Rapid deployment of broadband infrastructure
On 31 March 2023, the Minister of Communication and Digital Technologies, issued the National Policy on Rapid Deployment of Electronic Communications Networks and Facilities (the Policy) in terms of the Electronic Communications Act 36 of 2005 (ECA). The Policy was approved by Cabinet.
The Policy has been adopted in response to the identified stagnation of South Africa's information and communications technology (ICT) infrastructure. The Policy recognises that national coverage of broadband infrastructure is necessary for the creation of a digital economy and digital society and that red tape should be reduced to eliminate delays in infrastructure development. The Policy echoes the 2016 Integrated ICT White Paper (2016 White Paper), which recognised those non-uniform processes for the granting of permits and authorisations, the lack of legislated deadlines for granting them, and landowners' wide discretion on the terms of access lead to delays in network roll-out and increased costs, particularly where there are legal disputes.
Although cutting red tape and accelerating broadband infrastructure roll-out are clearly worthy aims, the Policy does not currently provide much in the way of practical detail and guidance. For example, it does not identify the need for amendments to the ECA itself, environmental legislation, municipal building requirements, or municipal wayleave processes. Much of what the Policy provides for is either already dealt with in the ECA, or the telco regulator, the Independent Communications Authority of South Africa (ICASA), is required to take various steps.
Legislative and contextual background
The starting point underlying the Policy is the decision of the Constitutional Court in City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others 2015 (6) SA 440 (CC) (Link Africa). In Link Africa, the Constitutional Court held that the ECA allows licensees to enter upon land and build infrastructure without consent from the landowner, like the exercise of a public servitude. However, the way the servitude is exercised must be 'civil and reasonable'. The Policy aims to develop standards of reasonableness that must be upheld by licensees when deploying ICT infrastructure, including fibre cables, towers, small cells, ducts, ducts and other facilities.
Although Link Africa confirmed some fundamental principles around access to land and property for the purpose of deploying ICT infrastructure, several cases that have followed Link Africa and the practical experiences of telco companies since then have shown that there are still significant grey areas around what exactly licensees are allowed and not allowed to do, and how they should exercise their rights. The questions that remain include, for example, how should compensation to a landowner be calculated, when is compensation not payable, do the access rights under the ECA extend to buildings or open land only, what types of guarantees can municipalities seek for restitution of the road reserve, and can telcos be compelled to share infrastructure or should duplication of infrastructure always be allowed where telcos think it's in their commercial interests?
The Policy has given limited guidance on these matters. The principles it sets out, although possibly helpful to a court that is asked to look at the issues, are not binding and still leave significant scope for interpretation by telcos and property owners. Ultimately, these questions will only be definitively answered either through continued litigation or by way of amendments to the ECA.
Government to provide access
The Policy is clear that government is supposed to reduce the red tape involved in the deployment of broadband infrastructure. Currently, depending on where they deploy infrastructure and the type of infrastructure, the government bodies that licensees may have to deal with include municipalities (for wayleaves and building approvals), provincial departments of environmental affairs, the Civil Aviation Authority, and ICASA (for equipment authorisations and for wireless deployments). Although the ECA and 2016 White Paper seem to contemplate a form of 'one stop shop' for government authorisations, the Policy does not take this any further. The various processes that licensees have to follow under various different pieces of legislation are unchanged. Although the Policy acknowledges that the Minister of Cooperative Governance and Traditional Affairs has issued a standard draft by-law to provide for a uniform wayleave process, the standard by-law is still only in draft form and, even if it is finalised, the standard by-law will only apply to municipalities that actually adopt it. Municipalities cannot be compelled to do so and there is still significant room for variation in processes between municipalities. There is also still no uniformity in tariffs and fees that municipalities must charge.
The Policy does provide that government entities such as Eskom, Transnet, SANRAL (the South African National Roads Agency), provincial roads departments and government water departments and entities have to share their infrastructure and must allow licensees to use their infrastructure and the infrastructure over which they have servitudes to deploy broadband infrastructure. Although this might be helpful in persuading government entities to share their infrastructure, whether or not they can provide access will depend in part on the servitudes granted to them in terms of the specific statutes that govern them or other instruments. Government departments and entities cannot give something that they aren’t permitted to give on the basis of the Policy alone.
The process that licensees should follow
The Policy sets out a suggested process that licensees should follow to notify landowners of their intention to deploy infrastructure. This is very similar to the consultation process that would need to be followed before the exercise of a public power, which is what the Supreme Court of Appeal had suggested in Mobile Telephone Networks (Pty) Ltd v SMI Trading CC 2012 (6) SA 638 (SCA). The Policy says that licensees should give property owners 30 calendar days' notice of their intention to access property and provides some very broad guidelines on the information that should be given to property owners. The Policy does not provide any additional detail on how property owners should evaluate these types of notifications and when they are or aren't reasonable.
The Policy reiterates the sensible position that any compensation to be paid by a licensee to a property owner should be in proportion to the advantage gained by the licensee and the disadvantage suffered by the property owner. Beyond saying that there will be some instances when no compensation is payable, the Policy doesn’t give any additional guidance to licensees or landowners on how exactly compensation should be calculated.
The Policy indicates, in line with the ECA, that ICASA has to make rapid deployment regulations and that these regulations should provide for a dispute resolution mechanism to allow ICASA to adjudicate disputes between licensees and property owners about access and compensation. However, given that the ECA does not currently regulate property owners, the Policy correctly acknowledges that property owners will only be bound by ICASA's decision-making processes if they agree to be bound. As such, it seems much more likely that licensees and property owners will persist with the approach that they have been following since Link Africa was decided and go to court to resolve disputes where necessary. This is particularly given that the Policy says that local governments will not be subject to ICASA's dispute resolution process (whenever the rapid deployment regulations are ultimately made) and most of the access disputes thus far have been with local governments.
One of the interventions proposed in the Policy is for ICASA to establish a geographical information system database that will be fed into the Department of Communications and Digital Technologies' database. The Department will determine the nature and parameters of the information that licensees will need to provide, and access rights and security. This was first suggested in the 2016 White Paper, which also suggested that the central database include details of water and electricity services to make it easier for licensees to deploy broadband infrastructure. Unfortunately, the database has still not been established.
The deployment of broadband infrastructure in South Africa, particularly in smaller towns and less urban areas, is clearly vital to ensure digital inclusion. The need to facilitate roll-out of infrastructure by the private sector obviously needs to be balanced against the need to protect municipal infrastructure (like roads and sewers), the environment, and private property owners.
Unfortunately, the Policy mostly leaves things exactly as they already are and hasn’t helped to answer any of the open questions that remain about how exactly licensees should exercise their rights and hasn't provided any clarity on how the ECA (and other relevant legislation) might be amended at some stage to clarify these points. For example, licensees already have to share their infrastructure with other licensees in appropriate circumstances, licensees already have to notify property owners if they want to deploy infrastructure and, if they are sensible, provide the information set out in the Policy, and licensees already have to approach the courts to resolve access and compensation disputes. The 2016 White Paper already reiterated the principles from Link Africa that landowners and government entities should give access. These types of statements are useful from a policy perspective but in the absence of binding requirements and changes to the myriad pieces of legislation that have implications for the roll-out of broadband infrastructure, unfortunately, the status quo remains for now. ICASA hopefully has an opportunity with the rapid deployment regulations to include some more concrete interventions. In the end, though, the streamlining of processes needs government to make changes to existing legislation at a national level and to introduce norms and standards for provinces and municipalities on matters within their respective legislative spheres where the roll-out of communications infrastructure is impacted.