Telecommunication
Law in South Africa
• Prof. Sizwe Lindelo Snail Ka Mtuze and
• Mr Stephen Newman
• 13 February 2025
• Electronic Communications Regulation in South
Africa
• 1. Overview Electronic Communication Regulations
• South Africa's electronic communications landscape is
regulated, directly or indirectly, by several laws, including :
• the Constitution of the Republic of South Africa, 1996
(the Constitution), the Electronic Communications Act
36 of 2005 (the ECA),
• Independent Communications Authority of South
Africa Act 13 of 2000 (the ICASA Act),
• Broadcasting Act 4 of 1999,
• Electronic Communications and Transactions Act 25 of
2002 (the ECT Act),
• Electronic Communications Regulation in South Africa
• 2. Overview Electronic Communication Regulations Cont.
• Sentech Act 63 of 1996,
• State Information Technology Agency Act 88 of 1998 (SITA
Act),
• Critical Infrastructure Protection Act 8 of 2019 (CIPA),
• Protection of Personal Information Act 4 of 2013 (POPIA),
• Films and Publications Act 65 of 1996 (the FPA) and
• International Telecommunication Regulation
• Competition Act 89 of 1998
3. The Constitution
• The Constitution of South Africa has 2 (two) sections which are directly relevant
to and provide the basis for the regulation of electronic communications.
• The first, is section 16, which provides as follows: Everyone has the right to
freedom of expression, which includes (a) freedom of the press and other
media; b) freedom to receive or impart information or ideas; (c) freedom of
artistic Creativity; and (d) academic freedom and freedom of scientific research.
• The second is, section 192 which states that, “national legislation must
establish an independent authority to regulate broadcasting in the public
interest. The ECA is the State's response to these constitutional requirements.
The objectives of the ECA are in line with facilitating and ensuring the means by
which South Africans can "receive or impart information or ideas".
4. International Treaties
South Africa is a member of the International
Telecommunication Union (TU). The ITU is the United Nations'
specialised agency for information and communication
technologies. Also, South Africa is a signatory to the
Constitution and Convention of the International
Telecommunication Union (or the ITU Convention). In addition,
South Africa has also accepted certain decisions taken at ITU
World Radio Communication Conferences and has also ratified
International Telecommunication Regulations.
The Constitution, as provided in section 231, requires South
Africa to “respect and be bound by international agreements,
and the ECA obliges the State to make policies on matters of
national policy applicable to the ICT sector in relation to the
country's obligations and undertakings under bilateral,
multilateral or international treaties and Conventions, including
technical standards and frequency matters. For example, the
way that South Africa's radio frequency spectrum has been
allocated between various uses, such as mobile or broadcasting
services, is in keeping with what it has agreed at the ITU”.
• 5. Electronic Communications Act (the ECA)
• The ECA was passed into law in 2005 and repealed
the previous Telecommunications Act.
• The intention behind this was to , “replace a
cumbersome, convoluted and archaic piece of
legislation that was heavily skewed towards
monopolistic Telkom, with one which is more
technologically neutral and more technologies," for
example, with broadcasting and
telecommunications services capable of being
provided over one type of technology (e.g. by
signals passed over the internet).
• There was no point in having the 10 (ten) different
licence categories that the Telecommunications Act
had provided for
• 6. Electronic Communications Act (the ECA)
• Compare that to the ECA which provides for just
3 (three) different types of licence. The ECA's
long title describes that its purpose is to
promote convergence in the broadcasting.
broadcasting signal distribution and regulation
of telecommunications sectors and to provide
the legal framework for convergence of these
sectors.
• Further, its purpose is to make new provision
for the regulation of electronic communications
services, electronic communications network
services and broadcasting services, provide for
the granting of new licences and new social
obligations and provide for the control of the
radio frequency spectrum.
7 Electronic Communications Act (the ECA)
• The ECA primarily was drafted and
broken into part :
• 8. Electronic communications facilities
• 1. Introductory provisions, leasing,
• 2. Policy and regulations, • 9. Broadcasting services,
• 3. Licensing framework, • 10. Competition matters,
• 4. Electronic communications networks • 11. Numbering,
and electronic communications facilities.
• 12. Consumer issues
• 5.Radio frequency spectrum,
• 13. General and
• 6.Technical equipment and standards,
• 14. Universal Service and Access Agency
• 7. Interconnection of South Africa
• 7 Electronic Communications Act (the ECA)
• 7.1 Licensing framework
• In the case of Alltech Autopage Cellular v Chairperson ICASA
(2000/08), the High Court resolved the question of whether
holders of Value Added Network Services (VANS) licences are
permitted to “self-provide” their own facilities.
• In paragraph 10.5, the Court ruled that Alltech was entitled to
self-provide its own telecommunications facilities effective from
1 February 2005.
• The Court further stated that Clause 1.1(b) of the VANS licence
issued by ICASA on 18 August 2005, which seeks to deny Alltech
Cellular the right to “self-provide” telecommunication facilities,
is invalid and without effect.
• 7.2 Electronic communications networks and
electronic communications facilities.
• In 2014 chapter 4 of the ECA Act was updated to
improve the rights of ECNS licences regarding the
rapid deployment of electronic communications
facilities by way of amendment of section 13 of the
Electronic Communications Amendment Act of
2014.
• In addition section 21 was inserted and provided
for , “the rapid deployment of electronic
communications facilities as well as the creation of
regulations to provide for procedures and processes
for obtaining any necessary permits, authorization
approval or government authority … and resolving
disputes that may resolve arise between an
electronic communications network licensee and
any land owner in order to satisfy the public
interest in the rapid rollout of electronic
communications networks and electronic
communications facilities. “
• 7.3 Electronic communications networks and electronic communications
facilities.
• In the case of City Of Tshwane Metropolitan Municipality Versus Link Africa
Limited And Others (2015) JOL 34077 settled the rights of ECNS licensees
versus those of land owners, insofar as the deployment of electronic
communication facilities are concerned.
• In this particular case link Africa installed fibre optic cable infrastructure in
the underground infrastructure of the municipality such as their water and
sewage system. They would do so by simply clipping the fibre optic cable to
the top part or floor of the sewer pipe. This would enable link Africa a
cheaper method to install its infrastructure as it did not have to dig up
trenches to install its cables in the ground.
• The City Of Tshwane after some hesitancy refused Link Africa's proposal.
The constitutional court then had to balance the rights of the ECNS licences
against the property rights of the land owners in this case City Of Tshwane.
• The constitutional court held VAT ECN licences have the rights that are
similar to public servitudes. The court was of the view that the statutory
provisions provide powers and rights ECNS licences that they must exercise
for the benefit of the public. The court also highlighted that these public
servitudes that licences have must be exercised in a civil and reasonable
manner and that the licensee must consult with the land owner.
• 7.4 Radio Frequency
• Radio frequency spectrum affects every aspect of our lives. When
you wake up in the morning you turn on your radio and you listen
to your favourite radio station and you also have a choice to change
the radio station to another radio station of your choice.
• ICASA is responsible for controlling, planning, administering,
managing, licencing and assigning the use of radio frequency
spectrum in South Africa in terms of section 32 of the ECA Act.
• South africa's low fixed line broadband penetration is of the effect
that short term radio spectrum is going to be the quickest way to
get broadband to every part of the country.
• It must however be remembered that spectrum is a finite resource
and can accommodate a limited number of simultaneous users at a
time hence it needs to be regulated.
• The ITU has also recognise the benefit of moving from analogue to
digital which will enable the provision of online digital television
broadcasting as well as radio broadcasting.
• 7.5 Interconnection
• Interconnection is an essential element of how electronic
communications service providers operate.
• In terms of section 1 of the ECA interconnection is defined
as, “the physical or logical linking of two or more
electronic communications, electronic communication
services, broadcasting services, services provided pursuant
to a licence exemption or any combination thereof”.
• The ECA incorporates provisions intended to address any
interconnection issues in terms of section 37 (1) of the
ECA and provides the following, “subject to section 38, any
person licenced in terms of chapter 3 must, on request,
interconnect to any other person licenced in terms of this
act and persons providing service pursuant to a licence
exemption in accordance with the terms and conditions
of an interconnection agreement entered into between the
parties, unless such request is unreasonable”.
• 7. 6 Electronic communications Facilities Leasing
• Facilities leasing, like interconnection is one of and incumbents
operators most effective tools to inhibit competition in the electronic
communications network and services sector. Local loop unbundling
has been a contentious point of discussion which is the regulatory
process of allowing multiple communications operators to use
connections from the telephone exchange to the customer's
premises.
• Section 43 one of the ECA states that subject to Section 44 (5)-(6) and
ECNS licensee, must on request, lease electronic communications
facilities to any other person licenced in terms of the ECA and the
persons providing services pursuant to a licence exemption in
accordance with the terms and conditions of a electronic
communications facilities leasing agreement which must be entered
between the parties unless the said request is unreasonable.
• In the case of Neotel v Telkom Neotel had requested access to the
local loop from telecom at two points. Telkom refused the request
and stated that it was premature. It argued that ICASA was still busy
with the regulatory process relating to local loop unbundling and that
it could not perform as requested. Neotel argued that its request fell
squarely within section 43 of the ECA and the electronic
communications facilities leasing regulations and that Telkom actually
could perform.
• The court confirmed that telecom could perform and accordingly
contravened the electronic communications facilities leasing.
• 7.7 Broadcasting Services
• E TV v Minister of Communication and Digital Technologies CCT
89/ 22 and CCT 92 the matter concerned the government’s plan
to change television broadcast through analogue transmission to
digital broadcasting systems and the eventual date when the
analogue systems would be switched off.
• The High Court accepted that out of over 14 million television
sets in South Africa, 10.5 million were compliant with digital
transmission and 3.75 million were analogue. However, as there
were no statistics available to indicate the financial status of the
households still using analogue television sets, it was not
possible for the High Court to discern how many households
would qualify for the state-sponsored STBs
• The Court held that households that did not register for STBs,
have no standing. The High Court further held that, because
there is an unknown number of households who will be affected
by the switch-off, it would be unreasonable to allow a situation
where an unknown variable would be allowed to delay a process
that will eventually benefit all citizens.
• The High Court held that 3 (three) months would be sufficient to
allow the Minister to complete the outstanding installation of
STBs.
• 7.8. Competition Law
• In 2015 current radio presenter Thabo “T-Bo Touch” Molefe launched a
social media campaign under the hashtag #DataMustFall. The reason for
this social media campaign was the high cost of data .
• As a result ICASA and the South African Competition Commission started
a market inquiry into respective mobile broadband services and data
services. The ICASA market inquiry was launched by way of a discussion
document in 2019.
• Section 67 of the ECA prescribes that after an inquiry regulations
defining the relevant markets and market segments and must impose
appropriate and sufficient pro-competitive licence conditions on licences
where there is ineffective competition and if any licensee has significant
market power in such markets or market segments.
• This market inquiry was followed by the Competition Commission of
South Africa's platform inquiry which also made certain findings and
recommendations.
• 7.8 Competition Law
• Competition Commission made finding and recommendation
of the Data Services Market Inquiry in 2019
• The Competition Commission found that the existing
international comparisons on mobile prepaid stator prices
collectively indicated that South Africa was performing poorly
relative to other countries with regards to its prices being
expensive.
• It also found that the pricing strategies of 2 (two) larger
operators were anti poor in so far as lower income consumers
who may purchase less data compared to wealthier customers
who use high volume of data on a “ like for like basis”.
• The Competition Commission also found that the general
pricing of data was extremely high.
• Priced based competition was also not competitive and
smaller networks were considered to be constraint.
• 7.8 Competition Law
• The Competition Commission released the Online Intermediation
Platforms Market Inquiry in 2022 . Online intermediation platforms
facilitate transactions between business users and end customers (so-
called B2C platforms). The Market Inquiry has identified the following
platforms as leading platforms in their respective platform categories:
• Apple App Store and Google Play store in software app stores;
• Takealot in eCommerce;
• Property24 and Private Property in property classifieds and Autotrader
and Cars.co.za in automotive classifieds;
• com and Airbnb in travel and accommodation;
• Mr Delivery and UberEats in food delivery; and
• Google search in general search ( as an input to platform competition).
• Note: Any remedial actions and recommendations made by the Market
Inquiry report only apply in respect of the South African operations for
global platforms and domestic platforms.
Q and A
Tel: +27 83 477 4377
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