The consequences of dual jurisdiction and the subjugation of the Regulator are perhaps best seen in the struggle over Telkom's tariffs. Those tariffs were administered under a price-cap regime, the now standard international model for regulating the prices of dominant network operators. According to the model, the operator's tariffs may be increased to cover the expected effects of inflation on the company's costs of providing a designated basket of services, but must be decreased to cover expected improvements in its productivity. The Minister set the initial price cap productivity figure in May 1997 at a very conservative 1.5 percent.23 This ministerial determination also stated that future reviews of the rate regime should not have a material adverse impact on Telkom or its ability to meet universal and access obligations set out in its license (Minister of Communications, 1997b). ICASA commenced an inquiry on the rate regime in December 2000. Its inquiry found that the initial productivity factor was set too low and that residential customers were highly vulnerable to Telkom's rate rebalancing. ICASA concluded that rate rebalancing had already been taken too far and that residential customers were subsidizing Telkom's competitive VANS and other business services (Thornton & Hodge, 2006, p. 205). Moreover, the Regulator was convinced that Telkom had abused the use of inflation forecasts. On the key matter of the productivity factor, ICASA recommended setting the figure at 5 percent. This figure itself represented just an informed guess because Telkom had failed to produce regulatory accounts as required by law. Once again, Telkom did not (or could not, because of the bundled nature of its services) make costing information available. Fearful that Telkom would litigate yet again, ICASA reduced the productivity number to 3 percent (Thornton & Hodge, 2006, p. 206). Even so, Minister Ivy Matsepe-Casaburri did not approve the regulations. She sent them back to ICASA with a recommendation to return to the productivity factor of 1.5 percent—to which the Regulator complied (Stones, 2001).
Even after winning in the price cap struggle, Telkom refused to abide by ICASA's rate regime regulations. Using a gap in the law and the timing of the new regulations, Telkom published tariff increases before the new regime fell into place. Using a productivity factor of zero percent, Telkom's published tariffs effectively increased rates 5.5 percent. Telkom also removed the 50–100 km band from the call structure, making all such calls long distance. Facing continuing court challenges, ICASA reached an out-of-court settlement with Telkom, allowing the company to implement its tariff increases in exchange for a promise to keep its subsequent increases below the maximum permissible by the rate regime regulations. Telkom also agreed to a special lifeline service for emergency calls. The Minister approved and published the amended rate regime regulations in 2002 (Department of Communications, 2002).24
The result of Telkom's ability to cajole the Minister and defy the Regulator was that, for example, prices for a local 3-minute call at peak times between 1997 and 2002 increased 26 percent per year. These increases were in part responsible for so many customers dropping off the wire-line network. Telkom's triumph on the rate regime issue was yet another instance where privatization trumped liberalization and independent regulation, and thus inhibited the rational growth of the sector.25 The immediate reason for ministerial interference and the Regulator's acquiescence on rates was the perceived need to maintain the value of the Government's shares in the upcoming Telkom IPO (Mandla Langa, interview by author. Johannesburg, September 5, 2006). The public offering of Government-held Telkom shares (initially planned for 2001 but put off until 2003) would bring a higher share price and more revenue to the treasury.
The subjugation of the Regulator's independence had other, unforeseen consequences. When approval for an second network operator was finally secured after years of delay, Government officials, including ICASA Councillors, went abroad hoping to entice foreign communication operators to bid. Cable & Wireless, in ICASA Chair Mandla Langa's bemused recollection, almost ran him out of its corporate office, saying it would never come in on the SNO due to South Africa's protectionist and non-independent regulatory structure.An article in the Mail & Guardian, quoting unnamed former ICASA Councillor, claimed that British Telecom also declined to make a bid for the SNO for similar reasons (Dawes, 2004). In general, South Africa had a great deal of trouble attracting viable bidders for its third mobile operator and its SNO, adding considerably to the delay of these services.
5. Privatization in societies in transition: “rent-seeking” and Black Economic Empowerment
What joint jurisdiction and limitation on the Regulator's independence and efficacy did secure was the financial health of Telkom and guarantee of lucrative profits for its Thintana partner. Telkom's operating revenues rose consistently every year. Its net profits and earnings per share dropped in 2000, then rose steadily and soared in 2004 and in the 2 years thereafter. It is difficult to settle on hard and fast numbers, because in each annual report Telkom “restates” or adjusts the numbers from previous years. Nonetheless, the following provide a pretty accurate picture of trends:
Year 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006
Operating revenue (in billions of rands) 15.8 19.2 22.7 27.1 31.4 34.2 37.3 41.1 43.7 48.3
Net profit (in billions) 1.79 2.4 2.35 1.5 1.6 1.2 1.7 4.7 6.8 9.3
Earnings per share (in cents) 458 448.5 421.2 290.2 294.6 343.8 292.3 823.9 1246.7 1744.7
Source: Telkom Annual Reports, various years; US Securities and Exchange Commission (2006).
Listed on the Johannesburg Stock Exchange and the New York Stock Exchange in March 2003, Telkom's share price reflected its monopoly position and its rising profit levels. In the words of the company's own Corporate Profile (Telkom, 2005), the share price “has more than trebled in value over the past two years, has led local and international communications markets. This performance reflects Telkom's financial stability, track record in growing market share, and ability to balance the pursuit of growth opportunities with the interests of employees, customers and communities.” In fact, this is corporate-speak for the fact that monopolistic power empowered Telkom to thwart competition and realize high profits.
As for Thintana Communications, its 30 percent stake of Telkom purchased in 1997 for R5.45 billion (US$1.26 billion) was sold in two tranches in 2004: a 14.9 percent stake in June for R6.1 billion (US$1.02 billion) and the remaining 15.1 percent stake in November 2004 for R6.6 billion (about US$1.1 billion). It is difficult to track the final value of Thintana's investment beyond the figures stated above. Simpiwe Piliso (2006a) writes in theSunday Times that Thintana realized R15 billion between management fees and share sales at the time it sold 14.9 percent of Telkom (just under half of its stake) in June 2004.
The South African treasury may have benefited in the short run from the initial privatization and the March 2003 sale of Government-held (share price sheltered) Telkom stock, and the latter sale represented South Africa's biggest attempt to spread share ownership to the black majority through what was known as the Khulisa share scheme.26 But in the view of most analysts, and consonant with the analysis of this paper, the exchange of liberalization and competition for privatization was damaging to the larger economy.27 Who else gained from a set of arrangements that, in any reasonable reckoning, did not much benefit residential telephone users or would-be users, Internet surfers, businesses requiring sophisticated data services, or the potential electronic services and ICT companies enamored of the Department of Trade and Industry? Here the brief history of South African telecommunications after 1996 intersects with some of the patterns of BEE.