The Independent Communications Authority of South Africa’s (Icasa’s) Complaints and Compliance Committee (CCC) on Tuesday fined the South African Post Office (Sapo) R125 000, suspended for three years, for failing to take reasonable measures within its available resources to achieve the progressive realisation of its duties.

Sapo would have to pay the full fine if it was found to have breached Section 4(1) of the Sapo Act 22 of 2011, which stipulates the duties highlighted above, within three years, noted the CCC, which was headed by chairperson Professor Jacobus van Rooyen.

However, the committee also dismissed the majority of complaints of nondelivery of mail made against Sapo by a group of publishers, calling the complaints a “wide-ranging and vague attack against Sapo” and mostly outside its ambit.

The CCC determined that the core complaint centred on the nondelivery of mail during the strike by postal workers from August to November 2014.

The committee found that, given the significant levels of violence, intimidation, sabotage, destruction of mail and consequent lack of capacity, it had been impossible for Sapo to deliver mail during this time.

“The test is not whether losses were suffered, but whether there was nondelivery 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. That is, with respect, not correct,” found the committee.

The committee further stated that impossibility was a defence in criminal law and that it also applied in other areas of public law. 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 multifaceted and to establish the main cause for this strike would, indeed, be extraordinary.

“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.”

However, the committee had harsh words for Sapo’s conduct, noting that: “[a]lthough 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 outsourcing 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.”