COMMUNICATIONS MINISTER DR IVY MATSEPE-CASABURRI ON THE LEAVE TO APPEAL TO THE CONSTITUTIONAL COURT
22 AUGUST 2000
In a bid to speed up the awarding of the country's third cellular
licence, Communications Minister Dr Ivy Matsepe-Casaburri has
lodged a formal court application for leave to appeal to the
Constitutional Court against last month's decision by the Pretoria
High Court which prevented her from granting the licence. The
Minister is appealing in terms of Rule 18 of the Rules of the
Constitutional Court against the verdict on July 28th 2000, handed
down by Mr Justice NJ Coetzee.
Among constitutional issues for argument are whether:
- It is permissible for a court of law to prematurely restrict or
interdict the Minister from making a decision pursuant to a
recommendation by then South African Telecommunications Regulatory
Authority (now the Independent Communications Authority of South
Africa).
- The supposed executive intervention by the Minister is
constitutionally permissible as a matter of good government in the
public interest.
- The alleged "executive interference" by the Minister violated the
encroachment principle contained in Section 41 (1) of the
Constitution, Act 108 of 1996.
- A recommendation by the regulatory body, such as ICASA, in terms
of Section 35 (2)(b)(I) of the Telecommunications Act 103 of 1996,
constitutes an administrative decision, concomitantly an
administrative action within the contemplation of Section 33(1) of
the Constitution.
- A recommendation is an advice by ICASA to the Minister and not a
decision susceptible to review either in terms of the Constitution
or in common law.
In the application, the Minister will argue that the Pretoria High
Court erred in concluding that the Minister and the President's
Office:
- Violated the encroachment principle contained in Section 41(1) of
the Constitution.
- Acted contrary to the provisions of Section 5(3) of the
Telecommunications Act 103 of 1996.
The Minister's application will also prove that the Pretoria High
Court erred in concluding that the alleged executive interference
was - in essence - executive concern by virtue of the Minister's
accountability and responsibilities in terms of Section 92(2) and 3
as well as Section 195(1)(d) of the Constitution.
Issued by: Department of Communications
ISSUED: BRIAN SOKUTU
Ministry Spokesperson
Cell: 083-327-3229