es licensed in terms of the ECA to interconnect with any other licensee or with persons who provide a service pursuant to a licence exemption.
The ECA grants ICASA more powers to deal with competition matters in the electronic communications sector than it previously had under the Telecommunications Act.
While a memorandum of agreement was signed between ICASA and the Competition Commission (Commission) in 2002 to regulate the relationship between the regulatory authorities, the ECA gives ICASA the authority to consider and adjudicate competition matters without the assistance of the Commission. In this regard, the ECA provides that ICASA has the discretion to request assistance from the Commission when such matters are before it.
The ECA provides that all regulations that were made in terms of the Telecommunications Act or the IBA Act remain valid unless repealed by ICASA.
Other Relevant Legislation
Electronic Communications and Transactions Act
The ECTA came into effect in August 2002. Amongst other things, ECTA aims to:
- promote understanding, acceptance and growth of e-commerce;
- promote legal certainty in respect of e-transactions;
- ensure that e-commerce in South Africa conforms to the best international practice; and
- develop a safe, secure and effective environment for consumers and businesses to use e-commerce.
Based largely on similar legislation in other jurisdictions and on the UNCITRAL Model law, ECTA is essentially divided into the following parts to address legal requirements for:
- data messages;
- communication of data messages;
- registration of cryptography providers and authentication service providers;
- consumer protection;
- protection of critical databases;
- domain name authority;
- cyber inspectors; and
- computer crime.
While ECTA governs electronic commerce in the general sense, many of the provisions of ECTA empower the legislature to enact specific regulations to provide further impetus to the substance and application of ECTA.
Regulation of Interception of Communications and Provision of Communication-Related Information Act
The Regulation of Interception of Communications and Provision of Communication-Related Information Act No. 70 of 2002 (RICA) has repealed the Interception and Monitoring Prohibition Act, No. 127 of 1992 (the Monitoring Prohibition Act), save for sections 2 and 3 of that Act.
Sections 2 and 3 of the Monitoring Prohibition Act prohibit the intentional interception of communication and make provision for the issuing of a direction that would allow one to intercept communication.
RICA seeks to regulate the interception of certain communications and radio frequency spectrums and the provision of certain communication-related information. In terms of RICA, no person may intentionally intercept or attempt to intercept, or authorise another to intercept, any communication in the course of its transmission and occurrence within South Africa.
The objects of RICA include:
- regulation of, the making of applications for, and the issuing of, directions authorising the interception of communications under certain circumstances;
- prohibition of the provision of telecommunication services that do not have the capability to be intercepted;
- provision of costs to be borne by telecommunications service providers;
- establishment of interception centres, the Office for Interception Centres and the Internet Service Providers Assistance Fund; and
- prohibition of the manufacturing, assembling, possessing, selling, purchasing or advertising of certain equipment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.