An investigation by the National Consumer Commission into MTN’s subscriber agreements and service quality was unlawful, the cellular operator argued before the National Consumer Tribunal on Friday. It also said a compliance notice issued to MTN by the consumer watchdog was sent to the wrong party.

The hearing is the first under the Consumer Protection Act (CPA), which was implemented in April last year.

MTN is challenging a compliance order notice it received compelling it to amend its subscriber agreements and align its practices with the act.

The commission has asked for a fine of 10 percent of MTN’s 2011 turnover if it is found guilty of contravening sections of the act.

Robby Coelho, a partner at law firm Webber Wentzel representing MTN, said the commission had acted beyond the powers granted by the act and therefore its investigation was unlawful.

MTN said the commission had ruled against it based on an incorrect and outdated subscriber agreement even though it had implemented a new CPA-compliant contract.

Mamodupi Mohlala, the national consumer commissioner, said at the time the notice was issued in August that MTN’s amended customer contract was not yet in effect, which it should have been from April 1.

Mohlala said the new contract still did not comply with section 63 of the act because it did not guarantee quality of service targets and make

pricing transparent.

Advocate Alfred Cockerill, representing MTN, argued that the commission had incorrectly issued the compliance notice to MTN instead of MTN Service Provider.

“If we are correct, and we believe we are, then that’s the end of the matter. The entire compliance notice (would be) invalid,” Coelho said.

Mohlala said, however, that MTN, the mother body, was licensed to provide telecoms services and not its subsidiary, MTN Service Provider, and if the latter was reprimanded then “the consumer doesn’t have recourse”.

“We have also noted, in terms of their contract provision of network services, the subsidiary is not licensed to provide network services,” she said.

The tribunal did not specify a date for judgment.

Hearings have also been set for other companies, including Vodacom, Cell C and TopTV. - Asha Speckman