The FW de Klerk Foundation notes ICASA’s recent statement that, under the current Electronic Communications Act of 2005, full recognition of equity equivalent investment programmes in telecommunications would require legislative amendment. That position, coupled with Minister Solly Malatsi’s stated intention to pursue such amendments, reveals a deeper problem than a single regulatory dispute. It reveals a legal and policy disharmony that South Africa can no longer afford. As the country moves toward the 4 November 2026 local government elections, digital access is no longer peripheral. It bears directly on service delivery, public participation, education, local accountability and economic inclusion. 

The Foundation emphasises that transformation is non-negotiable. The Constitution permits remedial measures designed to advance those disadvantaged by unfair discrimination and the Constitutional Court in Minister of Finance v Van Heerden made clear that such measures must genuinely advance equality. The B-BBEE Act of 2003 itself is broader than narrow ownership transfer. Its objectives expressly include increasing access to infrastructure, skills and opportunities for rural and local communities, while section 10 requires organs of state and public entities, as far as reasonably possible, to apply relevant codes of good practice when determining licence criteria. The ICT Sector Code, issued under that Act, expressly seeks to bridge the digital divide and recognises equity equivalents for multinationals. 

The problem, then, is not transformation. The problem is incoherence. When the statute points in one direction, sector codes in another and regulations remain out of step, the result is uncertainty, delay and a public cost borne by ordinary South Africans. In Affordable Medicines v Minister of Health, the Constitutional Court held that regulation must be rationally connected to a legitimate governmental purpose. Section 195 of the Constitution further requires public administration to be efficient, accountable and development-oriented. A framework that delays lawful investment, slows rural connectivity and frustrates measurable empowerment outcomes is not sound constitutional governance. 

Ismail Joosub, Manager of Constitutional Advancement at the FW de Klerk Foundation, said: “South Africa does not face a choice between transformation and connectivity. It faces a choice between symbolic compliance and substantive empowerment. The Constitution favours what is real, measurable and beneficial to those still excluded from opportunity.”

Christo van der Rheede, Executive Director of the FW de Klerk Foundation, said: “Ahead of the local government elections, the country should be asking a simple question: does our regulatory framework help connect communities, schools, clinics and local economies in a lawful and empowering way? If the answer is no, then the law must be harmonised with urgency and constitutional seriousness.”

The FW de Klerk Foundation therefore urges government and Parliament to resolve this misalignment without delay. South Africa needs a telecommunications framework that upholds transformation, preserves legality and delivers practical inclusion. Citizens should not be made to pay the price of regulatory contradiction.