South African appeal court affirms role of independent think tanks

Posted on November 28, 2009  /  0 Comments

In a major win for think tanks seeking to bring evidence to the policy process in developing countries, the Supreme Court of Appeal in South Africa, by its decision The Competition Commission of South Africa v TELKOM (Case No: 623/2008), has unequivocally overruled the claims of bias leveled against the LINK Centre, then headed by our colleague Alison Gillwald (now heading Research ICTs Africa). In addition to getting its odd argument rejected, Telkom will have to pay a 3.7 Billion Rand fine plus costs. Ouch!

Alison is the featured dinner speaker at CPRsouth4 in Negombo, Sri Lanka, on December 7th. I am sure she will speak to this court case and the challenges facing policy intellectuals in environments like ours. The relevant excerpt of the judgment is given below.

Three principal grounds for the alleged perception of bias are relied upon. First, the Link Centre received funding from some of the complainants in the SAVA complaint. This is disposed of quite easily. The Link Centre is a research and training body in the field of information and communications technology, policy, regulation and management. It is the only major organization in South Africa that focuses on these matters. It has published internationally and presented papers at conferences. While it is correct that the some of the complainants funded the Centre, the Link Centre also received funding from the government and from Vodacom, a company in which Telkom had a 50 percent shareholding. Its largest funding during the time of the investigation was from Vodacom. Telkom was approached for funding as well but declined to contribute. The donations from industry participants were less than a fifth of local donor contributions and a fraction of the multimillion Rand foreign donor contribution from the Canadian Independent Development Research Centre. The second ground is that, the advisory board of the Link Centre included various people who were closely involved with the complainants at the relevant time, in particular, the co-president of SAVA and the co-president of ISPA. Thirdly, the authors of the Link Centre report made statements and pronouncements that were highly critical of Telkom prior to being employed to prepare the report. These statements are to the effect that Telkom’s profits were outrageous; that ICASA’s decisions were regularly overturned because of Telkom’s influence; and that Telkom by using its monopoly power sought to retard growth of the value-added network and internet sectors and so interfered with the effectiveness of South African business. For example, Ms Gillwald, one of the authors of the Report, stated that ‘a consequence of Telkom’s unchecked dominance has also had a chilling effect on the partially-liberalised value-added services segment of the telecommunications market, which includes the internet service providers.’ None of the statements or publications ascribed to the authors of the report was denied: however, all claims of bias were rejected, and Ms Gillwald deposed that the views of the authors of the report were founded on research.

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