
case law that preceded the auction proceedings in March 2022 (see Telkom
SA SOC Ltd v Mncube NO and Others; Minister of Telecommunications
v ICASA [2016] ZAGP PHC 883 (30 September 20216); Telkom v I CASA
[2021] ZAGPPHC 120 (8 March 2021) .
[131] In ICASA’s submission that served before its Council, the reference to the
Promotion of the Objects of the ECA reads as follows:
“Therefore the Authority is comfortable that the RFS pooling arrangement
between the parties does not in any way exclude other licensees from entering
into similar arrangements with the parties. The allowance for potential
spectrum sharing arrangements with other licensees by the parties ensures
fairness and openness which promotes competition within the ICT sector. ”
[132] Vodacom contends that this is insufficient to establish an assessment of the
information provided. This only addresses the competitiveness assessment of
the submissions by MTN CELL C and Liquid. The approval of the pooling
arrangement indicates an awareness on the part of ICASA of the
conse quences of the application on competitiveness in the sector. Far from
indica ting that ICASA did not consider competitiveness, the quoted paragraph
is consistent with ICASA having considered it. A failur e to set out the content
of submissions made does not mea n that everything was not considered by
ICASA. On this score Vodacom’s contention is not accepted.
[133] But it brings me to the seco nd consideration at play. Even if their submissions
were duly considered, this does not deal with the question whether the public,
Page 39
including Vodacom, should have been granted an opportunity to make
representations in this regard. As they had a right to be heard, and were not
afforded a hearing or an opportunity to make representations, the process was
procedurally unfair.
ESTABLISHING A RIGHT TO REVIEW RELI EF
[134] The Constitutional Court has found that, for purposes of a prima facie right to
interim interdictory relief , it is sufficient for a party to assert a right adversely
affected by the exercise of public power which that applicant seeks to review
and set aside ( Eskom Holdings SOC L td v Vaal River Development
Association (Pty) Ltd supra at paragraphs [212] to [214]; [282] to [283]).
[135] A similar proposition is stated by the Constitutional Court in South African
Informal Traders Forum and Others v City of Johannesburg; South
African National Traders Retail Association v City of Johannesburg and
Others 2014 (4) SA 371 (CC) at paragraph [25].
[136] In the Vaal River Development matter the following was stated at paragraph
[64]:
Page 40
“Before a court may grant an interim interdict, it must be satisfied that the
applicant for an interdict has good prospects of success in the main review.
The claim for review must be based on strong grounds which are likely to
succeed. This requires the court adjudicating the interdict application to peek
into the grounds of review raised in the main review application and assess
their str ength. It is only if a court is convinced that the review is likely to
succeed that it may appropriately grant the interdict.”
See EFF v Gordhan supra at paragraph [42] :
“The enquiry is of necessity provisional because the available evidence is
usually incomplete, untested under cross -examination (where there are
disputes of fact), and the case may yet be more fully developed .” (See Vaal
River Development supra at paragraphs [64] and [272]).
[137] MTN and Cell C contend that the applicant does not require a right to a review
to be preserved through an interim interdict. It has that right in any case . The
requirement is more stringent in that it requires a right to a review which is
facing irreparable harm unless protected by an interim interdict. I disagree.
[138] The requirement to establish a reasonable apprehension of irreparable harm
covers this concern raised by the respondents. To require the assertion of a
risk of irreparable harm as part of the prima facie right is conflating the
requirements for an interim interdict. The apprehension of irreparable harm is
a separate requirement that needs to be established in any case. If it were
part of the prima facie right, the need for that requirement in the case law for
Page 41
interim interdicts would fall away. There is n o need to expand the
requirements for an interim interdict in this way.
[139] The respondents contend that the applicant has the onus to show that in Part
B proceedings it will succeed with relief precluding the pooling. MTN and Cell
C contend that, even if Vodacom succeeds in setting aside the approvals, the
likely outcome of thos e proceedings in that event would be that the setting
aside would be suspended pending a remittal to ICASA. As that would not in
itself prohibit the pooling, it is contended that no prima facie right is established
for interim relief
[140] The respondents place too high a burden on the applicant in establishing its
prima facie right for interim relief pending a review. It is sufficient to establish
good prospects of obtaining review relief in Part B proceedings without having
to show what the Review Court would find other than setting aside the
impugned administrative actions.
INFRINGEMENT OF A RIGHT TO FAIR COMPETITION
[141] The second basis on which a prima facie right is asserted by Vodacom is
based on a right to fair competition. Vodacom relies on Cochrane Steel
Products (Pty) ltd v M -Systems Group (Pty) Ltd and Another 2016 (6) SA
1 (SCA) at paragraph [16] where the common law right to fair competition is
described as follows:
“As a general rule, every person is entitled freely to carry on his trade or
business in competition with his rivals. But the competition must remain within
Page 42
lawful bounds. If it is carried on wrongfully, in the sense that it involves a
wrongful interference with another’s rights as a trader, that constitutes an
injuria for which the Aquilian action lies if it has directly resulted in loss.”
[142] Vodacom contends that particularly MTN has been provided with benefits that
are unlawful in the sense of unlawful competition.
[143] There is a fundamental difficulty regarding the assertion of this right.
Admittedly it is merely advanced by Vodacom as an adjunct to its primary
contention for a prima facie right. But still the assertion of this right
presupposes that the breach of statutory provisions by MTN, Cell C and Liquid
translates into an actionable Aquilian claim in the hands of V odacom.
[144] A finding of objective wrongfulness as against Vodacom requires more facts
and a broader consideration s than are available to this court. If the unlawful
spectrum sharing is actionable by a competitor, the question arises why
Vodacom should have the claim, when the same claim would lie in the hands
of Rain (the seventh respondent) and Telkom SA (the sixth respondent).
Further, Liquid is not alleged to be a thorn in the side of Vodacom in the sense
that it is causing irreparable harm to Vodacom. But the in terdict is sought
against Liquid as well on the basis of unlawful competition. In considering
objective unlawfulness Liquid features in two repsects . If Vodacom were
correct, that would give Liq uid a similar claim against MTN and Cell C on the
spectrum pooling to wh ich it is not a party, while Vodacom would have a claim
against Liquid based on the same pr inciple on the pooling arrangement to
Page 43
which Liquid is a party . And this while Liquid is not the focus of Vodacom’s
contention on unlaw ful competition.
[145] I further take into account that the MTN, Cell C and Liquid had written
approvals for what was being done. Statutory authorisation will stand as valid
until set aside by a court. To permit a claim for unlawful competition in such
circumstances while the ICASA approvals are in place is inherently
contradictory. This is not objectively reasonab le. Unlawfulness is not
established even on a prim a facie basis. The second right asserted has not
been established and is unpersuasive for purposes of Part A.
[146] CONCLUSION ON PRIMA FACIE RIGHT
[147] The prima facie right asserted by Vodacom, namely strong prospects of
success in the review proceedings in Part B is established. Vodacom contends
that it has established a clear right, meaning that the balance of convenience
does not have to be established. On my analysis of the legal position , there is
unlawfulness in respect of the approval process and the use of guard
bands .That would represent a clear right.
IRREPARABLE HARM
[148] MTN contends that Vodacom has not made out a case for irreparable harm.
It suffers no prejudice through the respondents ’ utilisation of RFS on a shared
or pooled basis. MTN states that Vodacom could not even , regarding the use
Page 44
of guard bands , point to prejudice to Vodacom which is irreparable. The same
sentiments are echoed by Cell C and Liquid. They stress that Vodacom has
increased its market share since the auctions and only Cell C has had a slight
drop in market share.
[149] MTN and Cell C and Liquid make the point that Vodacom has not alleged and
established the risk of irreparable harm.
[150] Vodacom contends that it does not have to show actual harm, but “only
potential impending or continuing harm” . (See Masstores (Pty) Limited v
Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) at paragraph [30]).
[151] Vodacom has to establish a basis for why it contends that the potential or
impending or continuing harm that if faces is irreparable. In City of Tshwane
Metropolitan Municipality v AfriForum and Another 2016 (6) SA 279 (CC)
at paragraphs [55] and [56] the Constitutional Court described the harm that
ought to be established as follows:
“[55] Before an interim interdict may be granted, one of the most crucial
requirements to meet is that the applicant must have a reasonable
apprehension of irreparable and imminent harm eventuating should the
order not be granted. The harm must be anticip ated or ongoing. It must
not have taken place already. …
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[56] Within the context of a restraining order, harm connotes a common -
sensical, discernible or intelligible disadvantage or peril that is capable
of legal protection. It is the tangible or intangible effect of deprivation or
adverse action taken against someone. And that disadvantage is
capable of being objectively and universally appreciated as a loss worthy
of some legal protection, however much others might doubt its existence,
relevance or significance. Ordinarily, the harm sought to be prevented
through interim relief must be connected to the grounds in the main
application.”
[152] Vodacom contends that the growth of particular ly MTN is at its expense and
the risk of further harm continues. MTN contends that it was within Vodacom’s
powers to make a similar application for sharing. It contends that the
application is borne of regret at being “left behind” by MTN in this regard.
[153] Vodacom contends that, if it does not obtain interim relief, the passing of time
might in itself be the reason why it does not succeed in the review
proceedings, even if establishing a case for review (see Millennium Waste
Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo
Province and Others 2008 (2) SA 381 (SCA) at paragraph [31]).
[154] Vodacom further contends that harm is reasonably apprehended as spectrum
is the tool used by mobile network operators to compete. Vodacom contends
that it cannot quantify it s losses arising from the advantage that MTN has
obtained based on the pooled spectrum that it utilises to transmit and receive
signal.
Page 46
[155] I am not persuaded that the competitive advantage gained by MTN i s at the
expense of Vodacom . More evidence of such causation would be required .
That does not mean that Vodacom does not face a reasonable apprehension
of irreparable harm . I am satisfied that the position arising from the approval
of shared spectrum may result in the risk to Vodacom that its review remedy
is jeopardised, unless interim relief would be granted. In that sense, its
apprehension of risk relates to irreparable harm.
[156] The counter to this contention by MTN and Cell C is that the approvals for the
sharing of spectrum obtained from ICASA stand as valid until set aside on the
Oudekraal principle . They argue that t heir conduct in transmitting and
receiving signal on the shared spectrum must be deemed to be valid. There
is therefore no bad faith and there is no unlawful conduct on the part of the
respondents.
[157] The effect of the interim relief sought would be a de facto suspension of the
operation of t he approvals. In that sense the Oudekraal principle does not
assist the respondents . However, the fact that dir ect relief against ICASA is
not sought , i.e. a de jure suspension of the approvals, is relevant to the Court’s
overriding discretion.
BALANCE OF CONVENIENCE
[158] It is trite that w here an applicant for interim interdictory relief asserts and
establishes a clear right, the need to consider the balance of convenience
attenuates . I have found that Vodacom has esta blished a clear right .
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However , this finding is based on my interpretation of the ECA and its relevant
regulations .
[159] If I am wrong in finding that a clear right has been established, then it is self-
evident that I am satisf ied that a prima facie right has been established. If I
err in not dealing here with the balanc e of convenience, I deal with s uch
considerations in the context of the court’s overriding discretion.
NO ADEQUATE ALTERNATIVE REMEDY
[160] I have already found that t he suggested internal remedies of sec tion 17C of
the ICASA Act and seeking i nterim relief before the Competition Tribunal are
not adequ ate or appropriate in this matter.
[161] ICASA has mooted a third alternative remedy, namely an expedited review.
However, Vodacom’s suggestion to this effect before the meeting w ith the DJP
was refused. If the respo ndents were averse to an expedited review, then they
cannot now seek to benef it from the opposite stance.
[162] While an expedited review would take the court to the legality of the approvals,
that would not mean that the relief sought i n Part A would be before the re view
court. It would not. The applicant seeks t he setting aside of the approvals.
Whether interdictory relief were to be granted after a successful review does
not flow from the relief in Part B as currently formulated. The review c ourt
would be exercising its just and equitable relief powers flo wing from Sec 8 of
PAJA. But such interdictory relief would not be on the same f ooting as the Part
A relief sought.
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[163] I am sat isfied that there is no adequate alternative legal remedy available to
the applicant .
THE COURT’S OVERRID ING DISCRETION
[164] Granting interdictory relief is discretionary. It is trite that it is within a Court’s
discretion to grant or refuse interdictory relief, where the right to such relief
has otherwise been established – See e.g. JFE Sapela Electronics supra at
paragraph [ 28]. In that matter considerations of pragmatism and practicality
informed the issue. See also Steam Development Technologies 96
Degrees (Pty) Ltd v Minister, Department of Public Works and
Infrastructure 2024 ZAECGHC 20 (16 February 2024) where at para 8 the
Court held that: -
“Even if all these requirements are met, the Court still enjoys an overriding
discretion whether or not to grant the interim interdict.”
[165] Having come so far, the applicant still needs to persuade the court to exercise
its overriding discretion in favour of granting the interim interdict sought . It is
at this juncture that the applica tion fa lters. There are a number
of considerations relevant to the exercise of the Court’s overall discretion
militating against granting the relief.
[166] The overriding consequence of pooling of spectrum is the improv ement of fast
and reliable electronic commu nications. It has improved access for millions
of members of the public to information for trade purposes , education etc .To
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deprive the public of such benefit is no small matter . They would be prejudiced.
It is t he grass that gets trampled when e lephants fight.
[167] The improvement in servi ces has come at great cost, incurred under an
approval that has not been set aside. Due to the delay, particularly MTN has
made large capital investments in infrastructure based on the approvals
obtained from ICASA. During argument reference was made to the
installation of infrastructure at more than a thousand locations in the country.
[168] Cell C has restructured its business model, based on the approved sharing of
spectrum and contends that it faces devastating consequences if the interdict
were to be granted . It goes so far as stating that its viability is threatened.
[169] Cell C caters for customers who fall in the poorer segment of society . Cell
phones are their primary and often only means of communication. An interdict
threatens to cut off this lifeline, placing livelihoods, education and access to
information at risk.
[170] I take account of the counter -argument that such consequences are the result
of the unlawfulness of the shared use regime. And it flows from the rule of law
as pillar of our constitutional democracy.
[171] That is not the end of the debate. I have a duty to consider justice and equit y
in terms of sec 8 of PAJA.
[172] ICASA as regulator is satisfied that the spectrum sharing is lawful. The MNOs
are therefore not undermining the regulator. A lthough ICASA has been
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remis s in many respects, it is responsible for monitoring the ICT sector. It
failed to call for public participation, in the limited sense I have referred to, and
having approved the sharing, failed to issue and register licences based on its
approval of spectrum sharing.
[173] The respondent MNOs acted bona fide in applying in terms of current
regulations for the approval of the sharing of radio frequency spectrum and
such applications were successful . From the vantage point of the
respondent MNOs they had done what they could , relying on published
regulations, to obtain official approval for what they are doing at present. And
ICASA as regulator contends that official approval is in place. I disagree, but
at least the regulator has been satisfied.
[174] I further taken into account that it was within Vodacom ’s powers to apply for a
sharing agreement with another MNO on a similar basis as those applied for
as the applications made by the respondent MNOs. The fact that Vodacom
did not do so may underpin why it now seeks redress through interim
relief. However, it was not deprived of the chance of similarly applying for
sharing in the hope of obtaining the same type of benefit that it now
begrudges MTN as having obtained. And despite the benefit to M TN,
Vodacom’s market share has also improved.
[175] The relief Vodacom seeks is overbroad. The application not merely seeks a n
interdict as far as transmitting of signal is concerned but also of “using” of the
pooled spectrum. The respondents have contended that th e relief would
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interfere with roaming arrangements and agreements to the detriment of the
public.
[176] Vodacom contends that this is a fallacious argument as the use of roaming
does not entail transmission of signal. It is a transmission of signal which is
the focus of the interim interdict sought. However, the interdict is not limited
to transmission. The reference in the relief to the interdict ing of “using” of the
pooled spectrum does to my mind interfere with roaming agreements. The
relief sought is consequently overbroad. An invitation was extended to the
Court to delete the word “using”, but it is not for the Court to formulate the relief
which the applicant seeks.
[177] A further consideration militat es against the granting of the relief, namely the
OUTA principle. The OUTA principle was argued by all the parties. Vodacom
contends that ICASA is functus officio , that no relief in Part A is sought
against ICASA, and that the issue of separation of powers harm does not
arise. On the face of it, there is substance to this contention. However, the
restraint sought seeks to undo the approvals granted by ICASA for the
transmitting and receipt of signal on the pooled radio fr equency spectrum
listed in the notice of motion. Had the applicant sought an interim interdict
against ICASA suspending its approvals to share, pending to setting aside the
Part B proceedings, the restraint provisions flowing from the suspension would
have read the same .There is therefore an effective suspension of the
approvals implicit in the relief sought in Part A. That constitutes separation of
powers harm as ICASA would be hamstrung by the interdict sought in effective
monitoring and r egulating of the approved sharing of spectrum.
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[178] I am concerned about the potential for interference of an interim interdict with
the exercise by OUTA of its supervisory role of approved shared spectrum in
the public interest.
[179] Licensees in respect of radio frequency spectrum are liable for fees based per
MHz of spectrum licensed to them. If the respondents are restrained from
utilising the pooled radio frequency spectrum, this has the potential of
interfering with the power of ICASA to recover fees for the approved spectrum
block s. If use of shared spectrum is interdicted, non -payment of fees that are
due to ICASA is on the cards. There is therefore a risk of separation of powers
harm .
[180] The applicant contends that, as an alternative, the current proceedings
constitute the “clearest of cases” as required by OUTA before a Court would
grant an order which interferes with the exercise of executive power. It is not
the clearest of cases, in my view. No direct relief is sought against ICASA and
the effect on ICASA of an interdict against the respon dent MNOs is a matter
of inference. My finding of unlawfulness and a clear right flow from my
interpretation of the legislation. The “clearest of ca ses” requirement in OUTA
point to an inevitable and obvious resolution of a dispute based on the facts.
This is not such a case.
[181] The cumulative effect of the aforesaid considerations is that, despite the
applicant establishing the elements required for an interim interdict, the Court,
in the exercise of its overall discretion, declines to grant the interim relief.
[182] In the premises I make the following order:
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1. The application for interim interdictory relief in terms of Part A of the
Notice of Motion is dismissed with costs, such costs to include the costs
of two counsel, on Scale C.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT