Jurisdictional ambiguity between the Competition Tribunal and the Independent Communications Authority of SA (ICASA) is hampering effective regulation, especially of anti-competitive behaviour, in the local telecoms environment.
Norman Manoim, tribunal panel presiding member, presented this message at a recent telecoms forum hosted by the Link centre, at Johannesburg`s Wits University.
While having two authorities "overlapping" in terms of their responsibilities often creates a phenomenon known as "forum shopping" (where complainants can approach another authority if their grievance is not adequately dealt with by the other), it can also result in nobody assuming responsibility for certain tasks, he said.
"It`s not a question of forum shopping - but whether you can buy at all.
"The system of enforcement [in the telecoms industry] is failing," stated Manoim, citing the long-running VANS versus Telkom saga, which began in 2004.
"The High Court is yet to hear the dispute," he noted.
The Competition Tribunal regulates and investigates mergers and anti-competitive behaviour, defines markets, "harm" and barriers to entry, while ICASA deals with core market structures in the telecoms industry, he said.
"ICASA has good market knowledge, and the tribunal has vast competition theory, and economic and market structure knowledge - so each has its skills," he added.
While the new Electronic Communications Act upholds the right of the Competition Act for competition in the telco environment to be regulated, some ambiguity over jurisdiction still exists.
"And the Convergence Act, the first draft of which was published in 2003, sent a strong message there would be concurrent jurisdiction between the sector regulator and the Competition Tribunal."
However, no solution appears to be on the horizon. One way of managing the situation, he said, is to "carve out", or assign, different roles to the regulator and the tribunal.
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