In a dramatic turn of events in the long-drawn-out process of licensing broadband spectrum in South Africa, Telkom has proposed withdrawing an urgent application to interdict communications regulator Icasa at the high court.
Communication from Telkom’s attorneys to those that are party to the litigation, dated 18 January and seen by TechCentral, shows the company now wants the parties to move quickly to agree to a date to hear the merits of its application. This is instead of Telkom first attempting to interdict Icasa, a move that would, if successful, bring the licensing process to a grinding halt once again.
In the letter, Telkom said it is willing to withdraw part A of its application – the part in which it is seeking the interdict – because of “the national imperative of finalising the spectrum licensing process and the extremely truncated timelines set by Icasa in the 2021 auction ITA (invitation to apply)”.
It now wants part B of its application – dealing with the merits – to be “heard and determined on an expedited basis”. Telkom said it believes all those opposing part A of the application will agree to this position based on the affidavits they have lodged with the court.
The move by Telkom comes a week after Icasa CEO Willington Ngwepe appealed to the company, in an interview with TechCentral, to abandon its legal action, appealing to its “patriotic conscience”.
Many parties to the litigation have filed notices to oppose Telkom’s interdict, including — significantly — communications minister Khumbudzo Ntshavheni. Government remains Telkom’s largest shareholder, directly holding more than 40% of its equity, and the minister had indicated she intended to approach Telkom with a view to finding an out-of-court settlement. Licensing the spectrum is also a key component of President Cyril Ramaphosa’s efforts to get the economy onto a stronger footing.
MTN South Africa, Vodacom South Africa and Rain have also filed papers to oppose Telkom’s application to interdict Icasa, adding to the pressure on the company.
If Telkom withdraws part A of the application, which now appears likely, it means Icasa can move forward with the licensing process unimpeded — at least until judgment is handed down on the merits of the matter (by which time the spectrum auction will likely have been concluded and the spectrum assigned).
Telkom is hoping the court will hear part B of its application on an urgent basis from 1 to 4 March, but that will depend on the availability of senior counsel and a judge to hear the case – not a guarantee.
Part A of Telkom’s application – the part that is now set to be withdrawn – remains set down for 25 January at the high court in Pretoria.
The opposing parties, including Icasa and the communications minister, have until close of business on Wednesday to furnish their responses to Telkom’s proposal.
Update: Telkom issued a statement after publication of this article in which it said its withdrawal of part A of the application is on condition that the court review is heard before the finalisation of the spectrum auction process, or if Icasa is prepared to move the dates of auction finalisation to await the court judgment. (This position was, however, not set out in Telkom’s letter to the respondents to its litigation.)
“The respondents are still considering Telkom’s proposal and, as such, the matter is still on the court roll for Tuesday, 25 January. A decision to withdraw it depends on the response from the parties and the directions that the court may give,” the company said.