Some six months after a formal complaint was lodged by a concerned group of specialist magazine publishers with the Independent Communications Authority of South Africa (ICASA) against the South African Post Office (SAPO), the matter is finally to be heard.
The complainants are collectively represented by Bouwer Kobeli Morabe Attorneys, and include: Brooke Pattrick (Pty) Ltd, Creamer Media (Pty) Ltd, Crown Publications (Pty) Ltd, EE Publishers (Pty) Ltd, Interact Media Defined (Pty) Ltd, Now Media (Pty) Ltd, Technews Publishing (Pty) Ltd and TE Trade Events (Pty) Ltd.
In terms of the relevant legislation, ICASA is tasked with the monitoring of SAPO to ensure the conditions of its licence are met, and to hear and deal with complaints against the licensee where alleged breaches of license conditions occur.
The complainants are asking ICASA to consider and review its numerous complaints against SAPO and the financial and other damage to the magazine publishing industry caused by SAPO's extended failure to meet its license conditions, and to sanction SAPO accordingly.
This could include: punitive financial sanctions against SAPO; entertaining alternative license applications to that of SAPO; considering additional licence applications to supplement the activities of SAPO; or even the removal of SAPO's (currently exclusive) licence.
After a long process of apparent stone-walling by SAPO, the matter has been set down for hearing on 2 July 2015 at 09h30 by the ICASA Complaints and Compliance Committee (CCC) at the ICASA offices, 164 Catherine Street, Sandton, Johannesburg. The hearing is open to the media and the public.
The complainants say that SAPO's answering affidavit fails to deal with any of the merits of the complaints levelled against it, and that SAPO instead raises numerous procedural and technical objections, namely prescription, impossibility of performance, vague and embarrassing allegations and a lack of factual material, which are not relevant or applicable to these proceedings.
The complainants further say that the tone and contents of SAPO's answering affidavit is in keeping with the utter disregard that SAPO has had for the mechanism by which SAPO is meant to be held to account by its regulator, ICASA.
The complaints in this matter say they have been met with numerous delays caused by SAPO. The following chronology borne out of the correspondence between all the parties, clearly displays this contempt:
- On 11 December 2014, the Complaints were lodged with ICASA;
- On 12 December 2014, ICASA acknowledged receipt of the Complaints;
- On 12 December 2014, the Complaints were sent to SAPO;
- No response was forthcoming from SAPO until two months later, on 12 February 2015 when a letter was received from SAPO stating that SAPO "will revert before close of business on 17 February 2015." No reasons were provided for this delay in responding;
- SAPO then failed to respond to the Complaints as undertaken in their letter or at all;
- On 3 March 2015, ICASA informed SAPO that as SAPO is "not committed to an amicable resolution of the complaints herein" ICASA will refer the matter to the CCC for adjudication;
- On 20 March 2015, the matter was referred to the CCC;
- On 10 April 2015, the CCC informed SAPO that it had until 25 April 2015 in which to deliver an answering affidavit;
- SAPO failed to deliver an answering affidavit as requested;
- On 30 April 2015, the CCC advised that SAPO that it had until 2 May 2015 in which to respond, failing which the CCC would make a decision;
- Again, SAPO failed to respond;
- On 4 May 2015, SAPO informed the CCC that the Complaints are being handled by Johan Naude in the legal department;
- On 5 May 2015, the CCC granted SAPO a further indulgence in which to deliver an answering affidavit by 12 May 2015, failing which the Complaints would be sent to the Chairperson of the CCC for adjudication;
- Again, SAPO failed to deliver an answering affidavit as requested;
- On 12 May 2015, SAPO sent an email to the CCC requesting an indulgence;
- On 13 May 2015, the CCC granted "a further and final indulgence of seven days" and called upon SAPO to deliver an answering affidavit by 16h00 on 20 May 2015;
- On 15 May 2015, SAPO requested a further indulgence which was denied by the CCC;
- SAPO failed to deliver its answering affidavit by the final deadline at 16h00 on 20 May 2015 but did so at approximately 20h00 on the same day; and
- The CCC chairperson delivered a ruling on 21 May 2015 stating that no further extension would be granted to SAPO and that the matter will be set down for hearing.
The complainants say this is not an approach that should ever be taken by a state-owned entity such as SAPO. At the hearing of this matter their legal representatives will refer to the relevant case law in this regard.
The publishers are also considering a possible class action for damages sustained by them resulting from the failure of SAPO to meet its license conditions and statutory obligations. However, before such class action, the publishers will follow all other avenues of due process, which includes the formal complaint to ICASA detailed above.
Background information
Further information
For further information, please contact:
Chris Yelland, EE Publishers
Spokesman for the Concerned Group of Specialist Magazine Publishers