A dysfunctional regulatory regime may come back to bite South African companies trying to expand into other countries, says Hudson Janisch, a professor of regulatory law.
Janisch, a former South African, is a professor emeritus of law at Toronto University. He is visiting the University of Cape Town to teach its professional education course.
He says that as South African companies look to expand into other African markets, they will be faced with questions about the telecommunications regulatory regime back home, especially in instances where a policy of market liberalisation is being pursued.
Janisch also says SA has to liberalise and put in place a proper regulatory regime, because it has entered into agreements as part of its World Trade Organisation membership.
He notes the issue of dysfunction surrounds the South African regulator, the Independent Communications Authority of SA (ICASA). "Its apparent inability to sort out its internal problems and systems is destructive and so is the interference by the minister [Ivy Matsepe-Casaburri]."
However, Janisch points out that such situations are not abnormal in countries trying to liberate their markets and SA's "regulatory mess" places it on par with other countries.
"In Canada, we have had a minority government overstepping the boundaries with regard to the regulator and there has been a lot of debate and argument about it. Australian telecommunications incumbent Telstra is actually taking constitutional action against that country's regulator," he says.
Janisch distinguishes between constructive and destructive regulatory debates. In the first instance, a constructive interaction would be the regulator, the law-making body (Parliament) and the executive deciding on a joint plan. A destructive debate would be excessive interference by the minister, leading to conflict between her and the regulator.
"It is understandable and desirable for the country to go through a series of steps in setting up a functional regulatory regime."
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