Poorly written legislation has historically allowed telecoms operators to play the competition authorities off against the communications regulator, creating a regulation void that gives rise to a phenomenon known as forum shopping.
Rather than addressing these failures, the recently promulgated Electronic Communications Act (ECA), through ambiguous drafting, has made the problem worse.
This was the view expressed by Competition Tribunal member Norman Manoim at a Point of Convergence Workshop hosted this month by the Link Centre, an ICT policy think tank based at the University of the Witwatersrand.
Manoim says the concurrent jurisdiction, established by the Telecoms Act of 1996 and the Competition Act of 1998, had led to an “under-enforcement of competition regulation”.
He says in the past eight years that he has worked with the competition authorities, there have been no cases brought before the tribunal that have allowed it to consider competition aspects of the complaint. The competition authorities have only been able to deal with procedural matters in the past.
“You can draw two conclusions from this: you can either say there have been no competition problems in this industry in the past eight years or you can come to the conclusion that the system of enforcement is failing. I would suggest that the latter is the case,” says Manoim.
He says Chapter 10 of the ECA, which deals with competition issues, has been poorly drafted, allowing multiple interpretations of the law and opening up the regulation process to legal challenges. “This is a lawyer’s dream and a consumer’s nightmare,” says Manoim. “We are not going to have forum shopping, we are going to have forum avoidance.”
The only case from the ICT sector that has been referred to the Competition Tribunal, Manoim says, was a complaint against Telkom by operators in the value added network services (Vans) sector, which was lodged in May 2004.
“Telkom’s response was to say the commission and the tribunal had no jurisdiction to entertain this complaint. They took their challenge off to the high court and as we sit here today in October 2006, the high court has yet to hear the dispute,” says Manoim. “That was at a time when we thought we had fairly unambiguous concurrent jurisdiction between the regulators. The problem is that we know all about these jurisdiction problems, we have eight years’ experience and we have gone out and made the worst possible attempt to solve them.”
The Independent Communications Authority of South Africa (Icasa) says that a workshop will be held before the end of November so that the competition authorities and the communications regulator can discuss their concurrent jurisdiction.
Icasa spokesperson Joel Sekgoela says the concurrent jurisdiction issues can be resolved by a joint approach to competition matters.
The Department of Trade and Industry’s chief director of policy and legislation, Fungai Sibanda, says the Competition Act allows for memoranda of agreements between the competition authorities and sector regulators to prevent forum shopping. He admits, however, that implementation has not shown them to be effective. “The problem lies not with the cooperation between agencies but with the industry players who would want to exploit any perceived cracks in the system.
“It is possible that dominant players, who have deep pockets and can therefore engage in delaying tactics through counter litigation, may use concurrent jurisdiction to their advantage,” says Sibanda.
The Department of Communications refused to respond to the Mail & Guardian‘s questions.