Complaint to ICASA against SA Post Office drags on and on...
17 August 2015
Some eight months after a formal complaint was lodged on 11 December 2014 by a concerned group of specialist magazine publishers with the Independent Communications Authority of South Africa (ICASA) against the South African Post Office (SAPO), the matter is dragging on and on, without an end in sight.
The complainants are asking ICASA to review SAPO's alleged failure to meet its license conditions over an extended period, taking into account the significant financial and other damage to the magazine publishing industry caused thereby, and to sanction SAPO accordingly.
After a long process of apparent stone-walling by SAPO, as detailed in an earlier media release on 1 July 2015, the matter was finally heard by the ICASA Complaints and Compliance Committee (CCC) on 2 July 2015.
At the hearing, the SAPO advocate and legal team appeared demoralised, disorientated and directionless, and appeared not to have been properly briefed by SAPO. They failed to deal with the merits of the complaints levelled against SAPO, and instead raised various procedural and technical objections.
Despite the fact that SAPOs alleged non-performances were in progress at the date of submission of the complaint (11 December 2014), and indeed are said to be ongoing to this day, the SAPO legal team argued that the non-performances referred to by the complainants had prescribed.
The SAPO legal team further argued that strike actions by the SAPO workforce had made due performance of its license conditions impossible. This was rejected by the legal team of the complainants, who presented case law which showed that the argument of impossibility (or force majeure) does not and cannot apply when the cause of the claimed impossibility is self-inflicted.
In this regard, the legal team of the complainants pointed out the ongoing management problems at SAPO as indicated by: the removal of the entire previous board of directors; the appointment by President Zuma of an investigation into alleged corruption at SAPO; the severe financial problems of SAPO; the placing of SAPO under administration by the National Treasury; reports of ongoing problems in paying salaries timeously to SAPO staff and workers; reports on the refusal by SAA to carry SAPO mail due to non-payment; and ongoing reports of late payments and non-payment of suppliers and rent on leased premises by SAPO.
The legal team of the complainants also presented a research report, dated February 2015, by Prof. David Dickinson, Professor of Sociology at the University of the Witwatersrand, entitled: "Fighting their own battles: The Mabarete and the End of Labour Broking in the South African Post Office", on the background and causes of the strike actions.
This research study clearly shows that SAPO's labour problems and strikes resulted directly from management neglect over an extended period, of what is referred to as the "dirty secret" of large-scale use of temporary labour on a permanent basis (through labour brokers) in breach of labour relations legislation, which resulted in grossly unfair and discriminatory labour practices by SAPO. The CCC indicated that the research study may not admissible evidence at the hearing, but confirmed that it would have regard to all the facts and other evidence presented by the complainants.
The complainants say that the delays, tone and contents of SAPO's arguments are in keeping with the utter disregard that SAPO has shown for the mechanism by which SAPO is meant to be held to account by its regulator, ICASA.
The complainants further say this is not an approach that should ever be taken by a state-owned entity such as SAPO. At the hearing by the CCC, the legal representatives of the complainants referred to the relevant case law in this regard.
On closure of the hearing on 2 July 2015, the CCC advised that it would make a final determination on the complaint on 16 or 17 July 2015. The ICASA Act requires the CCC to make a finding within 90 days from the date of conclusion of a hearing.
However, on 13 July 2015, a notice was issued by the CCC advising that SAPO would be given yet a further opportunity to respond to the responding affidavit of the complainants, but that the parameters of SAPO's response would be restricted, and that the parameters for the restricted response would be provided to SAPO by 20 July 2015.
However, no such parameters were issued by the date committed to by the CCC. Instead a second notice was issued by the CCC on 20 July 2015 indicating that the parameters for SAPO's further response would be provided "in due course" (with no date given).
Then on 4 August 2015 a further notice was issued by the CCC providing the parameters for SAPO's further responding affidavit, and stating that SAPO's affidavit must be submitted to the CCC by 3 September 2013.
The CCC indicated that SAPO's response need not deal with alleged non-deliveries before the strike of 2014, nor the amounts of the damages suffered by the complainants. SAPO is however required to provide a detailed explanation as to why it did not make use of alternative, if need be commercial, facilities to ensure delivery of post during the 2014 strike.
The CCC advised that, following SAPO's response under these parameters, the complainants would have the opportunity to respond to SAPO's responding affidavit by 16 September 2015. The date of a further hearing by the CCC has since been set down for 5 November 2015, after which a final finding by the CCC is expected in respect of the complaint (with no date or timeframe given).
The complainants are aggrieved that ICASA's complaints process, which is supposed to deal with such complaints expeditiously and efficiently, is dragging on and on due to the recalcitrance of SAPO and the apparent leniency and indulgences being granted by ICASA to its licensee, SAPO, in respect of this unacceptable behaviour.
Details of the complainants and the complaint
The complainants are collectively represented by Bouwer Kobeli Morabe Attorneys, and include: Brooke Pattrick (Pty) Ltd, Creamer Media (Pty) Ltd, Crown Publications (Pty) Ltd, EE Publishers (Pty) Ltd, Interact Media Defined (Pty) Ltd, Now Media (Pty) Ltd, Technews Publishing (Pty) Ltd and TE Trade Events (Pty) Ltd.
In terms of the relevant legislation, ICASA is tasked with the monitoring of SAPO to ensure the conditions of its licence are met, and to hear and deal with complaints against the licensee where alleged breaches of license conditions occur.
The complainants are asking ICASA to consider and review its numerous complaints against SAPO and the financial and other damage to the magazine publishing industry caused by SAPO's extended failure to meet its license conditions, and to sanction SAPO accordingly.
This could include: punitive financial sanctions against SAPO; entertaining alternative license applications to that of SAPO; considering additional licence applications to supplement the activities of SAPO; or even, as a last resort, the removal of SAPO's (currently exclusive) licence.
The complainants are also considering a possible class action for damages sustained by them resulting from the failure of SAPO to meet its license conditions and statutory obligations. However, before such class action, the publishers will follow all other avenues of due process, which includes the formal complaint to ICASA detailed above.
Background information and references
1. Magazine publishers to challenge SA Post Office monopoly, media release, 11 Nov 2014.
2. Tender inquiry document issued today for alternative magazine delivery services to that provided by SA Post Office, media release, 20 Nov 2014.
3. Formal complaint against SA Post Office lodged today with ICASA, media release, 11 Dec 2014.
4. Replying affidavit by the complainants to SAPO’s answering affidavit dated 20 May 2015, affidavit, case number 77/2015.
5. Regulator ICASA to finally hear complaints against the SA Post Office, media release, 1 July 2015.
6. Fighting their own battles: The Mabarete and the End of Labour Broking in the South African Post Office, a research report by Prof. David Dickinson, Society Work & Development Institute, Department of Sociology, University of the Witwatersrand.
Statement issued by Chris Yelland, managing director at EE Publishers and spokesman for the Concerned Group of Specialist Magazine Publishers, August 17 2015
