Ramaphosa’s broadband blunder

Only three out of over 250 South African municipalities have adopted standard bylaws intended to help speed up broadband network rollouts 18 months after they were first published.
This is according to Werksmans director Akhona Bilatyi and head of litigation & disputes Corlett Manaka.
These bylaws — meant to benefit fibre rollouts through simplified regulations for public-private partnerships — were highlighted by President Cyril Ramaphosa as one of Operation Vulindlela’s successes.
“We will massively increase the scale of investment in infrastructure through a more holistic and integrated approach, positioning Infrastructure South Africa as the central institution of coordination and planning,” Ramaphosa said during his opening of Parliament address on 18 July.
“We are simplifying the regulations on public-private partnerships to enable greater investment in both social and economic infrastructure development.”
Government’s plan to implement rapid deployment guidelines for telecommunications networks is nothing new.
Their first iteration, in 2008, included an attempt by the late former communications minister Ivy Matsepe-Casaburri to hijack legislation to influence undersea cable landings in South Africa.
These guidelines were finally abandoned on 11 August 2011 under the late Minister Roy Padayachie, who handed off writing new guidelines to the Independent Communications Authority of South Africa (Icasa).
There was little visible progress on the Rapid Deployment Guidelines for years.
Industry sources told MyBroadband in the intervening years that Icasa had developed the framework, but it languished on the desk of Padayachie’s successor — Dina Pule.
In 2015, consultants Analysys Mason were appointed to help develop policy and policy directions.
Progress stalled again — this time for five years.
Then, on 22 July 2020, former communications minister Stella Ndabeni-Abrahams published a draft policy and policy directions out of the blue.
These were met with criticism from some quarters, as it gave mobile networks and other Icasa licensees the right to select, enter, and use public or private land to deploy their network infrastructure.
Landowners would be allowed to charge reasonable fees if a network erects intrusive infrastructure such as cellphone towers on their property.
Bilatyi and Manaka highlighted that this policy would only finally be published three years later, in March 2023.
In meantime, during his 2022 State of the Nation address, Ramaphosa promised that government would facilitate broadband rollout by establishing a standard model for municipal approvals.
That September, the former Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, published draft bylaws for deploying electronic communications facilities.
These bylaws were finalised in February 2023 and became available for municipalities to adopt.
However, as Werksmans’ Bilatyi and Manaka noted, these standard draft bylaws were deeply flawed.

Standardised bylaws flawed
Bilatyi and Manaka said the bylaws include the phrasing that they apply to all “persons” who wish to deploy or operate communications infrastructure.
However, the standard draft bylaws do not define “persons”, and section 7 of the Electronics Communications Act of 2006 prohibits anyone without a licence from providing a service.
Another shortfall is the 30-workday period over which wayleave applications are processed. This is to allow municipalities an extension of 15 days should they need additional time.
Wayleaves are the permits that municipalities issue that allow you to work on public land, such as trenching in the road reserve to lay fibre.
However, any electronic communication network service (ECNS) licensee applying for a wayleave must also provide the municipality with a 30-workday notice period.
In addition, the ECNS must also seek approval from all authorities and providers affected by the deployment of infrastructure, resulting in a 90-workday period for the entire process to take place.
Lastly, an ECNS will need to enter into a municipal land-use agreement that adheres to separate provisions of the standard draft bylaws.
This entails paying ongoing charges and escalations. What these refer to us is unclear.
However, in accordance with the Electronic Communications Act (ECA), licensees are only obligated to pay the expenses resulting from the construction, alteration, or removal of electronic communication facilities and networks.
“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 and facilities were published in March last year,” the attorneys wrote.
“The national policy document details the process to be followed by licensees to access property,” they explained.
“It also details 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.”
The new policy clarifies 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 also directed Icasa to prescribe regulations in accordance with the ECA for the deployment of electronic communications and facilities.
These must make particular reference to the manner in which a decision on access must be made, the costs involved and the time frame.
Icasa’s regulations must also include 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,” said Bilatyi and Manaka.
“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 continued.
“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.”