Earlier on 12 January 2021, South Africa's Competition Tribunal issued a statement that shed light on an ongoing case between Facebook and South Africa's GovChat. According to the Tribunal, Eldrid Jordaan, the founder, and CEO of the South African citizen engagement service that runs using the WhatsApp API has filed an urgent application for interim relief against Facebook Inc., WhatsApp Inc., and Facebook South Africa (Pty) Ltd.

The proceedings will be held virtually by the Tribunal on Wednesday, 13 January 2021.

"The Applicants, GovChat (Pty) Ltd (GovChat) and Hashtag Letstalk (Pty) Ltd (#LetsTalk) are asking the Tribunal to interdict and restrain Facebook/WhatsApp (Facebook) from removing (“off-boarding”) them from the WhatsApp platform pending the outcome of a complaint which they submitted to the Competition Commission, relating to alleged prohibited practices by Facebook, or for a period of six months (whichever occurs first). This follows threats by Facebook to remove GovChat from the WhatsApp platform due to an alleged violation of the contractual terms of use," reads the statement by South Africa's Competition Tribunal.

Citizen engagement platform in partnership with South Africa's government

In a previous interview with iAfrikan.com. Jordaan explained that GovChaTo is not exactly a stand-alone app or platform as he wanted to try and ensure that it is not just another white elephant civic technology solution. As such, Jordaan and his team have not developed a separate app that citizens must download but have rolled it out via different channels that citizens are already familiar with.

In South Africa, where the platform has been first rolled out and is the government's official citizen engagement platform, it is available through USSD, WhatsApp, and a mobile-friendly website.

Since its launch in 2018, the chatbot on WhatsApp aspect of GovChat has proved to be the most popular. Apart from that, what also appears to have helped GovChat gain traction is that it was launched in partnership with South Africa's Department of Cooperative Governance and Traditional Affairs (COGTA).

The partnership with COGTA has helped the company with providing a useful service to many South Africans as it is also the official tool that COGTA uses to monitor and evaluate provinces and municipalities’ service delivery, response times, failures and successes, and corruption - in real time.

In 2019 GovChat signaled its ambitions by securing R20 million in investment from Capital Appreciation's (CA) Enterprise Development Fund and appointing CA's Michael Sacks as its Chairman.

Breach of WhatsApp Business API terms

Although Facebook has not stated any specific details as to why it is looking to de-platform GovChat, the company has stated that  GovChat has breached the terms of use of the paid WhatsApp Business API in its pursuit of commercial interests. As a result, Facebook has argued that it has the right to enforce the contractual terms that govern the use of its paid business messaging platform.

According to what GovChat has told the Tribunal, this is not true. GovChat further told the Tribunal that it has made numerous failed attempts to reach a commercial solution for all stakeholders, with Facebook, to prevent the termination of GovChat’s access to the WhatsApp platform.

"The Applicants further argue that Facebook’s “off-boarding” of GovChat from WhatsApp’s API will end GovChat’s ability to render services to the government and citizens “at the height of the second wave of the Covid-19 pandemic in South Africa and force the applicants out of business”," concludes the Tribunal's statement.

Given the recent, but unrelated, events where Facebook is among many Big Tech companies that have de-platformed American President, Donald Trump, it remains to be seen what argument GovChat can present to sway them. Added to this is the small matter of which jurisdiction applies in this case as Facebook Inc. and WhatsApp Inc. are not South African legal entities.

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