Legal representatives from South Africa’s largest mobile operators, including Vodacom, MTN, Cell C and Liquid Intelligent Technologies, as well as communications regulator Icasa, are facing off in the high court on Thursday as the first part of a controversial spectrum pooling case kicks off.
Vodacom South Africa last year filed papers against MTN South Africa, Cell C, Liquid and Icasa claiming the regulator had illegally and secretly approved spectrum pooling arrangements between MTN and Cell C, as well as between MTN and Liquid. These agreements, Vodacom has claimed, led to MTN’s superior performance in network speed and quality tests and put it at an unfair disadvantage.
“What is at issue in this application is the approval by the first respondent (Icasa) of the ‘pooling’ of high-demand spectrum between MTN, Cell C and Liquid, in secret, in a manner contrary to the requirements of the Electronic Communications Act, and unlawful in other respects,” said Andrew Barendse, managing executive for regulatory affairs at Vodacom South Africa, in a founding affidavit.
The trial has been broken up into two parts: in the first, which is being heard on Thursday and Friday, Vodacom is seeking an interdict from the court instructing MTN, Cell C and Liquid to cease making use of their spectrum pooling arrangements until the second part of the matter has been decided. In the second part – the trial date for which is yet to be set – the court will be asked to make a decision on the legality of the agreements.
According to Barendse’s affidavit, Vodacom became suspicious of MTN’s advantage in network speed-test results after an analysis of several independent tests – including by Ookla, the owner of speedtest.net – led it to investigate its rival’s use of spectrum.
The “only plausible explanation”, given the two companies have similar site allocations and radio access network equipment, has to lie in spectrum utilisation, Barendse said.
Backlog
In determining whether to grant an interdict or not, the court will consider whether the applicant has a clear legal right; the harm to the applicant; the balance of conveniences (a test to determine if the benefit of granting the injunction to the applicant will not cause irreparable harm to any of the responding parties); and whether an alternative remedy to the granting the interdict exists, and if so, if it is possible to implement.
Read: Vodacom drags Icasa to court over ‘secret’ spectrum deals
Given a big backlog at the high court in Pretoria, it is unclear how long it will take for the court to pronounce on the interdict application, although it is being heard on an urgent basis. – © 2025 NewsCentral Media
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