Hadn't seen this before
LLU is actually a perfect example of a concept that can take either a heavy bureaucratic hand or can be a very good model where the bureaucrats can write themselves out of a position of control by devising a rules based approach that is firmly rooted in law and which sees the parties commercium engaging in their own stead. The FLA approach to LLU - which is what ICASA and myself are advocating - would see the provisions of statute given effect, the property holder (for convenience landlord, although often [erroneously] termed incumbent] determining the price and the agreement being publicly registered with ICASA the notary.
As for why the statute has sound basis to impose an obligation to lease: facilities leasing is little more than a recognition that improvements to a public servitude are not exclusive and that where an enterprise may introduce a road outside of privity of contract or original ownership that road is a public road and improvements made thereon are for the enjoyment of all who may use the servitude - the same applies to canals, railway lines etc ...
[in English terms an easement compelled is likely to be a Highway for the form of traffic for which compulsory access was imposed. A utility easement by one provider is available to successor and alternate utilities provided that fees are paid and interruptions not created]
If you look at the policy debates and submissions you'll see that some market participants are pleading to the State to price set and effectively compel Telkom to provide a free ride whilst Telkom is seeking to preclude access while still preserving the right of a dominant on estate. Unless Telkom wants to surrender their right to create wayleaves. Ironically Telkom are very good on the utility civils front and could actually run a successful low margin business of bridging between whoever wants to blast fiber and the awful municipalities. ICASAs position could lead to greater regulatory intervention but that is not a given. Take a look at MWEB's submissions who want to introduce a regulatory heavy approach based on New Zealand whereas the UK and Netherlands has had a wonderful experience with LLU. Take a look at my submissions on LLU
So as with CTRs we actually have a situation where the "dominant firm" is absolutely opposed to a structure of playing by the rules, the emerging firms want a free ride and the default assumption is for the regulator to price determine. What we need is to move from regulation of pricing to rule based regulation. Both MTN and Vodacom plead for the regulator to price determine the costings on terminations resulting in bizarre accounting nonsense - have you seen the latest from Vodacom complaining about the transmission costs from Telkom for out in the bundu. What is needed is rule based setup for wholesale termination by operators and in my opinion the "effective rate" published by an operator is a rather good starting point. The transition however is a little bit of jumping around. The reality is that one cannot go to Chancery for remedy in equity where there is no legal right and then protest the Kings conscience when the writ and use fashioned is not to your liking, which is exactly what MTN and Vodacom are guilty of.
On this subject there is much to be looked at what the sort of "bureaucrat" serve the public best. My own interest naturally causes a look at the issues of what institutions serve judicial efficiency (the best interests of the proper administration of justice) and the many misguided changes under the moniker "case flow management". Our superior courts system does as well (or badly) with the limited registry staff as many organizations - both public and private sector - do with multitudes of call centres etc ...
The real death of any civil service is a public authority controlled by petty private bureaucrats - who are usually appointees in some fashion of nepotism or another - but the public minded constable bound to his oath the Her Majesty who takes civil pay and does diligent service under the motivation of the self-actualization of the dignity of office has always been the cause of exemplary policing.
