Chris Yelland is investigative editor at EE Publishers.

The judgment follows formal complaints lodged with the Independent Communications Authority of South Africa (Icasa) against the South African Post Office by a group of concerned publishers on 11 December 2014, following extended strike action by the Post Office workforce during 2014, and in previous years.

Click here to download the full judgment

The judgment also comes after the Public Protector’s investigation and damning report entitled Postponed Delivery into allegations of corruption, maladministration and misconduct by the management of the South African Post Office, published on 23 February 2016.

The group of concerned publishers had asked Icasa, as regulator, to review the Post Office’s failure to meet its license conditions during the labour unrest and strikes in 2014, taking into account the resulting financial and other damages to the magazine publishing industry, and to sanction the Post Office accordingly.

After receiving the broad complaint from the publishers, Icasa narrowed and focused the complaint to read: “SAPO is in violation of Regulation 4.1 of the Conveyance of Mail Regulations 2009, as published in Government Gazette No 32644, by failing to carry mail from the sender to the intended destination.”

During the hearings by the Complaints and Compliance Committee, the Post Office argued that it had considered outsourcing the delivery of mail through outside carriers during the strike action, but had reached the conclusion that this would not solve their problem.

However, the committee’s judgment found that without any evidence of genuine attempts made by the Post Office to engage outside carriers, the Post Office was not in a position to decide whether this would have been a viable option or not.

The committee ruled that the Post Office should have engaged with outside carriers so as to reach a rational and reasonable decision in this regard. This was, according to the committee’s finding, where the omission lay.

Penalties

In terms of the Icasa Act, Icasa may impose a fine on the Post Office not exceeding R250 000 if the committee finds that the carrier failed to comply with Regulation 4 of the Conveyance of Mail Regulations 2009.

In considering an appropriate penalty, the Complaints and Compliance Committee found that to impose a direct fine would be unwise in light of the dire financial position in which the Post Office finds itself. The committee further found that the unprotected strike, the violence, and the approach by the Post Office to the courts and police, were extenuating circumstances in deciding what the fine should be.

In the circumstances, the CCC made the following recommendation to the Icasa Council:

1. That a fine of R125,000 be imposed by the Council of Icasa.
2. That this fine, however, be suspended for three years.
3. That the condition of the suspension is that if the committee finds that the Post Office has, within the said term, been in breach of regulation 4(1) of the Regulations on the Conveyance of Mail 2009, it will advise Council to make the fine operational.

Background information and details of the complainants

The complainants are collectively represented by Bouwer Kobeli Morabe Attorneys, and include: Brooke Pattrick, Creamer Media, Crown Publications, EE Publishers, Interact Media Defined, Now Media, Technews Publishing and TE Trade Events.

In terms of the relevant legislation, Icasa is tasked with the monitoring of the Post Office to ensure the conditions of its license 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 the Post Office and the financial and other damage to the magazine publishing industry caused by the Post Office’s extended failure to meet its license conditions, and to sanction the Post Office accordingly.

The complainants are also considering a possible action for damages sustained by them resulting from the failure of the Post Office to meet its licence conditions and statutory obligations. However, before such action, the publishers will follow all other avenues of due process, which includes the findings of the Complaints and Compliance Committee in response to the formal complaint to Icasa detailed above. DM

Photo by Simon Morris via Flickr.

References

1. Public Protector findings of maladministration by SAPO vindicate complaints by publishers to ICASA, media release, 25 Feb 2016.
2. Postponed delivery – report on an investigation into allegations of maladministration, corruption and related improper conduct by the SA Post Office, by the Public Protector, South Africa, Report No. 5 of 2015/16, published 23 Feb 2016.
3. 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.
4. Complaint to ICASA against SA Post Office drags on and on, media release, 17 Aug 2015.
5. Regulator ICASA to finally hear complaints against the SA Post Office, media release, 1 Jul 2015.
6. Replying affidavit by the complainants to SAPO’s answering affidavit dated 20 May 2015, affidavit, ICASA case number 77/2015.
7. Formal complaint against SA Post Office lodged today with ICASA, media release, 11 Dec 2014.
8. Tender inquiry document issued today for alternative magazine delivery services to that provided by SA Post Office, media release, 20 Nov 2014.
9. Magazine publishers to challenge SA Post Office monopoly, media release, 11 Nov 2014.