Johannesburg – The Independent Communications Authority Of South Africa (ICASA) has noted the decision of Judge Sutherland, and is considering its contents.
The principal allegations were (1) ICASA may not lawfully issue the ITA until it has considered the Ministerial policy, at present in the form of a White Paper before the Cabinet, (2) the ITA contradicts the 2013 radio frequency spectrum plan which makes it unlawful, (3) the ITA fails to meet statutory obligations to promote competition, and is indeed anti-competitive, and (4) the ITA is irrational in certain respects.
At a first glance ICASA is pleased to note that its independence was asserted in the judgement and the Judge said that no cogent argument is shown why a Court should trump ICASA’s choice not to wait indefinitely for the Minister’s Policy to see the light of day.
Additionally, the Judge states that ICASA has not been shown to have breached any positive duty imposed on it to promote competition and also that the onus to show an irregularity by ICASA was not satisfied.
However, the Judge essentially found that the controversy is confined to the implications flowing from the presence of non-mobile operators, at present assigned space in the spectrum.
To this end, the Judge concluded that ICASA cannot migrate the current non-mobile users without the Minister’s participation and an orderly process requires co-ordination between the Minister and ICASA.
The judgement states that the assignment of spectrum already assigned to other operators is therefore found to be possibly an irrational decision. Accordingly, given the Judge’s view, ICASA may not proceed with the ITA pending the outcome of the review process.