1               Telkom SA Limited (“Telkom”) would like to thank the Portfolio Committee on Science and Technology for the opportunity to submit written comments on the draft Bill. In addition, Telkom would like to requests an opportunity to make a presentation at the public hearings scheduled for 31 July to 1 August 2007 and would require a time slot of one (1) hour.

2               The draft Bill was published 25 May 2007. Comments were originally invited on this draft Bill by the Department of Science and Technology and Telkom accordingly submitted its comments. These comments were expanded in this submission and should be seen as an update from the comments previously submitted.

3               Telkom recognises and appreciates the fact that most of its comments submitted in April 2006[1] on the draft Bill were in fact included in this new draft Bill. We trust that the additional comments included in this submission will further assist the Portfolio Committee on Science and Technology in improving the Bill.

Specific comments on draft Bill

4               While acknowledging the necessity to have various terms defined in terms of an Act of Parliament, Telkom nonetheless believes that such exercise is essential to clarify and define technical terms as close as reasonably possible to their common usage. Telkom is cognisant of the fact that misinterpretation and misconstruction of various terms may result in the objectives of the Bill not being achieved. Based on this understanding, Telkom deems it prudent to express certain reservations pertaining to some of the definitions in the definitions clause (section 1) of the Bill.

Comments on section 1 of the Bill: Definitions”

5               Section 1



5.1         As indicated in Telkom’s earlier submissions in respect of the draft Bill, Telkom would like to reiterate its reservation relating to the identification of “components, connections and telecommunications links” as “astronomy devices”.

Telecommunications systems were regulated under the Telecommunications Act 103 of 1996 (as repealed), and now fall under the exclusive purview of the Electronic Communications Act 36 of 2005 (“EC Act”). The identification of telecommunications links as “astronomy devices” will put a significant aspect of communications (telecommunications and broadcasting) under the jurisdiction of the Department of Science and Technology – which Telkom reasonably assumes was not the intention of the Legislator.


Furthermore, considering that these links are not necessarily stand-alone networks and systems it is Telkom’s submission that it will create confusion and conflict not only between this proposed Bill and the EC Act, but between the clear, distinguishable functions of the Independent Communications Authority of South Africa (“ICASA”) and the proposed Astronomy Device Management Authority (created under section 28(3)(b) of the draft Bill).


Finally, electronic communications systems are regulated by ICASA and that should also apply to communications links utilised for radio astronomy systems. The Department of Science and Technology is requested to seek comments from ICASA on what is perceived to be an encroachment on an exclusive ICASA domain.






5.2         Telkom believes that the concepts “core”, “central” and “coordinated” have not been clearly defined in this draft Bill. The references to sections 7(1), 9(1) and 11(1) merely points to the declaration process and, although some subtle differences in purpose and implementation of the three area types are evident from these and other sections in the draft Bill, it is not 100% clear what the purpose of these three areas is and how these will be implemented in practice. Considering that the implementation of astronomy advantage areas revolves entirely around these three concepts, it is Telkom’s opinion that the terms “central astronomy advantage area”, “coordinated astronomy advantage area” and “core astronomy advantage area” should be clearly defined.  




5.3         For the purpose of consistency and to avoid any possible confusion, Telkom recommends that these two definitions be aligned by expanding the definition of “identified activity” as follow: “identified activity” means an activity declared as such in terms of section 24 in respect of one or more coordinated astronomy advantage areas”.


Comment on section 2 of the Bill:  Objects of the Act”

6               Section 2

6.1         Errata: Delete word “of” (“to identify and to protect of areas…”).


Comment on section 4 of the Bill:  Conflicts with other legislation”

7               Section 4

7.1         Telkom is concerned with this Act taking precedence over, for example, the EC Act. Section 92 of the EC Act confirms the validity of Telkom’s rights in respect of the licences granted under the Telecommunications Act (for example to use the radio frequency spectrum on a national basis), despite the repeal of the Telecommunications Act by the EC Act. Furthermore, should this Bill negate the rights of Telkom as acknowledged by the EC Act, it is then obvious that this Bill is in conflict with the provisions of the EC Act. Section 94 of the EC Act contains similar provisions as this Bill, that in the event of conflict with other legislation, the provisions of the EC Act take preference. Telkom seeks clarity, and would like to understand how the conditions of this Act will override those rights and could possibly negatively impact the way Telkom delivers services to customers in certain areas. Also considering section 22(1) it is clear that the intention of this draft Bill is to transfer responsibility of the management of the radio-frequency spectrum in the declared areas from ICASA to the Minister of Department of Science and Technology.

Comment on section 5 of the Bill:  “Areas which may be declared astronomy advantage areas”

8               Section 5(1)

8.1         Section 5(1) contemplates a two-step approach in declaring an area as an astronomy advantage area namely the “designation” of an area and then “declaring” an area. Apart from publishing a notice in the Gazette, the process that will be followed in “designating” an area is not clear from the draft Bill and should be further clarified.

8.2         Furthermore, in accordance with section 5(2), a designation should be done only with the concurrence of the Minister responsible for local government, the Premier of the Province concerned and any affected municipality. Considering the potential impact that the declaration of additional sites as astronomy advantage areas may have on, for example, communications operators, it is recommended that a public participation process, as contemplated under section 42, be followed prior to such designation. It is further noted that the Province of the Northern Cape, in accordance with section 5(1), is already “designated” as an astronomy advantage area. Public consultation and extensive radio-frequency interference tests and calculations have however been conducted prior to the identification of this area as a potential astronomy advantage area. Telkom is of the view that this should also be the norm prior to the designation of any other area as a potential astronomy advantage area.

8.3         It is also recommended that the use of the terms “declare” and “designate”, as contained in sections 7(1)(a) and 7(1)(c) respectively, be carefully considered. An area is firstly “declared” in terms of section 7(1)(a) and then “designated” in terms of section 7(1)(c), which seems to be in conflict with section 5. This also applies to sections 9(1) and 11(1).



Comment on section 7 of the Bill:  Declaration of core astronomy advantage area”

9               Section 7(3)

9.1         Errata: Change the word “an” to “a” (“…subsection (2), an declaration…”).


Comment on section 11 of the Bill:  “Declaration of coordinated astronomy advantage area”

10           Section 11(5)(b)

10.1      Although Telkom could appreciate the reasons why the area should include whole, rather than part, of a municipal area, Telkom submits that, considering the operational and practical implication that a coordinated area will have on, for example, communications operators, Telkom would recommend that it should be endeavoured to keep this area as small as possible using scientific principles in its calculation, rather than increasing the area to match Municipality areas only because it could be more convenient to implement and managed.


Comment on Chapter 3 of the Bill:  Management and control of central and core astronomy advantage areas

11           Chapter 3

11.1      Considering that sections 15 and 16 also address coordinated astronomy advantage areas it is suggested that the title of Chapter 3 also include coordinated astronomy advantage areas.


Comment on section 15 of the Bill: “Management authorities”

12           Section 15

12.1      It is Telkom’s submission that the definition of “management authority” in section 1 of the draft Bill is in conflict with the provisions of this section 15(1) due to the omission of “person” in section 15(1).

12.2      Same applies to section 19(2)(b) of the draft Bill.

12.3      It is Telkom’s observation that it is quite likely that the inclusion of “person” in section 1 and subsequently in section 15(2) might have been erroneous. It is further Telkom’s observation that it is inconceivable for the Minister to assign such responsibility on an individual without reference to specific credentials or criteria declaring such a person competent to act in such a capacity. Should this observation be unfounded then clarity is sought in respect of the omission of “person” in section 15(1) of the Bill.


Comment on section 18 of the Bill:Co-management of core or central astronomy advantage area

13           Section 18

13.1      Since a co-management agreement is binding on the successor-in-title (subsection 18(5)), it is suggested that the word “may” be change to “must”.


Comment on section 20 of the Bill: “Restrictions in core astronomy advantage area”

14           Section 20(1)(c)

14.1      A core astronomy advantage area is designated in terms of section 7(1)(c) and not section 9(1)(c). Section (9)(1)(c) refers to the designation of central astronomy advantage areas.  It is, therefore, proposed to delete the reference to section 9(1)(c).

15           Section 20(3)

15.1      Section 20(3) deals with entering a core astronomy advantage area. It is therefore suggested that the phrase “or central” in the last line be deleted (…”entering the core or central astronomy advantage area…”).


Comment on section 22 of the Bill: “Protection of astronomy observations in radio frequency spectrum in core and central astronomy advantage areas”

16           Section 22(2)

16.1      The migration from analogue transmissions to digital transmissions, if possible, will have a cost implication for the relevant communications operator. Whereas this conversion may sometimes be part of an existing strategy (e.g. analogue to digital broadcasting migration) this is not always true. In some cases, the migration of analogue transmissions to digital transmissions in a selected area (e.g. the declared astronomy advantage areas) is not an option, for example analogue trunking, which will require the migration of the entire national network. It is therefore very important that the Bill addresses the issue of financial compensation in cases that migration has to be implemented.

16.2      Using the phrase “transmits or broadcasts into a core or central astronomy advantage area” implies that the Minister may regulate transmissions located outside the core and central astronomy advantage areas transmitting towards a core or central astronomy advantage area. In order to ensure that there is no doubt as to the area within which these transmissions may be regulated and, considering the assumed purpose of a coordinated astronomy advantage area as a “buffer zone”, it is suggested to add the phrase “from within a coordinated area” as follows: “…which transmits or broadcasts into a core or central astronomy advantage area, from within a coordinated astronomy advantage area, to migrate…”. Alternatively, the word “into” should be replaced with “in” so as to limit the migration to systems located within the core or central areas.


Comment on section 23 of the Bill: “Declared activities in core or central advantage area”

17           Section 23(4)

17.1      It is noted that the public participation process is in relation to subsection (3) regarding prescribing activities that are required to cease, or prescribing conditions under which certain activities may continue. It is however noted that a public participation process is not required with regard to subsections 23(1) and 23(2) dealing with the declaration of activities that may not be conducted in a core or central astronomy advantage area and the review of existing activities respectively. Telkom therefore requests that the public participation process be extended to also apply to the actions required under subsections 23(1) and 23(2). It is noted that the declaration of activities within a coordinated area is conditional to a public participation process (section 24(4)).


Comment on section 25 of the Bill: “Authorisation to undertake identified activities”

18           Section 25(4)

18.1      Telkom considers this time frame (60 days) to be too long for the following reasons:

18.1.1         After this period the competent authority may request the person who intends to undertake the identified activity to submit an impact assessment report.

18.1.2         If the competent authority does not respond within the prescribed 60 days, in terms of subsection 25(7) the person who made the notification must resubmit the notification with a further 60 days for the competent authority to consider the notification. An impact assessment report could still be required after this period.

19           Section 25(5)

19.1      Telkom is concerned regarding the time this process could potentially take to complete as well as the cost associated with the process, especially considering that the report must be compiled by a person to be approved by the competent authority. It is unclear who will qualify to complete such report, what criteria will be used in appointing a competent and impartial person and what fees such person will charge to prepare such report.


Comment on section 27 of the Bill:  Review of identified activities which impact on astronomy

20           Section 27(1)


20.1      Since section 27 deals with “identified activities”, Telkom is of the opinion that the reference to section 23(1) should in actual fact be a reference to section 24(1). Section 23(1) deals with “declared activities” for core and central astronomy advantage areas.



Comment on section 28 of the Bill:  Astronomy and Astronomy devices

21           Section 28(2)

21.1      Telkom’s submission in respect of this section should be read in conjunction with its submission made under paragraph 5.1. Although Telkom appreciates that the Minister responsible for communications and ICASA will be consulted, Telkom would recommend that a public participation process also be included in the Bill under section 28, before the Minister declare any device, apparatus, equipment or instrument as an astronomy device.

22           Section 28(4)



22.1      Telkom’s submission in respect of this section should be read in conjunction with its submissions made above in respect of the definition of “astronomy devices” in section 1 of the definition clause.

It is Telkom’s submission that the retention of the current section 28(4) is mainly dependent on the proposed amendment of “astronomy devices” in section 1 of the draft Bill.


Should the Department persists with the current definition of “astronomy devices”, then Telkom would like to record its disapproval of the current section 28(4) of the draft Bill – this is premised on the same argument raised in respect of “astronomy devices” under section 1 of the draft Bill.


22.2      Telkom is, furthermore, of the view that clauses 29 (Entry upon and construction of lines across land and waterways) and 30 (Pipes under streets) should not pertain to the establishment of electronic communications facilities and networks by persons not licensed in terms of Chapter 3 of the EC Act, as this may create confusion and conflict, as Telkom has pointed out in paragraph 5.1 of this submission.


Comment on section 37 of the Bill:  “National Standards for control of activities which may be detrimental to astronomy”

23           Section 37(5)

23.1      Telkom is very concerned that the Minister of Science and Technology may have the power to declare national standards or measures that apply “generally throughout the Republic”. It is understood that the declared astronomy advantage areas are there specifically to protect these areas and Telkom therefore fails to see the need to extend protection of these areas to include the entire Republic. The potential impact on communications operators is already considerable considering only the declared areas; by extending these to include the entire Republic could have tremendous negative implications on communications service delivery in South Africa. Telkom therefore respectfully suggests that these standards and measures be limited to declared astronomy advantage areas.

23.2      It is furthermore suggested that section 51(3)(b) also be changed accordingly.


Comment on section 41 of the Bill: Consultation by Minister

24           Section 41

24.1      According to section 41, the Minister “must” consult national organs of state, the relevant MEC and the municipalities. However, the Minister “may” follow the consultative process “as may be appropriate in the circumstances” when declaring core, central and coordinating areas. Telkom submits that Telkom (and other users of spectrum for example) must be consulted before any area is declared as astronomy advantage area, considering the tremendous impact that the declaration of these areas may have on Telkom and other users of the spectrum.

Comment on section 50 of the Bill: Regulations by Minister

25           Section 50

25.1      Telkom respectfully submits that it is concerned that the Minister be allowed to make Regulations without applying the public participation process as prescribed in section 42. The potential impact on users of spectrum is very high and un-consulted regulations could be detrimental for Telkom and other users of the spectrum. The concern is that the Minister is in support of astronomy and does not necessarily view the opinion of the communications community. Although public participation has been introduced in many sections of the draft Bill, Telkom recommends that it be specifically added under this section in order to ensure that regulations will be brought about through a process that includes public participation.


Comment on section 51 of the Bill: “General”

26           Section 51(1)

26.1      It is not clear what “material financial implication” means and by whom and how it will be determined. Telkom suggests that this concept be defined in section 1 of the Bill; Telkom is also requesting clarity on the concept.


Comment on section 52 of the Bill:General offences and penalties

27           Section 52(1)

27.1      In subsection (1)(d), the phrase: “or any condition prescribed in terms of section 27(2)” seems like a duplication from subsection (1)(c). Also, subsection (1)(d) focuses on contravention of standards whereas section 27(2) deals with specific identified activities which may continue.

28           Section 52(2)

28.1      Possible offences under this draft Bill are listed in subsection (1). It is therefore recommended that the reference to subsection (2) under subsection (2) be deleted (…subsections (1) or (2) is ….).



While Telkom is fully cognisant of the significance of large optical and radio astronomy projects to the South African economy, we are of the view that a suitable balance must be achieved between the requirements of such projects and the need to construct, operate and maintain cost effective systems to serve the communication needs of the population in these declared areas.  The economy of any given area, the ability to conduct business using voice and data systems, and the general safety and convenience of the inhabitants are all dependent on the availability of such communications systems.


In many cases communications companies will need to use wireless systems to provide the most cost effective services in rural areas, where the deployment of cable and fibre is extremely costly.  For this reason Telkom urges that consideration be given to the employment of methods and systems by the Department and / or any managing bodies, within core, central and particularly within the coordination areas, which will facilitate and not hinder that provision of cost effective communication systems. Without the possibility of using wireless communication systems unrestricted within these areas, the digital divide will definitely increase for these areas.


Telkom would be pleased to assist with the provision of any communications infrastructure and systems that may be required for the implementation of the various astronomy projects, and invites the Department of Science and Technology to approach it on any matters relating to the provision of such communication services.


[1] Telkom’s comments submitted 13 April 2006 on Draft 5 of the Bill