Vulnerable and exposed to all forms of market abuse, inconsistent and unfair treatment through the fine print in commercial contracts, local consumers – most of whom are illiterate and poor – have waited a long time for regulatory intervention such as the Consumer Protection Act (CPA), which was promulgated into law recently.
National Consumer commissioner Mamodupi Mohlala, in outlining her immediate plans recently, correctly stated that “telecommunications, pharmaceutical and health care, retail, manufacturing and banking sectors” were on the top of her list of priorities. The fact that the National Consumer Commission (NCC) has received significant initial complaints involving these sectors, show that these sectors are seen as being involved in the brutal architecture of consumer inequality and abuse in this country for too long.
For a long time, local consumers have suffered from the worrying absence of an active, vigilant and vibrant consumer watchdog that has not been tainted by any form of bias in driving consumer rights issues. Therefore, the ultimate dawn of the NCC could not have come at a better time in our history.
When one would have thought that this development would receive our overwhelming and full support as a country, the announcement by the Independent Communications Authority of SA (Icasa) last month – that it would ask the minister of trade and industry to exempt the telecommunications sector from the application of the new act in terms of Section 5 (3) of the CPA – is most disappointing and appalling.
Although the act allows a regulatory authority to apply to the minister of trade and industry for an industry-wide exemption from one or more provisions of the CPA on the grounds that those provisions overlap or duplicate a regulatory scheme administered by that authority in terms of any national legislation, it is important to consider the interests of the millions of consumers and end-users in this regard.
It is clear that should the minister be unable to grant such an exemption – which he clearly should not – this matter may have to be settled by the courts of law, something surely undesirable and unnecessary considering the work load for Mohlala and her team.
It clearly is not rocket science to figure out who is behind Icasa’s move to stall the work of the NCC.
Truth be told, although Icasa may have an internal “complaints and dispute resolution unit” within its structure, such a unit has arguably, for all intents and purposes, not served the interests of local consumers.
Hence, Mohlala is correct to argue that the NCC is the first and final legislative platform in respect of all matters that relate to “the enforcement of consumer rights” in South Africa.
Since the CPA is essentially founded on the constitutional principles of “fair, accessible and sustainable promotion of consumer protection” for all South Africans – irrespective of race and colour (my emphasis), it is prudent that any other national legislation that is not consistent with this ethos actually risks being rendered unconstitutional if challenged.
Despite its evasive pronouncement of its commitment to “work, in a collaborative manner, with the NCC, for purposes of promoting the interests of consumers in the country”, Icasa has, as early as last year, had sufficient opportunity to lay down the law in respect of the tariffs, interconnection fees and contractual agreements for these network providers.
Instead of being decisive and firm in their engagement and dealings with the networks, Icasa was wishy-washy and very casual in its approach to the reduction of interconnection fees.
The end result was that the information and communication technology (ICT) sector became a haven for tariff looting, exorbitant charges and ridiculous costs that left consumers with no legislative platform to turn to when necessary.
To date, leading ICT companies like MTN and Vodacom have become very wealthy enterprises that have tripled their share performances and can still afford to pay former chief executive’s multimillion-rand retirement benefits.
This happens when daily users and subscribers are bearing the brunt of all sorts of escalating costs.
The fact that a significant number of the country’s population is covered by cellphone networks – with an estimated 39 million subscribers – is indicative of the hard reality that ICT in South Africa is not just the fastest-growing cellphone market in the world, but a basic way of life more than it is a luxury or privilege.
While costs have ballooned, cellular and landline services have become an out-of-reach pie in the sky for millions of South African users.
Now that is something that Icasa should actually be worried about, instead of seeking to derail the work of the consumer commission.
Through its fatal omission of their statutory function, Icasa has in essence failed its critical mandate as defined by Section 2(n) of the Electronic Communications Act, which mandates it to, among other things, promote the interests of consumers with regard to the price, quality and variety of electronic communications services.
Thabo Masombuka is an attorney and an economic empowerment strategist. He runs Empowerment Advisory Firm in his own account.