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DotConnectAfrica slammed for two-faced strategy as it loses .africa appeal

Kevin Murphy, October 5, 2021, Domain Policy

Unsuccessful gTLD applicant DotConnectAfrica has been handed what may prove to be the final nail in the coffin for its failed .africa bid.

A California appeals court has upheld ICANN’s lower-court victory over DCA in its entirety, ruling that the .africa applicant had a two-faced legal strategy that saw it first argue that it did not have a right to sue, but then suing anyway.

After having its .africa application rejected by ICANN due to lack of African government support in 2012, the following year DCA filed an Independent Review Process complaint against ICANN.

One of its key arguments in that case was that it, along with every other new gTLD applicant, had been forced to sign a legal waiver, preventing them from taking ICANN to court.

When it was handed a partial victory in the IRP, sufficient to embarrass ICANN but not enough to have .africa reassigned, DCA was one of a few parties who ignored the legal waiver and sued anyway, in 2016.

Now, the California appeals court has confirmed a lower court ruling that this violated the rule of “judicial estoppel”, which prevents a party switching between two diametrically opposing arguments to suit their strategy at any given time.

“DotConnect took two contrary positions. It told the arbitrators on the Independent Review Panel it could not sue in court. DotConnect then sued in court,” the three judges wrote.

They added that the “text of that litigation waiver was unequivocal, unconditional, and unlimited.”

The ruling describes the .africa case in pretty much the same way as I have for the last decade — DCA didn’t have government support when it applied for the gTLD and ICANN was well within its rights to throw out the application under the program’s rules.

ICANN was handed a thoroughly comprehensive victory, in other words, and awarded costs.

Is this the end of the .africa case? Given DCA boss Sophia Bekele’s apparent fondness for the sunk cost fallacy, who knows?

While all these legal shenanigans have been ongoing, .africa has been delegated to and launched by ZA Central Registry, which had the support of the African Union following an RFP that DCA refused to participate in.

There are about 30,000 .africa domains under management today, which is not terrible for a new gTLD.

The 30-page appeals court ruling (pdf) was made September 20 and ICANN published it this week.

.za back-end deal up for grabs

Kevin Murphy, August 17, 2021, Domain Registries

South African domain authority ZADNA has let it be known that it’s opening up the .za back-end contract to bids.

In a notice posted last week, the organization said that it’s told current operator ZACR that its contract will be terminated in six months, and that it will have to compete for a new one.

ZADNA had the option to extend the contract, which was signed in 2012, for another five years but has evidently chosen not to do so.

Still, ZACR has the twin benefits of incumbency and a home-field advantage — ZADNA says “the operation of the .ZA registry
infrastructure is geographically located in South Africa”.

Money might be a factor in play — the current wholesale registry fee for .co.za, .org.za and .net.za domains is ZAR 55 ($3.70), of which ZAR 15 ($1) is given to ZADNA. This mix is open to change under the rebid.

The organization has published a detailed request for information (pdf) explaining what it’s looking for, which will be followed by a formal request for proposals.

ZACR’s contract is due to end next April. ZADNA says it has no intention of bringing the registry in-house.

.za has 1.2 million domains and over 600 registrars.

South African registry to be merged with film censor, broadband regulator

Kevin Murphy, December 15, 2020, Domain Registries

South African ccTLD operator ZADNA is to be merged with two other government agencies, including the film censor, under a program announced by the nation’s government this week.

The non-profit state-owned company will merged with Independent Communications Authority of South Africa (ICASA), which regulates telecoms and broadband, and the Film and Publications Board, which censors and classifies movies, under plans announced today.

It comes as part of a broader government initiative to rationalize South Africa’s state-owned enterprises.

While it’s far from uncommon for a ccTLD to be managed by a state telecoms regulator, I’m not aware of any instances where a registry shares a roof with a movies regulator.

ZADNA is currently the official ccTLD manager for .za, though in practice it’s operated under contract by non-profit ZA Central Registry.

Sorry, you still can’t sue ICANN, two-faced .africa bidder told

Kevin Murphy, September 9, 2019, Domain Policy

Failed .africa gTLD applicant DotConnectAfrica appears to have lost its lawsuit against ICANN.

A California judge has said he will throw out the portions of DCA’s suit that had not already been thrown out two years ago, on the grounds that DCA was talking out of both sides of its mouth.

DCA applied for .africa in 2012 but lost out to rival applicant ZA Central Registry because ZACR had the backing of African governments and DCA did not.

It filed an Independent Review Process complaint against ICANN in 2013 and won in 2015, with the IRP panel finding that ICANN broke its own bylaws by paying undue deference to Governmental Advisory Committee advice.

It also emerged that ICANN had ghost-written letter of government support on behalf of the African Union, which looked very dodgy.

DCA then sued ICANN in 2016 on 11 counts ranging from fraud to breach of contract to negligence.

The Los Angeles Superior Court decided in 2017 that five of those charges were covered by the “covenant not to sue”, a broad waiver that all new gTLD applicants had to sign up to.

But the remaining six, relating to ICANN’s alleged fraud, were allowed to go ahead.

ICANN relied in its defense on a principle called “judicial estoppel”, where a judge is allowed to throw out a plaintiff’s arguments if it can be shown that it had previously relied on diametrically opposed arguments to win an earlier case.

The judge has now found that estoppel applies here, because DCA fought and won the IRP in part by repeatedly claiming that it was not allowed to sue in a proper court.

It had made this argument on at least seven occasions during the IRP, Judge Robert Broadbelt found. He wrote in his August 22 ruling (pdf):

DCA’s successfully taking the first position in the IRP proceeding and gaining significant advantages in that proceeding as a result thereof, and then taking the second position that its totally inconsistent in this lawsuit, presents egregious circumstances that would result in a miscarriage of justice if the court does not apply the doctrine of judicial estoppel to bar DCA from taking the second position in this lawsuit. The court therefore exercises its discretion to find in favor of ICANN, and against DCA, on ICANN’s affirmative defense of judicial estoppel and to bar DCA from bringing or maintaining its claims against ICANN alleged in the [First Amended Complaint] in this lawsuit.

In other words, ICANN’s won.

The case is not yet over, however. DCA still has an opportunity to object to the ruling, and there’s a hearing scheduled for December.

ZADNA CEO suspended for “hybrid misconduct”

The CEO of South Africa’s ccTLD registry has reportedly been suspended amid claims of “acts of misconduct”.

According to reports in the local tech press, Vika Mpisane was suspended in early December and has been subject to a delayed disciplinary process since January.

“Mr Vika Mpisane was suspended for serious hybrid acts of misconduct including mismanagement of ZADNA funds and others,” ZADNA chair Motlatjo Ralefatane told MyBroadband.

While details are rather thin on the ground, there are local rumors that some of the allegations relate to Mpisane’s salary and bonuses.

Ralefatane reportedly said that forensic accounting investigations are ongoing.

ZADNA, the ZA Domain Name Authority, is a non-profit organization and official ccTLD manager for .za. It answers to the South African government, but is not funded by it. It should not be confused with ZACR, the commercial entity that actually runs the .za registry on ZADNA’s behalf.

Mpisane has come under increased scrutiny this week as it turns out he is running unopposed for the Southern Africa seat on the board of AFRINIC, the Regional Internet Registry responsible for handing out IP addresses on the continent, apparently without ZADNA’s knowledge.

According to MyBroadband, Ralefatane believes Mpisane should not be representing that he has ZADNA’s support for his run.

His CV (pdf), posted to the AFRINIC web site in April, states that he is the current CEO of ZADNA, with no reference to his suspension.

Ralefatane reportedly added that she is not sure if AFRINIC or ICANN are aware of the allegations against him. They are now.

Mpisane is still listed on ZADNA’s web site as its CEO, also with no reference to the suspension.

His bio on the site reads, in its entirety (errors from the original): “The voice of reason and wisdom An outstanding leader with passion about the internet and what is has to offer. He walks the talk and talks the talk”.

After slow launch, .africa looks to add hundreds of resellers

Kevin Murphy, September 1, 2017, Domain Registrars

ZA Central Registry is opening up .africa and its South African city gTLDs to potentially hundreds of new registrars via a new proxy program.

The company today announced that its new registrar AF Proxy Services has received ICANN accreditation, which should open up .africa, .joburg, .capetown and .durban to its existing .za channel.

ZACR is the ccTLD registry for South Africa and as such it already has almost 500 partners accredited to sell .za names. But most of these resellers are not also ICANN accredited, so they cannot sell gTLD domains.

The AF Proxy service is intended to give these existing resellers the ability to sell ZACR’s four gTLDs without having to seek out an ICANN accreditation themselves.

“Effectively, all users of the AF Proxy service become resellers of the Proxy Registrar which is an elegant technical solution aimed at boosting new gTLD domain name registrations,” ZACR CEO Lucky Masilela said in a press release.

While reseller networks are of course a staple of the industry and registries acting as retail registrars is fairly common nowadays, this new ZACR business model is unusual.

According to ZACR’s web site, it has 489 accredited .za registrars active today, with 52 more in testing and a whopping 792 more in the application process.

Depending on uptake of the proxy service, that could bring the number of potential .africa resellers to over 1,300.

And they’re probably needed.

The .africa gTLD went into general availability in July — after five years of expensive legal and quasi-legal challenges from rival applicant DotConnectAfrica — but has so far managed to put just 8,600 names in its zone file.

That’s no doubt disappointing for TLD serving a population of 1.2 billion and which had been expected to see substantial domain investor activity from overseas, particularly China.

ZACR to delete 12,000 .za domains next week

Kevin Murphy, August 24, 2017, Domain Registries

South African ccTLD registry ZACR is to delete more than 12,000 domains, many of them English dictionary words, ending in .org.za next week.

That’s more than a third of the current count of .org.za domains, which stands at about 33,000 today.

The list includes many English dictionary-word domains very possibly worth more than the standard registration fee, such as sex.org.za, accountant.org.za, comedy.org.za, vodka.org.za, casino.org.za and cash.org.za.

The domains will be deleted and then become available for first-come, first-served registration on September 1.

The current registrants have had fair warning. The company migrated to a new EPP-based registry back-end a few years ago and told its customers they had to migrate to an accredited registrar.

A year ago, it suspended 15,420 domains, cutting off their ability to resolve in the DNS, as way to bring the impending deletion to their owners attention, but since then only 2,394 suspended domains have become compliant with the new rules.

That means 12,677 .org.za domains face the chop Friday next week, unless their owners mount an eleventh-hour rescue operation.

ZACR has published a full list of the soon-to-be-deleted names here

The .org.za space is far less popular than commercial counterpart .co.za, which has over a million registered names.

Chinese to invade .africa? CEO thinks so

Kevin Murphy, April 11, 2017, Domain Registries

While .africa finally went on sale last week after years of legal fights, it seems Africans may find themselves in the minority of registrants.

A combination of awareness, pricing and anticipated interest from Chinese domain investors, means that Africans could account for as few as 1 in 10 .africa registrations, according to Lucky Masilela, CEO of .africa registry ZA Central Registry.

The domain went into its sunrise period last week, and has a multi-phased launch planned out that will last until July 1, 2018.

After the trademark owners have had their crack at the domain — Masilela tells us that South Africa brands such as Nando’s are among the first to grab theirs — there will be five phases in which domains will be open to all but priced at a premium.

Starting June 5 there will be five landrush periods of five day, each a kind of hybrid between the traditional landrush period and the kind of Early Access Period offered by Donuts and others.

Each landrush will see all names priced at a certain amount, with the amount going down at the start of each period — $5,000 to $2,000 to $1,000 to $500 (all USD).

In the event that any name is claimed by more than one registrant, there will be an auction for that name at the end of the period.

Then on July 4 comes the first period of “general availability”, from which point all domains will be first-come, first-served.

But for the first 28 days of GA, domains will be priced at $150, other than domains categorized by the registry as premium.

Domains then come down to a more affordable $18 wholesale.

But that’s not the end. ZACR has baked in a price reduction to $12.50 wholesale, due to kick in July 1 2018. From then on out, it’s business as usual.

Unlike similar TLDs such as .eu, there are to be no geographic restrictions on who can register .africa names, and Masilela said he expects registrants from Africa to be in a minority.

“I think were are looking at about 10% from the continent, growing gradually over the years,” Masilela said. “The next wave is going to be international registrars.”

“We have a big suspicion that we will probably see a huge uptake coming from the east, which is the China market,” he said. “They’ll probably come in and grab a large number of domain names.”

He said that Chinese investment in Africa offline is likely to be mirrored online.

Pricing is also likely to be a factor. While .africa will bottom out, ignoring periodic discounts, at $12.50, that’s still quite a lot more than you’d expect to pay for African ccTLDs. ZACR’s own .za costs about $4 per year.

The relatively high price of becoming ICANN accredited has also meant that while Africa has 50-something countries, there are currently only about half a dozen gTLD registrars based there.

ZACR proposes to counter this by offering a gateway service rather like the one it already offers in .joburg and .capetown, that would help bring its own .za registrars on board.

Blah blah ICANN blah .africa blah delegated blah blah…

Kevin Murphy, February 15, 2017, Domain Registries

Today blah blah ZA Central Registry blah blah .africa blah delegated blah.

ICANN blah blah root blah. Blah blah ZACR blah nic.africa.

Blah blah five years blah blah contention blah lawsuit blah blah DotConnectAfrica blah. Blah blah Bekele blah IRP blah.

ICANN blah blah Governmental Advisory Committee blah blah blah African Union blah blah blah.

Blah blah Geographic Names Panel blah blah controversy blah blah blah blah lawsuit blah blah blah leg to stand on.

Blah racist blah blah conspiracy blah blah blah… nutty. Blah.

Blah reporting blah damned blah story blah forever blah blah bored blah blah blah blah.

Blah blah blah.

.africa to finally go live after judge denies injunction

Kevin Murphy, February 10, 2017, Domain Policy

A Los Angeles court has rejected a demand for a preliminary injunction preventing ICANN delegating .africa, meaning the new gTLD can go live soon.

Judge Howard Halm ruled February 3, in documents published last night, that the “covenant not to sue” signed by every new gTLD applicant is enforceable and that Africans are being harmed as long as .africa is stuck in legal limbo.

The ruling comes two and a half years after ZA Central Registry, the successful of the two .africa applicants, signed its Registry Agreement with ICANN.

Rival applicant DotConnectAfrica, rejected because it has no African government support, is suing ICANN for fraud, alleging that it failed to follow its own rules and unfairly favored ZACR from the outset.

Unfortunately, the ruling does not address the merits of these claims. It merely says that DCA is unlikely to win its suit due to the covenant it signed.

Halm based his decision on the precedent in Ruby Glen v ICANN, the Donuts lawsuit that seeks to stop ICANN awarding .web to Verisign. The judge in that case ruled last November that Donuts signed away its right to sue.

An earlier judge in the DCA v ICANN case had ruled — based at least in part on a misunderstanding of the facts — that the covenant was unenforceable, but that decision now seems to have been brushed aside.

Halm was not convinced that DCA would suffer irreparable harm if ZACR got given .africa, writing:

The .Africa gTLD can be re-delegated to DCA in the event DCA prevails in this litigation… Further, it appears that any interim harm to DCA can be remedied by monetary damages

He balanced this against the harm of NOT delegating .africa:

The public interest also weighs in favor of denying the injunction because the delay in the delegation of the .Africa gTLD is depriving the people of Africa of having their own unique gTLD.

So what now?

ICANN said in a statement: “In accordance with the terms of its Registry Agreement with ZACR for .AFRICA, ICANN will now follow its normal processes towards delegation.”

As of this morning, ZACR’s .africa bid is officially still marked as “On Hold” by ICANN, though this is likely to change shortly.

Assuming ZACR has already completed pre-delegation testing, delegation itself could be less than a week away.

If DCA’s record is anything to go by, it seems unlikely that this latest setback will be enough to get it to abandon its cause.

Its usual MO whenever it receives an adverse decision or criticism is to double down and start screaming about conspiracies.

While the injunction was denied, the lawsuit itself has not been thrown out, so there’s still plenty of time for more of that.

You can read Halm’s ruling here (pdf).