<To go on a tangent again>
Now Arthur and most libertarians are likely to take issue with the idea of a "regulatory body" having a determining role in the operation of the market. What they are failing to distinguish between is the jurisdiction of ICASA that arises through coercion (which is bad) and that which arises through jurisdictional assurance and ascension. This second type of jurisdiction is difficult to fully explain and define but it is a very important feature of every society: If a group of persons agree to a set of rules and a manner of resolving their disputes; if they form customs and standards (protocols); if they make representations and act on the representations made among themselves to give rise to reasonable expectations; if they form mechanisms of registering and attesting to property rights; if they in short follow a law common amongst themselves we recognize the legal authority and justness of those laws.
Recognizing the mutual assurance of practice by such a community is recognizing the agency of the members of that community and is the very foundation of any civilized legal system. Now obviously I have presented the extreme of the proposition but step through the core idea of being held only to that which you represent as undertaking is what underlies the entire issue.
Now in our communications industry we have a situation where the State using the force of coercion to determine who may participate in the market - and this is largely directed towards imposing a specific ownership regime and "protecting" the investments of participants in the market. In the process a whole lot of nonsense that needs to be untangled enters in.
However nobody has ever put a gun to the BAUTs head and told them to enter the market under the prevailing conditions. Instead they in consideration of the massive profits available entered by licence application into the market knowing that the call termination rates were regulated
(obviously I am simplifying the process here because the ECA was promulgated in discussion with the BAUTs who entered the market earlier) in a particular paradigm. In particular VC and MTN had the consideration and enrichment of asymmetric termination from Telkom.
The US State of Delaware remains the global headquarters of many of the worlds largest companies as a "corporate haven" (IIRC at one stage the value of "assets under management" within the scope of the Delaware Court of Chancery was larger than the rest of North America). The term chancery here should awaken the fact that we are dealing with an animal with discretion. Why incorporate in Delaware? Because the court "interferes" and imparts its own ideas about justice but everybody knows what those ideas are and there are tomes of precedent and practice and there is a certainty and flexibility that is preferable.
When a person chooses to use the instrument of a trust they choose to invite the courts to give effect to their instrument. The real travesty of natural justice is to be found in jurisdictions that have forced inheritance laws or which restrain the freedom to knowingly contract - so in South Africa the problem isn't that there is a default in the National Credit Act it is the fact that the state has prohibited people from making their own agreements. There is little grounds to take issue with the mergers of public companies having a public law tribunal because shareholders have elected to public standing in consideration of the benefits thereof.
Almost every monopoly that is draining our economy is a consequence of the State having granted a monopoly or assumed responsibility for some sector of the economy. It is a torturous and necessary process to dismantly those strangleholds and it is only the mechanisms of public law that can unwind the State's interventionist failings.
So I am in full favour of the idea of a "companies tribunal" and a "competition tribunal" and these sorts of things for the better facilitation of commerce and the idea of a competitions appeal court is in my mind only odd because it should be a general appeals court from a bundle of chancery-esque bodies. The problem is not that we have a competition commission and tribunal but rather that the scope of a right to intervene (the "
vires") by competition authorities is far to broad under our law: the travesty is that a man cannot enter into the scope of commerce free from fear that some government minister is not going to restrain his trade (and the current competition laws are a lot better in this respect than the prohibited business practices legislation before them), but this is different to the situation of companies that have solicited exclusive licence through a public law bestowal from being held by public law to the charge upon which they solicited the licence.
The Complaints and Compliance Committee of ICASA really should be a tribunal and jurisdiction to set aside ICASA regulations on grounds beyond what I would term "strict law" with appeals going to an appeals court (the current competition appeals court structure) which is presided over by ordinary judges but is administered outside of the High Court (and has a national bench). Lets not forget that ICASA is constantly undermined by the fact that the ruling party is not a fan of dismounting the State from the economy (until they aren't the ruling party ...) and that if we were to see a proper dismounting and growth of consent built ecosystem either the market participants would move towards their own arbitral tribunals or the CCC would gradually be less and less "government appointed".
- as a bit of a side note I must admit that I am surprised neither of the BAUTs went the route of ignoring the regulations and on being hauled before the CCC launching a "collateral challenge". I avoided mentioning this option on this forum until the High Court made a finding lest I gave the BAUT any ideas that they'd want to use, now of course such an approach would be contempt of court
Okay so back to trying to explain in laymans terms what I meant:
Vodacom and MTN each approached the court to ask the court for two things:
[1] stopping ICASA from implementing the CTR reforms immediately (and to the prejudice of third parties) by way of an urgent interdict claiming that they would suffer irreparable harm. With the interdict running until the decision in [2] was taken.
[2] to review the decision taken by ICASA in making the regulations in accordance with PAJA and having the review set aside the regulations which would be heard many months down the line
When they were in court MTN realized that they had a shot at getting the final relief "urgently" they amended their notice of motion to asing for one thing: an urgent setting aside of the regulations in terms of PAJA. The reason they had this shot was because ICASA behaved honestly.
What the court ended up finding was that the change in tactic was acceptable and so it looked at the matter through the PAJA lens and in the process was obliged to apply its conscience and with it to consider a broad picture of the "public interest" ultimately the court is called to deliver that which is in the interests of justice. PAJA allows a court to do what it did and what the court effectively has done is to refuse to condone the BAUTs attempt to strong arm the regulator while restraining the regulator to proper legal processes. To claim vindication for having the intelligence to see the opportunity to consolidate the approach is in my view daft and frankly if the BAUTs were actually concerned with the Rule of Law they would have approached the court in the first place with an order in the vain granted by the court and I strongly suspect that if the whole affair was started with such an approach - Dear ICASA, the regulations are faulty, we propose asking the Court to set them aside but to retain operation for 6 months while we put together new ones - ICASA might well have entered an intention to abide and the Minister wouldn't have said nasty things.
So going forward we remain with a situation where it is high time that the ugly five get their legal teams to actually sit around the table together with their CTOs of various shapes and forms. A proper outcome will almost invariably involve migrating away from the setting of call termination rates and will include ensuring that there is investment in internetworking. Honestly there are at least a dozen people who have (and can still) properly facilitated talks between the operators to a lawful, rational and mutually beneficial outcome and there remains at least half a dozen win-win outcomes available; what is needed is a change in attitude from the CEOs and if they fail to deliver this change it is ultimately their shareholders who are exposed (particularly MTN SA). [Of course I am always in the market to sell my soul to corporate for the right motivation
]
The real tragedy is that 18 advocates were deemed necessary by supposedly rational entities to appear in court to deal with this matter and considerable energy wasted while a very ugly spat was playing out in the press. The greatness of the outcome however is that ICASA is at least being put step by step onto the correct path and hopefully will ensure that they jack up their in house legal department. So in my view it was a wonderful day for the Rule of Law and a bad month for demonstrating leadership in South Africa - when CEOs say stupider things than campaigning politicians in an election year you really have to worry.
Let this be a lesson, never ever ask for an explanation in layman's terms
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