Summary

  • South Africa’s proposed Electronic Communications Amendment Bill would require a national standard draft by-law for network wayleaves, municipal infrastructure sharing, integrated development plans and cost-based fees. It would not itself issue municipal permits.
  • Under section 14 of the Municipal Systems Act, a standard draft by-law applies in a municipality only if, and to the extent that, its council adopts it. ICASA’s separate 2026 rapid-deployment rules are also still a draft.

South Africa is trying to make fibre and mobile-network construction more predictable through three related instruments. Each addresses a different point in the chain. The 2023 national policy frames access to land and coordination between government spheres. A standard draft by-law offers municipalities a wayleave process. ICASA’s 2026 draft regulations set out how licensees would engage landowners and other affected parties. A bill before Parliament would require a further national standard draft by-law and name the municipal decisions it should cover.

The distinction that matters is between a national model and a local permission. A template can make forms, fees and expectations more consistent. It does not put a wayleave in an operator’s hand. A line crew still needs the rules and approvals that apply in the municipality where it plans to dig or attach equipment.

The proposed Electronic Communications Amendment Bill, B12-2026, would insert a new section 21A into the Electronic Communications Act. It says the minister responsible for local government “must make” a standard draft by-law under section 14 of the Municipal Systems Act. The proposed subjects are a uniform wayleave process; terms for sharing municipal property and infrastructure, including high sites, poles and ducts, when a licensee requests access; consideration of network deployment in municipal Integrated Development Plans; and cost-based fees. It also proposes review at least once every five years.

That is a substantial national instruction about what a municipal model should contain. It is not a direct national permit. Section 14(3)(a) of the Municipal Systems Act says a standard draft by-law applies in a municipality only if, and to the extent and subject to the modifications and qualifications, that municipality’s council adopts it. The law leaves an adoption step between the minister’s standard and the local rule that officials apply. A council may adopt the model, adapt it, or leave parts unapplied. The same Act requires publication for comment and consultation before a national standard draft is made.

The template did not begin with B12-2026. Government Notice 3087, published in February 2023, was titled “By-Laws for Deployment of Electronic Communications Facilities: Draft.” A month later, the National Policy on Rapid Deployment said the cooperative-governance minister had issued a standard draft by-law under section 14 for a uniform wayleave process. Those two records show a national model already existed in the public record. They do not show that every council adopted it or that local fees and processing times became uniform.

The 2026 bill’s own memorandum says the proposed intervention responds to varying land-access approaches, unreasonable wayleave costs and limited access to municipal assets; that is the government’s stated rationale, not a national audit of those conditions.

ICASA’s separate draft addresses another interface. Its proposed Rapid Deployment Regulations are made under the Electronic Communications Act and focus on licensees’ conduct and procedural obligations. The draft calls for applicable approvals, including a wayleave certificate under the relevant authority’s or municipality’s by-laws; written notice at least 30 days before proposed access; and geographic data submissions to ICASA twice a year or when requested. It also sets out proposed engagement, compensation and dispute procedures for landowners and affected parties.

ICASA’s published draft remains on its “Regulations underway” list, so those provisions should not be described as current binding rules.

The three tracks therefore touch the same construction project without performing the same job. The national policy sets a cooperation frame. The by-law model concerns the municipal process for wayleaves and municipal assets. The ICASA draft would regulate the licensee-facing process around entry, information and disputes. B12-2026 would direct the creation and periodic review of a model by-law, while tying deployment to municipal planning and cost-based fees. None of these texts says that a national template alone approves an excavation, resolves every property dispute or removes other statutory approvals.

The handoff is where a nominally uniform system can diverge. If one council adopts a standard form but retains a fee schedule with no visible cost basis, the operator still faces a local price question. If a municipality’s Integrated Development Plan does not identify planned corridors or shared poles, the statutory prompt to “take deployment into consideration” may not produce a build-ready route. If ICASA receives GIS records but the information is incomplete or not comparable with local records, the database may reveal less about available ducts and existing works than the national planning rationale expects.

These are implementation risks, not findings that the proposed framework has failed. ICASA’s explanatory memorandum says its own internal research identified unpredictable wayleave processes, non-cost-based fees, long timelines, difficulties reaching state infrastructure, speculative applications and weak visibility of existing assets. The document presents those items as problems that informed its draft; it does not provide a public national dataset in the cited passage that establishes their frequency or measures the effect of the proposed rules.

The current procedural record is also bounded. Parliament’s bill page still displayed B12-2026 at “Introduction” when checked on 18 October 2026. Parliament had extended written submissions to 21 September. That deadline has passed, but the page does not establish what the committee did with submissions afterward. ICASA separately held hearings on its draft in July; the regulator’s current list still classifies the regulations as underway. Neither process should be written about as if it had already produced a final instrument.

The useful public test is not simply whether the national rule is gazetted. It is whether a reader can follow each stage from the model to actual decisions: which councils adopted the by-law and on what date; what amendments they made; what application form and fee schedule they use; how long complete wayleave applications take; which municipal poles, ducts or high sites are available; and how the municipal and ICASA information systems relate. Those records would let operators plan and let landowners see the notice, access and compensation rules that apply to their property.

For network builders, predictability is valuable because civil works can dominate the sequence between capital approval and live service. For municipalities, cost-based fees and asset-sharing terms must still account for maintenance, scarce public infrastructure and the cost of administering access. For property owners and affected communities, speed cannot erase notice, consultation, safety or compensation. The legal design is trying to hold these interests in one process while leaving decisions divided across institutions.

The bill’s most consequential idea may therefore be its recognition that a wayleave is also a planning and asset-allocation decision. An IDP can make expected routes visible before applications arrive; shared poles and ducts can avoid duplicated works; a fee tied to cost can make the public charge more legible. But each benefit depends on a chain of local adoption, published terms, competent administration and credible records. A model improves the starting point. Municipal action determines whether the route is usable.

The national government can mandate a model and define its subjects. Municipal councils retain the legal act of adoption under section 14. ICASA can prescribe procedures for its licensees and collect proposed deployment data. Landowners remain parties to access and damage questions. Keeping those roles distinct is not a drafting nicety: it tells an operator which decision-maker can approve a route, a resident where to raise a concern, and a regulator which evidence could show that delay has actually fallen.

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