In 2004, the Commission referred a complaint against Telkom to the Tribunal alleging that Telkom had failed to provide telecommunications facilities to a number of Value Added Network Services (VANS) providers on terms that would have facilitated competition in the provision of various value added services. Rather than defend the allegations in the Tribunal, Telkom launched proceedings in the High Court to set aside the Commission's referral, inter alia, on the basis that the competition authorities did not have jurisdiction to consider matters that were subject to the sector specific regulator for telecommunications, the Independent Authority of South Africa (ICASA).

In upholding the Commission's appeal, the SCA has now ruled that the competition authorities have the authority to consider the complaint. The SCA has also indicated that the Tribunal would have been the correct forum to decide not only the competition law issues but also the preliminary question of jurisdiction. This should in future discourage respondents from seeking to keep jurisdictional issues tied up in the civil courts for years as this question can now be decided up-front in a Tribunal hearing.

The ruling will be hailed by many as a victory for competition in the telecommunications sphere. However, it should be noted that the SCA ruling deals expressly with concurrent jurisdiction under the repealed Telecommunications Act, with the position under the current Electronic Communications Act remaining unclear.

Chris Charter, Director Competition and
Pia Harvey, Senior Associate, Competition