After two days of hearings the Pretoria High Court has rejected the application by the Minister of Communications to delay the effect of its previous ruling; that holders of VANS licences are entitled to network licences. The news has been greated with great excitement at MyBroadband.
This means that all VANS licencees are entitled to a network licences on application. The court previously ruled that ICASA has to convert the licences of a class of licensees referred to as VANS (Value Added Network Services) in the Telecommunications Act. The Telecommunications Act was replaced by the Electronic Communications Act, which requires ICASA to convert existing licences. That judgement was hailed as the start of a new era of telecommunications competition.
The Minister of Communications appealed the ruling, and announced that she was planning to change the legislation to effectively retrospectively override the ruling. The Minister also applied to court to delay the effect of the ruling until after the appeal. In other words ICASA would not have to comply with the ruling while the appeal was being heard, a process which usually takes years. In the meantime only a few VANS licensees would have been permitted network licences, and the Minister would have had an opportunity to change the law to deny other VANS licensees network licences. The court rejected the Minister’s application.That means that ICASA must issues network licences to VANS providers, at least to those who ask for them.
Its still possible that the Minister may try to amend the law to retrospectively deny VANS licencees. That attempt to use legislation to over-rule a court could itself be challenged.But time is running out for ICASA which must convert the licencees under legislation which came into force in mid 2006, more than two years ago.
*I’ve used the term “network licences” to refer to the rather long Electronic Network Communication Service Licences.