Telecommunications monopoly in South Africa—some human rights aspects and options for future regulation

Journal of African Law

Volumn 43, Issue 2, 1999, Pages 214-233

  Zlotnick, Myron ^a  

^a NONE

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EID: 0346782032     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855300011359     Document Type: Article

References (160)

1. E. Krasnow and J. Goodman, “The ‘public interest’ standard: The search for the Holy Grail”, at http://www.law.indiana.edu/fclj/pubs/v50/no3/v50no3.html at 13.
2. For a detailed constitutional analysis of the impact of the Bill of Rights contained in the final constitution of 1996 see: G. Driver, “The application of competition law to the South African telecommunications industry”, LLM unpublished paper, University of the Witwatersrand, 1998.
3. See s. 2(1) of the Post Office Act.
4. See s. 4(1)(b) of the Post Office Act.
5. For an overview of the political and economic forces that prompted the “commercialization” of telecommunications services see R. Horwitz, “South African telecommunications: History and prospects”, at http://www.ctr.columbia.edu:80/vii/papers/horwitz2.htm (Horwitz I)
6. and see R. Horwitz, “Telecommunications policy in the new South Africa: Participatory politics and sectoral reform”, (1997) 23(2) Communicatio at http://www.unisa.ac.za/dept/press/comca/222/horwitz.html (Horwitz II).
7. See s. 78(5) and s. 78(6) of the Post Office Act.
8. See s. 90A(2) of the Post Office Act. See also Government Gazette No. 13,747, Notice No. R324 of 31 January, 1992.
9. See T. Krattenmaker, “The Telecommunications Act of 1996”, 1996 (49) Federal Communications Law Journal at http://www.law.indiana.edu/fclj/pubs/v49/nol/kratten.html, at 1–2.
10. For a useful overview of the variety of models of regulation of telecommunications that can be applied see W. Melody, “Policy objectives and models of regulations”, in W. Melody (ed.), Telecom Reform-Principles, Policies and Regulatory Practices, Lyngby, 1997, at 11–27
11. and A. Pisciotta, “Global trends in privatisation and liberalisation” in Melody at 337–353.
12. See also Horwitz I above at 23.
13. See Horwitz I above at 6.
14. Telecommunications Act of 1996, Pub. L. No. 104–104, 110 Stat. 56 (47 U.S.C.). See Krattenmaker, above, for an overview of the forces behind the passing of the Telecommunications Act.
15. Commission Directive of 13 March, 1996, amending Commission Directive 90/388/EEC, (With Regard to the Implementation of Full Competition in Telecommunications Markets) at 96/19/EC, OJ L 74/13, 22 March, 1996.
16. See also the Commission Directive 90/388/EEC (On Competition in the Markets for Telecommunications Services) at http://www.ispo.cec.be/infosoc/ legreg/docs/90388.html.
17. For a review of the statistics of teledensity in South Africa sec “A telecommunications universal service policy framework for defining categories of needy people on South Africa”, DRA Development, Durban, 1997.
18. See K. Conrad, “Media mergers: First step in a new shift of antitrust analysis”, (1996) 49 Federal Communications Law Journal at http://www.indiana.edu/fclj/pubs/v49/no3/conrad.html at 7
19. and see “The Telecommunications Act of 1996 and the changing communications landscape” at http://www.benton.org/Library/Landscape/landscape.html at 1.
20. See also Horwitz I. above at 11 and 16–17 and at 22.’
21. Government Gazette No. 16,995, Notice No. 291 of 13 March, 1996, hereafter referred to as the White Paper.
22. For an overview of the history of the consultative process leading up to the drafting of the White Paper, see Horwitz I above at 21–22.
23. See the White Paper at 17–20.
24. See Horwitz I above at 21–23
25. Horwitz II above at 13–16 and at 18 and see the White Paper at 12.
26. For example see the White Paper para. 2.6 at 12 and see Horwitz I above at 24.
27. See the White Paper para. 2.6 at 23.
28. See Government Gazette No. 17,578, Notice No. R68 of 15 November, 1996
29. Government Gazette No. 17,817, Notice No. R20 of 21 February, 1997
30. and Government Gazette No. 18,074, Notice No. R38 of 13 June, 1997.
31. See s. 5(1) as read with ss. 32(1) and 35 of the Telecommunications Act.
32. See W. Melody, “On the meaning and importance of ‘independence’ in telecom reform”, (1996) 21(3) Telecommunication Policy, at 195.
33. See ss. 36(1)(a), 36(7)(a), 36(7)(b), 36(7)(c) and 36(9)(a) of the Telecommunications Act.
34. See s. 36(4) of the Telecommunications Act.
35. S. 40(3) of the Telecommunications Act.
36. Transnet and Eskom are the statutory bodies responsible for the administration and management of transport and electricity utilities respectively. See the Legal Succession to the South African Transport Service Act No. 9 of 1989
37. and the Eskom Act No. 40 of 1987. See s. 41(3)(a) and (b) of the Telecommunications Act.
38. See s. 45(1) and (2) of the Telecommunications Act and see clauses 7.1 and 7.2 of the Telkom PSTS licence.
39. See clauses 8 and 9 of the Telkom PSTS licence.
40. See clause 8.4 of the Telkom PSTS licence.
41. See the Telecommunications Act at s. 36(1)(d) (new entrants may not be disadvantaged); s. 53 (no undue discrimination or preferences); s. 44(2) as read with s. 43(l)(c), (d) and (c) (obligatory leasing of facilities); s. 44(7) (obligatory interconnection). The Authority has launched a process to determine the guidelines for regulating interconnection and facilities sharing agreements in terms of sections 43 and 44 of the Telecommunications Act. These guidelines will bind Telkom. See http:// www.satra.org.za/satindex.html, http://www.satra.org.za/saseca.html.
42. See s. 3(1)(d) of the Competition Act No. 89 of 1998.
43. In South Africa the “right to telecommunications services” does not appear to he normally associated within the ambit of socio-economic human rights. See De Villiers, “Social and economic rights”, in D. van Wyk et al, Rights and Constitutionalism-the New South African Legal Order, Cape Town, 1994, 500 etseq.
44. See s. 26(1). The language used in the Zimbabwe legislation is similar to that used in clauses 2.1 and 3.1 of the Telkom PSTS licence as well as the language used in s. 78(1) of the South African Post Office Act.
45. See Posts and Telecommunications Corporation v. Retrofit (Pvt) Limited 1994(1) ZLR 630 (ZSC).
46. See Retrofit (Pvt) Limited v. Posts and Telecommunications Corporation (Attorney-General of Zimbabwe Intervening) 1996(1) SA 847 (ZSC) (referred to hereafter as Retrofit I).
47. Retrofit (Pvt) Limited v. Minister of Information Posts and Telecommunications 1996(3) BCLR 394 (ZS) (referred to hereafter as Retrofit II)
48. and TS Masiyiwa Holdings (Pvt) Limited and another v. Minister of Information Posts and Telecommunications 1997(2) BCLR 275 (ZS) (referred to hereafter as Masiyiwa).
49. The onus was on the applicant, see Retrofit I at 862 G-H.
50. See for example G. Marcus and D. Spitz, “Freedom of expression”, in M. Chaskalson et al, Constitutional Law of South Africa. Cape Town, 1996, at 20–21 and 20–24–20–28.
51. L. Johannesen, “Freedom of expression and information in the new South African Constitution and compatibility with international standards”, (1994) 10 South African Journal of Human Rights 216 at 218–219
52. and G. Marcus, “Freedom of expression under the Constitution”, (1994) 10 South African Journal of Human Rights 140 at 140 143.
53. See Retrofit I above at 856H-J quoting from Cardozo, J., in Palko v. Connecticut 302 US 319 (1937) at 327.
54. See Retrofit I above at 857D, 857G-H, 857J, and 858B.
55. See Retrofit I above at 858D-E.
56. See Retrofit I above at 858E-F.
57. See Retrofit I above at 860B-D: Red Lion Broadcasting Co. Inc. and Others v. FCC (No. 2) 395 US 367 (1969)
58. City of Los Angeles and Department of Water and Power v. Preferred Communications Inc. 476 US 488 (1986) (of particular relevance within the context of Telkom making facilities available to persons who request them).
59. Metro Broadcasting Inc. v. FCC 497 US 445 (1990)
60. Belize Broadcasting Authority v. Courtenay and Hoare [1988] LRC (Const) 276 (Belize CA)
61. and NTN Pty Ltd v. The State [1988] LRC (Const) 333.
62. It is not intended to analyse whether or not these cases support the conclusion that Gubbay, C.J., reached, save to state that the decision in Red Lion, for example, has not always been seen as advancing freedom of speech claims, see Turner Broadcasting System Inc. v. FCC 512 US 622 (1994).
63. It should be noted that the Red Lion case supports the conclusion that free speech has as much to do with positive expression as it docs with the right to receive infonnatwn, see Red Lion at 390.
64. See Retrofit I above at 864E, 865G and 865I-866B.
65. See Retrofit I above at 861H-J.
66. See Driver above at 10.
67. See Retrofit I above at 853H J. Gubbay, C.J., also held that “‘the wireline service is inadequate to meet the present communication needs of the population” (at 852E); “the extent of the shortcomings in the public switched telephone network is a source of major concern among subscribers1’ (at 852H); the World Bank reported that: “the quality of service is poor” (at 8521); “the completion rate of telephone calls is unsatisfactory … below 30%” (at 852G); the Corporation's own report stated that: “[the network] is characterized by lack of connectable capacity and subscriber distribution … [which] has led to serious network congestion which inhibits traffic flow” (at 853B-C); “there is a demand for mobile cellular telephone services and that demand is increasing1” (at 853F).
68. See s. 26(1) of the Postal and Telecommunications Services Act.
69. See Retrofit I above at 400–401A.
70. See S. Woolman, “Limitations”, in Chaskalson, above, at 12–1 and following.
71. See also Driver above at 9–11.
72. See Retrofit I above at 862I-863B.
73. For a detailed analysis of the constitutional jurisprudence in the case see Driver, above at 9–11.
74. See Retrofit I above at 863E-F. “The spur of competition should inspire greater efficiency and economy on its part. And the free market competitors who choose to come into the market, would do so at their own risk and expense” (at 863H I).
75. See Retrofit I above at 863J-864A.
76. See Retrofit I above at 864B.
77. Berkey Photo Inc's, above, US v. Aluminium Company of America 148 F 2d 416 (1945) at 427
78. and US v. American Telephone and Telegraph Co. 552 F Supp 131 (1982).
79. See Retrofit I above at 865A-C.
80. Green, J., in US v. American Telephone and Telegraph above and quoted in Retrofit I at 864H-I.
81. See Retrofit I above at 865C-E.
82. See the White Paper at para. 2.6.
83. See Retrofit I above at 865F-G.
84. See Retrofit I above at 865I J.
85. See Retrofit II above at 397A-C.
86. See Retrofit II above at 397E-F.
87. See Retrofit II above at 398A-C.
88. See Retrofit II above at 398H-J.
89. See the NTN case above.
90. See Retrofit II above at 399E-F.
91. See Retrofit II above at 400I-401A.
92. SI 15A of 1996.
93. In Masiyiwa above.
94. See Masiyiwa above at 275F-G.
95. See Masiyiwa above at 287E-288C.
96. Unreported, case No. HH 205–97, 31 December, 1997.
97. It should be noted that this legislation has been amended: see the Postal Service Act No. 124 of 1998. See van Rensburg above at 1610H-J
98. See Van Rensburg above at 1613F-1616F.
99. See Van Rensburg above at 1617A.
100. Section 22 of the Constitution provides: “Even” citizen has the right to choose their trade, occupation or profession freely. The practice of an occupation, trade or profession may be regulated by law”’. See Driver above at 11.
101. See Van Rensburg above at 1618D E and 1618H.
102. S. 9 of the South African Constitution. See Driver above at 4.
103. See Van Rensburg above at 1621B-D.
104. See Van Rensburg above at 1621D-F
105. and Driver above at 9.
106. See Van Rensburg above at 1622F-H.
107. See Van Rensburg above at 1622A-G.
108. See Directory Advertising at 805F-H and 806E-F.
109. See Directory Advertising at 805D-F.
110. See Directory Advertising at 807E.
111. See Directory Advertising at 808G-H and 811A-B.
112. For the detailed reasoning of how Van Dijkhorst, J., arrived at this conclusion see Directory Advertising at 807F-811B.
113. For an analysis of the question of determining when a statutory body such as Telkom, or a university, is an organ of State, see M. Brassey, “Labour relations”, in Chaskalson, above at 30–34
114. and “Labour relations under the new Constitution”, (1994) 10 South African Law Journal 179.
115. See Directory Advertising at 811D-I.
116. See Directory Advertising at 812C.
117. In Van Rensburg above at 1617H-I Lang, A.J., held that section 22 of the final Constitution, which was under scrutiny in that case, was the direct successor to section 26 of the interim Constitution.
118. See Directory Advertising at 813C-G (my emphasis).
119. See Directory Advertising at 813G-H.
120. 1990(4) SA 604, referred to hereafter as the Times Media Limited case.
121. See the Green Paper for Public Discussion: Broadcasting Policy, Ministry for Posts, Telecommunications and Broadcasting, November 1997 at http://www.polity.org.za/govdocs/grecn_ papers/broadcasting.html
122. and also see the White Paper on Broadcasting Policy, Ministry for Posts, Telecommunications and Broadcasting, May 1998.
123. The draft legislation, The Broadcasting Bill, No. 94 of 1998 is to be found at http://www.doc.gov.za was passed into law on 4 November, 1998. It has yet to receive Presidential consent.
124. No. 73 of 1976, which replaced the Broadcasting Act No. 22 of 1936 with the advent of television in South Africa.
125. Now repealed by s. 103 of the Telecommunications Act.
126. Until the coming into operation of the Independent Broadcasting Act No 153 of 1993 on 31 March, 1993, there were only two competitors to the SABC in the radio broadcasting market, Radio 702 and Capital Radio, neither of which was a national station.
127. See the Times Media Limited case above at 605B-D.
128. See the Times Media Limited case above at 605D–E.
129. See the Times Media Limited case above at 605E.
130. See the Times Media Limited case above at 605G-I and at 606H-J.
131. See the Times Media Limited case above at 606A.
132. Compare the language of Van Dijkhorst, J., in Directory Advertising at 813C-G.
133. See the Times Media Limited case at 607F-I (my emphasis).
134. See the Times Media Limited case at 606A-G.
135. The VANS licence issued to Telkom27 defines VANS as: “… including without limitation electronic data interchange; E-mail; protocol conversion; access to a database or a managed data network service; voice mail; store and forward fax; videoconferencing; telecommunications related publishing and advertising, whether electronic or print; electronic information services, including internet service provision’ (my emphasis). See Government Gazette No. 17984, Notice No. 769 of 7 May, 1997. Telkom was conducting its internet access service through a business unit known as the South African Internet Exchange (SAIX).
136. This was the effect of s. 78(1) and (2) and s. 78(5) of the Post Office Act.
137. For a more detailed history of the relationship between Telkom and the independent ISPs see D. Kotlowitz, “Telkom, South Africa's internet anschiuss: A cautionary tale”, unpublished paper, Toronto, 1998.
138. Established in terms of the Maintenance and Promotion of Competition Act No. 96 of 1979.
139. See Kotlowitz, above.
140. See also the Discussion Paper on Competition Polity, Department of Trade and Industry, November 1997, where the Department raises the question of the difficulty of drawing the dividing line between the Competition Board's jurisdiction and the Authority's jurisdiction.
141. See Government Gazette No. 18,262, Notice No. 1309 of 3 September, 1997
142. and Government Gazette No. 18,272, Notice No. 1320 of 5 September, 1997.
143. It may transpire, as is set out below, that a court will have to resolve the technical issues. For an indication of a judicial synthesis of the technology involved see Telkom (SA) Limited v. Alaepa and others, unreported judgment of the High Court of South Africa (Transvaal Provincial Division), Case no. 25840/97 of 8 April, 1998, referred to hereafter as Maepa.
144. See the definitions section of the Telecommunications Act “telecommunications facilities”.
145. See Advisory Committee Report Final Version 10 October, 1997. Text obtained from the Internet Service Providers' Association, Johannesburg.
146. See Maepa above at 16.
147. See s. 40(1)(b) of the Telecommunications Act and the interim guidelines set out in Government Gazette No. 18,462, Notice No. 1811 of 20 November, 1997.
148. See Maepa at 14, 21, 23, and 24.
149. In any event it was common cause between all the parties that the pronouncement did not have the force of law. See Maepa at 18.
150. Maepa at 24–26.
151. See Government Gazette No. 18,214. Notice No. 1200 of 15 August, 1997, Ruling FR-0001.
152. See Notice No. 1200 above at 2.
153. See the White Paper at clause 2.10.
154. See Business Day, Johannesburg, 14 August, 1997.
155. With the enactment of the IBA Act in March 1993.
156. See s. 4(1)(b) of the Post Office Act.
157. See s. 7 of the Broadcasting Bill (Version B 94D 98).
158. See s. 36 of the Broadcasting Bill.
159. See s. 44(7) of the Telecommunications Act as read with section 43(3).
160. See Krasnow and Goodman above n. 1 at 13.