Zweli Mokgata

Zweli Mokgata

Telkom yesterday launched its first High Court assault on the Competition Commission in a case that could take away the powers of the competition authorities.

Telkom advocates gave the High Court their arguments against a 2004 finding by the commission that claimed that the monopoly fixed line operator was using its dominant position to squeeze out competition.

Telkom argued that the commission had no jurisdiction over complaints against its conduct and that the Independent Communications Authority of South Africa (Icasa) was the correct platform for complaints.

Avish Kalicharan, Competition Commission senior analyst attended the first day and said that while Telkom's case was "compelling" the commission's case was strong enough to have the matter sent back to the Competition Tribunal for hearing.

"At the time that the complaint was launched, the Telecommunications Act was in effect, and that had some jurisdiction in terms of who should enforce competition matters," Kalicharan said.

The initial complaint against Telkom was made in 2002 and the referral to send the case to the tribunal was issued in 2004.

Telkom was facing a penalty of 10percent of its annual turnover which was about R30billion at the time, meaning a penalty of R3billion.

Telkom filed a complaint to the High Court disputing the competition authorities' involvement. The new Electronic Communications Act was enforced in 2005 clarifying the role of Icasa, and removing the regulator's role in competition matters.

Marc Furman, head of legal services at Internet Solutions (one of the complainants) said: "This was just a delay tactic by Telkom. Their case has no merit, and we feel confident that it will be sent back to the tribunal.

"As far as this latest action goes, there is no doubt that the case falls under the competition act. We hope that when the tribunal hears the case, it implements remedies to Telkom's anticompetitive behaviour, which is still going on," said Furman.