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COMPLAINTS AND COMPLIANCE COMMITTEE1

DATE OF Hearings: 24 JUNE & 5 Nov 2015 CASE NO: 126/2015

NOW MEDIA (PTY) LTD AND OTHERS COMPLAINANTS

v

SOUTH AFRICAN POSTOFFICE LTD RESPONDENT

With reference to the CCC by Mr Amos Hlabioa (Senior Manager Compliance)

PANEL: PROF JCW VAN ROOYEN SC; COUNCILLOR NOMVUYISO BATYI; PROF KASTURI

MOODALIYAR; MS MAPATO RAMOKGOPA

For the Complainant: Ms Vanessa Jacklin-Levin (assisted by Patrick Wainwright) from Bouwer

Kobeli Morabe Attorneys

For the Respondent: Adv PG Seleka instructed by Madhlopa Incorporated.

In ATTENDANCE: Ms Meera Lalla from the Office of the Coordinator of the CCC, Ms Lindisa

Mabulu

JUDGMENT

PROF JCW VAN ROOYEN SC

THE COMPLAINT

[1] Now Media (Pty) Ltd and seven other publishers2 lodged a complaint against the

South African Post Office Ltd (“SAPO”) with the Independent Communications

1 Recognised by the Constitutional Court as an independent administrative tribunal within ICASA. The CCC decides on the merits of a matter. When it decides to uphold a complaint it must decide on a sanction. The sanction is then sent to the ICASA Council as a recommendation. The CCC has 90 working days from its last hearing of a matter to file its judgment with the Council. Council has 60 working days to publish the judgment plus the sanction imposed by it on the recommendation of the Complaints and Compliance Committee.

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Authority of South Africa (“ICASA”) on the 11th December 2014. The Senior

Manager: Compliance at ICASA called upon SAPO to attend to and resolve all

outstanding matters as per the complaint. In the event that SAPO did not do so, it

would refer the matter to the Complaints and Compliance Committee (“CCC”) at

ICASA. Since SAPO did not, in the view of the Senior Manager, comply in this

matter, he referred it to the Complaints and Compliance Committee (“CCC”) on the

20th March 2015. For all purposes 20 March 2015 will be regarded as the date from

which the CCC was seized with this matter. On the 10th April the Coordinator of the

CCC sent an email to SAPO’s Ms Cynthia Mofokeng stating the complaint: “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.” The Complainant did not specify this

regulation, but lodged a wide-ranging and vague attack against SAPO for not

complying with its licence and the Postal Services Act. Such a complaint is not

acceptable for the CCC, since it lacks detail. In any case, the core of the complaint is

the omission to deliver mail and, while we will refer to aspects of the wider attack,

ultimately the question will be whether SAPO is in a position to show that it has an

acceptable defence against the complaint of non-delivery. The function of the CCC

is not that of a criminal or civil court where an onus rests on a party to prove its

case. The CCC must, on a consideration of all the facts, come to a conclusion that it

is satisfied that the above quoted regulation had been contravened. The CCC, in

spite of its investigative function, must function on a clear cut complaint which

could lead to a fitting proposal to the Council of ICASA as to a sanction as set out in

section 17D (2) of the ICASA ACT 13 of 2000 as amended – of course, only when a

finding on the merits of the complaint has been made against SAPO. Of course,

where the merits are decided in favour of a Respondent the aspect of sanction is

not relevant and the matter is referred to Council for noting.

[2] The essence of the Complaint was that during the 2014, more or less three months,

strike by a number of postal workers, which ended by the end of November, the

2 EE Publishers (Pty) Ltd; Interact Media Defined (Pty) Ltd; Technews Publishing (Pty) Ltd; Brooke Pattrick (Pty) Ltd; Crown Publications (Pty) Ltd; TE Trade Events (Pty) Ltd; Creamer Media (Pty) Ltd.

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Complainants had lost clients and income as a result of SAPO not having delivered –

in the normal course - materials posted by the Complainants to their subscribers

and other clients. The strike had the effect of bringing postal services to a standstill

in many areas, if not in the whole country. An important aspect of the complaint is

that SAPO had, through poor management, given rise to or contributed to the 2014

strike. Whilst this assertion is certainly sincere and motivated by losses by the

complainants as a result of the 2014 strike, it is simply too wide and vague.

Although it is true that the complaint is spelt out in more detail in the

Complainants’ affidavit in response to SAPO’s, it remains too wide and vague to

base a legally sound decision on.3 This is so in spite of the CCC’s investigative

function – a function that it will only exercise where a reasonable basis is laid for

such an investigation.4 Such an investigation must also be fair and a mere

allegation of poor management, even if supported by some facts, is not sufficient to

trigger an investigation into the effectiveness of management.5 In any case, it is

common cause that the strike was an unprotected strike in terms of labour law,

which makes causation a particularly problematic exercise in law. Ultimately we

will put a question to SAPO which it must answer as to the (unprotected) strike as

full defence – a defence which it raises in its first affidavit. The Complainants also

referred to earlier omissions by SAPO to deliver, but we have decided that it would

be unreasonable to include alleged omissions before 2014 in this complaint. A

complaint which is based on earlier strikes or allegations of earlier poor

performance by SAPO management tends to lead to assumptions which cannot and

should not form the basis of a finding by the CCC. Rationality and reasonableness

must form the basis of conclusions reached by an Administrative Tribunal such as

the CCC.6

3 The views of Prof Dickinson, attached to the documentation of the Complainants, attests to his expertise in this field. However, to find causation in law can be extremely problematic – see Snyman Criminal Law (2014) at 80 et seq; Van Oosten Oorsaaklikheid by Moord en Strafbare Manslag (doctoral thesis UP 1981). 4 Cf Islamic Unity Convention v Minister of Telecommunications 2008 (3) SA 383 (CC) para [47]. 5 Ibid. 6 In contrast to a domestic tribunal such as the Horse Racing Authority where only rationality is required – see National Horseracing Authority of SA v Naidoo 2010 (3) SA 182 (N).

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[3] In limine SAPO argued that the complaint was filed too late and had become

“prescribed”. It is true that section 17C(1) of the ICASA Act 2000 prescribes that a

person who has reason to believe that a licensee is guilty of non-compliance may

lodge a complaint with the Authority within 60 working7 days of having become

aware of the alleged non-compliance. If one were to take the commencement of

the three months’ 2014 strike as the date on which the 60 working day period must

be determined from August to November, it could indeed be argued that the

complaint was too late. However, given the uncertainty to which the strike and its

potential effect must have given rise to, it would be unreasonable to regard 11

December 2014 as too late to have filed a complaint. In any case, the strike only

came to an end in November 2014. The effects of the strike as a whole, could only

have been ascertained within reasonable time after the strike. So, the end of the

strike in November 2014 would be a reasonable date to count the sixty working

days from. Then the filing of the complaint on 11 December was entirely within the

sixty working days period. Furthermore, this matter was ultimately referred to the

CCC by Compliance on the 20th March 2015. The fact that the ICASA Division only

referred the matter to the CCC later than the prescribed 40 working days, cannot

be held against the Complainant. That is an internal rule which should not be held

against a complainant. However, the CCC would require that a reference by a

division of ICASA to it should take place within a reasonable period from when the

complaint was received. What a reasonable period is will depend on the

circumstances of each case. From the correspondence between Compliance and

SAPO, it is clear that the period between the 11th December 2014 (when the

complaint was received) and 10 April 2015 when the complaint was sent to SAPO

by the CCC Coordinator, was a reasonable one.

[4] In the said letter to SAPO from the CCC Coordinator’s office, the complaint was

formulated as follows: “The Complainant alleges that the SAPO is in violation of

Regulation 4.1 of the Conveyance of Mail Regulations 2009, as published in

7 See section 1 of the ICASA Act, where “day” has been amended from 16 May 2014 to the following definition: “days” means working days unless otherwise specified.

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Government Gazette No 32664 dated 16 October 2009, which provides that “the

conveyor failed to carry mail from the sender to the intended destination.”

[5] The Complaint was sent to SAPO on the 10th April 2015. A document, with details

of the complaint, as received from the Complainants was attached to this formal

complaint from the CCC coordinator. The Complaint was not in the form of an

affidavit. The document (dated 11 December 2014) broadly contained the following

allegations and motivations for an inquiry by the CCC:

(a) That according to news reports the strike by SAPO workers had

intermittently been going on for the last three years. However, that poor

service delivery by SAPO had been a problem for much longer than that. A

2007 news report, for example, stated that the Department of Home Affairs

terminated certain contracts with SAPO due to “inefficiencies”.

(b) That by December 2014 workers were returning to work, but that the

situation remained unstable since the Communion Workers Union was

dissatisfied with the wage agreement signed by SAPO in November 2014. A

Special Unit was also reported to have commenced an investigation under

Proclamation by the President of the RSA into the affairs of SAPO. Inter alia,

allegations of serious maladministration and improper and unlawful conduct

by employees were included in the mandate.

(c) That the Board of SAPO had resigned in November 2014 and a task team

had been appointed to stabilise SAPO. Included in the aims, which were to

be attained within three months, was to stabilise SAPO by employing

measures to resolve the strike, meeting clients to discuss their future needs

and restoring public and business confidence in SAPO.

(d) That the Complainants had several wide-ranging complaints. These

complaints, inter alia, comprised: regular work stoppages at Witspos and

distribution centres in Pretoria, Port Elizabeth and Bloemfontein, which had

a significant impact on the Complainants; late deliveries up to several

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months and in some cases complete non-delivery of the Complainants’ post

and monthly statements; cancellation of subscriptions; late payments and in

some cases non-payment of invoices; extra costs as a result of emails having

had to be sent to customers; substantial costs incurred in making alternative

distribution arrangements; lack of replies to requests to SAPO to discuss the

situation; and difficulties in selling and advertising publications as a result of

an absence of a guarantee that they would be delivered. The legislative

framework under which SAPO functions is then referred to and the aims of

the Postal Services Act 124 of 1998 quoted (We only quote the subsections

which were emphasised by the Complainants):

“The primary object of this Act is to provide for the regulation and control of

postal services in the public interest and for that purpose to -

(a) promote the universal and affordable provision of postal services;

(b) promote the provision of a wide range of postal services in the interest of

the economic growth and development of the Republic;

(c) encourage investment and innovation in the postal industry;

(d) promote the development of postal services that are responsive to the needs of

users and consumers;

(e) ensure greater access to basic services through the achievement of universal

postal service, by providing an acceptable level of effective and regular postal

services to all areas including rural areas and small towns where post offices

are not sustainable;

(j) ensure fair competition within the postal industry;

[6] The Complainants also refer to the fact that section 15 of the Postal Services Act

prohibits anyone else than the Respondent to provide reserved postal services.

ICASA is empowered to grant this right to another person only when and if a policy

direction by the Minister in terms of section 2A of the Postal Services Act is issued.

It was argued by the Complainants that the field of competition should be widened.

That is, of course, not a matter for the CCC but for ICASA itself to consider in a

different inquiry; and, of course, only after a policy direction by the Minister.

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[7] In terms of clause 7.4.1 of the Post Office Licence (we quote duties which are

emphasised by the complainants) the Post Office must:

(c) provide mail collection points which are accessible;

(f) improve service performance standards;

(h) provide adequate facilities for the receipt from the dispatchers of basic letters;

[8] Furthermore, the Complainants add, SAPO shall not, in terms of its licence clause 7.4.2:

(c) discriminate against any person in respect of the provision of the

reserved postal services. [9] Ultimately the Complainants state that they are requesting ICASA to consider and

review their numerous complaints against SAPO as well as the financial and other

damage to the publishing industry caused by SAPO’s ongoing failure to meet its

licence conditions and to impose sanctions, which could include:

(a) fines;

(b) ordering SAPO to release the Complainant’s payment

guarantees, since SAPO has not performed;

(c) considering additional licence applications in the

place of SAPO or to supplement the SAPO services;

(d) adding a condition to SAPO’s licence that it must

conclude service level agreements so as to remedy non-

performance;

(e) revoking SAPO’s licence.

Once again, we will deal with the complaint as stated above: was there an omission

to deliver post and was there a defence for SAPO recognised by law. If we find that

there has been a contravention, an appropriate sanction will be recommended –

however, such sanction is limited to what is set out as possible sanctions in section

17E(2) of the ICASA Act. That would not include (b), (c) and (d). A revocation of a

licence is only possible in very limited circumstances, which are, in any case, not

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applicable in this case.8

SAPO’S ANSWERING AFFIDAVIT

[10] SAPO makes three points in its short (first) Answering Affidavit: firstly, the

complaint was too general and mainly mentioned the legal principles involved;

secondly, the complaint was too late, considering the 60 day period within which

complaints must be lodged; and thirdly, in any case, its workers were involved in a

strike, which made it impossible for SAPO to deliver post. We have already held that

the complaint was not late, but agreed that it was, generally, too vague. However,

since the CCC has an investigative function, we will, within reasonable limits,

exercise that function in regard to the question whether impossibility of

performance was sufficiently motivated by SAPO.

THE COMPLAINANTS’ REPLYING AFFIDAVIT

[11] In a replying affidavit the Complainants refer to a number of letters to the Post

Office complaining about publications and the like not having reached subscribers

at all or, ultimately, reaching clients substantially out of time. There was loss of

income, costs connected to sending accounts by way of email and cancellation of

subscriptions. As indicated, we have only taken letters written from the

commencement of the 2014 Strike into consideration. The Complainants also state

that whilst SAPO had, through its employment policy and poor administration

contributed to the strike, it cannot, now, put the strike forward as a defense.

DECISION ON THE MERITS

[12] Firstly the Complainants were too wide in their attack against SAPO. Aims of the

Act and policy were mixed with duties. However the main issue is the non-delivery

of post as a result of the strike. The Replying affidavit provides more details of the

problems which were encountered. There was an ongoing strike and it would,

indeed, be strange if there were no complaints – in fact, complaints of loss of

8 A licence may only be revoked after previous findings against a licensee. There have been no such findings against SAPO.

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income and additional costs as a result of non- or late delivery of publications to

clients.

[13] To open up a debate on these matters would be pointless. The test is not whether

losses were suffered, but whether there was non-delivery of post and whether

SAPO should not have explored alternative methods to address the delivery of post.

It is common cause that there was an unprotected strike. The main issue is whether

SAPO’s defence of impossibility of performance is justified. It was argued by the

Complainants at the hearing that impossibility is not a defence in cases such as the

present and that it is limited to the law of contract.9 That is, with respect, not

correct. Impossibility is also a defence in criminal law. It was, for example, accepted

by the Appellate Division in S v Bernardus,10 a murder case, as well as several other

prosecutions.11 That the defence applies in other areas of public law, such as the

present, is also clear.12 It would thus also be a defence for SAPO in the present case,

where an omission of a public legal duty is before the CCC. To place the blame for

the strike on poor administration on the side of SAPO, is an argument which could

be argued and rejected with equal strength by both sides. We have, accordingly,

decided not to open up a discussion on that subject in relation to impossibility and

the cause thereof. The reasons for strikes are multi-faceted and to establish the

main cause for this strike would, indeed, be extraordinary. Thus, to pursue that

course, would be unwise. Thus, the argument of the Complainants that SAPO

contributed to the strike or caused it through poor administration, is rejected. This

conclusion would also have applied even if impossibility was only available as a

defence in the field of contract.

[14] What would, however, be relevant is whether SAPO should not have taken steps to

9 Cf. Kerr The Principles of the Law of Contract (2002) 545 et seq. for examples in the law of contract; also see Joubert The General Principles of the Law of Contract (1987) 124 et seq. 10 1965(3) SA 287(A). 11 Cf. Snyman Criminal Law (2014) 62. 12 Compare the incisive analysis of impossibility as a defence by Van Zyl J in Gassner NO v Minister of Law and Order and Others 1995 (1) SA 322 (C). In the latter matter the defence was upheld where it had been impossible for a young child to have signed documentation.

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keep up delivery of post by alternative methods, albeit by way of outside

commercial services. After the first hearing of this matter, we decided to issue the

following interim order.

(1) That SAPO provide a detailed affidavit as to why alternative measures were not taken to

address the strike and keep up delivery. In other words, was SAPO not under a legal duty to

take such steps? If there was such a legal duty, it would negate its defence of impossibility.

The affidavit must be provided to the Coordinator of the CCC on or before 31 August 2015

before 16:00. The Complainants’ attorneys must be copied.

(2) The Complainants are granted until 14 August 2015 before 16:00 to file an answering

affidavit with the Coordinator of the CCC. SAPO’s attorneys must be copied.

(3) If SAPO so elects, it may file a Replying Affidavit on or before 21 August 2015. The

Complainants’ attorney must be copied.

SAPO’S SECOND AFFIDAVIT

[15] Following upon the above interim order an affidavit was received from SAPO. The

affidavit included details of the strike and included photographs of substantial damage

caused by persons who were involved in the strike. Main aspects concerning the strike, as

stated in the said affidavit, will be set out hereunder:

15.1 The 2014 strike commenced during August 2014 and ended during November 2014.

The strike can be divided into two components, namely the August 2014 strike and the

October 2014 strike. The August strike commenced on or about 17 August and was

confined to the Tshwane and Witspos mail centres, which were both subsequently shut

down. The strike was undertaken by permanent part-timers who demanded to be

employed on a full time basis. The October strike commenced on 12 September 2014 and

was a nationwide strike. According to the affidavit filed on behalf of SAPO the intensity and

nature of the violence that surrounded the 2014 strike made mail delivery impossible as it

paralysed the entire mail distribution process to such an extent that no alternative means

could be utilised to counteract the disruption, despite every effort that was made.

15.2 The October strike is linked to the August strike on the basis that the unions and other

non-unionised bargaining unit employees were not satisfied with the lists of employees to

be converted.

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15.3 Late in September 2014 SAPO issued the first, second and final ultimatum to the

Unions and the striking employees, urging them to return to work and discontinue the

industrial action.

15.4 On 17 October 2014 SAPO was granted an urgent interdict in the form of a rule nisi,

returnable on 29 January 2015. Despite the Court order interdicting the strike and

declaring it unlawful, the workers continued the strike.

15.5 The parties signed the leadership forum agreement towards the end of November

2014. This marked the end of the strike.

[16] SAPO’s service delivery process was summarised by the deponent in seven steps:

16.1 “Clearance” when the mail is collected from either a retailer or mail distribution

centre in a different region, such as Kwazulu-Natal or Limpopo and then transported to the

mail distribution centre of its intended destination.

16.2 Once the mail has arrived at its intended mail distribution centre, it is sorted and

divided based on its specific area code and street address by way of application of a sorting

strip attached by a sorting strip press that is only located at a mail distribution centre.

16.3 Once the mail has received a sorting strip, it is further distributed to its applicable

retailer, mail box depot or mail distribution centre;

16.4 The fourth step is applicable to mail sent from one major centre to another mail

centre and the second step is repeated;

16.5 If it is determined during step 2 that the mail requires long distance transport it will

receive further transportation to its intended delivery area, retailer or post box as a fifth

step;

16.6 Once the mail reaches its intended retailer or post box depot, it will be further sorted

and divided based on its sorting strip before step 7;

16.7 Once the mail is correctly sorted and divided, it is delivered by hand or collected over

a counter by a customer.

Each step is dependent on the preceding one. If one step is skipped or incorrectly followed,

the process is either delayed or, in terms of step 2, completely halted, making service

delivery impossible. Mail distribution cannot take place without step 2. The necessity of

this step is imperative to the process, according to the deponent, in that (a) mail is first

sorted based on its area code; (b) the mail division must then be “fine-tuned” and allocated

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to the correct depot or retailer and then further allocated to the correct “postman” route,

since there are numerous routes. All this information is contained on the sorting strip.

While the addresses are indicative of their destination, they are not always sufficient to

ensure that the mail arrives at its correct destination – for instance a letter addressed to

number 1 Church Street Pretoria, could be problematic to deliver, according to the

deponent, because Church Street stretches over two or three areas, all having the same

name and number. There is a number 1 towards Atteridgeville and also a number 1

towards Mamelodi. A sorting strip indicates the correct “number 1”in an instance like this.

Without a sorting strip, according to the deponent, SAPO runs the risk of delivering the

mail to the incorrect recipient or leads to delivery being delayed and re-distributed.

[17] Initially mail delivery was still effective outside Gauteng. However, according to the

deponent, the permanent part-time strikers took extensive measures to ensure that mail

delivery would not be made. These measures included:

17.1 taking apart the sorting presses at the mail distribution centres, thereby rendering

step 2 impossible;

17.1 physically assaulting customers and employees not taking part in the strike – the

senior manager of Witspos was targeted at his home and so severely assaulted that he

landed in ICU. He has since resigned and has had to receive trauma counselling – according

to the deponent.

17.2 physically removing employees and customers from retailers and depots;

17.3 locking retailers and mail distribution centres with their own heavy duty chains and

locks, thereby preventing employees from accessing the buildings;

17.4 burning or otherwise destroying mail; and

17.5 damaging and setting delivery vans alight.

[18] To substantiate the above submissions, a report by the Security and Investigation

Services was handed to the CCC panel. The Report provides a detailed account of incidents

of violence that took place during the 2014 strike. According to the report the areas most

affected by the violence were Gauteng processing and delivery, Gauteng retail operations

and Limpopo operations at Polokwane centre. In so far as the Free State was concerned –

Bloemfontein mail centre, Welkom and Kroonstad; for the Western Cape, Cape mail

Centre; for Kwazulu-Natal – Dumail and Durban Mail Centre and, for Mpumalanga: Speed

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Service Operations. The report also recounts incidents of violence in which postmen were

injured, property damaged as well as certain property of SAPO – such as vehicles, fax

machines and sorting presses – vandalised. The Report lists the following: 4 abductions, 4

armed robbery, 62 assaults, 3 incidents of housebreaking, 78 incidents of intimidation, 34

incidents of malicious damage to movable assets, 96 instances of malicious damage to

buildings, 60 malicious damage to vehicles, 15 instances of postal crime, 33 incidences of

theft, and one instance of vehicle hi-jacking. Some of the incidents were supported by

photographs handed in at the second hearing. Included was also a CCMA arbitration award

issue in favour of SAPO and in which instances of violence by certain employees of SAPO

are recorded

[19] As to attempts to employ alternative distribution means, the following steps or

attempts were mentioned in the affidavit:

19.1 Without a sorting strip, mail could not be distributed by SAPO’s employees or any

other third party.

19.2 SAPO attempted to transfer shifts and have employees still reporting for duty in order

to sort mail at night. These shifts could only take place after the removal of chains and

locks set up by the striking workers at the mail distribution centres. Due to large volumes

of mail, employees from other departments assisted in this process. The sorting strip

details had to be indicated manually and this made the process very labour intensive and

time consuming.

19.3 These processes were, however, also interrupted by violent attacks on the premises as

well as on employees in their homes, thereby making more employees reluctant to attend

work. Those who were assaulted were hospitalised. Medical reports would substantiate

these claims.

19.4 SAPO also utilised unmarked vehicles to transport the mail. These vehicles were,

however, also vandalised, burnt or stoned. Where a vehicle did reach its destination it

would be denied access and the mail removed and destroyed.

19.5 SAPO had also made arrangements with the Waterkloof Air Force base to sort mail on

its premises. However, the striking employees soon became aware of this arrangement and

attacked the air force base as well. A similar arrangement was made with Oliver Thambo

International Airport and the Isando Speed Services site, both of which spurred the same

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result, making mail sorting impossible and thus, according to the deponent, halting the

entire distribution process.

[20] In the light of the above the deponent stated the following:

(1) The violent nature of the strike made attempts to distribute mail far too great a risk.

Employees and customers were being assaulted and hospitalised. The continued attempts

to distribute mail began to inspire death threats and the potential danger to the lives of

SAPO’s employees became a reality.

(2) Although distribution of mail was always SAPO’s primary concern, it could not, in its

opinion, take precedence over the lives of SAPO’s employees. Where it was certain that

delivery would be safe, it was done.

(3) The focus, at this stage was on mitigating the extent of the potential danger to which it

exposed its employees as well as ensuring the safe keeping of mail entrusted to it by its

clients.

(4) Evacuation of employees in areas which were potentially dangerous, according to

information available to SAPO, became the focus.

(5) Ultimately it was decided that the delivery of mail would be stopped so as to ensure the

safety of employees. This decision was taken after mail retailers were being systematically

vandalised and mail was being burned and/or simply dumped on the streets.

[21] Attempts were, according to the deponent, made to mitigate the violence. Firstly the

Labour Court was approached which granted appropriate relief as mentioned above. The

South African Police was requested to permanently guard all of SAPO’s premises and to

ensure that the striking employees comply with the distance restrictions imposed by the

Court Orders. However, this was never complied with by the strikers and even the South

African Police could not deter the violence. On the 30th September 2014 Major General

Gela provided SAPO with an operational seat in the SAPS “War Room” situated at the

Johannesburg Police Station. This gave SAPO the ability to feed intelligence and provide the

SAPS Metro with information as to problematic areas. Although there was not much

success initially, by 10 November the SAPO forensic team positively identified various

suspects responsible for attacks on property or life. Several examples are provided in the

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Vos-report13 – and they need not be repeated here. It is clear that there was at last some

success in an obviously loaded situation. Ultimately 172 cases were handed over to the

SAPS Public Violence Investigation Team based at Diepkloof, Gauteng.

[22] In the light of the above, the Respondent submitted that the “rampant violence

associated with the 2014 strike made it impossible for SAPO to maintain service delivery”.

[23] SAPO also provided the CCC with a report by Mr AH (Vossie) Vos, the Acting General

Manager, Security and Investigation Services. The report contains, as extracted from

various other reports submitted to, inter alia, the Deputy President, the Minister, the

National Commissioner of the SA Police Services, an overview of the strike, photographs of

damages and injuries caused by the strikers and a summary of the background of the strike

and incidents which took place. The following excerpt from the report illustrates the tactics

followed by the strikers:

“The operations of SAPO had over the period 18 August 2014 to 30 November 2014

severely been impacted by an unprotected strike ( the longest in the history of SAPO) and

which was characterized by work stoppages, illegal blockage of gates, intimidation,

malicious damage to property, arson, assaults, armed robbery and various other unlawful

acts.

The prevention of such incidents. The identification and arrests of perpetrators was

hampered by two distinct aspects – namely the hit and run tactics employed by mobile

units of strikers as well as fear of law abiding employees to provide information that could

lead to the identification of criminal elements to effect arrests.”

[24] The report also states that SAPO: “acknowledges and also apologizes for the manner in

which some of the things have been handled; is in the process of correcting some of these

where they can, taking great care that they do not perpetuate the problem by correcting a

wrong with another wrong” and is making submissions to the Board on three main areas:

Further conversion of casuals into AA category as per Board approval and subject to a clear

funding programme given the dwindling revenues;…and optimizing the organisational

human capital, across the board. There is then a reference to the fact that the strike was an

unprotected strike and that SAPO management is continuing to constructively engage with

Unions using various channels and platforms.

[25] It is unnecessary to deal with the answer of SAPO to the affidavit of the Complainants

in detail. This affidavit was filed after the first affidavit lodged by SAPO. It is common cause

13 See paragraph [23].

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that the Complaint itself was not lodged by way of an affidavit. Of course, it is not

necessary that a Complaint must be lodged by way of an affidavit. However, once the first

affidavit was lodged by SAPO in answer to the complaint lodged, the Complainants filed an

affidavit that was before the CCC at the first hearing. We agree that the assertions made by

the Complainants in their affidavit did not add much to the information, although more

detail was give than in the Complaint. Examples are given of post that was not delivered

and a few instances of loss of revenue. We will, however, accept in favour of the

Complainants that there had, at least, been a substantial loss in goodwill from their clients

as a result of the non-delivery of mail, which included journals and the like which were

subscribed to. A loss of and potential loss of revenue would also be understandable and

indisputable. We need not have the exact amounts, since an award of damages is not

within our jurisdiction, as conceded by the Complainants. However, the fact of the matter

is that it is not disputed by SAPO that post was not delivered during the strike. Its defence

is, however, the unprotected strike which was accompanied by severe violence and

intimidation that posed a risk to life and limb.

[26] After the first hearing day, the CCC, however, in the exercise of its investigative

function, required a detailed explanation from SAPO as to why it did not make use of

alternate, if necessary commercial, means of delivery.

[27] On the second hearing day, four months later, the detail of the strike was provided to

the CCC. The Complainants filed a further answering affidavit, which was also considered

by the CCC at the second hearing. The Complainants were adamant that the investigatory

functions of the CCC should not be limited to what occurred only as from January 2014. It

was stated that the CCC should have regard to the endemic and chronic failure by SAPO to

comply with applicable legislation. The problem was, it was argued, systemic and as such

could not be investigated fully by limiting the issues to the 2014 strikes without having

regard to the facts and events (the patterns conduct) that have occurred since 2007. We

however, remain of the view that it would be unfair to go into allegations as to alleged

failures before 2014. The core question before us is whether the non-delivery of post

during the 2014 strike could be justified by the unprotected strike and the violence which

accompanied it. There is no duty on SAPO to make out a case before the CCC, as argued by

the Complainants, that this would not recur and how it will address future labour and

17

administrative problems. That has nothing to do with the CCC, within the terms of the

complaint before it. The CCC is seized with non-delivery of post during the strike and not

with the future plans of SAPO. It is satisfied that the strike, which was an unprotected

strike – and thus not legal – is indeed a defense against the charge of non-delivery. The fact

that SAPO only approached the Labour Court at a late stage in the strike is irrelevant. The

Court held that it was an unprotected strike and it is obvious that the strike was

unprotected at least from its commencement in August 2014. The argument that contempt

of court proceedings should have been instituted, loses sight of the reality of the situation.

It is clear that only Police action could stem the violence and lead to the arrest and

charging of the persons involved in the violence in spite of the court order. There is

sufficient evidence that this was done, as clearly appears from the report of Mr Vos.The

Complainants also doubt the evidence as to the alternatives of Oliver Thambo and the

Airforce Base. We have no reason to doubt that these attempts were made.

[28] The Complainants are, however, justified in arguing that more reasons should be

given why SAPO did not take alternative steps to deliver post (see para. 22 of the second

affidavit of the Complainants). In the light of this criticism and also in the light of the fact

that the CCC was not satisfied with the answer to the earlier question put as to alternative

measures of delivery, it once again directed SAPO, at the end of the second day of

argument, to provide the CCC with an answer in this respect. Such an answer was received,

which will now be dealt with.

SAPO’s THIRD AFFIDAVIT

[29] The core of the third answering affidavit of SAPO lies in the following:

“The point regarding the outsourcing of the Respondent’s obligations was mooted.

However, it was considered that there were factors militating against the implementation

of such proposal. The Respondent considered that it could not conclude contracts with

third parties because access to the material was difficult as a result of the levels of

violence. Secondly it would have required a procurement process to be undertaken which

may have taken as long as the length of the strike which no one was clear when it would

end. Thirdly the strike was in many respects localised to the Gauteng area, specifically the

East Rand and Wits area and deliveries were ongoing in the rest of the country.”

[30] To this the Complainants answered as follows in their third affidavit:

“I am advised that under normal circumstances a procurement process is required to be

18

followed in which competitive bids are invited. However, if in a specific case it is

impractical to invite competitive bids, services may be procured by other means, provided

that the reasons for deviating from inviting competitive bids must be recorded and

approved by the relevant accounting officer or accounting authority. In this regard I refer

to the Treasury Regulations to the Public Finance Management Act 1 of 1999, particularly

Regulation 16A6.4 which provides inter alia: If in a specific case it is impractical to invite competitive bids, the accounting officer or accounting authority

may procure the required goods or services by other means, provided that the reasons for deviating from

inviting competitive bids must be recorded and approved by the accounting officer or accounting authority.”

[31] Mr Seleka referred the CCC to Constitutional Court authority that the question before

This tribunal should not be whether it would itself, considering the situation as a whole,

have contracted a third party or attempted to contract one. The question is whether SAPO

acted reasonable within the circumstances. Thus, even if we were to believe that SAPO

should have contracted a third party or attempted to do so, the question is whether it

acted reasonable in the circumstances. Justice Yacoob states as follows in Government of

the RSA v Grootboom 2001(1) SA 46(CC) at [41]:

“A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.”

Chaskalson P (as he then was), in similar vein, stated as follows in Soobramoney v Minister

of Health 1998 (1) SA 765(CC) at para [29]:

“[29] The provincial administration which is responsible for health services in KwaZulu-Natal has to make

decisions about the funding that should be made available for health care and how such funds should be

spent. These choices involve difficult decisions to be taken at the political level in fixing the health budget,

and at the functional level in deciding upon the priorities to be met. A court will be slow to interfere with

rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is

to deal with such matters.” (emphasis in italics added)

[32] Mr Seleka also referred us to section 4(1) of the SAPO Act 22 of 2011 which enjoins

SAPO to take reasonable measures, within its available resources, to achieve the

progressive realisation of its duties. The Complainants argued that SAPO had not been

progressing in accordance with this section. However, we have already indicated that it

would be unfair and uncalled for within the ambit of this inquiry, to investigate the matter

historically. That would go far beyond what the CCC’s duty is and the further one goes back

in history, the more risqué would such an inquiry become: it would lead to speculation and

poorly drafted reasons – totally against the essence of fair administrative justice. However,

19

in so far as decisions were taken during the strike, we have sufficient relatively recent

details, by way of affidavits, before us to come to a decision. Mr Seleka, however,

cautioned that the said sub-section indicates that the duties are not absolute and are

subject to progressive realisation.

[33] Mr Seleka, furthermore, argued that reasonableness of the measures taken should be

judged in the context of the prevailing violence at the time. The trier of facts, he submitted,

should place herself in SAPO’s position when the violence broke out as part of an

unprotected strike: vehicles being set alight, property destroyed and employees assaulted

and their lives placed in danger, including mail and sorting implements being damaged. He

also pointed out that it is a condition of SAPO’s licence for it to ensure the safety of mail.

With that, he pointed out that section 4(1) of the SAPO Act enjoins SAPO to take

reasonable measures, within its available resources, to achieve the progressive realisation

of its duties. The discharge of SAPO’s duties is therefore heavily qualified by reasonable

measures, “within available resources” and “progressive realisation”. The reasonableness

of measures should, he argued, be seen in the context of the prevailing violence at the

time. The trier of facts should place herself in SAPO’s position when the violence broke out.

Vehicles were set alight, property destroyed and employees assaulted and their lives

placed in danger, including mail being damaged. Furthermore the safety of mail is a

condition of SAPO’s licence – this had to be ensured.

[34] Mr Seleka also emphasised that it was undoubtedly a major challenge for SAPO to

maintain service delivery. The engagement of SAPO in ongoing negotiations with the union,

the issuance of ultimatums, the application for Court interdicts, the employment of private

security services to guard the premises, the utilisation of Police services, the utilisation of

unmarked vehicles and employees working nightshifts and overtime, were all, Mr Seleka

argued, reasonable measures taken by SAPO.

[35] Ultimately, the argument was that given the circumstances sketched, SAPO, with its

limited resources and limited human resources, had acted reasonably in the circumstances.

Despite these circumstances it instituted costly Court proceedings and employed private

security services for which it had spent R9,7 million by the end of November 2014. It was,

accordingly, denied that SAPO was complacent in the circumstances.

In the premises, it was thus submitted that SAPO had not breached its obligations in terms

of the regulations and its licence.

OUTSIDE SERVICES

[36] We need to return to the question whether SAPO should not have employed the

services of an outside company to, at least, assist it in its duties. Of course, it is realised

20

that this attempt could also have failed. In answering this question put to it by the CCC,

SAPO reacted as follows in its third affidavit, dated 19 November 2015:

“The respondent considered that it could not conclude contracts with third parties because access to the

material was difficult as a result of the levels of violence. Secondly it would have required a procurement

process to be undertaken which may have taken as long as the length of the strike which no one was clear

when it would end. Thirdly the strike was, in many respects, localised in the Gauteng area, specifically the

East Rand and Wits are and deliveries were ongoing in the rest of the country.”

[37] In a final replying affidavit the Complainants responded as follows:

“I am advised that under normal circumstances a procurement process is required to be followed in which

competitive bids are invited. However, if in a specific case it is impractical to invite competitive bids, services

may be procured by other means, provided that the reasons for deviating from inviting competitive bids must

be recorded and approved by the relevant accounting officer or accounting authority. In this regard I refer to

Treasury Regulations to the Public Finance Act 1 of 1999, particularly Regulation 16A6.4 which provides inter

alia:

If in a specific case it is impractical to invite competitive bids, the accounting officer or accounting authority

may procure the required goods or services by other means, provided that the reasons for deviating from

inviting competitive bids must be recorded and approved by the accounting officer or accounting authority.”

In the light hereof the Complainants argued that if one accepts SAPO’s version that the

strike was violent and widespread and had an impact on delivery, SAPO would have fallen

within the exemption stated above and been able to procure such services as necessary,

without having had to follow the prescribed procurement process. Concluding on this

point, the affidavit reads as follows:

“With respect it seems unlikely that SAPO even gave any consideration to such procurement or the exemption

applicable. Nothing to the contrary is evident from any of its affidavits. It simply sat back and did nothing

about delivery during the strike action.”

A FINAL AFFIDAVIT FROM SAPO

[38] Although the intention was to close the affidavits after the third affidavit by each

party, it was realised that insofar as the Complainants referred to the Public Finance Act,

this was a new point which SAPO should have the opportunity to answer in the light of the

audi alteram partem rule.14

14 A rule which has, once again, been emphasised by the Chief Justice in Stopforth Swanepoel & Brewis Inc v Royal Anthem (Pty) Ltd and Others 2015 (2) SA 539 (CC): “[19] Section 34 of the Constitution entitles everyone 'to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court'. The right to a fair public hearing requires procedures . . . which ’in any particular situation or set of circum stances, are right and just and fair'. '(A)t heart, fair procedure is designed to prevent arbitrariness in the outcome of the decision.' In De Lange this court said that —'(t)he time-honoured principles that no-one shall be the judge in his or her own matter and that the other side should be heard [audi alteram partem] aim toward eliminating the proscribed arbitrariness in a way that gives content to the rule of law. They reach deep down into the adjudicating process, attempting to remove bias and ignorance from it. . . . Everyone has the right to state his or her own case, not because his or her version is right, and must be accepted, but because, in evaluating the cogency of any argument, the arbiter, still a fallible human

21

[39] To be fair, we will quote the body of the full affidavit that was then filed by SAPO:

4. The Respondent was directed by the Chairperson of the CCC, JCW van

Rooyen SC, to provide more information and answer to the following

questions:

4.1 whether the sorting strip can be outsourced; 4.2 whether the strips

applied manually; 4.3 if so, did SAPO attempt to employ the services of

the third parties in order to effect mail distribution; and 4.4 if not, why

not.

5. The Respondent was further directed to answer the question

relating to Procurement processes and was referred to Treasury

Regulations to the Public Finance Management Act 1 of 1999,

particularly 16A6.4 which provides that if in a specific case it is

impractical to invite competitive bids, the accounting officer or

accounting authority may procure the required goods or services by

other means.

6. With regards to question 4.1 to 4.4:

6.1 The Respondent confirms that the sorting strips could

potentially be outsourced and that the strips could potentially be

applied manually.

6.2 However, it will not be in the best interest of the Respondent or

prudent for the Respondent to outsource or employ the

services of the third parties taking into account that:

6.3 Firstly, the Respondent has to protect its trade secrets, databases and

Intellectual Property and

6.4 Secondly, the strike was not only extremely violent and hostile, it

being, must be informed about the points of view of both parties in order to stand any real chance of coming up with an objectively justifiable conclusion that is anything more than chance. Absent these central and core notions, any procedure that touches in an enduring and far-reaching manner on a vital human interest . . . points in the direction of a violation.’ ” (footnotes omitted.]

22

was also very malicious. High levels of intimidation of employees

as well as members of the public meant that the Post Office

was essentially not within the reasonable control of the

Respondent at the national key points (East Rand and Wits) and

that it was impossible and risky for anyone to enter those

premises.

6.5 Thirdly, it was pointless and without merit to utilise the service

of a third party because the Respondent was going to be faced

with the same problem of non-access or limited access to the

affected premises or depots, due to the aforementioned violence

and intimidation; and

6.6 Finally, the s trike was essentially amongst the sorters in depots

and other offices and strongly supported by the Local

Communities. The Respondent's staff was either locked into or

locked out of the premises, with no or limited access to the

premises.

7. With regards to question 5:

7.1 The Respondent is aware o f t h e provision of the Public Finance

Management

Act No 1of 1999 ("PFMA") and its implications.

7.2 If the Respondent would have procured and appointed other bidders or third

parties, and they were also locked out of the premises, then the Respondent

would have incurred fruitless and/or wasteful and/or irregular

expenditure which is not permitted by the PFMA.

7.3 It was with this in mind, that it was not reasonable or prudent

for the Respondent, to have appointed other bidders or third

parties, to take over the services in Gauteng Province.

7.4 At no point was it evident that the strike could last as long as

it did. There were various negotiations, including Ministerial

23

intervention, that were apparently close to breakthrough that

it appeared to the Respondent that the illegal industrial action

was imminently at a close on any given day.

7.5 Furthermore on the basis of what is permitted by Regulation

16A6,4 of the PFMA, it must be noted that this is not a total

non- compliance with tender requirements, but rather, a

shorter deviation of the tender process (Limited Bidding

deviation process _"LBO") it would have, in any event taken two

to three months for LBO process to have been finalised and

culminated in a formal signed contract.

7.6 If the Respondent was to appoint third parties or other

bidders, they would have had to undergo a period of

familiarisation with equipment, street lists and various walks for

effective delivery, and thereafter it is more than likely that the

third parties, would also have been faced with the same

constraints, issues and problems of violence and intimidation as

enumerated above.

7.7 The Respondent asserts that in their view there was no

action that could have been taken by a third party that would

have resulted in substantially different results than those

obtained by the Respondent.

8. Therefore, the Respondent reiterates that the Complainants did

not suffer any prejudice or harm as alleged or at all since the strike

was only localised around Gauteng Province and services were ongoing

in the rest of the Country.

9. The Respondent considered all reasonable and available precautionary

measures to protect life, limb and property.

10. It is alleged that all the sorting strips and presses could have easily

24

been moved to Contingency or Disaster Recovery Sites, however, from

experience during that period this was patently not possible, due to

violence, intimidation, the fact that the equipment was inaccessible

at the affected premises or Depots, and that no surplus sorting

equipment was available.

CONCLUSION ON THE MERITS

[39] Although the complaint, as sent out by the Coordinator, read as follows: “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” it would be fair to at least make some observations as to some of the more

important points raised by the Complainants in their initial document. We shall set them

out hereunder and make an observation in regard to each one.

(a) Paragraph 73 of the Complaint: This complaint, in summary, accused SAPO of omitting

to comply with section 2 of the Postal Services Act in that SAPO (i) omitted to encourage

investment and innovation in the postal industry; (ii) did not ensure that the development

of the postal services are responsive to the needs of users and consumers; (iii) has not

promoted a wide range of services in the interest of economic growth; (iv) does not

provide an acceptable level of effective and regular postal services to all areas; (v) does not

promote stability within the postal industry; (vi) does not promote the interest of postal

users and consumers; (vii) does not promote the effective maintenance of an efficient

system of collecting, sorting and delivery of post.

OBSERVATION: Section 2 of the Postal Services Act sets out the primary objects of the

Postal Services Act. These objects are not enforceable in a process before the CCC. They

are matters which could, typically, be the subject of Parliamentary or other debate.

(b) The next complaint is based on section 4 of the SAPO Act.

OBSERVATION: Section 4 was repealed by section 24 of Act 3 of 2006. No complaint may

be filed under a section which has been repealed at the time of the filing of the complaint.

The relevant section contained wide ranging duties which were broadly stated and were, in

any case, not enforceable in a process before the CCC. They were also matters which could,

more appropriately, be debated in Parliament or elsewhere.

25

(c) The next complaint against SAPO is that it has failed to comply with its licence

conditions in that: (i) it has failed to improve service performance standards;(ii)it has failed

to provide mail collection points which are accessible; and (iii) it has failed to provide

adequate facilities for the receipt from despatches of basic letters.

OBSERVATION: This complaint is too vague to form the basis of a finding in favour of the

Complainants.

(d) The next complaint is based on a failure to comply with the Code of Practice. The

following is mentioned by the Complainants: (i) the practice of the Post Office does not

promote competition and/or communication within the postal industry; (ii) the Post Office

does not treat its customers with respect and dignity, including the complainants despite

numerous requests; and (iii) it has failed to insure that the complainants’ grievances have

been recorded appropriately and resolved in a courteous, efficient and fair manner to date.

OBSERVATION: The allegations are too vague to build a legal case on. The CCC’s

investigative function finds, according to the Constitutional Court, its limits in fairness.15

We will be turning our investigation into a fishing expedition if we were to go down the

avenues sketched. No prima facie case was, in any case, made out. In this regard, the

following observation of Deputy Chief Justice Moseneke in Independent Newspapers (Pty)

Ltd v Minister for Intelligence Services: In re Masetlha v President of the RSA 2008 (5) SA 31

(CC) at para [29] is relevant:

“The party must display more than… a desire to embark upon a fishing expedition. It must point to a lack or abuse of authority or other unlawfulness or impropriety on the part of the official who asserts confidentiality over the sealed documents or other information.”

[40] Lastly we get to the question which we posed to SAPO. Why did it not attempt to

obtain or obtain the services of an outside company to assist it with its duties.

[1] Before we get to the answer to that question, it should be stated that if we come to the

conclusion that the above point was answered satisfactorily, the unprotected strike would

be a defence. To blame SAPO partly or fully for the strike, would be unreasonable. Firstly it

should be borne in mind that the strike was an unprotected strike, which means that the

strikers had placed themselves outside the law. Although it would be legally questionable

15 Cf. Islamic Unity Convention v Minister of Telecommunications 2008 (3) SA 383 (CC) at para [47].

26

to state that an unprotected strike would always be a full defence, we find that in the

particular circumstances of this case, SAPO cannot be found to have caused the strike or

contributed to it from a legal point of view. Causation is a legal concept and is not

established by showing that factually there was a contribution by SAPO to the calling of the

unprotected strike. Legal causation finds it limits not only in what was caused or

contributed to factually, but also in policy considerations. Thus Khampepe J said the

following in Country Cloud Trading CC v MEC, Dept of Infrastructure Dev 2015 (1) SA 1 (CC):

[25] So the element of wrongfulness provides the necessary check on liability in these circumstances. It functions in this context to curb liability and, in doing so, to ensure that unmanageably wide or indeterminate liability does not eventuate and that liability is not inappropriately allocated. But it should be noted — and this was unfortunately given little attention in argument — that the element of causation (particularly legal causation, which is itself based on policy considerations) is also a mechanism of control in pure economic loss cases that can work in tandem with wrongfulness. Also compare the following dictum under the pen of Fourie AJA in Minister of Justice and Constitutional Development v X 2015 (1) SA 25 (SCA) : “[22]… It is trite that causation has two elements, the first being a factual issue, the answer to which has to be sought by applying the 'but for' test… [23] The second element of causation is legal causation, namely whether the wrongful act is linked sufficiently closely or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote. See International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700I.”

It would be unreasonable in law to conclude that SAPO had contributed to the strike on the

facts before us. To make such a finding would also give credence to violence as an

ingredient to a strike.

[41] The next question, which we in fact put to SAPO on three occasions, is whether it

should not have taken steps to obtain the services of an outside company or outside

companies to take over its function of delivery. Of course, it would be unrealistic to expect

that the whole function could be taken over – obviously post that had been destroyed or

was only to be found in destroyed premises would not fall within the task given to the

outside company or companies. To this SAPO’s answer (which we set out fully above and

which we need not repeat) was in fact, given the circumstances, it was not possible and

practical to hire the services of outside firms. It first argued that it would have had to go

27

through a formal and time consuming procedures to hire outside services and when the

Complainants answered that the Finance Act made it possible to not follow time-

consuming procedures, the answer was that even then the contracting of third parties

would have been time-consuming. The obtaining of these services would also, so the

argument ran, place certain rights of SAPO at risk (e.g. their rights to lists and the like). In

any case, there was no guarantee that the violence would not, equally, flare up against

these third parties once contracted. The experience with the Military Airport and Oliver

Thambo Airport, as alternatives, having been disastrous.

[42] As pointed out by the Constitutional Court – as cited above - it would be unreasonable

for a Court and thus for the CCC, to summarily reject what was done in a set of

circumstances where the State – in this case, the South African Post Office – had addressed

a situation in a manner that it deemed fit. Although there is much to be said for the

defence of SAPO, we are not satisfied that the evidence that it placed before us in this

regard is satisfactory. SAPO should, at least, have taken steps to establish in conjunction

with at least representatives from the bulkmail companies, whether there was not a

reasonable possibility of their taking over a reasonable part of its function. It is irrelevant

that it was impossible to foresee the length that the strike would still take – steps had to be

taken to address this alternative issue. Ultimately, SAPO’s sketch, in its last affidavit, of the

circumstances which would have made the out-sourcing impossible, could only have been

convincing if it had added evidence as to attempted negotiations or negotiations with

outside companies. Such evidence would have included the reaction of the outside

companies as to the solution of the problem and might have been positive or negative.

Without such evidence before us, there is a reasonable doubt as to whether SAPO in fact

acted reasonable and rational, within the guidelines handed down by the Constitutional

Court in Grootboom and Soobramoney.16

[43] In the result we have concluded that although the unprotected strike as such was a

Defence for SAPO, its argument based on outsourcing is not acceptable. We find that this

omission was not intentional but that it was unreasonable, from the perspective of a State

entity, to not, at least have explored the possibility of outsourcing. Had SAPO provided the

16 See paragraph [31] above.

28

CCC with evidence of attempts in this regard, it might have shown that the omission was

reasonable. However, given the facts before us, we have come to the conclusion that it was

not reasonable for SAPO to not have addressed this issue, supported by acceptable

evidence as to attempts in this regard.

SANCTION

[44] It was argued by Mr Seleka that even if we were to find against SAPO, a study of the

relevant legislation shows that SAPO does not fall within the category of a licensee against

whom ICASA is empowered to issue a sanction in terms of the ICASA Act or the Postal

Services Act 1998. Although there are aspects of the legislation which could give rise to a

debate in this regard, it is clear from section 16(3) of the Postal Services Act 1998 that

SAPO is a licensee. When this reference is read with section 80(3) and (4) of Postal Services

Act, it is clear that SAPO is a licensee which falls under the jurisdiction of the CCC and

ICASA’s Council. Ultimately the Regulations on the Conveyance of Mail 1998, in terms of

which the complaint against SAPO was heard, also includes an explicit reference to ICASA

as being empowered to impose a fine.17

[45] To impose a direct fine would be unwise in the light of the dire financial position in

which SAPO finds itself. From the above judgment on the merits it is also clear that SAPO

had considered outsourcing and that it bona fide came to the conclusion that it would not

solve the problem. The CCC, however, found that without evidence as to genuine attempts

made by SAPO to engage outside carriers, SAPO was also not in a position to decide

whether this would have been a viable option. The finding was that SAPO should have

engaged with outside carriers so as to reach a rational and reasonable decision in this

regard. This is, according to the CCC’s finding, where the omission lay. The maximum fine

which the ICASA Council may impose for this omission is R250 000. The fact of the

unprotected strike, the violence, the approach to the Court and Police are extenuating

17 9.Penalties

Upon a determination of non-compliance by the Complaints and Compliance Committee in terms of the ICASA Act, the

Authority may impose a fine not exceeding:

(a) R250 000 on a conveyor who fails to comply with regulations 4, 5 and 6.1(a)

(b) R150 000 on a conveyor who fails to comply with regulations 6.1(b), (c), (d), 6.2, 7 and 8.

29

circumstances in advising what the fine should be. The maximum fine would, accordingly,

not be fitting. In the circumstances the CCC has decided to make the following

recommendation to Council:

(a) That a fine of R125 000 be imposed by the Council of ICASA.

(b) That this fine, however, be suspended for three years as from the date that the

Coordinator of the CCC issues this judgment to SAPO.

(c) That the condition of the suspension is that if the CCC finds that SAPO 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.

Prof JCW van Rooyen SC

Chairperson 29 February 2016

The Members of the CCC, who heard this matter, concurred with the above finding on the

merits and recommendation on sanction to the Council of ICASA.