Icasa overshot limits, says Cwele’s counsel

THE Independent Communications Authority of SA (Icasa) had a legal duty to wait for the publication of the government’s white paper on information and communications technology before it auctioned off high-speed broadband spectrum, counsel for Telecommunications and Postal Services Minister Siyabonga Cwele said on Tuesday.

The company or companies that are to obtain the licences over the rare spectrum that Icasa plans to auction off will be able to provide superfast 4G data download, giving them a huge competitive edge in the mobile market.

Despite objections by Cwele, Icasa is pressing ahead with the auction, setting a date for May 2017.

It is insisting that there has been an inordinate delay by the government in making policy and that Icasa, an independent institution under the Constitution, has a duty to go ahead.

But Cwele’s counsel, Vincent Maleka SC, said in the High Court in Pretoria on Tuesday that Icasa’s independence had limits and that it had failed to keep within them. Under the Constitution, the Icasa Act and the Electronic Communications Act, Icasa did not have exclusive control over SA’s national radio frequency.

He asked the court to grant an interim interdict to prevent the auction until the court had heard full argument and had made a decision whether the auction was a lawful way forward.

He said attempts by Cwele to meaningfully engage Icasa were rebuffed by its council.

Gilbert Marcus SC for Telkom said that, as an organ of state, Icasa had a duty to consider policies issued by the minister. To “consider” did not mean just to “pay lip service to”. It meant, at the very least, that Icasa could ignore the policy only for a good reason.

Marcus said a range of the public’s rights were potentially affected, particularly the right of access to information and freedom of expression. Where rights were implicated, organs of state had a duty to “tread carefully”, he said. In these circumstances, a court could step in at this stage.

There was an “easy and sensible” way to have resolved the impasse, he said. Icasa and the minister could have agreed to a reasonable timetable. If the timetable was not adhered to, then Icasa could go ahead.

Counsel for Icasa Wim Trengove SC said the rights to freedom of expression and access to information would be enhanced by the auction.

Instead, the court was being asked to intervene “at the behest of a minister and some businesspeople — in other words, interference on political and commercial grounds”, he said.

Icasa had a duty to act independently. It had to discharge its duty, whether or not there was a policy in place, Trengove said. It was not permitted to indulge the minister, who for six years had not made good on his promises to make policy.

Maleka said the claim by Icasa of political interference was entirely without evidence and “a diversion”.

“It ought not to have been made without a factual basis, in light of the serious consequences which flow from such emotive claims,” said Maleka in his heads of argument.

Trengove added that Chapter 9 institutions did not have an obligation to liaise with other organs of state in terms of the co-operative governance provisions under the Constitution.

No one was arguing that Icasa had jumped the gun in bad faith to avoid the minister’s policy, he said.

The hearing continues Wednesday. on