Vodacom South Africa has been dealt a blow in its spectrum pooling court battle against a litany of respondents, including its rivals MTN and Cell C, Liquid Intelligent Technologies, and communications regulator Icasa.
The high court in Pretoria has dismissed Vodacom’s application for an urgent interdict that, if successful, would have seen spectrum pooling arrangements between MTN and Cell C, as well as MTN and Liquid, ordered dismantled by the court pending the outcome of the upcoming second part of the court case, which will focus on the legality of the arrangement proper.
Vodacom, in its original filing to the court, alleged that these pooling arrangements were secretly and illegally approved by Icasa and have led to its rivals, especially MTN, experiencing superior outcomes in independent network quality assessments.
“The application for interim interdictory relief in terms of part A of the notice of motion is dismissed with costs, such costs to include the costs of two counsel,” Judge Etienne Labuschagne said in the ruling.
According to the judgment, Vodacom was successful in convincing the court that it had a clear right to seek relief through an interdict in the matter because “there is clear unlawfulness in respect of the approval process and the use of guard bands”, Labuschagne said.
Guard bands are slivers of spectrum between blocks assigned to different licensees that are kept empty to help minimise interference. Icasa is alleged to have illegally approved the use of guard bands in the pooling arrangements between MTN, Cell C and Liquid.
‘Overriding discretion’
The court was further satisfied that Vodacom had – and continues to – suffer harm due to these pooling arrangements, also conceding that no alternative remedy, other than their suspension, was adequate.
Even so, the court chose to exercise its “overriding discretion” and not grant Vodacom’s application for an urgent interdict and said: “The overriding consequence of the pooling of spectrum is the improvement of fast and reliable electronic communications.”
Read: Vodacom drags Icasa to court over ‘secret’ spectrum deals
According to the judge, this has “improved access for millions of members of the public to information for trade purposes, education” and more. “To deprive the public of such benefit is no small matter. They would be prejudiced,” he said.
He also cited the investments made by MTN and Cell C in their networks subsequent to the approval of pooling arrangements by Icasa as a factor in the court’s decision to exercise its discretion in the matter. He said these investments were made based on the approval being granted and that neither operator had acted with the intention to deceive in applying for them.
Icasa, on the other hand, was found to have slacked in its duty to engage in a process of public participation prior to the approval of the pooling arrangements. The court also found Icasa’s competition assessment to be inadequate as Vodacom’s perspective on the matter was never taken into consideration.
However, Labuschagne also acknowledged that the opportunity for Vodacom to apply for similar pooling agreements was always open to the mobile operator and subject to the same approval processes Icasa applied to the agreements between MTN, Liquid and Cell C.
Read: MTN is still king of speed – but Vodacom’s 5G is faster
“The cumulative effect of the aforesaid considerations is that, despite the applicant establishing the elements required for an interim interdict, the court, in the exercise of its overall discretion, declines to grant the interim relief,” said Judge Labuschagne. – © 2025 NewsCentral Media
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