IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA
CASE NO: 55/CR/Jul09
73/CR/Oct09
78/CR/Nov09
In the matter between:
TELKOM SA LIMITED Applicant
and
THE COMPETITION COMMISSION OF SOUTH AFRICA First Respondent
DIMENSION DATA (PTY) LTD t/a INTERNET SOLUTIONS Second
Respondent
______________________________________________________________
Panel : Norman Manoim (Presiding Member)
: Yasmin Carrim (Tribunal Member)
: Takalani Madima (Tribunal Member)
Heard on : 11 October 2010
Order issued on : 4 February 2011
Reasons issued on : 4 February 2011
______________________________________________________________
Reasons for Decision and Order
______________________________________________________________
Introduction
1] This is an exception application by Telkom SA Limited (“Telkom”) to the
Competition Tribunal (“the Tribunal”) following complaints concerning
alleged prohibited practices referred to the Competition Commission (“the
Commission”). Telkom excepts, on several grounds, to three of these
complaint referrals; one brought against it by the Commission, and two
by the second respondent Dimension Data (Pty) Ltd trading as Internet
Solutions (“IS”).
Background
2] On 19 December 2007 IS laid a complaint against Telkom with the
Commission. The complaint related to an alleged abuse by Telkom of its
dominance in the wholesale access market, and further that Telkom’s
VPN Supreme Product had been designed to capitalize on Telkom’s de
facto monopoly in the wholesale access market.
3] Acting in terms of sections (50)(2)(b) of the Competition Act, Act No.89 of
1998 (“the Act”) the Commission issued a “Notice of Non-referral of
Complaint” dated 19 June 2009. 1 In terms of this notice The Commission
stated that it “ would not refer to the Competition Tribunal the particulars
of the complaint listed on the attached sheet, but will refer the remaining
particulars of the complaint .”2 The particulars of the complaints that The
Commission “would not refer to the Competition Tribunal ” were the
following:
1. Exclusionary conduct in the retail broadband (excluding ADSL)
Internet market;
2. Excessive pricing of ADSL access lines;
3. Excessive pricing of leased lines under 2Mbps; and
4. Price discrimination.3
1Annexure A, IS Referral, pages 19-22
2IS Referral Bundle, page 19
3IS Referral Bundle, page 20
4] It is important to note that although the notice of non-referral indicated
that “ Some parts of the complaint are to be referred to the Tribunal
shortly”, none were referred to the Tribunal by the Commission within the
prescribed 20 business days. Instead The Commission was only able to
do so some four months later on 26 October 2009.
5] On 17 July 2009, IS, acting in terms of Section 51(1) of the Act, read with
Tribunal Rule 14(1)(b), self-referred its entire complaint to the Tribunal.
We will refer to this as IS’ first referral.
6] On 13 August 2009 Telkom lodged an objection to IS’ first self-referral on
the grounds that “ the Commission has not referred any portion of the
complaint to the Tribunal as yet. It is thus not competent in law for a
complainant to refer all of the particulars of the complaint to the Tribunal
in instances where the Commission has non-referred only certain
particulars of complaint and/or before the Commission refers the
remaining particulars of complaint.”4
7] In its objection Telkom also stated that IS would not be entitled to amend
its complaint referral after receipt of the Commission’s complaint referral
if the first referral had not been validly brought.5
8] As already stated above, on 26 October 2009, the Commission referred a
consolidated complaint to the Tribunal which included, inter alia, some
particulars of IS’ first referral. On the same day the Commission issued a
further notice of non-referral in relation to IS’ complaint on similar terms
as those set out in its notice of non-referral issued on 19 June 2009.
9] On 23 November 2009, IS once again self-referred certain aspects of its
complaint to The Tribunal. This we refer to as the second referral. IS
made it clear that it sought to refer to the Tribunal those particulars of its
complaint not pursued in the Commission’s complaint referral. However
4 Exception Bundle, paragraph 2.1, page 179
5Exception Bundle, para 4, page 180
3
the second referral still contained particulars contained in the
Commission’s referral. The Act does not permit a complainant to refer
particulars of its complaint that the Commission has referred.
10]On 15 March 2010 Telkom launched an exception application against
both the Commission’s and IS’ referrals. The application was
supplemented on 29 April 2010. We deal with the exception against IS’
referrals first.
Second Respondent’s two self-referrals
11]At the hearing of the matter the Chairperson requested the parties to
isolate the ambit of the dispute and proposed a solution whereby the first
referral could stand with those parts that had been referred by the
Commission being struck out. Telkom persisted with its objection to the
first self-referral but conceded that IS’ second referral could be suitably
amended so as to exclude those aspects of the complaint that had been
referred by the Commission. Counsel for Telkom indicated that they
would be happy with such a solution. The matter was then stood down in
order for the parties to discuss a mutually acceptable solution.
12] At the end of the hearing, counsel for Telkom and IS reported that
Telkom had made a tender to IS that it withdraw its first referral and
amend its second referral. However while the parties had agreed in
principle to this, a dispute arose over whether IS needed to apply for
condonation for the late filing of the second referral. Counsel for Telkom
was reluctant to consent to a condonation of the late filing of the referral
without an application being filed.
13]Given that there was no dispute between the parties as to the withdrawal
of the first referral and the filing of an amended second referral, the
Chairperson directed that the condonation application be moved and
heard there and then.
14] In seeking condonation IS submitted that at the time it had received the
Commission’s notice of non –referral it was placed in a difficult position.
The clock had started ticking and IS was obliged to file its self-referral
within 20 days. Because IS was not in a position to know precisely the
particulars of the Commission’s referral (since the Commission had not
yet filed it), it filed its first referral simply to ensure that it was in time.
Once the Commission issued its second notice of non-referral and filed
its complaint with the Tribunal, IS filed its second self-referral within 20
business days. The second referral overlapped to some extent with the
Commission’s and although IS did not think an amendment was
necessary it had agreed to do so. 6 To the extent that the second
(amended) referral would be out of time it ought to be condoned.
Moreover Telkom would suffer no prejudice if such condonation was
granted. In response counsel for Telkom opposed the application but
had no submissions to make on the issue of prejudice.
15]In our view, the Commission, by issuing a letter of non-referral without
simultaneously filing its referral with the Tribunal created a great degree
of uncertainty about the actual ambit of its referral. While it was clear
which aspects the Commission was not going to refer, there was no
clarity as to the details of the remaining particulars of its complaint. In
such circumstances, a complainant’s anxiety in relation to time lines can
be understood. Nevertheless a better approach though would have
been for IS to file its self-referral after the Commission had filed its
referral. If there was any need for IS to seek the Tribunal’s condonation
at that time it could have simply done so.
16]Since both parties have reached agreement on the withdrawal of the first
referral and the amendment of the second referral to eliminate the
referral and the amendment of the second referral to eliminate the
overlapping particulars the only issue we have to decide is condonation.
Telkom has been unable to point to any prejudice it would suffer as a
result of the Tribunal granting IS an opportunity to amend the referral. In
6 It was of the view that the second referral was competent in relation to those aspects not referred by
the Commission. Those aspects of the referral that over-lapped with the Commission’s referral should
simply be ignored.
5
fact given that Telkom has not yet filed an answer in this matter, such
amendment can hardly cause any prejudice to it. Accordingly the late
filing of an amended second referral by second respondent is hereby
condoned.
17] In relation to Telkom’s objection to IS’ referrals, we make the following
order:
1. Second respondent must with immediate effect withdraw its
first self-referral;
2. Second respondent must amend its second referral and file
the amended referral within 20 business days of date hereof;
3. The late filing of the amended second referral is condoned
on condition that it is done within the time period stipulated in
paragraph 2 above;
4. Telkom SA Limited must file its answer within 20 business
days of the date of filing of the amended referral;
5. Costs to be reserved.
T Madima & Y Carrim
Concurring: N Manoim
The Commission’s referral
18]We turn now to consider Telkom’s objections in relation to the
Commission’s referral. A number of objections were raised by Telkom to
the Commission’s referral which ranged from a vague and embarrassing
exception to the pleadings, to the constitutional validity of the provisions
of the Act. For convenience sake we have adopted the categorization
utilized by the Commission’s counsel and have arranged our reasons into
three broad sections or categories. We deal first with Telkom’s
objections to the excessive pricing complaint, then with the margin
squeeze case and thereafter the issue of the two types of relief sought by
the Commission.
19]Telkom’s objection that the Commission’s referral was time-barred
because it had not obtained the necessary extensions from the
complainants had no basis whatsoever and was eventually abandoned
by Telkom.
20] Before turning to the details of each category, it would be useful for us to
set out the approach taken by this Tribunal to applications of this sort.
We have previously stated that notwithstanding the absence of an
express provision in our rules, we are willing to consider exception
applications when appropriate. In previous exception cases we have
indicated that despite this willingness our approach to applications of this
sort needed to take into account the sui generis nature of our
proceedings. While our proceedings are adversarial in nature we also
enjoy inquisitorial powers. We are neither a civil court nor a criminal
court. However we are required to conduct our proceedings fairly and
informally.7 When considering objections to the Commission’s referral we
are required to bear in mind that a referral is not a pleading in the sense
of a civil or criminal case. Hence we should not read the Commission’s
averments piece meal but consider them as a whole. 8 While fairness is
the standard that guides us we are not precluded from taking guidance
from the High Court.
21]Telkom’s objections however are not merely targeted at the
Commission’s pleadings but raise points of law and assert statutory
interpretations.
22] Harms in his commentary on rule 23 of the Uniform Rules of the High
Court summarises the approach taken by courts to exceptions. 9 Two
aspects of this approach are appropriate to consider in relation to the
present matter. Firstly, exceptions to pleadings can contribute to
7 See Rooibos Ltd v Competition Commission 129/CR/Dec08 (Exception Application), , Competition
Commission and Anglo American Medical Scheme et al v United Pharmacies et al, Case No:
Commission and Anglo American Medical Scheme et al v United Pharmacies et al, Case No:
04/CR/Jan02 and National Association of Pharmaceutical Wholesalers et al v Glaxo Wellcome et al
45/CR/Jul01
8 This too would the approach taken by the High Court. See Harms at B-164
9 Harms “Civil Procedure in the Supreme Court” Butterworths 2010
7
expedition in the legal process, because if successful they could avoid
the leading of unnecessary evidence. However the bar is set high; if an
exception does not result in a curtailment of proceedings then the
exception may as well be argued at the end of the case. 10 Secondly,
exceptions are generally not the appropriate procedure to settle
questions of interpretation.
Excessive Price Case
23] Telkom’s first objection to the Commission’s Excessive Price Complaint 11
was that the Commission sought to rely on the same facts cumulatively
as opposed to alternatively, to sustain the excessive price complaint and
the margin squeeze complaint. Telkom’s objections were apparently
based on the criminal law rule against splitting of charges and Tribunal
rule 15(3). In raising the objection Telkom hones in on paragraph 74 and
the second sentence of paragraph 70 of the referral, and submits that
this style of pleading contravenes rule 15(3).
24]Tribunal Rule 15 deals with the form of a complaint referral. Rule 15(3)
simply provides that a complaint referral may allege alternative prohibited
practices based on the same facts. The rule does not address the
question of whether the same facts could result in contraventions of more
than one section of the Act. The Commission argues that it is permissible
for it to rely on the same facts to support different contraventions of the
Act. For example it is conceivable that a margin squeeze case which
involves the charging of a high price by a dominant firm for an essential
input to a downstream rival could also be an excessive price.
25]We do not need to decide the point of law as to whether the Commission
can rely on the same facts for cumulative as opposed to alternative
charges now. We have not been called upon to decide this issue before
and it would be better to do so at the end of a matter with the benefit of a
10 Harms B-165
and it would be better to do so at the end of a matter with the benefit of a
10 Harms B-165
11 Set out in paras 68-74 (in relation to HBNLs) and 75-79 (in relation to IPLCs) of the referral
full record than on exception. Even if Telkom were correct it has failed to
persuade us that deciding the issue now would curtail the hearing.
26]But Telkom has not even succeeded in showing that the Commission
relies on the same set of facts cumulatively to sustain the two charges.
The excessive price case is in relation to lines with speeds above 2mbps
(in excess of 2mbps) while the margin squeeze case relates to lines with
speeds up to 2mbps.
27]Paragraph 70 of the Commission’s referral simply states :
“On the strength of the comparisons and facts summarized below
the Commission alleges that Telkom’s wholesale prices for high
bandwidth national leased lines [HBNLs] (ie lines with speeds
above 2 mbps) are excessive within the meaning of the Act…”
28] The subsequent paragraphs 71 to to 78 then set out the facts upon which
the Commission relies for its excessive price case for both HBNLs and
IPLCs.12
29]The relevant parts of paragraph 74 of the referral states:
“The excessive prices charged by Telkom affect the prices which
ISPs charge their customers. Given the …there is no doubt that
these high prices detrimentally affect consumers and hinder
economic development in South Africa. The excessive prices
charged by Telkom …in conjunction with the margin squeeze
discussed below , also had an exclusionary effect on Telkom’s
rivals in markets of IP VPN services….This had an additional
detrimental effect on consumers.”
30]The first sentence of paragraph 74 is concerned with the effects of the
12 High Bandwidth National Leased Lines and International IP Leased Lines
9
excessive price on consumers. The second discusses the effects of this
together with the effects of the margin squeeze case on rivals. No facts
are raised or relied upon in this paragraph. All that the Commission
deals with in this paragraph are its conclusion about the effects of the
excessive price and margin squeeze.
31] The margin squeeze case “referred to below” can be found in paras 80
onwards. The margin squeeze case concerns Telkom’s conduct and
pricing in relation to Diginet lines (these are lines with a capacity of up to
2mbps as opposed to those in excess of 2 mbps) and ADSL internet
access. In the first instance the product that is the subject of the margin
squeeze complaint is different from that in the excessive price case.
Second, it is Telkom’s differential pricing in relation to these products to
different customers (not a comparison between cost and price) is
examined to conclude a margin squeeze case. The facts relied upon by
the Commission are clearly different in the two cases. Accordingly
Telkom’s objection has no merit.
32]Telkom’s second objection, is that the excessive price charge under
section 8(a) relies on the same set of facts to sustain a charge of
constructive refusal to give access to an essential facility under section
8(b) and hence again amounts to a splitting of charges as there should
have been brought in the alternative and not cumulatively. But as we
have discussed if an exception does not result in a curtailment of
proceedings or settle a substantive question of law, it ought not to be
granted. Where however the same evidence has to be led the granting
of an exception will not take the matter further. In this particular instance
again, whether or not the pleadings are cumulative or not will not lead to
a curtailment of the proceedings. In this situation the Commission will still
have to lead the same evidence and Telkom would still have to rebut
have to lead the same evidence and Telkom would still have to rebut
that. Nothing can be gained by granting this application at this stage.
33] Telkom’s third objection namely that the Commission’s failure to allege
economic value for purposes of the section 8(a) complaint renders the
pleading excipiable is also without merit. In paragraph 69 of the referral
the Commission states that the term excessive price means a price
which bears no reasonable relation to the economic value of that good or
service as defined in section 1 of the Act and then states in para 70 that
Telkom’s wholesale prices are excessive within the meaning of the Act. 13
If as Mr Rogers speculated Telkom sought to have economic value
quantified in rand terms then the objection is still without merit. The
Commission has not only pleaded the essential averments of section 8(a)
but has gone further. The Commission has relied upon Telkom’s actual
costs for purposes of calculating economic value and has compared this
to its prices. In doing this exercise, the Commission adjusted the costs
upwards by allowing a 15% return on capital (which is in excess of
Telkom’s quoted figures) and set out its comparisons in three tables in
annexure 6 to the referral. Whether or not the Commission’s calculations
are accurate or whether its approach in evaluating excessive prices is the
correct one is a matter for evidence and not to be decided on exception.
It is sufficient for purposes of pleading that Telkom knows the case
against it. The Commission has clearly set this out in paras 71-78 of the
referral and annexure 6.
34]Telkom’s fourth objection, raised in its founding affidavit but not pursued
at the hearing, states that the Commission ought to have articulated a
rule by reference to which Telkom might have known whether its pricing
was excessive and the Commission’s failure to do so rendered the
pleadings excipiable. In our view this is more in the nature of a defence
then a ground of objection. Neither the Act nor section 8(a) requires the
Commission to articulate such a rule. If Telkom however wishes to argue
in mitigation at the hearing that the provisions of section 8(a) provide no
in mitigation at the hearing that the provisions of section 8(a) provide no
guidance to firms as to when their pricing decisions resulted in
contravention of the Act it is at liberty to do so.
35] The fifth and sixth objections - suffer from a similar defect in that they
require statutory interpretation. In the fifth objection Telkom asserts that
13 See also para 76 which refers to excessive prices in the IPLC market.
11
knowledge of illegality is an essential element of a s8(a) contravention
and the pleadings are excipiable because the Commission has failed to
plead any mental element on Telkom’s part The sixth objection states
that section 8(a) is unconstitutional because it is excessively vague.
Section 59 would also be unconstitutional if mens rea was not a
requirement.
36] The requirement of mens rea as an element has been rejected by this
Tribunal and confirmed by the CAC. 14 In any event such an objection,
even if Telkom wishes to re-visit the Tribunal’s and CAC approach is
more in the nature of a defence. One of the important principles of
exceptions in the High Court is that if successful, the exception will put an
end to an action or curtail the evidence to be led. Questions of statutory
interpretation or challenges of constitutional validity ought not to be
decided on exception but rather after evidence has been led simply
because there is always the possibility that the Commission could be
unsuccessful in its prosecution of a respondent. Moreover none of these
objections by Telkom would have the effect of curtailing proceedings
conferring no advantage or expedition to the conduct of proceedings in
this matter.
Objections to margin squeeze case
37]We turn to consider Telkom’s objections to the margin squeeze case.
38]The Commission alleges that Telkom’s pricing to first tier ISPs amounts
to exclusionary conduct in contravention of section 8(c). Telkom’s
conduct also amounts to a constructive refusal to supply first tier ISPS
with an essential facility (s8(b)) and violates s8(d)(iii) because Telkom
supplies stand alone (as opposed to bundled with its own IP network
14 See Competition Commission v Federal Mogul Aftermarket Southern Africa and Others [2003] 2
CPLR 464 (CT) paras 81-89. Also CAC judgement upholding the Tribunal’s approach, and
CPLR 464 (CT) paras 81-89. Also CAC judgement upholding the Tribunal’s approach, and
Harmony Gold Mining Co Ltd and Another v Mittal Steel SA [2007] 2 CPLR 271 paras 36-44 and
Patensie Sitrus v Competition Commission 16/CAC/Apr02 ( pgs 29 -30) that the concept of abuse of
dominance is an objective one.
services) Diginet access at a higher price.
39]Telkom’s first, second and third objections to the margin squeeze case
are in the same vein as those raised in relation to the excessive pricing
case. Telkom objects to the case on the basis that the Commission
relies impermissibly on the same facts cumulatively to support causes of
action under sections 8(b), 8(c), and 8(d)(iii) and that this has led to an
inherent contradiction. The Commission avers that it is conceivable that
the same facts can support more than one provision of the Act.
However we see that as a question of fact Telkom has failed to show that
the charges relate to the same set of facts because the allegations
pertain to different customers of Telkom. The constructive refusal to
supply under s8(b) is a refusal to supply to first-tier ISPs and the bundling
condition in violation of s8(d)(iii) relates to both ISPs and Telkom’s retail
customers. The objection is thus misconceived. Even if this was not the
case, as we have stated above, nothing can be gained by deciding this
matter now since the issue of cumulative or alternative pleadings will not
lead to any curtailment of the proceedings. The same evidence will have
to be led by the Commission to prove the three variants of its margin
squeeze case. The first three objections accordingly fail.
40] Telkom’s fourth objection in relation to the margin squeeze is that it is
now settled law that a margin squeeze case must be pleaded under
section 8(c) and to plead these complaints under section 8(b) or 8(d)(iii)
is irregular. Telkom relies on the decision in Competition Commission v
Senwes15 to support this argument. Both the Tribunal and the CAC held
that margin squeeze as a form of exclusionary conduct in that case could
be located in section 8(c) but neither of those decisions held that margin
squeeze effects could not fall under other provisions of section 8. 16 A
squeeze effects could not fall under other provisions of section 8. 16 A
margin squeeze is an economic conclusion based on a set of facts.
However the factual matrix that informs a margin squeeze conclusion
15 Competition Commission v Senwes Ltd, Tribunal Case No: 110/CR/Dec06 and Senwes Ltd v The
Competition Commission of South Africa [2009] 2 CPLR 304 (CACA)
16 The Commission’s section 8(d)(i) case failed because the facts could not sustain it.
13
may differ and hence may not categorically fall under one sub-section of
section 8 rather than another. Industries differ and a margin squeeze
strategy for example in telecommunications will contain different
elements to one in retail stores. A constructive refusal to supply or anti-
competitive bundling could ultimately lead to a margin squeeze of
competitors. In any event the objection, if it were granted would take the
matter no further. It would not lead to a curtailment of the proceedings or
remove a cause of action. The same evidence would have to be led by
the Commission to prove the different elements of Telkom’s alleged
exclusionary conduct and Telkom’s objection can be argued at the end of
the hearing.
41]Telkom’s fifth objection is that knowledge of illegality is an essential
element of the section 8(b) and 8(d)(iii) provisions and the Commission’s
failure to allege this is objectionable. As we have discussed previously
such an objection takes the matter no further and is better dealt with at
the end of the case rather than at this stage.
42]Telkom’s sixth objection is three-fold – namely that the Commission’s
pleaded facts do not disclose an actual refusal to give ISPs access to
lines, that a constructive refusal is not encompassed within 8(b) and that
the facts alleged do not disclose that the lines are an “essential facility”.
As to the interpretation of section 8(b), nothing is gained by the objection
being granted now because it would not result in any curtailment of
proceedings. Telkom can argue at the end of the case whether or not
section 8(b) encompasses a constructive refusal or not. The remaining
objections are equally unfounded. In paragraphs 20-38 of its referral the
Commission painstakingly provides a description of the infrastructure and
technology to demonstrate the importance of the various lines leased by
Telkom to its rivals and customers. The Commission traverses the
Telkom to its rivals and customers. The Commission traverses the
regulatory history of Telkom’s products and in particular that pertaining to
the leasing of facilities from Telkom or any other person. The regulatory
history of leased lines – where at first only Telkom could as a legislative
and thereafter de facto monopoly supply these to VANS and ISPS –
speaks to the significance of these lines. In the subsequent paragraphs
the Commission sets out Telkom’s pricing behavior in relation to these
lines. In paragraph 118 the Commission draws together its various
allegation and alleges that –
“Such conduct also constitutes a constructive refusal by Telkom to
supply first-tier ISPs with access lines (Diginet and ADSL) and
transmission lines. Such lines are an essential facility as
contemplated in section 8(b) – the said lines cannot reasonably be
duplicated and without access to the lines the ISPs cannot provide
IP network services to resellers….”
43]We are satisfied that the Commission has pleaded sufficient facts in its
referral to support a prima facie case that the lines are an essential
facility. Moreover the Commission does not allege an actual refusal to
supply - its case is one of constructive refusal to supply. Hence it does
not need to allege any facts to support a case it does not advance. We
have already expressed ourselves on the issue of the interpretation of
section 8(b) and that it is appropriate for this issue to be argued at the
end of the hearing.
44]Telkom’s seventh objection falls away because the Commission does not
pursue with its section 8(d)(ii) case.
45]The eighth objection concerns the interpretation and ambit of section 8(d)
(iii). The ninth objection again raises the issue of mens rea and that s59
would be unconstitutional if it does not require mens rea. We have
expressed ourselves on these types of objections. Apart for the fact that
this Tribunal does not have the competence to decide on the
constitutionality or otherwise of s59, nothing is gained by deciding on
these objections now because they would not lead to a curtailment of
proceedings. These points of law can be argued at the end of the case.
15
Objection to Remedies
46]This leaves us to consider Telkom’s objections to the issue of remedies.
In its Notice of Motion the Commission seeks several forms of relief.
Telkom objects to the prayer for an interdict on the basis that there is no
allegation that the conduct is still ongoing. It also objects to the
Commission’s prayer that Telkom be required to submit pricing data and
information on an annual basis in order to assess compliance.
47]In general the ambit of the Commission’s or the Tribunal’s powers in
relation to remedies is not a matter to be decided on exception simply
because the question raised here is not an issue of pleadings but one of
competence. The objection if granted now would not lead to any
curtailment of the proceedings. The same evidence would have to be led
and the competence of the Tribunal or the appropriateness or otherwise
of a remedy can be argued at the end of the case.
Conclusion
48]In summary we find that Telkom’s objections to the Commission’s
pleadings are without merit. Where the objections were in the nature of
exceptions to the pleadings, we find that these have been either
misconceived or are without substance. In relation to its objections in
relation to our competence, issues of statutory interpretation,
justifications/defences and other points of law we find it inappropriate to
decide these prior to the hearing of the case. None of them will lead to a
curtailment of the proceedings and no unfairness will be visited upon
Telkom if it argued these at the end of the matter.
49]We grant the following order in relation to the objections against First
Respondent’s referral:
a. The application is dismissed; and
b. There is no order as to costs.
Y Carrim Date
N Manoim and T Madima concurring
Tribunal Researcher: Rietsie Badenhorst
For the Applicant: AR Bhana SC assisted by RM Pearse and L
Sisana, instructed by Mothle Jooma Sabdia
Inc
For the Commission: O Rogers SC assisted by NH Maenetje,
instructed by Gildenhuys Lessing Malatji Inc
For the Second Respondent: A Gotz instructed by Eversheds
Attorneys
17