Communications minister Solly Malatsi under siege
The Portfolio Committee on Communications has welcomed ICASA’s decision not to change regulations on BEE ownership requirements for telecoms licences until the underlying law is amended.
Speaking to Newzroom Afrika, committee chair Khusela Diko said communication minister Solly Malatsi was “legally delinquent” in his approach to effect the change.
This comes after the Independent Communications Authority of South Africa (ICASA) said it not consider amending BEE ownership requirements for telecoms licences until the law was changed.
“We have fully welcomed the decision that has been taken by ICASA in this matter. Their decision is an affirmation that indeed South Africa is a legally governed society,” Diko said.
She said the committee had informed the minister that the change he wanted to effect could only be done by changing the law.
She accused Malatsi of trying to find a shortcut to allow SpaceX’s Starlink into the country, adding that it was the only low-earth-orbit satellite firm that did not want to comply with the regulations.
“He cannot take an administrative decision. He has no regulatory discretion over laws. The laws are there for a reason,” Diko said.
“If he wants to amend the laws, he needs to take the proper route. Unfortunately, he chose to be legally delinquent, and ICASA has correctly affirmed our decision.”
In May 2025, Malatsi issued a policy direction to ICASA, instructing the regulator to align its telecoms licensing rules with the full scope of the BEE ICT Sector Code.
The aim of this was to recognise equity equivalent investment programmes (EEIPs) as an alternative to the 30% historically disadvantaged group (HDG) ownership requirement to qualify for telecoms licences.
The instruction came after Malatsi’s department gathered feedback from the public regarding the proposal. Over 90% of the submissions supported the introduction of EEIPs in the sector.
Diko acknowledged that EEIPs were a dispensation designed for multinational ICT companies that don’t want to give up any ownership.
“However, when it comes to connectivity, you need to have a licence. That licence is governed by the Electronic Communications Act (ECA),” she said.
“That act is very clear that in order to gain access to such a licence, you need to have 30% BEE. It does not give you any opportunity to work around.”
What Malatsi should have done, according to Diko
Diko maintained the 30% ownership requirement was a condition precedent to the law and could not be waived through EEIPs.
“What Minister Malatsi should have done when he felt that the law was unclear: he was supposed to respect the doctrine of separation of powers and know that he cannot change the law,” she said.
“He can seek a declaratory order from the court, or he can seek an amendment from Parliament. He chose the shortcut route.”
She added the portfolio committee kept telling Malatsi that “this is not America”, where senior politicians could issue executive orders on matters of this nature.
In a statement issued on Wednesday, 13 May 2026, ICASA opposed Malatsi’s attempt to introduce EEIPs into telecoms licensing regulations.
“The Authority remains committed to advancing transformation, empowerment and economic inclusion within the telecommunications sector and all other sectors it regulates,” it said.
It reiterated that the ECA required historically disadvantaged groups to hold a minimum 30% ownership for individual licence holders. However, this interpretation of the law has been disputed.
When it was first signed into law in 2006, the ECA stated that the ownership percentage “must not be less than 30%, or such higher percentage as may be prescribed.”
This was amended in 2014 to add the following: “… or such other conditions or higher percentage as may be prescribed under section 4(3)(k) of the ICASA Act.”
Some legal experts argue this change empowered ICASA to incorporate EEIPs like those used in other sectors without amendments to the ECA, but this was not ICASA’s view.
“ICASA notes that while the Amended ICT Sector Code must be applied in licensing qualification criteria, full alignment with all provisions of the Code, including EEIPs, would require a legislative amendment,” it said.
It did not explain why the ECA prevented it from aligning its regulations with those of other sectors. “The Authority will continue to engage with the Ministry within the confines of its mandate,” ICASA said.
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