In closing arguments on Wednesday at the Competition Tribunal’s hearings into Telkom’s alleged anticompetitive practices, Competition Commission legal counsel Adv Martin Brassey said the company had fought the case at every opportunity and deserved a severe penalty.

Brassey said the tribunal should turn to “first principles” when considering a penalty for Telkom and should consider its role in both “deterrence” and in terms of the “ill-gotten gains” Telkom accrued from its behaviour.

He said the tribunal should also consider a diverse range of factors, including Telkom’s turnover during the period, its line of supply, its “affected line of commerce”, the effect to which there had been “palpable harm demonstrated” by the commission in its arguments, and whether Telkom deserved any leniency.

The tribunal, he said, would have to weigh up these factors when arriving at a figure that was appropriate, and that it would then reexamine this figure in light of the facts. He says there was no doubt Telkom benefitted from the restrictions it was able to place on rival telecommunications service providers.

Brassey was unsympathetic to Telkom’s claim that a fine of the magnitude proposed would cripple it, saying that if Telkom had to turn to the “open market to raise the money in question to keep going” and if that meant selling the assets of a company he said had behaved “conspicuously badly”, then so be it.

He said the company had fought the tribunal at every turn and that its defence had, for the most part, “evanesced” under examination.

Brassey said Telkom’s defence was its equivalent of Custer’s Last Stand in that it engaged in “clearly egregious conduct” and it fought the tribunal whenever possible for the express purposes of trying to avoid a penalty.

At the tribunal’s request, Telkom will submit a document to the tribunal next Tuesday outlining potential “behavioural changes” that the tribunal might consider in lieu of, or in addition to, a financial penalty.

Brassey had asked that the commission be allowed to review this document and respond to it and the tribunal agreed to this but said the commission could not include anything in its response that went beyond the scope of the arguments it has presented to date. — Craig Wilson, TechCentral