The minister of cooperative governance & traditional affairs, Nkosazana Dlamini Zuma, has published the draft standard by-laws for the deployment of electronic communications and facilities for public comment. What is the purpose and how will it contribute to increasing the speed of deploying network infrastructure where it is most needed?

South Africa is in a race against time to extend access to quality, affordable electronic communications to all parts of the country, but there are several challenges to building fit-for-purpose electronic communications networks.

The draft standard by-laws aim to address one of these challenges by standardising applications for permission to deploy networks on municipal land and the relationship between local government and the owners of these networks. The intention is to have a system that facilitates investment in fibre networks and access to lower-cost broadband.

Access to public land vs access to private land

When finalised and adopted by municipalities, the by-laws will govern access to municipal land and infrastructure for the purpose of deploying fibre 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. These regulations will set out the rights of licensees and private landowners, including the right to object to any planned installation and the right to compensation where the installation deprives the landowner of use of a portion of the property.

Icasa will start drafting these regulations when national policy on rapid deployment is finalised by the minister of communications & digital technologies, which is expected soon.

Local government intervention

The by-laws are foundational to opening up digital access to everyone. As a result, this project is one of the presidency’s priority programmes that are being spearheaded by Operation Vulindlela. The draft was developed by a task team comprised of representatives from local government, industry, the department of cooperative governance & traditional affairs and the department of communications & digital technologies.

The by-laws will be promulgated under the Municipal Systems Act and are part of a broader initiative to capacitate local government – particularly rural municipalities – to process wayleave applications and exercise appropriate supervision and controls over use of municipal infrastructure.

While the standard by-laws will facilitate deployment of electronic communications infrastructure, they are not part of the national rapid deployment policy set out in the national ICT policy white paper published in 2016. This is not the “one-stop shop” for all permissions for deployment of electronic communications facilities contemplated in section 21 of the Electronic Communications Act.

It is, however, a significant step in the right direction.

Municipal fees and tariffs

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

With hindsight, however, the white paper did not take into account the functions and obligations of local government as set out in the constitution and legislation such as the Municipal Systems Act and the Municipal Finance Management Act.

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

Industry and local government partnership

Once the by-laws are finalised, the difficult issue of their implementation by municipalities will need to be tackled. For many municipalities, this will require establishing efficient internal systems of processing and monitoring, capacity building and training, as well as setting fees. It will also require a commitment to lawful behaviour and to efficient use of infrastructure by industry. This means more sharing and less overbuilding as a start.

Above all, it is hoped that the standard by-laws will provide a basis for a constructive partnership between local government and network providers. Both parties are critical to reaching universal access goals and the current environment of mutual antagonism does a disservice to the country.

Read: Draft by-laws for network deployment gazetted

A number of highly useful submissions on the draft standard by-laws have already been received from municipalities, industry and professional bodies. The final deadline for submissions is 28 October 2022 and comments may be submitted to the director-general for cooperative governance, for attention Mr Sonwabile Nkayitshana, e-mail [email protected].