The SACF’s Written Comments on the Draft Regulations Regarding Standard Terms and
Conditions for Individual Licences
1. The SACF is an industry association that represents a broad group of members
across the ICT ecosystem. Our members include licensees, prospective
licensees, and other key players in the value chain.
2. The SACF welcomes the opportunity to submit comments on the draft
regulations, and the attempt to enhance the regulations.
3. Our submission is limited to areas of agreement, however, as they are
consensus views, they are unlikely to mirror the positions of any of our members.
In instances where we are unable to achieve a consensus and members hold
divergent views these will be addressed in the individual member submissions.
4. The SACF would like to place on record its interest to participate in any future
processes in this regard.
5. The SACF’s comments will focus on Schedules 2 and 3.
General Comments
6. The SACF welcomes the inclusion of the applicable forms and information to
be submitted by a licensee. It is a welcomed approach to include these in
each regulation as it makes the reporting requirement more clear and simpler
for licensees, particularly smaller licensees.
7. We note that ICASA published a Compliance Manual Regulation more than a
decade ago. The Compliance Manual includes the reporting requirements
derived from the regulations that were applicable at the time. The Compliance
Manual requirements have not been in step with regulatory updates since. As
the Compliance Manual was published as a regulation, it creates its own set of
regulatory requirements that are often out of date. it also creates dual
reporting requirements.
8. The SACF has raised this in previous submissions and would urge ICASA to repeal
the Compliance Manual regulations as it is out of date and perhaps if it deems
it necessary to republish the Compliance Manual as a reporting guideline
rather than a regulation.
SACF’s written comments on the Draft regulations Regarding Standard Terms and Conditions for individual licences
under Chapter 3 of the ECA – Government Gazette No. 46050
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Headings of Schedules 2 and 3
9. The headings in Schedule 2 and 3 appears to have been incorrectly reflected
as Class ECNS and Class ECS. We understand this ought to have been
Individual as the Title of the Regulations indicates that the regulations are the
Amendment to Individual Licences.
Effective Date
10. While we note ICASA’s explanation on the definition of effective date,
however, we are aware that licences are amended from time to time and
historically has reflected the date of issue of the original licence. However, the
amendment proposes present and future dates.
11. As we understand that licences are amended and reissued whenever
amendments are effected. For example, when the contact person in the
applicable licence is changed, this is included in the licence and the updated
licence reissued.
12. The date of issue of the licence has historically remained the original date of
issue, so as not to restart the clock on the licence term each time that an
amendment has been effected. This approach is not specific to licences under
the purview of ICASA. It applies in other sectors as well.
13. Therefore, it is unclear how the proposed definition of “Effective date” means
the date specified in the licence which may be a present or future date from
the date of signature;” will relate to the above instances.
14. What is the envisaged impact on the inclusion of the effective date as licences
are amended over the 20-year period?
Comments apply to Schedules 2 and 3
Amendment of Period for Notifications
Change of Notice Period
15. The SACF welcomes the principle underpinning the amendment that that seeks
to increase the number of days to improve compliance as it recognizes the
challenges that licensees face. The increased days are likely to boost
compliance. However, we are of the view that 20 days maybe more suitable
than the proposed 20 business days.
SACF’s written comments on the Draft regulations Regarding Standard Terms and Conditions for individual licences
under Chapter 3 of the ECA – Government Gazette No. 46050
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Comments apply to Schedules 2 and 3
Penalty Fee for Late Submissions
16. While the SACF understands the rationale underpinning the proposed inclusion
of a late fee for amendment notices submitted after the period. The inclusion
of such a fee is a penalty and the ECA, in our view does not empower ICASA
to standardly impose penalties in this manner.
17. Instead, the ECA provides for the tariffs and fees, and it does not include
provisions for late penalties.
18. Instead, Section 17 of the ICASA Act provides for non-compliance and
penalties. This would constitute an additional penalty where the application
appears to fall outside the penalty framework prescribed in Section 17 of the
ICASA Act.
19. Section 4(c ) of the ICASA Act provides for the tariffs that ICASA may prescribe
in regulations. It does not include a provision for tariff that would be applicable
for late submissions. This would constitute a penalty and therefore, would be
regulated in terms of Section 17 of the ICASA Act.
Comments apply to Schedules 2 and 3
Change of name
20. We note ICASA’s proposal in respect of a licensee’s name change. The
regulation however does not go further to the next step that provides an
updated database that maintains a current list of all licensees including trading
names. This will assist licensees and contribute to ICASA’s proposed changes to
licensees’ names.
21. All interested stakeholders should be able to have access to relevant and
applicable information for licensees. However, ICASA would need to strike a
delicate balance between making information available while protecting the
information.
Comments apply to Schedules 2 and 3
Amendment to Regulation 9
SACF’s written comments on the Draft regulations Regarding Standard Terms and Conditions for individual licences
under Chapter 3 of the ECA – Government Gazette No. 46050
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22. We note ICASA’s proposed amendment that it may refer the licensee to the
CCC should a licensee fail to respond to three separate requests for
information as this would constitute non-compliance.
23. It would be useful to include a timeframe for the requests.
24. While we understand the fines will be imposed after due process including after
an appearance before the Complaints and Compliance Committee (CCC).
25. Despite this, the penalty regime introduced in the draft regulations is
extraordinarily high and tends toward being exceedingly punitive rather than
encouraging compliance.
26. It is imperative that licensees have regulatory certainty with a single regulatory
framework for contraventions and penalties.
27. Section 17H of the ICASA Act sets out a framework for offences and penalties,
the provisions in the draft regulations on contraventions and penalties do not
appear to be aligned to the ICASA Act. ICASA’s powers to issue a fine of up to
10% of annual turnover is constrained by 17H (3) (i) and may only apply such a fine
in very specific circumstances. Therefore, the proposed penalties are ultra vires.
28. ICASA Act “17H(3)(h)(ii)of the ICASA Act (ii) in the case of an offence
contemplated in paragraph (b) to a fine not exceeding the greater of R5 000 000
or 10% of the person or licensee’s annual turnover for every day or part thereof
during which the offence continued. ;”Paragraph (b)
“(b) provides a service without a licence or registering as required by this Act or the
underlying statutes or fails to obtain the prior written permission of the Authority
before transferring a licence;” This is the only instance in which ICASA may fine a
licensee up to 10% of annual turnover.
ECA
:74. Offences and penalties
(1) Any natural person, juristic person or licensee who contravenes or fails to comply
with any licence condition contained in the licence, is guilty of an offence and is
liable on conviction to the penalties set out in subsection (2).
(2) Any natural person, juristic person or licensee who contravenes or fails to
materially comply with any specific terms and conditions contained in the licence
relating to construction or placing into service of electronic communications
facilities or electronic communications networks, is guilty of an offence and upon
conviction, such natural person, juristic person or licensee must outsource—
(a) the construction; or
(b) placing into service, of the electronic communications facilities or electronic
communications networks, or parts thereof, that are the subject of the contravention
or failure to comply, by entering into one or more agreements with a third-party
engaging such person to build or operate the electronic communications facilities
or electronic communications networks in accordance with the specific terms and
conditions contained in the licence.”
29. Such misalignment creates regulatory uncertainty, which is undesirable.
30. Accordingly, the SACF proposes that the section on the penalties should be
aligned to Section 17H of the ICASA Act. There is no need to restate the
provisions of the Act, instead we believe that this provision will be adequately
SACF’s written comments on the Draft regulations Regarding Standard Terms and Conditions for individual licences
under Chapter 3 of the ECA – Government Gazette No. 46050
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addressed by the following provision: “A contravention of these regulations will
trigger sanctions in accordance with 17H of the ICASA Act.’
Comments apply to Schedules 2 and 3
Tariff Notifications
31. The parameters of a regulation are determined by the founding legislative
framework. The ECA provides for licensees submitting their tariffs for notification
rather than approval. Clause 8 of the ECA provides for the elements to be
included in the standard terms and conditions of licences. 8(2)(d) states that,
“the protection of the interests of subscribers and end-users, …” Clause
8(2)(d)(iii) indicates provides for tariff fillings to be done in the interest of
transparency and does not empower ICASA to approve a tariff.
32. Therefore, ICASA is not empowered to approve or reject a tariff prior to
implementation. Under the current legislative framework instead, ICASA is
empowered to receive and review a tariff for informational purposes. It further
publishes its tariff reviews which provide an analysis of tariffs implemented and
determines patterns and trends observed.
33. Under the COVID regulatory framework ICASA took the bold approach to
allow licensees to submit a tariff the day before implementation. This approach
is aligned to the empowering legislative framework and appeared to work well.
34. We understand this amendment to follow the same logic by reducing the
period from 7 days to 5 days. This is useful but has limited value as ICASA will
simply be aware of the tariff 5 days ahead of implementation but cannot stop
or delay its implementation. Instead, its role would be limited to attempting to
understand the tariff which the rationale is offered in the explanatory memo.
This could still be done after the tariff has been implemented.
35. Therefore, the SACF is of the view that the 5-day notification period does not
materially provide additional consumer or public interest benefits over a oneday notification period.
36. Instead, it is our view that a shorter period is indeed more beneficial to the
consumers and is the public interest as it promotes agility and would allow
licensees to respond more quickly to competitor pricing. This is more likely to
benefit consumers rather than the longer notification period, even at 5 days.
SACF’s written comments on the Draft regulations Regarding Standard Terms and Conditions for individual licences
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37. Therefore, the SACF would encourage ICASA to reduce the tariff notification
period from 5 days to 1 day prior to implementation. The SACF is of the view
that the evidence of implementation under the COVID regulations supports our
proposal for one business day.