South Africa Network Deployment Draft Bylaws: What Happens Next?

The author, Dominic Cull

The Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini Zuma, has released the draft model statutes for the deployment of electronic communications and public consultation facilities. What is the goal and how will it help accelerate the deployment of network infrastructure to where it is needed most?

South Africa is in a race against time to extend access to affordable and quality electronic communications to all regions of the country, but there are several challenges to be overcome in order to build suitable electronic communications networks.

The draft standard regulation aims to respond to one of these challenges by standardizing the authorization applications for the deployment of networks on the municipal territory and the relations between the local authorities and the owners of these networks. The intention is to have a system that facilitates investment in fiber networks and access to broadband at lower cost.

Access to public land vs access to private land

Once finalized and adopted by municipalities, the regulations will govern access to municipal land and infrastructure for the purpose of deploying fiber networks or erecting towers.

Access to private land to deploy electronic communications infrastructure will be governed by a set of regulations to be drafted by communications regulator Icasa. This regulation will specify the rights of permit holders and private landowners, including the right to object to any proposed installation and the right to compensation when the installation deprives the landowner of the use of part of the property.

Icasa will start drafting these regulations when the National Rapid Deployment Policy is finalized by the Minister of Communications and Digital Technologies, which is expected soon.

Local government intervention

The statutes are fundamental to open digital access to all. Accordingly, this project is one of the priority programs of the presidency which are carried out by Operation Vulindlela. The project was developed by a working team made up of representatives from local government, industry, the Department of Cooperative Governance and Traditional Affairs, and the Department of Communications and Digital Technologies.

The regulations will be enacted under the Municipal Systems Act and are part of a broader initiative to empower local governments – particularly rural municipalities – to process permit applications and exercise appropriate supervision and controls over the use of municipal infrastructure.

While the standard statutes will facilitate the deployment of e-communications infrastructure, they are not part of the national rapid deployment policy set out in the National ICT Policy White Paper published in 2016. It is not a “one stop shop” for all permissions. for the deployment of electronic communications facilities referred to in Article 21 of the Electronic Communications Act.

It is, however, an important step in the right direction.

Municipal fees and tariffs

A major issue for the industry is the high level of fees and tariffs imposed by some municipalities for permission to deploy fiber networks and the disparities in fees and tariffs between municipalities. Network providers argue that municipalities should set charges and tariffs to recover their costs and that this is a requirement of the ICT White Paper.

In retrospect, however, the white paper failed to take into account the functions and duties of local government as set out in the constitution and legislation such as the Municipal Systems Act and the Municipal Financial Management Act.

Setting charges and tariffs for the use of municipal infrastructure is the prerogative of the municipality concerned, and each municipality draws up its own tariff policy and its annual medium-term revenue and expenditure framework. The model by-law cannot therefore prescribe fees and tariffs for municipalities. Hopefully, the challenges posed by the fee and pricing structure will be resolved through a separate channel.

Partnership with industry and local authorities

Once the decrees have been finalized, it will be necessary to tackle the difficult problem of their implementation by the communes. For many municipalities, this will require establishing effective internal processing and tracking systems, capacity building and training, and setting fees. It will also require a commitment to lawful behavior and efficient use of infrastructure by industry. That means more sharing and less overbuilding up front.

Above all, it is hoped that the model statutes will provide a basis for a constructive partnership between local government and network providers. Both sides are essential to achieving universal access goals and the current environment of mutual antagonism is doing the country a disservice.

Read: The draft regulation for the deployment of the network published in the Official Journal

A number of very helpful submissions on draft model bylaws have already been received from municipalities, industry and professional bodies. The final submission deadline is October 28, 2022 and comments may be submitted to the Managing Director of Cooperative Governance, Attn: Mr. Sonwabile Nkayitshana, email [email protected].

  • The author, Dominic Cull, is a communications regulatory expert at Ellipsis

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