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COULD WI-FI BE REGARDED AS A BASIC SERVICE?

Prepared by Prof Dirk Brand of the Stellenbosch School of Public Leadership

26 November 2014

Facts: In the knowledge economy of the 21st century information and

communications technology, including internet connectivity, plays a key role in

society. It is in particular internet access that could have a significant impact on

economic development, education and social inclusion.

Project Isizwe is an initiative to provide free Wi-Fi access to the internet in specific

locations in South Africa with the specific aim to develop a more vibrant, productive,

inclusive and interconnected South Africa. The product that is delivered by Project

Isizwe consists of the installation of so-called Wi-Fi hotspots (access points) that

provide free internet access with unlimited content, although Isizwe proposes a

usage policy to ensure fair use for all, which includes a daily data limit and internet

speed limit.

Legal question: could Wi-Fi be a basic service?

This question includes the following sub-questions:

(i) What is a basic service?

(ii) What does Wi-Fi provide to citizens?

Advice

1. Description of Wi-Fi

Wi-Fi is a protocol for local area wireless technology that provides access to the

internet by allowing electronic devices such as mobile phones, laptop or tablet

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computers to connect to the internet using 2.4 GHz UHF and 5 GHz SHF radio

waves. The term ‘Wi-Fi’ is a trademark name under the international Wi-Fi Alliance

and refers to “wireless local area network (WLAN) products that are based on the

Institute of Electrical and Electronics Engineers' (IEEE) 802.11 standards".1 Wi-Fi

provides easy access to the internet in places where cables cannot or are not used

to provide internet services, such as outdoors or public places such as an airport or

soccer stadium.

Broadband internet services use cables, optical fibres or telephone lines that provide

the connectivity for users of these services. It requires extensive infrastructure in the

form of one of these transmission options to allow digital communications and data

transmission. The user or consumer normally pays a fee to the internet service

provider and also to the network provider, which could for example be a telephone

company such as Telkom. The provision of broadband internet services is the

conventional way of creating a real network connecting consumers or users of the

services to the internet. Wi-Fi is an alternative way of providing such access to the

internet by using wireless technology that increases the scope of access and the

potential spectrum of users since it is not limited by location, fixed cable or fibre

networks and other physical limitations. This implies that Wi-Fi could for example be

used in remote locations where the fixed line infrastructure is either limited or non-

existent, as well as in high density urban areas where there are many people in need

of internet connectivity but without the possibility of a fixed line internet connection.

The infrastructure required to establish Wi-Fi connection points or hot spots is also

much less and thus generally cheaper compared to the installation of conventional

cables or optical fibres, and it could also be established in a shorter period of time.

2. International studies about the provision of Wi-Fi

Various international studies about the impact of mobile internet connectivity on

society have been done by various institutions during the past few years. In the

context of the current question under consideration it is important to refer to some of

these studies as far as they are relevant.

1 http://www.webopedia.com/TERM/W/Wi_Fi.html

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2.1 Deloitte, GSMA and Cisco have produced a joint research report in 2012 about

the impact of mobile telephony on economic growth.2 Their research found that the

use of mobile phones had a significant positive impact on economic growth in a

variety of areas such as agriculture, finance, health and education. It also improved

communications, social inclusion and economic activity. In developing countries the

use of mobile technology has bridged the gap caused by a lack of fixed line

communication and data transmission infrastructure. The study further showed that

if a country doubled its consumption of mobile data between 2005 and 2010 it would

have experienced an increase of 0,5% in GDP each year.

2.2 The World Bank has produced a report in 2009 ‘Extending Reach and Increasing

Impact’ about the use of information and communication technology (ICT) for

development. Some of the key drivers for the World Bank’s involvement in

information and communication technology are the need for increased access to ICT

infrastructure and the general use of ICT to improve delivery of public and private

services across economic and social sectors.3

The report states that mobile phones have become the world’s largest distribution

platform and that it is of particular importance in rural areas where almost half of the

world’s population and 75% of the poor lived at that time. This study looked at the

impact of broadband technology and not necessarily wireless technology. It

concluded that broadband technology is infrastructure that transforms the economy

of a country since it is an enabler that stimulates more innovation, research and

general economic activities. The empirical studies included in that report confirm the

positive impact increased use of broadband technology has on economic growth in

both developed and developing countries.4

2.3 In a recent report by Deloitte on the value of connectivity in the knowledge

economy it was found that if developing countries can increase internet connectivity

2 What is the impact of mobile telephony on economic growth? – a report for the GSM Association, November 2012, http://www.gsma.com/publicpolicy/wp-content/uploads/2012/11/gsma-deloitte-impact-mobile-telephony-economic-growth.pdf 3 World Bank Report, 2009 p xiii. 4 World Bank Report, 2009 p43 – 48.

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to levels similar to that of developed countries it will have a massive impact on GDP

growth, access to health services and education opportunities and reducing poverty

significantly. The increased connectivity that is required could be most effectively

provided by wireless technology or Wi-Fi access due to the fact that it is by definition

wireless and it thus does not require cables or optic fibres and related infrastructure

that add to the cost of connectivity. The report concluded by listing the following

benefits:

• “Long run productivity could be enhanced by as much as 25% in these

developing economies.

• The resulting economic activity could generate $2.2 trillion in additional GDP,

a 72% increase in the GDP growth rate, and more than 140 million new jobs.

• Personal incomes would increase by up to $600 per person a year, thus lifting

160 million people out of extreme poverty.

• Evidence on the link between health literacy and mortality rates suggests that

internet access could save 2.5 million people and 250,000 children.

• 2.5 million HIV/AIDS patients could increase their life expectancy thanks to

better monitoring and adherence to treatment.

• Another 640 million children may be able to access the internet and the

wealth of information it makes available while they study.”5

2.4 In the USA President Barack Obama recently announced that he wants the

internet to be seen as a utility just as other utilities such as electricity.6 He pleaded

for updated regulations regarding the provision of broadband services to promote

more open access to the internet. He further stated that investment in wireless and

wired networks played a major role in strengthening the economy in the USA and

creating the space for further technological developments such as development of

new mobile devices and apps for smart phones.

2.5 In the European Union (EU) much has been done to promote more, cheaper and

reliable access to the internet in all member states of the EU. The Vice-President of

the European Commission responsible for the digital agenda, Ms Nellie Kroes,

5 Deloitte ‘The Value of Connectivity’, 2014, http://www2.deloitte.com/ie/en/pages/technology-media-and-telecommunications/articles/value-of-connectivity.html 6 http://www.businessinsider.com/president-obama-thinks-the-internet-should-be-a-utility-2014-11

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described broadband services as the oxygen of the economy and promoted plans to

ensure internet access for every house and town in Europe.7 As part of the EU’s

“Europe 2020” strategy it is aimed to develop high speed reliable internet

connectivity in each member state. A study done for the European Commission in

2013 clearly showed the significant growth in use of Wi-Fi for data transmission –

mobile data traffic is estimated to grow with more than 70% p.a. over the next few

years.8 In September 2013 a package of legislative measures were adopted by the

European Commission to strengthen the ‘digital single market’ between the 28

member states of the EU. This included the promotion of more effective use of radio

waves for Wi-Fi connections and better coordination of the use of the radio wave

spectrum. These legal and technical measures are aimed at increasing wireless

accessibility to the internet for consumers in every member state.9 In a further

development the EU introduced a new Directive on reducing cost in the provision of

broadband infrastructure.10 The Directive states that it is the vision of the EU to

create “a digital economy that delivers sustainable economic and social benefits

based on modern online services and fast internet connections”.

2.6 There is currently a legislative proposal before the Italian Parliament to provide

free public Wi-Fi in thousands of locations in Italy in order to stimulate the

economy.11 The locations will include airports, taxis, large shopping areas and even

courtrooms. The parliamentarians argued that it will bridge the current digital divide

in Italy and between Italy and other European countries. The Italian Parliament is

requested to provide funding over a period of three years in order to assist in the

installation of free Wi-Fi hotspots all over Italy.

3. South African policy framework relating to broadband and Wi-Fi

7 Press conference on 26 March 2013, Brussels, http://ec.europa.eu/digital-agenda/en/news/getting-every-home-and-town-europe-broadband-ready 8 http://ec.europa.eu/digital-agenda/en/news/study-importance-wi-fi-socioeconomic-benefits-using-small-cell-infrastructures 9 http://ec.europa.eu/digital-agenda/en/node/67489/#spectrum 10 Directive 2014/61/EU of the European Parliament and of the Council, 15 May 2014. 11http://www.reuters.com/article/2014/10/25/us-italy-wifi-idUSKCN0IE0M320141025?feedType=RSS&feedName=technologyNews

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3.1 In the Final International Mobile Telecommunications Roadmap 2014 produced

in terms of the Electronic Communications Act, 3 of 2005, the motivation for

increasing broadband, and specifically mobile broadband, services in South Africa is

stated as follows:

“A key driver for the deployment of IMT (International Mobile

Telecommunications) bands is the need to ensure that mobile broadband

plays its role in meeting the objectives of 'broadband for all' which is

encapsulated in the targets of SA Connect published in 2013.”12

“Access to broadband is a necessary condition of economic development in

the modern economy. Although attention has been paid to the economic

benefits of broadband as calculated by the World Bank, it is probably more

accurate to note the converse, that an area that does not have broadband will

suffer relative economic decline.”13

“A lack of broadband in a rural area means that those inhabitants will be

excluded from participating in the digital economy, exacerbating the

disadvantages they have inherited by virtue of their physical address.”14

3.2 In the official broadband policy for South Africa, ‘South Africa Connect:

Creating Opportunities, Ensuring Inclusion’15 it is made quite clear that establishing

broadband connectivity throughout South Africa is essential for economic

development and to improve the quality of life of everyone in the country. With

reference to the National Development Plan (NDP) it states that all the various

broadband elements provide an enabling platform for economic enterprise, active

citizenship and social engagement and innovation. The NDP confirmed the

importance of internet connectivity and states that there must be a restructuring of

the ICT (information and communications technology) environment to ensure that

“South Africa does not fall victim to a digital divide.”16

This policy also creates the conditions in the modern knowledge economy and

electronic world ‘to improve the quality of life of all citizens and free the potential of 12 Final International Mobile Telecommunications Roadmap 2014 Government Gazette nr. 38213 of 14 November 2014 p 15. 13 Final IMT Roadmap 2014 p130. 14 Final IMT Roadmap 2014 p131. 15 Government Gazette Nr 37119 of 20 November 2013. 16 National Planning Commission National Development Plan 2030 Executive Summary, p24.

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each person’ in pursuance of the Constitution. This is in line with the UN Human

Rights Council which declared “that access to the internet is a basic human right

which enables individuals to exercise their right to freedom of opinion and

expression.”17

Although the policy mainly refers to ‘broadband’ in general terms, it also specifically

states that to enhance digital development and connectivity it will be important to

provide free public Wi-Fi networks. It stipulated that schools and clinics will be

prioritised for free public Wi-Fi to enable citizens to access e-government and other

services.18

4. Basic services in South Africa

4.1 A fundamental basis of the current South African constitutional system is the

principle of supremacy of the constitution. This means that the Constitution is the

highest law in the country, all law or conduct inconsistent with it is invalid and all

obligations imposed by it must be fulfilled (section 2 of the Constitution). It provides

the ‘umbrella’ for the functioning of the constitutional order. It is thus important to

consider what constitutional provisions, if any, form the basis of a definition of ‘basic

services’ in South Africa.

4.2 The term ‘basic services’ is not defined in the Constitution, but it is referred to in

Chapter 13 on Finances. Section 227(1) stipulates that”

“(1) Local government and each province

a) is entitled to an equitable share of revenue raised nationally to enable it to

provide basic services and perform the functions allocated to it” (my

emphasis).

Section 214 (2) lists a range of issues to be considered when the annual Division of

Revenue Act is submitted to Parliament. One of these issues is “the need to ensure

17 South Africa Connect p2; UN General Assembly A/HRC/17/27, 16 May 2011, http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf 18 South Africa Connect p5.

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that provinces and municipalities are able to provide basic services and perform the

functions allocated to them”.

There is thus a constitutional basis for the funding of basic services to be provided

by provinces and municipalities although the term ‘basic services’ is not defined in

the Constitution.

4.3 It is further determined that each municipality must give priority to basic needs of

the community. Section 153 of the Constitution stipulates that:

“1) A municipality must:

a) structure and manage its administration, and budgeting and planning

processes to give priority to the basic needs of the community, and to promote

the social and economic development of the community”.

The objects of local government in section 152 include the provision of services to

communities in a sustainable manner and the promotion of social and economic

development. These objects clearly include the provision of basic services, however

that might be defined, to the community firstly on a sustainable basis, and secondly

in a way to promotes social and economic growth.

4.4 The concept of basic services received attention in the case of Joseph and

Others v City of Johannesburg and Others 2010 (3) BCLR 212 (CC) ; 2010 (4) SA 55

(CC) where the Constitutional Court inter alia stated in para [34]:

“The provision of basic municipal services is a cardinal function, if not the most

important function, of every municipal government. The central mandate of local

government is to develop a service delivery capacity in order to meet the basic

needs of all inhabitants of South Africa, irrespective of whether or not they have a

contractual relationship with the relevant public service provider. The

respondents accepted that the provision of electricity is one of those services that

local government is required to provide. Indeed they could not have contended

otherwise. In Mkontwana, Yacoob J held that “municipalities are obliged to

provide water and electricity to the residents in their area as a matter of public

duty.” Electricity is one of the most common and important basic municipal

services and has become virtually indispensable, particularly in urban society.”

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And later, with reference to a range of other legislative provisions relating to local

government, in para [39]:

“Taken together, these provisions impose constitutional and statutory obligations

on local government to provide basic municipal services, which include

electricity. The applicants are entitled to receive these services. These rights and

obligations have their basis in public law. Although, in contrast to water, there is

no specific provision in respect of electricity in the Constitution, electricity is an

important basic municipal service which local government is ordinarily obliged to

provide.”

4.5 In Mazibuko and Others v City of Johannesburg and Others 2010 (3) BCLR 239

(CC); 2010 (4) SA 1 (CC) the Constitutional Court confirmed the obligation on the

state, in this case the municipality, to provide services that give effect to the socio-

economic rights in the Constitution. Judge O’Regan, who delivered the judgement,

inter alia stated in para [66]:

“The Constitution envisages that legislative and other measures will be the primary

instrument for the achievement of social and economic rights. Thus it places a

positive obligation upon the state to respond to the basic social and economic needs of the people by adopting reasonable legislative and other measures. By

adopting such measures, the rights set out in the Constitution acquire content, and

that content is subject to the constitutional standard of reasonableness.”

4.6 The Municipal Systems Act, 32 of 2000, determines the duties of municipalities

to provide municipal services and stipulates in section 73 the following:

“(1) A municipality must give effect to the provisions of the Constitution and-

a) give priority to the basic needs of the local community;

b) promote the development of the local community; and

c) ensure that all members of the local community have access to at least the

minimum level of basic municipal services.

(2) Municipal services must-

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a) be equitable and accessible;

b) be provided in a manner that is conducive to-

i) the prudent, economic, efficient and effective use of available

resources; and

ii) the improvement of standards of quality over time;

c) be financially sustainable;

d) be environmentally sustainable; and

e) be regularly reviewed with a view to upgrading, extension and improvement.”

The term ‘basic municipal services’ is defined in section 1 of the Municipal

Systems Act as follows:

“...means a municipal service that is necessary to ensure an acceptable and

reasonable quality of life and, if not provided, would endanger public health or safety

or the environment”.

This is an open definition without any listed services, although the second part of the

definition qualifies the nature of basic municipal services. Section 73(2) of the

Municipal Systems Act prescribes how municipal services must be provided. It is

worded in clear language that lays the basis for growth in both the scope and quality

of municipal services over time.

4.7 The national government has developed a policy to substantially eradicate

poverty by focusing on the free provision of some essential services to poor

communities.19 The policy states that it creates a social safety net to support poor

people and it is further aimed at giving effect to the socio-economic and

environmental rights in the Constitution. It then stipulates that there is a core of

essential household services which should be provided free to the indigent,

namely water, sanitation, energy, refuse removal and housing assistance.20

19 Department of Provincial and Local Government National Framework for Municipal Indigent Policies, July 2010, p3. In a research report Targeting the Poor? produced by the Socio-Economic Rights Institute of South Africa in November 2013 a detailed analysis of the current free basic services policy is provided. 20 National Framework p15.

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The policy recognises that there is a whole range of municipal services which must

be provided to the community, including to individual consumers and businesses,

and that all these services could contribute to alleviating poverty and contribute to

economic growth. The policy states further that for each of the selected essential

services there are three levels of service, namely basic, intermediary and full service

level. It concluded that all municipalities should be enabled to at least provide a

basic level of these essential services free to the indigent.

4.8 Based on constitutional provisions regarding the equitable share of funds for

each province and local government to enable them to provide basic services and

perform the functions allocated to them, the Financial and Fiscal Commission (FFC)

developed a funding framework and it makes recommendations annually to the

Minister of Finance regarding the equitable division of revenue. Part of that funding

framework includes a local government equitable share formula, which was updated

during 2013. This formula includes a basic services component that is aimed to

enable municipalities to provide free basic services to poor households within their

jurisdiction. This basic services component is based on the national government’s

policy to provide a package of essential services in the form of limited free water,

electricity, sanitation and sewerage removal to the indigent (see 4.7 above).

The basic services component consists of a subsidy for water, electricity, refuse

removal and sanitation and is aimed at alleviating poverty by enabling municipalities

to provide a pre-determined amount of these services free. It is a basket of essential

services that each household below a so-called affordability threshold should get

free. These services are also referred to as ‘trading services’, a description that

refers to the fact that municipalities trade in these services and consumers normally

pay for the use thereof. Municipalities also provide non-trading services to the

benefit of the whole community such as the provision and maintenance of roads,

emergency services and parks, which are funded from the general own municipal

revenue.21

21 National Treasury Towards A New Equitable Share Formula For Local Government, Pretoria, September 2012 p10.

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It is evident that also the non-trading services contribute to alleviating poverty in a

community since it enable and support economic development opportunities and a

general improvement in the quality of the living environment. The development and

maintenance of essential infrastructure such as good quality roads, street lighting,

and information and communication networks is necessary for socio-economic

development in any community.

The FFC recommended in 2001 that 8 services be included under ‘basic services’ in

the local government equitable share formula, namely water, electricity, sanitation,

refuse removal, municipal health, fire fighting, storm water management and

municipal roads.22 The first four services are trading services, i.e. they are delivered

to individual households, and the last four are non-trading services, which means

that they are delivered to the community and not to individual households. An

important motivating factor for inclusion of the additional four services as basic

services was that it all contribute to social and economic development in terms of

section 153 (a) of the Constitution.

In view of the above it is evident that there is some flexibility in the description of

‘basic services’ and therefor scope to change the list of services to be included under

the term ‘basic services’. The current composition that is reflected in the local

government equitable share formula is largely determined by policy considerations,

namely to alleviate poverty, and is part of a funding framework to assist

municipalities.

4.9 In 2008, the Department of Minerals and Energy published the first report of an

annual survey titled Socio-Economic Impact of Electrification: Household

Perspective. The survey was conducted in three provinces, Limpopo, KwaZulu-

Natal, and the Eastern Cape, and covered a sample of 3 790 participants. The

overall results show that electrification greatly improves the quality of life and welfare

of households.23 Its key findings are:

(i) over 90% of households use electricity as their main source of lighting;

22 National Treasury 2012, p.16-17. 23 http://www.dme.gov.za/pdfs/energy/electricity/web.pdf

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(ii) lighting brings benefits such as increased study time for school children

and greater security;

(iii) electricity increases access to media which, in turn, increases awareness

of several opportunities such as education;

(iv) 63% of households use electricity as their main source of energy for

cooking, and refrigerator ownership is high at 65%; and

(v) a number of enterprises were created as a result of electrification, and

businesses were able to operate for more hours.

Although access to electricity is not included as one of the socio-economic rights in

the Constitution, the Constitutional Court stated that municipalities have a duty to

provide electricity as part of a package of basic services to their communities.24

While electricity is included as one of the basic services in the local government

equitable share formula, it has a specific socio-economic impact as can be seen

from the results of this survey. It provides a form of connectivity between

consumers, the power supply network and electrically powered equipment that

ranges from stoves and fridges to lighting and heating. It is a significant enabler that

adds value to people’s lives. In the modern knowledge economy Wi-Fi has a similar

character, namely that of a service that provides a form of connectivity, that has a

huge enabling function and which has a significant socio-economic impact.

5. Socio-economic rights in South Africa

5.1 The Constitution includes in the Bill of Rights a few rights commonly referred to

as socio-economic rights, which rights could also be found in some other bills of

rights internationally. These rights constitute a distinct category of individual rights,

although all individual rights are equal and must be respected, protected and

promoted by the state (section 7(2) of the Constitution). Liebenberg referred to the

‘indivisibility and interdependence of human rights’, which simply means that the one

right often depends on the exercise of another right.25 According to Rautenbach the

protection of socio-economic rights refers to interests necessary for a meaningful 24 Joseph and Others v City of Johannesburg and Others 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC). 25 Liebenberg, L. & Pillay, K. Socio-economic Rights in South Africa, University of the Western Cape, 2000, p15.

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existence and these are also protected by other rights, such as the right to dignity

and equality.26

Socio-economic rights were identified as such already in 1948 in the Universal

Declaration of Human Rights adopted by the General Assembly of the United

Nations.27 The scope of and way in which socio-economic rights are included in a

country’s constitution vary from one country to another, but the following rights are

commonly recognised as socio-economic rights, namely:

the right to adequate housing, food, water, education, health care and social

security.

5.2 The specific socio-economic rights included in the Constitution are:

• Section 26 – the right to have access to adequate housing;

• Section 27 – the right to have access to health care services, sufficient food

and water, and social security;

• Section 28 – children’s rights inter alia to a name, family care, basic nutrition

and shelter, basic health care and social services; and

• Section 29 – the right to a basic education and to further education.

The Constitutional Court has certified that these rights could be included in the new

Constitution and accepted that these rights could result in budgetary obligations to

the state (Certification of the Constitution of the Republic of South Africa, 1996 1996

(4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)).

5.3 The rights in section 26 and 27 are qualified by a provision that places an

obligation on the state to ‘take reasonable legislative and other measures, within its

available resources, to achieve the progressive realisation’ of these rights. This

means that positive action is required of the state to realise these rights and such

action would typically include the adoption of plans, projects and budgets to give

effect to it. The obligation on the state to design specific action plans and to allocate

funds to realise it to give effect to these rights was confirmed in Government of the

RSA and others v Grootboom and others 2001 SA 46 (CC) where the Court inter alia

stated in para [42]: 26 Rautenbach, I.M. Rautenbach-Malherbe Staatsreg, 6e uitgawe, LexisNexis, 2012, p422. 27 UN General Assembly Resolution 217 A III of 10 December 1948.

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“The state is required to take reasonable legislative and other measures.

Legislative measures by themselves are not likely to constitute constitutional

compliance. Mere legislation is not enough. The state is obliged to act to

achieve the intended result, and the legislative measures will invariably have

to be supported by appropriate, well-directed policies and programmes

implemented by the executive. These policies and programmes must be

reasonable both in their conception and their implementation.”

5.4 In Joseph and Others v City of Johannesburg and Others the Constitutional

Court made it clear that there is a clear link between the provision of basic services

by a municipality and the objectives of local government listed in section 152 and

153 of the Constitution (see para 4.4 above). These provisions should be read

together with sections 4(2)(f) and 73 of the Municipal Systems Act, 2000, (repeated

for easy reference) which read as follows:

Section 4(2)(f): “The council of a municipality, within the municipality’s financial and

administrative capacity and having regard to practical considerations, has the

duty to-

(f) give members of the local community equitable access to the municipal

services to which they are entitled;”

Section 73:“(1) A municipality must give effect to the provisions of the Constitution

and-

a) give priority to the basic needs of the local community;

b) promote the development of the local community; and

c) ensure that all members of the local community have access to at least

the minimum level of basic municipal services.

(2) Municipal services must-

a) be equitable and accessible;

b) be provided in a manner that is conducive to-

i) the prudent, economic, efficient and effective use of available

resources; and

ii) the improvement of standards of quality over time;

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c) be financially sustainable;

d) be environmentally sustainable; and

e) be regularly reviewed with a view to upgrading, extension and

improvement.”

The Court then confirmed a municipality’s duty to provide a range of services,

including electricity to the local community.

5.5 The socio-economic rights provide a basis for the state to act upon and there is

in fact a duty on the state to promote and protect these rights. In quite a few of these

rights there is the specific obligation that the state must take reasonable legislative

and other measures, within its available resources, to achieve the progressive

realisation of specific socio-economic rights.28 This means that the state must have

policies, legislation and funding to implement it in order to give effect to it, for

example a policy about provision of water services to local communities, supported

by legislation and implemented by municipalities, which implies that appropriate

funding must be allocated for the implementation of the law and policy.

There is also a general duty on the state to promote, protect and fulfil the socio-

economic rights and this includes the adoption of a variety of measures to ensure

that citizens’ access to resources is increased.29 In practice this means that the state

(in all three spheres) must have a plan that includes measures which are reasonable

in its formulation as well as in its implementation.

6. Analysis

6.1 In discussing the question about what constitute basic services it is evident that

in South Africa there are different influences and considerations that impact on this

question. The obligation on the state to give effect to socio-economic rights has been

translated into various policy initiatives regarding specific socio-economic rights, for

28 De Vos p 679. 29 De Vos p 707.

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example the right to access to housing. It has, however, also led to more general

policy developments that focus on alleviating poverty, such as the National

Framework for Municipal Indigent Policies. This policy essentially looks at the core

needs for human existence that must be addressed in order to get people out of

poverty. It refers to essential household services and is a response to give effect to

some of the socio-economic rights. The policy goes further to state that these

essential household services must be provided free, or at least a basic level of these

services should be free with the clear aim to address poverty.

6.2 Based on this policy the FFC looked at a basket of municipal services that should

be funded through the local government equitable share allocation with the specific

aim to support poor communities. The FFC described it as a basic services

component (see 4.8 above), which refers to four essential household services. In its

own research the FFC has, however, also indicated that there could be some

flexibility of what could constitute basic services in a municipality.

6.3 The focus on poverty alleviation is a response to the needs in society and a

specific policy choice was made to create a mechanism to fund a core set of

essential services to address poverty in accordance with the constitutional provisions

on financial allocations to provinces and municipalities. This is not based on a legal

definition of basic services although it relates to some of the socio-economic rights in

the Constitution. So, there is a legal framework but there is no legally defined list of

basic services.

6.4 The only legal definition of basic (municipal) services is found in the Municipal

Systems Act, and it is an open definition, that does not list any specific services,

although with some qualification, namely:

“...means a municipal service that is necessary to ensure an acceptable and

reasonable quality of life and, if not provided, would endanger public health or

safety or the environment”.

The first part of this definition can be interpreted widely and can include a whole

range of services that will contribute to ensuring an acceptable and reasonable

quality of life, for example providing electricity networks, constructing tar roads in a

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community or creating access to Wi-Fi. The second part of the definition, however

qualifies the first part and suggests that the type of services referred to here relates

to personal health, safety or the environment.

From the perspective of a municipality the starting point in the delivery of services to

the community is the focus on the basic needs and therefor provision of a core list of

basic services. The objectives of local government in section 152 of the Constitution

read with section 73 of the Municipal Systems Act creates a much bigger mandate

and suggests a progression in the scope and level of services to be provided. One of

the objectives is to promote social and economic development, which can only be

done if there is continuous growth in the level and scope of services provided to the

community – it must clearly be more than the essential household services. For

example the level of water provision to a poor community must progress over time

from a limited amount or accessibility to full access in your own home 24/7.

Likewise, the scope of services will also have to increase as needs of the community

changes and the capacity of the municipality to provide more services improves.

Based on the objective to promote social and economic development in the

community it could be argued that the provision of Wi-Fi is a service that must be

included in the range of services a municipality must provide in view of its direct

impact on social and economic development. This is, however, not enough to

confirm unequivocally the inclusion of Wi-Fi as a basic service.

6.5 The National Development Plan (NDP), which is the current country wide

development policy framework for government in South Africa, laid a new foundation

for all three spheres of government in partnership with the private sector to enhance

development and economic growth. Increasing internet connectivity and lowering

the cost thereof so that all South Africans can benefit is one of the elements included

in the plan to eliminate poverty and grow the economy. This is a strong statement in

support of increased internet connectivity.

The recently announced Final International Mobile Telecommunications Roadmap

2014 and the SA Connect policy framework take these statements and goals a step

further by clearly stating the importance of creating broadband access for all,

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specifically making use of mobile broadband (Wi-Fi), stating that it is a necessary

condition for economic development in the modern economy and an area without

internet access will experience economic decline. It creates a platform for improving

the quality of life of people by providing access to education, job opportunities,

medical care and social networks. Access to the internet is thus an enabler, namely

it links people with knowledge and opportunities and with other people. Wi-Fi, in

view of its mobile nature, enhances the scope of geographic areas that could be

covered as well as the number of people that could be given access to the internet.

This policy framework, which highlights the importance of mobile broadband access,

provides a solid basis to argue that Wi-Fi should be treated as a basic service.

6.6 The international developments in the past few years provide further arguments

in support of Wi-Fi as a basic service. The UN Human Rights Council stated that

access to the internet is a basic human right since it gives effect to the right of

freedom of opinion and expression. Various international studies discussed in this

memorandum refer to the important link between access to the internet and

economic growth, education, health services, social inclusion and the reduction in

poverty. The most recent study by Deloitte (2014) confirms that wireless connectivity

is of even greater importance and has a significant impact on alleviating poverty and

improving the quality of life of people. The recent initiatives by the European Union,

the Italian Parliament and the US President in support of increasing Wi-Fi

connectivity in these various jurisdictions also confirm the status of Wi-Fi as a crucial

service in any society.

6.7 It is evident from the discussion of the socio-economic rights above that there is

a connection between the description of some of those rights and some of the basic

services as included in the funding arrangements for local government. The socio-

economic rights do, however, not provide an exclusive list of basic services. It is

rather the statement by the UN Human Rights Council that access to the internet is a

basic human right that is of great significance in this discussion. This right clearly

supports the exercise of other human rights, also some of which are found in

Chapter 2 of the Constitution, such as the right to basic education (section 29), the

right to access to health care services (section 27), right to freedom of association

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(section 18) and the right to freedom of trade, occupation and profession (section

22).

The recognition of access to the internet as a basic human right provides a clear

basis of including it as a basic service to be provided to communities. The nature

and scope of this right, namely that it is an enabler that supports other rights, is

enhanced by wireless access (Wi-Fi) in view of the fact that it transcends physical,

geographical and other obstacles to connect people.

6.8 It is submitted that the current basket of four essential household services that is

used as part of the funding arrangements for local government does not constitute a

fixed list of basic services. It rather describes what is essential to assist people in

extreme poverty.

Technology is changing at a rapid past and we live in a knowledge economy where

technology is one of the key drivers. This has an impact on how services are

provided by government and which services are provided. The international studies

confirm that access to the internet is a part of modern society and that it is essential

for economic growth and to reduce poverty. As circumstances change and people’s

needs change, the scope of what could be included as basic services would also

change. Access to the internet was not something to be considered fifty years ago,

but now it is an essential part of daily life all around the globe. Electric street lights

were not common 100 years ago, but it is now part of the essential services a

municipality provides. The Constitutional Court confirmed the importance of the

provision of electricity as a basic service to be provided by municipalities. The FFC,

already in 2001, proposed a longer list of basic services. This confirms that there is

scope for extending the list of basic services to take into account the needs of a

modern economy as well as recognizing that access to the internet is internationally

regarded as a basic human right.

It can therefore be argued that the provision of internet access, specifically Wi-Fi,

should be included as a basic service to be provided in every community.

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7. Conclusions

7.1 In answering the question if Wi-Fi could be treated as a basic service, two sub-

questions were asked, namely what constitutes a basic service, and what does Wi-Fi

provide to citizens. Based on the discussion above it is evident that there is no fixed

list of basic services. The current reference to basic services in the FFC’s funding

arrangements is based on a policy that focuses on the alleviation of poverty. There is

thus scope for expanding the definition of basic services.

7.2 The second question is crucial in determining whether Wi-Fi could be a basic

service. It is evident from the discussion above that Wi-Fi is a significant enabler

that bridges economic and social divides, which connects citizens to knowledge,

education, opportunities for personal development, health care services and social

networks. It supports a range of human rights, which must be given effect to by the

state. Wi-Fi access has a significant impact on economic growth and the reduction

of poverty, which is what is at the core of the NDP. There is thus a solid policy basis

as well as international support for increasing access to the internet, in particular

mobile access through Wi-Fi.

It is thus respectfully submitted that there is sufficient ground for inclusion of the

provision of Wi-Fi as a basic service.