ICASA’s Mobile Broadband Regulations have been set aside.
A judge in the Pretoria High Court has slammed the Independent Communications Authority of South Africa (ICASA), setting aside key aspects of its Mobile Broadband Services Regulations and refusing to send them back for reconsideration.
The judge said the problems were so fundamental – and the market had moved on so dramatically – that allowing ICASA another crack at the regulations around competition would be “inappropriate” as well as “unjust and inequitable”.
MTN, the country’s second-largest mobile operator, took ICASA to court over both the 2021 regulations and 2024 amendments, arguing the authority had relied on flawed data and ignored its submissions about actual market share.
The judge found that ICASA’s regulations “lacked a factual basis for the finding of ineffective competition in the retail market” and set aside several aspects dealing with market definition, effectiveness of competition, the determination of significant market power, and pro-competitive terms and conditions.
Crucially, the judge cited the “fast-paced technology-driven nature of the mobile telecommunications market”, the dynamic shifts in market share that had already occurred, and “the extent of the deficiencies, unlawful premise and irregularities found” as reasons why a remittal would be pointless.
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ICASA was also ordered to pay costs. The judge said what swayed the court was “the way it approached its market regulation task”, noting ICASA’s amendments “leave an impression that it did not wish to reconsider its stance with an open mind, despite the time that elapsed since the original regulations”.
MTN told ITWeb it’s satisfied with the judgement, adding that ICASA plans to appeal, “which it will deal with through the normal appeal process”.
However, ICASA didn’t confirm an appeal, saying only: “ICASA has noted the judgement. Please be advised that the authority is considering the matter internally.”
The judge also took ICASA to task over its record-keeping. “The record contains no evidence of the minutes and the transcripts of ICASA’s deliberations about the regulations. Material documents relevant to its decision-making process are reported to have been deleted.”
The saga began in 2018, when the authority launched a Mobile Broadband Services Market Inquiry, examining competition in retail and wholesale mobile services markets from 2015 to 2018.
ICASA asked mobile network operators to provide data based on a sample of 30 000 subscribers. MTN submitted data at the end of March 2019 based on a sample of one million subscribers, which it felt would be more representative.
MTN argued ICASA ignored the fact that its subscriber market share had dropped from roughly 42% in 2011, to around 30% in 2018 – a 28% decline over seven years. During the same period, Telkom Mobile’s market share jumped 145%, while Cell C’s grew 83%.
“Telkom Mobile’s number of subscribers roughly quadrupled in just four years from 2016 to 2020,” the ruling noted.
ICASA’s initial regulations were published in 2021, along with a reasons document. MTN sought a review, alleging ICASA treated the findings as final and “failed to properly consider representations and information placed before it”.
Two years and three months after promulgation, ICASA published amended regulations mid-2024. The authority claimed they “were necessitated by regulatory oversight (clerical errors, incorrect referencing) identified in the regulations”.
But the judge found that “even when considering the amended regulation, ICASA failed to seriously consider material data presented by MTN in its analysis, or consider, engage with or seek input from the [Competition] Commission, a specialist body well versed with competition matters.”
MTN argued competition should be assessed nationally, not regionally as ICASA did, because operators often share infrastructure in urban and rural areas.
The Competition Commission agreed. The judge said: “It is not immaterial that ICASA’s retail market definition was at odds with the submissions made by the commission.”
The judge added that while the issue fell within ICASA’s jurisdiction, “the disagreement by the commission, which is well versed in competition economics and competition law, warranted a proper analysis of the data and information and a cogent justification, none of which ICASA provides”.
The judge said ICASA’s retail market definition was “flawed, unlawful and tainted by an irregularity,” which had “a consequential effect on the determination of effectiveness of the competition”.
ICASA was also criticised for failing to adequately explain its reasoning in the document published alongside the regulations.
