…unfortunately it appears not.
___[15 August 2015] Analysys Mason have finalised the initial stages of their work and drafted a Discussion Paper on the Development of a Rapid Deployment Policy for Electronic Communications Infrastructure which has been published on the DTPS website.
The Discussion Paper is not open for comment but a public workshop will be held in August 2015 [on the 21st] with draft policy to be based on the concepts set out in the Discussion Paper. The DTPS will then finalise a draft to be published in the Gazette which will probably be open for comment for 3o calendar days. According to Analysys Mason a reasons document will be published with the final policy.
It is great to see progress here and to be hoped it can be continued…
___[22 June 2015] The DTPS has awarded a tender to Analysys Mason to undertake the underlying work for the development of policy and policy directions relating to rapid deployment of electronic communications facilities.
During the course of the presentation by the Minister of Telecommunications and Postal Services of the recommendations of the ICT Policy Review Panel to the Portfolio Committee on Telecommunications and Postal Services on 2 June 2015 it was revealed R5 379 600 had been budgeted for the development of a rapid deployment policy.
___[13 May 2015] One of the major obstacles to the efficient deployment of electronic communications networks in South Africa is the variety of permissions and approvals that builders of these networks are required to obtain prior to commencing with network roll-out. This was explicitly recognised by Parliament in the drafting of the Electronic Communications Act 36 of 2005 (“the ECA”) through the inclusion of section 21 relating to the development of guidelines for the rapid deployment of electronic communications facilities. What was intended was to create a one-stop shop which would facilitate obtaining these permissions and approvals, shortening the time and expense involved before deployment could commence: undoubtedly a logical response to an extant problem which, if not remedied, has the effect of entrenching a higher cost of deployment and therefore a higher base for the cost to communicate in South Africa.
Section 21 was revised and amended by the Electronic Communications Amendment Act 1 of 2014, which came into force on 21 May 2014. The section now reads:
Rapid deployment of electronic communications facilities
(1) The Minister must, in consultation with the Minister of Cooperative Governance and Traditional Affairs, the Minister of Rural Development and Land Reform, the Minister of Water and Environmental Affairs, the Authority and other relevant institutions, develop a policy and policy directions for the rapid deployment and provisioning of electronic communications facilities, following which the Authority must prescribe regulations.
(2) The regulations must provide procedures and processes for-
(a) obtaining any necessary permit, authorisation, approval or other governmental authority including the criteria necessary to qualify for such permit, authorisation, approval or other governmental authority; and
(b) resolving disputes that may arise between an electronic communications network service licensee and any landowner, in order to satisfy the public interest in the rapid rollout of electronic communications networks and electronic communications facilities.
(3) The policy and policy directions contemplated in subsection (1) must be made within twelve (12) months of the coming into operation of the Electronic Communications Amendment Act, 2014.
21 May 2015 will mark the end of the twelve month period afforded to the Minister of Telecommunications and Postal Services to “make” (i.e. finalise) a policy and policy directions for the rapid deployment and provisioning of electronic communications facilities. We have, however, not received any indication from the Minister or the Department of Telecommunications and Postal Services that the required policy and policy directions have been drafted or that the required consultations with other Ministers have taken place.
In the absence of these guidelines or regulations – notwithstanding it being almost nine years since the ECA came into force – it has been left to the courts to try and untangle the tension which exists between the rights of electronic communications network service (ECNS) licensees to deploy networks on or under public or private land and the rights of municipalities – in respect of their assets and control over their jurisdiction – and private landowners. The Constitutional Court heard argument on the resolution of this tension on 12 May 2015, with a judgment expected in 4-6 months time. In the interim the rulings of the High Court and the Supreme Court of Appeal to the effect that:
- an ECNS licensee does not require the consent of a municipality or other landowner when exercising its rights under sections 22 and 24 of the ECA to enter onto land and deploy electronic communications facilities [which makes some sense if you think about Telkom telephone poles…]
- in deploying such facilities, however, the licensee must comply with applicable law (to the extent that such applicable law does not negate the first bullet above by requiring the landowner’s consent)
- the licensee in deploying its facilities is exercising a public power and in doing so in subject to the requirements of the Promotion of Administrative Justice Act (PAJA), i.e. its actions must be procedurely fair, lawful and reasonable and it can be challenged in court if this is not the case, particularly if it amounted to an arbitrary deprivation of property
- while there is no general rule that compensation must be paid an offer of compensation may have the effect of making sure that any deprivation of property is not arbitrary.