More than a decade ago, the department of communications recognised that the lack of always-available, high-speed and high-quality bandwidth required by businesses, public institutions and citizens harms South Africa’s development and global competitiveness.
The broadband policy document South Africa Connect was gazetted in 2013, with the aim of ensuring, among other things, that public institutions at the national, provincial and municipal level — including the communities they serve — benefit from broadband connectivity. The policy was aligned with the National Development Plan, which provided for the vision of an ICT sector and would underpin the development of a dynamic and connected information society.
On 11 April 2006, the Electronic Communications Act (ECA) was promulgated. Section 22 of the ECA gives electronic communications network service (ECNS) licensees the right to enter a property, construct and maintain electronic communications networks or facilities and alter or remove them, with due regard to applicable law and national environmental policy.
Section 24 of the ECA requires of ECNS licensees to give notice of 30 working days of their plans to do so.
In 2015 the Constitutional Court, in the landmark decision City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others, interpreted the scope of the section 22 rights as entitling ECNS licensees to select and access premises for the purposes of constructing, maintaining, altering or removing communications networks or facilities. The selection of such property must be done in a civilised and reasonable manner — which includes giving reasonable notice and consulting with the owner.
It remains to be seen whether these regulations will provide the certainty that ECNS licensees, and the industry as a whole, need on the rapid deployment of electronic communications networks and facilities
Most importantly, the Constitutional Court determined that the “applicable law” referred to in section 22 includes common law and the constitution. Accordingly, all ECNS licensees are bound, in exercising their section 22 rights, by laws made with the authority of national, provincial and local government.
On May 21 2014, the Electronic Communications Amendment Act 1 of 2014 was promulgated, which revised the wording of section 21 of the ECA. It obliged the Independent Communications Authority of South Africa (Icasa), along with the ministers of co-operative governance & traditional affairs (Cogta), rural development & land reform, water and environmental affairs and other relevant institutions, to develop a policy for the rapid deployment and provisioning of electronic communications facilities.
In February last year, the then Cogta minister Nkosazana Dlamini-Zuma gazetted standard draft bylaws for deployment of electronic communications facilities. Although these are merely a guide to municipalities, they reinforce the national government’s commitment to rapid deployment of electronic communications infrastructure.
But these standard draft bylaws are flawed in a number of respects.
First, they suggest that they are applicable to all “persons” seeking to deploy or operate electronic communications facilities. However, section 7 of the ECA contains a prohibition on the provision of any service without a licence. “Persons” is also not defined in the standard draft bylaws, which creates confusion regarding to whom the bylaws are applicable.
Second, the bylaws provide for the processing of wayleave applications within 30 working days, allowing a municipality that requires additional time an opportunity to notify the applicant of an extension for a further 15 working days. The ECA specifically provides for a licensee providing the local authority with a 30-working-day notice period. ECNS licensees must also obtain any necessary approval from all relevant authorities and providers affected by the deployment of the infrastructure prior to submitting the application. Practically, this would mean that all ECNS licensees must plan in excess of a 90-working-day period for the approval of wayleave applications.
Third, licensees will be required to enter into municipal land-use agreements containing at a minimum the provisions of schedule A to the standard draft bylaws. Schedule A, among other things, provides for the payment of ongoing charges and escalations. Bearing in mind the policy emphasis on ensuring the rapid deployment of electronic communications facilities and the need to bridge the digital divide, it is unclear what these payments and ongoing charges refer to.
Moreover, in accordance with the ECA, licensees are only obliged to pay the reasonable expenses incurred as a consequence of the construction, alteration or removal of electronic communications facilities and networks.
Since the standard draft bylaws were gazetted more than 18 months ago, it appears only three municipalities have incorporated their provisions into their wayleave bylaws. Bearing in mind that the standard draft bylaws were presumably only published after the minister had consulted with the relevant levels of government, it is unclear why other municipalities have failed to adopt them.
Notwithstanding the disconnect between national and local government on these bylaws, both the national policy and the policy direction on the rapid deployment of electronic networks & facilities were published in March last year.
The national policy document details the process to be followed by licensees to access property, and the rights of property owners and any other persons whose rights or legitimate expectations may be materially and adversely affected by the deployment of electronic communications facilities and networks.
Since the standard draft bylaws were gazetted more than 18 months ago, it appears only three municipalities have incorporated their provisions into their wayleave bylaws
In contrast to the standard draft bylaws, the national policy makes it clear that licensees are only required to give 30 days’ notice of their intention to deploy infrastructure. It further emphasises that the compensation charged by property owners to licensees for the deployment of property ought to be reasonable in that it must be proportionate to the disadvantage suffered and may not enrich the property owner or exploit the licensee.
The policy direction has directed Icasa to prescribe regulations in accordance with the ECA for the deployment of electronic communications and facilities, with particular reference to the manner in which a decision on access must be made, the costs involved and the time frame; the implementation and publication of decisions made in terms of a dispute resolution procedure; and how reasonable compensation must be determined.
Icasa has since published an invitation to bid for the appointment of a service provider to assist in determining the reasonable compensation and fees for the deployment of electronic communications networks and facilities.
It remains to be seen whether these regulations will provide the certainty that ECNS licensees, and the industry as a whole, need on the rapid deployment of electronic communications networks and facilities. They need to know if there will be cohesion between national and local government on the processes and compensation for deployment, for the benefit of the country as a whole.
• Manaka is head of litigation and dispute resolution at Werksmans Attorneys; Bilatyi is a director at Werksmans Attorneys
