The telecoms industry has days to weigh in on a Bill that could reshape investment and competition in their sector. The Electronic Communications Amendment Bill [B12-2026] ("the Bill"), currently before Parliament’s Portfolio Committee on Communications and Digital Technologies, proposes a more structured regulatory framework in which certain infrastructure could be subject to compulsory access, wholesale pricing could be regulated on a cost-oriented basis, unused spectrum could be shared, and some operators could be required to provide national roaming and mobile virtual network operator services on request. Stakeholders and interested parties have until 21 September to make written submissions. 

If enacted in its current form, the Bill could reshape the commercial, investment and regulatory landscape of South Africa’s electronic communications sector.

Under the proposed s43(8), the Independent Communications Authority of South Africa (ICASA) must compile a list of essential facilities, which could include high sites, cable landing stations, backhaul infrastructure, earth stations, ducts in road and rail reserves, municipal infrastructure and internet peering points. Once a facility is on that list, its holder must lease it out on request, subject to the applicable statutory requirements. The proposed s47 goes further, mandating (rather than merely empowering) ICASA to ensure that wholesale pricing is "cost-oriented" and, for essential facilities, reflects cost plus a “reasonable return", a term not defined in the Bill.

The proposed s21A requires the Minister responsible for local government to make a standard draft municipal by-law covering, among others, uniform wayleave processes, cost-based fees and the terms and conditions for sharing municipal property and infrastructure. If municipalities apply it consistently, this could reduce deployment delays and the cost of extending facilities into underserved areas.

Regulatory due diligence in telecommunications transactions has traditionally focused on a target's existing licences, compliance history, spectrum holdings and pending regulatory proceedings. That may no longer be enough. The proposed amended s67 replaces the existing market review regime, centred on significant market power, with a broader inquiry into market features that impede, distort or restrict competition. Under this regime, ICASA can identify licensees contributing to those features and impose proportionate pro-competitive remedies, including wholesale access obligations, rate regulation, separate accounting and, in appropriate cases, structural separation. The Bill also strengthens coordination between ICASA and the Competition Commission.

Licence holders have long treated their licences as relatively stable regulatory assets. Although licence conditions have always been capable of amendment under certain circumstances, investors have generally modelled their businesses on the assumption that core rights and obligations would stay broadly predictable over the investment period. The Bill may unsettle that assumption. Following a market inquiry, ICASA will be empowered to impose pro-competitive licence conditions that could alter the commercial characteristics of licences already issued.

The Bill also introduces the concept of an "access provider", which is defined as an electronic communications network service licensee that has been assigned International Mobile Telecommunications (IMT) spectrum and whose network covers at least 90% of South Africa's population. Access providers must provide national roaming and mobile virtual network operator (MVNO) services on request.

Separately, the Bill introduces a "use it or share it" principle in terms of which parts of spectrum that remain unused in a particular geographic area after the prescribed statutory period may become subject to compulsory secondary sharing. Unused spectrum may also be withdrawn in specified circumstances following the prescribed processes. 

The value of a communications licence may therefore depend increasingly not only on the rights it currently confers, but also on the regulatory obligations that could attach to it in future. A licence that today permits considerable flexibility may, following a market inquiry, become subject to obligations affecting pricing, network access, operational autonomy or the ability to extract value from infrastructure investment. As a result, the regulatory risk profile is becoming less predictable, particularly for operators with a significant presence in the market or extensive network infrastructure.

Many commercial agreements allocate rights, obligations and commercial risk on the basis of the current regulatory framework. Where the Bill changes the rules governing access, pricing or spectrum use, parties should consider whether those arrangements remain appropriate.

Access providers will have to conclude national roaming and Mobile virtual network operator (MVNO) agreements within prescribed periods, and unresolved disputes can be referred to ICASA for determination. That leaves parties less room to prolong negotiations or leave material terms unresolved, particularly around reference offers and dispute resolution provisions negotiated under the current legislative scheme. The Bill also removes the existing statutory right to refuse an essential facility request on the grounds that it is not technically or economically feasible. That considerably narrows a facility holder’s ability to resist compulsory access, though technical and operational constraints may still influence the terms ultimately agreed or imposed.

More importantly, the Bill signals a move from a regulatory environment in which access, pricing and risk allocation are predominantly determined through commercial negotiations, towards one in which regulatory rules may increasingly determine the outcome. Reference offers, wholesale pricing standards, prescribed negotiation periods and ICASA's power to determine unresolved terms could narrow the range of outcomes available to contracting parties.

Infrastructure sharing, network access, wholesale supply, spectrum sharing, managed services and long-term customer contracts may all rest on assumptions about pricing flexibility, network utilisation, exclusivity or anticipated returns that could change as ICASA develops the Bill’s new regulatory regime. 

The Bill represents more than a single legislative event. It suggests a shift towards a more actively managed market, one in which access may become compulsory, pricing methodology is regulated, spectrum may be shared, and two regulators exercise formalised concurrent jurisdiction through mandatory agreements, information sharing, coordination and mutual enforcement of findings.

The Bill is still working its way through Parliament, and its terms may well change before it is finalised. Stakeholders with material exposure to the sector have a narrow but important window to influence the legislative text before it is finalised. Engagement that is technical, well-informed and backed by economic modelling and operational data is most likely to produce a regulatory framework that reflects how networks are actually built and operated. 

Written by Tebogo Sibidla, a Director at Werksmans Attorneys