South Africa Telecommunication

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Telecommunication Laws and Regulations 2009

Published by Global Legal Group with contributions from:

A practical insight to cross-border Telecommunication Laws and Regulations

www.ICLG.co.uk

The International Comparative Legal Guide to:

Allen & Gledhill LLP

Amarchand & Mangaldas & Suresh A. Shroff & Co.

Arnold & Porter LLP

Bello, Gallardo, Bonequi y Garcia, S.C.

Bender von Haller Dragsted

Boga & Associates

Bozzay Law Office

Bratschi Wiederkehr & Buob

Burnet, Duckworth & Palmer LLP

CCdM&A - Cugia Cuomo de Marco & Associati

Cechov & Partners

Cocalis & Psarras

Djingov, Gouginski, Kyutchukov & Velichkov

Dr. Norbert Wiesinger, Law Offices

Gencs Valters Law Firm

Gmez-Acebo & Pombo Abogados

Harris Kyriakides LLC

Heuking Khn Ler Wojtek

Jadek & Pensa

Jurevicius, Balciunas & Bartkus

Kim & Chang

Liniya Prava

Linklaters

Lisa Thornton Inc

Lovells LLP

Macedo Vitorino & Associados

Mamo TCV Advocates

MGF Webb

Moravcevic Vojnovic Zdravkovic in cooperation

with Schoenherr

Mori Hamada & Matsumoto

Mundie e Advogados

NautaDutilh

Noble & Scheidecker

Norton Rose

Olswang

Pachiu & Associates Attorneys at Law

Roschier, Attorneys Ltd.

Salans

Sanchez Elia & Asociados

Simonsen Advokatfirma DA

Sorainen

William Fry

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v

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Chapter 41

Lisa Thornton Inc

South Africa

1 Framework

1.1 What are the overall policies and objectives for theelectronic communications industry and have these been

published in draft or final form?

South Africa (SA) promulgated the Electronic Communications Act

(ECA) in 2005 as the primary legislation regulating the electronic

communications industry. The ECA replaced the then

Telecommunications Act and most of the broadcasting legislation.

The object of the ECA is to provide for the regulation of electronic

communications in the public interest. It establishes the industry

regulator, the Independent Communications Authority of South

Africa (ICASA) and the Universal Service and Access Agency of

South Africa (USAASA) to promote universal service.

In addition to the ECA, SA also promulgated the followinglegislation, which regulates certain aspects of the industry:

Electronic Communications and Transactions Act (ECTA);

Competition Act; and

Regulation of Interception of Communications and Provision

of Communication-Related Information Act (Interception Act).

Most of the budget of the Department of Communications,

however, goes to public enterprises. In addition to regulating the

industry, the government has interests in, inter alia, Telkom,

Sentech, the South African Broadcasting Corporation, and

Broadband Infraco.

1.2 Is South Africa a member of the World Trade

Organisation?

Yes, South Africa is a member of the World Trade Organisation.

1.3 Has South Africa made commitments under the

GATS/GATT regarding telecommunications and has South

Africa adopted the WTO Basic Telecommunications

Agreement?

In 1994, SA made commitments to open up the value added

telecommunications services market segment to competition. In

1997, SA made commitments in terms of the Fourth Protocol on

Basic Telecommunications, to open up other market segments to

competition, and to establish an appropriate regulatory environment,details of which are set out in the Reference Paper; however, only the

commitments regarding mobile services were met.

1.4 How is the provision of electronic communications

networks or services regulated? Is the provision of

electronic communications networks or services open to

competition in South Africa?

Electronic communications networks and services are primarily

regulated by ICASA in terms of the ECA. However, the Minister

of Communications (Minister) is responsible for making policy and

issuing policy directions to ICASA and for making key regulatory

decisions, such as when new individual electronic communications

network services (ECNS) may be licensed.

There currently exists some competition in the provision of services.

However, SA is still in the process of transitioning from a statutorily

protected monopoly for the provision of public switched

telecommunication services (PSTS) and duopoly for the provision of

mobile cellular telecommunications services (MCTS). Although a

second PSTS provider and third MCTS provider have been licensed(in addition to Sentech), any new applications for individual ECNS

and electronic communications services (ECS) may only be made

after an invitation issued by ICASA. The establishment and

implementation of a regulatory framework effectively facilitating

competition remains hampered by the fact that the government

maintains significant financial interests in industry players.

1.5 Which are the regulatory and competition law authorities?

How are their roles differentiated?

ICASA is charged with regulating the electronic communications

industry in terms of the ECA, inclu13 531n respect of competition

matters.

The Competition Act relates to competition matters across all

industries, inclu13 53the electronic communications industry. The

Competition Act establishes the Competition Commission with

investigative powers, the Competition Tribunal with adju13cative

powers, and the Competition Appeal Court to hear appeals and

review decisions of the Competition Tribunal.

There is concurrent juris13ction between ICASA and the competition

authorities31n respect of competition matters in the electronic

communications industry. The Deputy Minister recently announced

that the Competition Act and the ECA will be amended to alter this

concurrent juris13ction; however, no specifics have been released.

1.6 Are decisions of the national regulatory authority able to

be appealed? To which court or body?

ICASAs decisions are not appealable; however, its decisions may

be taken on review to the High Court.

Lisa Thornton


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Lisa Thornton Inc South Africa

2 Licensing

2.1 If a licence or other authorisation is required to install or

operate electronic communications networks or provide

services over them, please briefly describe the process and

timescales.

The provision of ECNS, ECS and broadcasting services (BS)

requires either an individual or class licence or must be exempt

from licensing. ECNS, ECS and BS licences will either be

individual or class.

Those licensees that are individual will include ECNS of national or

provincial scale, and voice telephony ECS that use numbers

allocated by ICASA. Licence applications for individual licences

may only be made in response to an invitation and in respect of

individual ECNS licences, only after a policy direction issued by

the Minister.

Class licences will include ECNS of municipal scale, data ECS and

voice ECS where numbers are sub-allocated by licensees. ICASAmust act on class registration applications within 60 days and it if

fails to do so, there will be a deemed registration.

ICASA has prescribed that certain services may be exempt from

licensing, including non-profit ECS, resellers of ECS and private

ECNS; however, service providers must apply for exemptions.

There currently is a moratorium on the processing of all

applications because ICASAhas not promulgated all of the required

licensing regulations, for example, application fees.

2.2 What other requirements, permits or approvals must be

met or obtained before networks may be installed or

operated and services provided?

In addition to service licensing, if a service provider intends to

use spectrum, that provider must obtain the required radio

frequency spectrum licence. All equipment used by licensees

must be type approved by ICASA and all technical standards

prescribed must be followed.

2.3 May licences or other authorisations be transferred and if

so under what conditions?

No individual or class licence may be assigned, ceded or transferred

without the prior permission of ICASA.

2.4 What is the usual or typical stated duration of licences or

other authorisations?

According to regulations, individual ECNS licences will be issued

for 20 years, ECS licences for fifteen years, and BS for from ten to

fifteen years. Class ECNS and ECS licences will be issued for ten

years, and class BS for seven years.

3 Public and Private Works

3.1 Are there specific legal or administrative provisions dealing

with access to public and private land in order to install

telecommunications infrastructure?

The ECA grants to all ECNS licensees certain rights regarding

access to land, including, inter alia:

to enter upon any land and construct and maintain facilities,

subject to environmental regulations;

to use underground conduit pipes;

to construct and maintain facilities under streets, roads and

footpaths;

to place gates on property owners fences; and

to cause trees or vegetation to be cut, subject toenvironmental regulations.

3.2 Do any specific rules exist which assist in securing or

enforcing rights of way over public or private land, for the

installation of network infrastructure?

ECNS licensees must exercise their rights in accordance with

regulations prescribed by ICASA, and the Minister must, in

consultation with the Ministers of Provincial and Local

Government, Land Affairs, Environmental Affairs, inter alia,

develop guidelines for the rapid deployment and provisioning of

electronic communications facilities, facilitating other

governmental approvals, e.g., zoning approval, and resolvingdisputes with landowners. Neither the regulations nor the

guidelines have been made.

3.3 Is there a specific planning or zoning regime that applies

to the installation of network infrastructure?

No, there is not.

3.4 Are there any rules requiring established operators to

share their infrastructure, e.g. masts, sites, ducts or

cables?

Existing interconnection regulations require Telkom to co-locateunless it is not technically feasible. However, these existing

regulations have, to a large extent, not been enforced.

4 Access and Interconnection

4.1 Is network-to-network interconnection and access

mandated, and what are the criteria for qualifying for the

benefits of interconnection?

Every licensee must interconnect and every ECNS licensee must

provide facilities, on request, on terms negotiated, unless the

request is unreasonable. ICASA must determine whether a requestis unreasonable, ie, whether the request is technically and

financially feasible, and will promote the efficient use of

communications networks and services.

ICASA may exempt licensees from the obligation to interconnect and

provide facilities, but only if ICASA has not found such licensees to

have significant market power (SMP) in the relevant market.

ICASA has proposed to exempt all ECNS licensees from the

obligation to provide facilities pending a determination on the issue

of SMP.

All regulations made by ICASA in terms of the

Telecommunications Act remain in force until amended or

repealed by ICASA in terms of the ECA. There are existing

interconnection and facilities leasing regulations that apply inrespect of interconnection to PSTS licensees. ICASA has

published for public comment new draft interconnection and

facilities leasing regulations in terms of the ECA.


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4.2 How are interconnection or access disputes resolved? Does

the national regulatory have jurisdiction to adjudicate and

impose a legally binding solution?

If the parties are unable to agree to terms and conditions for

interconnection or facilities leasing, and the dispute is referred to

ICASA by one of the parties, ICASAmay do one of three things:

impose the terms and conditions of interconnection or

facilities leasing;

propose terms and conditions of interconnection or facilities

leasing and instruct the parties to re-negotiate; or

refer the matter to the Complaints and Compliance

Committee (CCC).

The CCC must hear the matter and then make a recommendation to

ICASA as to the appropriate action, which could include, if the

licensee has repeatedly been found guilty of violations, suspension

or revocation of its licence.

Either party to an agreement may notify the CCC of a dispute in

respect of the implementation of interconnection or the provision of

facilities. The CCC must hear and decide the dispute on an expedited

basis in accordance with regulations to be prescribed by ICASA.

4.3 Are charges for interconnection and/or network access

subject to price or cost regulation and, if so, how?

ICASA may prescribe regulations establishing a framework of

wholesale interconnection and facilities leasing rates taking into

account the provisions of the ECAthat deal with competition matters.

The existing regulations set up a discriminatory pricing regime. Major

Operators (e.g., Telkom) providing Essential Services to Public

Operators (e.g., PSTS and MCTS licensees) must provide services or

facilities at long run incremental costs (LRIC). Major Operators

providing Essential Services to Service Providers (e.g., value added

network services licensees) must provide services at fully allocated

costs (FAC). Major Operators providing Essential Services to Private

Operators (e.g., private telecommunications network licensees) may

charge retail prices.

In ICASAs draft regulations on interconnection, pricing regulation

applies to no one unless and until ICASA makes a determination on

SMP. Once that is done, LRIC will apply but only after 12 months,

and only after 24 months if the licensee in question does not have to

file regulatory accounts. Similarly, in respect of facilities leasing,

ICASA has proposed that LRIC will apply but only after 24 months if

the licensee in question does not have to file regulatory accounts. FAC

is to apply in the meantime.

4.4 In the local loop are existing owners of access

infrastructure required to unbundle their facilit ies and if

so, on what terms or regulatory controls?

The Minister has issued a policy direction to ICASA that all

licensees must have access to the local loop, and that accordingly

local loop unbundling (LLU) must be implemented urgently to be

completed by 2011. ICASA recently called for tenders for a

consultant to advise it on the implementation of LLU. ICASA also

has proposed to declare as essential facilities local loops, sub-loops

and associated facilities.

4.5 How are existing interconnection and access regulatory

conditions to be applied to new network technologies such as

so-called next generation networks or IP-based networks?

The ECA does not make a distinction between technologies used in

respect of regulating interconnection and facilities leasing.

5 Price and Consumer Regulation

5.1 Are (i) retail or (ii) wholesale price controls imposed on

any operator in relation to fixed, mobile, or other services?

In terms of the Telecommunications Act, the retail prices of Telkom,

Vodacom and MTN, were, to some extent, regulated at first by the

Minister and then by ICASA by the imposition of price caps.

Nonetheless, retail prices in SA, however, remain comparatively high.

Under the ECA, ICASA may impose price controls as licence

conditions for both wholesale and retail prices. This, however,

must be preceded by determinations by ICASA of relevant markets,

the effectiveness of competition in markets, SMP, and appropriate

pro-competitive licence conditions. Although ICASA has begun to

make proposals in these regards, the finalisation of the process is

likely years away.

5.2 Is the provision of electronic communications services to

consumers subject to any special rules and if so, in what

principal respects?

ICASA must make regulations setting out a code of conduct

applicable to licensees; setting out the minimum standards for end-

user and subscriber service charters; prescribing a code of conduct

with regard to people with disabilities; and establishing a consumer

advisory panel. ICASA has prescribed all of the regulations called

for in the ECA. However, it has decided to reconsider the

regulations setting out the minimum standards for end-user and

subscriber service charters.

ICASA recently prescribed regulations regarding handset subsidies,

but the coming into force of the regulations has been postponed by

ICASA because the regulations are being challenged on review.

5.3 Are there any rules governing use and retention of

customer call information?

Service providers must store communications-related information,

such as switching, dialing and signaling information that identifies

the origin, destination, termination, duration, and equipment used,

for a period of three years. They must also comply with

interception directions issued by judges to provide information to

law enforcement officers.

6 Numbering

6.1 How are telephone numbers and network identifying codes

allocated and by whom?

ICASA must prescribe a numbering plan for the efficient use and

allocation of numbers, to accommodate the various protocols used

and services provided, and to transform the numbering plan to a

non-geographic numbering system utilising electronic numbering

allowing the interoperation between telephone numbers and the

Internet domain name system.

ICASA has not prescribed numbering plan regulations in terms ofthe ECA; however, there are numbering plan regulations that

ICASA made in terms of the Telecommunications Act. The use of

numbers must be authorised by ICASA upon application submitted

in terms of the regulations.


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The ECTA established the .za Domain Name Authority to assume

responsibility for the .za domain name space.

6.2 Are there any special rules which govern the use of

telephone numbers?

The specific rules that govern the use of numbers are located in

the numbering plan regulations and in numbering allocations

made by ICASA.

6.3 How are telephone numbers made available for network

use and how are such numbers activated for use by

customers?

There are rules in the numbering plan regulations regarding the

issuance of numbers to customers, including, inter alia, that the

allocation must be controlled by the original applicant even though

sub-allocations are allowed; the number must be used for the

purpose stated in the original application and in accordance withany conditions imposed by ICASA; and licensees must configure

their networks to ensure that numbering plan allocations are

complied with.

6.4 What are the basic rules applicable to the porting (i.e.

transfer) of telephone numbers (fixed and mobile).

ICASA was required in terms of the ECA to prescribe regulations to

ensure that number portability was introduced in 2005. To date,

ICASA has not prescribed number portability regulations in terms

of the ECA. However, there are number portability regulations that

ICASA made in terms of the Telecommunications Act, dealing with

number portability between PSTS licensees on the one hand andMCTS licensees on the other.

The implementation of number portability is dependent on ordering

system specifications to be negotiated between operators and

published by ICASA for public comment. This process has not been

completed in respect of geographic number portability. Mobile

number portability, on the other hand, is currently being implemented.

7 Fees

7.1 What fees and levies are payable and to whom with

respect to the grant of a licence or other authorisation for

the installation or use of network infrastructure or the

provision of communication services?

ICASA may prescribe regulations establishing application and

registration fees, licence fees (taking into account any policy

direction issued by the Minister), numbering allocation fees, and

contributions to the Universal Service and Access Fund.

ICASA has to date not promulgated any of these regulations in

terms of the ECA. However, under regulations made under the

Telecommunications Act, telecommunications licensees are

required to pay 0.1 percent of licence fee income as a licence fee,

and 0.2 percent to the Universal Service and Access Fund (USAF),

annually.

All fees paid and contributions to the USAF are paid into the

National Revenue Fund.

8 Submarine Cables

8.1 What are the main rules governing the bringing into South

African territorial waters, and the landing, of submarine

cables? Are there any special authorisations required or

fees to be paid with respect to submarine cables?

An ECNS licence is required to land a submarine cable in SA. No

specific regulations governing the landing of submarine cables have

been promulgated. However, the Minister has proposed to impose

rules that would require ECNS licensees to be individual licensees,

to comply with majority South African (or African) ownership

requirements, and to obtain a separate authorisation from the

Minister.

In addition to the requirement to have an ECNS licence, there are

other regulatory requirements, such as those under the National

Environmental Management Act for an Environmental Impact

Assessment, and the Sea-Shore Act for a lease, that are applicable.

The Minister has issued a policy direction to ICASA to considerprioritising and urgently prescribing a list of essential facilities to

include facilities connected to the SAT-3/WASC/SAFE cable.

ICASA has proposed to declare as essential facilities international

facilities such as submarine cables and satellite earth stations,

including back haul circuits, cable landing stations, colocation

space, earth stations, international gateways, land based fibre optic

cables, main distribution frames and undersea fibre optic cables.

9 Radio Frequency Spectrum

9.1 Is the use of radio frequency spectrum specifically

regulated and if so, by which authority?

Spectrum is regulated by ICASA in terms of the ECA. However,

the Minister has certain regulatory authority, including the

obligation to approve (or disapprove) the band plan and to decide

whether the migration of users that are government entities, is

permitted.

9.2 In the grant of spectrum rights are distinctions made

between mobile, fixed and satellite usage?

Spectrum licences are awarded consistent with the radio frequency

band plan. The band plan indicates which spectrum is designated

for use for which type of service. ICASA has recently published a

proposed new band plan for public comment.

9.3 How is the installation of satellite earth stations and their

use for up-linking and down-linking regulated?

The installation of satellite earth stations is regulated no differently

than the installation of facilities in respect of other spectrum. A

spectrum licence is required. In addition, an ECNS licence is required.

The Minister recently published a proposed policy direction for public

comment, directing ICASA to issue an invitation for individual ECNS

licences for the provision of satellite infrastructure.

9.4 How is the use of radio frequency spectrum authorised inSouth Africa? Do the procedures available include spectrum

auctions and comparative selection of candidates?

Spectrum licences allowing an entity to use certain spectrum are


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awarded by ICASA. Applications are made on application forms

made available by ICASA and are considered on an ad hoc basis.

ICASA may make regulations and criteria for awarding spectrum

licences for competing applications or instances where there is

insufficient spectrum available to accommodate demand. ICASA

has recently concluded an enquiry into the criteria and process forawarding spectrum licences for use of available 2.5-2.6 GHz and 4-

3.6 GHz spectrum. ICASA has indicated that it will draft

regulations that will create a two stage process for awarding

licences, involving a pre-qualification phase designed to ensure that

the spectrum is awarded to entities owned by historically

disadvantaged individuals (HDIs), followed by an auction.

9.5 Can the use of spectrum be made licence-exempt? If so,

under what conditions?

ICASA may exempt certain uses of spectrum from the licensing

requirement, and prescribe the conditions under which unlicensed

use may take place. It has prescribed certain spectrum licenceexemptions including for the use of the 2.4 GHz band for wide band

wireless systems, inter alia.

9.6 If licence or other authorisation fees are payable for the

use of radio frequency spectrum, how are these applied

and calculated?

The specific amounts of application and licence fees for the various

uses of spectrum have been prescribed by ICASA.

9.7 Are spectrum licences able to be traded or sub-licensed

and if so on what conditions?

The ECA enjoins anyone from using spectrum without a

spectrum licence granted to that person, and therefore sub-

licensing may not be allowed.

Spectrum licences may be transferred in terms regulations made

by ICASA, but only twelve months after the date of issue or in

the case of commercial operations, twelve months after the

facilities are operational.

10 Interception

10.1 What are the essential rules applicable to the interception

of messages, traffic data and other call records? Whichrules apply to the retention of such call data, and over

which period(s)?

The Interception Act sets out the circumstances under which

government entities or other persons may or must intercept or

monitor communications and establishes that in all other

circumstances interception and monitoring is prohibited. Similarly,

the Interception Act prohibits the provision of communications-

related information except in certain circumstances.

The Interception Act also establishes certain obligations on

electronic communications services providers, to have the

capability to intercept communications over their networks, to store

communications-related information, and to gather and retain

certain personal information about customers regarding their

identity and contact details. Service providers must comply with

interception directions issued by judges.

11 The Internet

11.1 Are services over the Internet regulated in any different

way to other electronic communications services? Which

rules, if any, govern access to the Internet at a wholesale

and/or retail level?

Internet networks are regulated as ECNS as other ECNS are

regulated. Internet services are regulated as ECS (and not

broadcasting services, which attract additional regulation in respect

of inter alia, content).

If an entity is merely a content provider, it does not need a licence or

fall within the ambit of the entities that are regulated under the ECA.

This is not to say that the electronic communications content is not

regulated at all in SA. It is regulated by, for example, copyright law,

the Films and Publications Act and the ECTA.

11.2 Are there any rules to prevent, restrict or otherwise govern

Internet or email communications, in particular, marketingand advertising communications?

The ECTA was promulgated to enable and facilitate electronic

communications and transactions, by removing some of the real or

perceived legal uncertainties regarding electronic communications

and transactions.

The ECTA provides that anyone who sends unsolicited commercial

information must give the recipient the opportunity to be removed

from the list, and provide information on how that person got on the

list. It also provides for the limitation of liability for service

providers if such providers are members of an industry

representative body that has adopted a code of conduct and has been

recognised by the Minister.

12 USO

12.1 Is there a concept of universal service obligation; i f so how

is this defined, regulated and funded?

The Minister must determine the meaning of universal service and

universal access, from time to time. USAASA recently published

draft definitions for public comment, which will lead to

recommendations being made to the Minister.

The ECA provides for the USAF, out of which certain subsidies

may be paid if Parliament appropriates money for that purpose.The ECA empowers ICASA to place universal service obligations

(USOs) on licensees. ICASA has not done so yet, as its licence

conversion process has not been completed. Until the licence

conversion process is complete, the existing licence conditions

remain in force: Telkom (although Telkom was awarded a

monopoly partly in return for the promise of achieving universal

service, it failed in this respect, and it has no continuing USOs in its

licence), Neotel, Vodacom, MTN, Cell C, and Sentech.

13 Foreign Ownership Rules

13.1 Are there any rules restricting direct or indirect foreignownership interests in electronic communications companies

whether in fixed, mobile, satellite or other wireless operations?

All licensees must be either citizens, or entities registered in SA

with their principle place of business in SA. This does not,


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Lisa Thornton

Lisa Thornton IncPO Box 1377Saxonwold 2132South Africa

Tel: + 1 502 570 9078 (USA)

Fax: + 27 87805 5429 (RSA)Email: [email protected]

Lisa Thornton founded Lisa Thornton Inc in 2000 in order to providehigh quality, professional, solution oriented services to the ICTindustries in South Africa. She recently opened Lisa Thornton

Consulting in the USA.Ms Thornton has been named the leading individual in the area oftechnology, media and communications in South Africa by PLCWhich Lawyer?, as the leading telecommunications lawyer in Cross

Border - Communications Handbook, and is included in TheInternational Whos Who of Regulatory Communications Lawyers.Ms Thornton has experience in South Africa, the USA, and in anumber of African jurisdictions other than South Africa, and hasdone work for international organisations such as the International

Telecommunications Union and the Commonwealth Telecom-munications Organisation.Ms Thornton is an advisor to many clients including large and smallbusinesses, civil society, regulators, academia, and governments.

Lisa Thornton Inc is a leading South African law firm for the information and communications technology (ICT)

industries, providing a range of services including commercial, regulatory, competition, administrative and constitutional

law, and policy advice, to all sectors of the industry, including new media, telecommunications, broadcasting,computing, e-commerce and associated sectors.

The firm has been named as one of the leading firms in the area of technology, media and communications law in South

Africa by PLC Which Lawyer?. Lisa Thornton has been recognised by a number of local and international organisations

as one of the leading ICT lawyers in South Africa.

The firm is committed not only to excellence, but also to empowerment, and has completed the Telecoms Book Project,

which resulted in the publication of L Thornton, et al (eds), Telecommunications Law in South Africa (2006 STE Publishers).


however, restrict the ownership of such entities.

ICASA, in granting licences, must ensure that services, viewed

collectively, are provided by persons or groups from a diverse range

of communities in SA, and must promote the empowerment of

HDIs. In respect of new individual licences, ownership by HDIs

must be no less than 30 percent or some other percentage prescribed

by ICASA. Although HDI is not defined in the ECA, ICASA, has

recommended that it include South African citizens, who are black

people, including Africans, Indians and Coloureds, women, and

people with disabilities; associations whose majority members are

such persons; and juristic persons, were greater than 25 percent of

the share capital is held by such persons.

In addition, one or more foreigners may not exercise control over a

commercial BS licensee, have a financial interest or interest in

voting shares or paid-up capital in a licensee of more than 20

percent, or constitute more than 20 percent of the board of directors

of a licensee.

14 Future Plans

14.1 Are there any imminent and significant changes to the

legal and regulatory regime for electronic communications?

The ECA came into force mid-2006, substantially altering the

regulatory framework for the electronic communications industry

in SA. The process of transitioning from the old regulatory regimes

applicable differently in respect of telecommunications and

broadcasting is still underway. Significantly, the conversion of

licences issued under the previous regulatory regimes to ECA

licences is not yet complete. The High Court recently ruled that

Vans licensees are entitled to ECNS licences in the conversion

process and requiring Icasa to implement its ruling. The ECAindicates that conversion of licences must complete by no later than

January 2009.

Furthermore, in addition to many pending regulatory processes

mentioned in this chapter, there are a number not yet underway,

such as those triggered by the recently issued Broadcasting Digital

Migration Policy.

It is not possible to predict all the changes that will take place over

the immediate and short term. However, it is likely that the changes

will result in a more competitive environment leading to increased

quality, choice and ultimately to universal service. Movements in

this direction, however, will continue to be slowed due to the

conflicting roles played by the SA government as policy maker,

regulator and competitive service provider.

South Africa Telecommunication

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