(1) From 7 May 2002 until 7 May 2005 Telkom and the second national operator shall be the holders of public switched telecommunication service licences.
(2)

(a) For a period of two years after the date of commencement of the public switched telecommunication service licence the second national operator may use Telkom’s facilities on a resale basis in accordance with agreements concluded between the parties for the purposes of providing public switched telecommunication services.
(b) The agreements contemplated in paragraph (a) become effective within 60 days of the issuing of the public switched telecommunication service licence to the second national operator.

(3) Where Telkom and the second national operator fail to conclude agreements contemplated in subsection (2), or after the parties have negotiated in good faith and used their reasonable endeavours to resolve disputes relating to such agreements, either party may request the Authority in writing to resolve all outstanding issues.
(4)

(a) Where the Authority receives, a request contemplated in subsection (3), it shall, within 30 days of that request, determine the terms and conditions of the agreement in a manner consistent with this Act.
(b) Where the Authority makes a determination in terms of paragraph (a), the determination shall be binding on the parties and shall form part of the agreement between the parties.
(c) The agreement contemplated in paragraph (b) shall lapse two years after the date of its conclusion.

(5)

(a) Before 31 December 2003 the Minister shall—

(i) determine, by way of a market study, the feasibility of granting one or more public switched telecommunication service licences in addition to the licences referred to in subsection (1); and
(ii) by notice in the Gazette, publish the determination.

(b) In conducting the market study contemplated in paragraph (a), Minister shall consider—

(i) the Republic's international obligations;
(ii) national and international market conditions prevailing at the time;
(iii) the Republic's policy objectives; and
(iv) any other relevant factor.

(6)

(a) If the Minister determines that any additional public switched telecommunication service licence may be granted—

(i) such licence may only come into effect by 8 May 2005; and
(ii) at least one of the additional operators shall be licensed to provide service-based competition.

(b) A holder of a licence contemplated in paragraph (a) may—

(i) compete as a service-based licensee and may not provide its own facilities until the Minister so determines; and
(ii) utilise the facilities of Telkom and the second national operator on a resale basis for a period of two years from the date of commencement of its public switched telecommunication service licence, in accordance with agreements concluded between the parties for the purposes of providing public switched telecommunication services.

(7) Where the Minister makes the determination contemplated in subsection (5), the Authority may prescribe regulations to ensure equal and non-discriminatory access to facilities among all licensed operators.
(8) In any case where telecommunication facilities are made available pursuant to section 44 or the regulations promulgated thereunder to the holder of a licence to provide public switched telecommunication services, such licence holder shall have the right of resale.
[Section 32A inserted by section 6 of Act 64 of 2001]

(1) The second national operator shall be granted a public switched telecommunication service licence on no less favourable terms and conditions than those of the licence held by Telkom.
(2) Subject to subsection (3), such percentage of the equity interest of the second national operator shall be set aside for Eskom and Transnet, as the Minister, with concurrence of the Minister of Public Enterprises, may determine.
(3) The final determination of the equity interest of Eskom and Transnet in the second national operator shall be determined by the value of the contribution of Eskom and Transnet, as the case may be, in the second national operator.
(4) The contribution referred to in subsection (3) may include, among other things—

(a) cash;
(b) rights of way;
(c) immovable property;
(d) personal rights; and
(e) other assets, including existing infrastructure, facilities and equipment.

(5)

(a) For the purposes of this subsection, "servitude" means any servitude, lease, right of use or other real right (whether registered or not) in or over land in favour of Eskom, Transnet and the South African Rail Commuter Corporation Limited established in terms of the Legal Succession to the South African Transport Services Act, 1989 (Act No. 9 of 1989), which existed immediately prior to the commencement of this Act, for the conveyance or provision of electricity, telecommunications, pipelines, railways, transport or electrical substations.
(b) Every servitude is hereby extended so as to include the additional right to use the land to which such servitude relates for purposes of providing a public switched telecommunication service or network by means of telecommunication facilities.
(c) Eskom may allow any of its subsidiaries in respect of Eskom servitudes to—

(i) utilise a servitude in respect of the additional right referred to in paragraph (b) on such terms and conditions as may be agreed upon between Eskom and the subsidiary;
(ii) allow any third party in which Eskom has an equity interest to utilise the servitude in respect of that additional right on such terms and conditions as may be agreed upon between the parties; or
(iii) utilise a servitude in respect of that additional right in order to provide public switched telecommunication services to any third party on such terms and conditions as may be agreed upon between the parties.

(d) Compensation as contemplated in section 25(3) of the Constitution shall be payable by the party exercising the additional right as contemplated in paragraph (b) to the registered land-owner concerned, to the extent that the servitude becomes more onerous than the original servitude.
(e) Notice of the exercise or use of the right in terms of paragraph (c) shall be given in writing to the registered owner of the land concerned, either by personal service or by pre-paid registered post, and the compensation contemplated in paragraph (d) shall be payable and shall be assessed as at the date of such notice.
(f) Sections 9, 10, 11, 12(3), 12(5), 14 and 15 of the Expropriation Act, 1975 (Act No. 63 of 1975), shall with the necessary changes be applicable in respect of any compensation claim, compensation offer and the payment and determination of such compensation.
(g) The Registrar of Deeds shall make such entries or endorsements in or on any relevant title deed or other documents in the office of the Registrar or submitted to the Registrar, as may be necessary for the purposes of paragraph (c).
(h) No fees or other levies shall be payable in respect of entries or endorsements contemplated in paragraph (8).
(i) Paragraphs (c), (d), (e), (f), (8) and (h) apply with the necessary changes to Transnet and its subsidiaries licensed in terms of this Act and the South African Rail Commuter Corporation Limited.

(1) With effect from 7 May 2002, Sentech Limited referred to in section 4 of the Sentech Act, 1996 (Act No. 63 of 1996), shall be granted a licence to provide—

(a) an international telecormunication gateway service enabling it to operate as a carrier of carriers; and
(b) multimedia services to any person who requests such service.

(2) Sentech shall provide the multimedia service as a common carrier on a reasonable, equitable and non-discriminatory basis.
(3) In respect of the granting of other multimedia services licences—

(a) the Minister shall invite applications on a date to be fixed by the Minister by notice in the Gazette; and
(b) section 34(2)(b) and (c) apply with the necessary changes.

(4) On or before 31 December 2001, the Authority shall publish in the Gazette draft licences, which shall include proposed conditions on which Sentech Limited must provide the services contemplated in subsection (1).
(5) Within 30 days of the publication referred to in subsection (4), Sentech Limited and any interested party may submit written comments to the Authority in connection with the proposed conditions to the licence.
(6) After due consideration of the comments contemplated in subsection (5), if any, the Authority shall finalise the licences and issue them to Sentech with effect from 7 May 2002.
(7) The holder of a telecommunication service licence shall not be precluded from providing services which are the same as, or similar to multimedia services, provided that such services fall within the ambit of the telecommunication service licence so held.
(8) No person who provides the service contemplated in subsection (1)(b) shall permit such service to be used for the carrying of voice only until a date to be fixed by the Minister by notice in the Gazette.
[Section 32C inserted by section 6 of Act 64 of 2001]

(1) The categories of licences which may be granted, and the telecommunication services authorised by such licences, are—

(a) as contemplated in sections 32C(1)(b), 34(2)(a)(i) to (v) and 39 to 41; and
(b) subject to subsection (2), as prescribed.
[Paragraph (a) substituted by section 7 of Act 64 of 2001]

(2) The Authority may prescribe the telecommunication services and activities, other than those referred to in subsection (1)(a), which may be provided or conducted without a licence.

(1) Any person may, subject to the provisions of this Act, make application for a licence in the manner prescribed.
(2)

(a) No application shall be lodged or entertained in respect of a licence to provide—

(i) a public switched telecommunication service;
(ii) a mobile cellular telecommunication service;
(iii) a national long-distance telecommunication service;
(iv) an international telecommunication service;
(v) a multimedia service; or
(vi) any other telecommunication service prescribed for the purposes of this subsection,
[Subparagraph (v) inserted and subparagraph (vi) renumbered by section 8(a) of Act 64 of 2001]
unless such application is lodged pursuant to and in accordance with an invitation issued by the Minister by notice in the Gazette: Provided that this subsection and subsections (3), (4) and (5) shall not apply to an application which is deemed to have been made in terms of section 30(3)(a), 36(1)(a) or 40(1)(a).

(b) The Minister shall, in an invitation contemplated in paragraph (a), specify—

(i) the kind of service in respect of which applications are invited;
(ii) the form in which applications shall be submitted and the manner in which it is contemplated that the service shall be provided, and the place where and times when any document in that regard may be obtained from the Authority;
(iii) the period within and manner in which such applications shall be lodged.
[Paragraph (b) substituted by section 8(b) of Act 64 of 2001]

(c) Prior to publishing any invitation contemplated in paragraph (a), the Minister shall consult with the Authority to determine the evaluation criteria the Authority intends to use in making its recommendation to the Minister pursuant to section 35(1)(a)(i) and the weighing factor applicable to each evaluation criterion and the application of section 35(4) and (5).
[Paragraph (c) substituted by section 8(b) of Act 64 of 2001]

(3) In the case of an application for a licence to provide a telecommunication service referred to in subsection (2) or any other telecommunication service prescribed for the purposes of this subsection the Authority may—

(a) give notice of the application in the Gazette and invite interested persons to lodge representations in relation to the application within the period mentioned in the notice;
(b) in the same or a subsequent such notice, make known the conditions contemplated in section 35(4) on which it is proposed the licence shall be granted;
(c) after the period for lodging representations in terms of paragraphs (a) and (b) has passed, hold a hearing in respect of the application and such terms and conditions;
(d) a hearing contemplated in paragraph (c) may be open to the public.
[Subsection (3) amended by section 8(c) and paragraph (d) added by section 8(d) of  Act 64 of 2001]

(3A) The Authority may require an applicant or an interested party who has lodged written representations in terms of subsection (3) to furnish the Authority, within the period specified by it, with such further information as may be reasonably necessary in order to consider the application.
[Subsection (3A) added by section 8(e) of Act 64 of 2001]
(3B) No application may be amended or varied after the period contemplated in subsection (2)(b)(iii).
[Subsection (3B) added by section 8(e) of Act 64 of 2001]
(4)

(a) All applications, representations and other documents relating to an application which are lodged with the Authority shall, subject to this subsection, be open to public inspection during the normal office hours of the Authority, and the Authority shall at the request of any person and on payment of such fee as may be prescribed, furnish him or her with a copy thereof.
(b)

(i) The Authority may, at the request of an applicant or person who lodged representations, determine that any document or information that is commercially sensitive or any other matter reasonably justifying confidentiality, shall not be open to public inspection, if such document or information can be separated from the application, representations or other documents in question.
(ii) For purposes of this paragraph commercially sensitive documents or information or other matter reasonably justifying confidentiality shall exclude documents or information that was or becomes, or as a matter of law should be, generally available to the public.
[Paragraph (b) substituted by section 8(f) of Act 64 of 2001]

(c) If the Authority refuses a request contemplated in paragraph (b), the applicant or person concerned shall be allowed to withdraw the document or information in question.

(5)

(a) A hearing contemplated in subsection (3)(c) shall, subject to paragraph (b), be open to the public.
(b) Before considering any document or information which the Authority has determined shall not be open for public inspection, the Authority may direct that the public or any member or category thereof shall not be present at the hearing: Provided that before making such direction the Authority shall notify those present of its intention to do so, allow persons to object to such direction and give due consideration to any objection made.

(6) When issuing invitations for applications in respect of licences to be lodged in terms of this section, the Minister shall have regard to any relevant provision made in terms of section 36(3) in the licence issued to Telkom.

(1) The Authority shall, after having duly considered any application for a licence made in terms of this Act and any written submissions in relation to the applications that may be called for by the Authority and submitted to the Authority within the period determined by the Authority—

(a) in the case of an application for a licence referred to in section 34(2)(a), make its recommendation to the Minister, and propose licence conditions; and
(b) in the case of any other licence application, notify the applicant of its decision, the reasons therefor and the licence conditions.

(2) The Minister may in respect of a recommendation by the Authority contemplated in subsection (1)—

(a) accept it;
(b) request further information from the Authority;
(c) refer it back to the Authority for further consideration; or
(d) reject it.

(3) In the consideration of applications in terms of this Act, due regard shall be given to applications—

(a) by persons from historically disadvantaged groups; and
(b) which promote the empowerment and advancement of women in the telecommunication industry.

(4) Without derogating from subsection (3), in the evaluation of equity ownership held by persons from historically disadvantaged groups or held by women in an application for a licence in terms of this Act, the Authority shall give due preference for up to 30% of such equity ownership or such higher equity ownership percentage as may be prescribed.
(5) Subject to section 36(5), a licence shall be granted on conditions appropriate to the licence and consistent with the objects referred to in section 2 and the other provisions of this Act.
(6) The Authority shall, where the application has been granted, issue the licence in question to the applicant.
(7) Any licence granted in terms of this section, shall become effective on the date specified therein.
(8) Nothing in this section derogates from the rights of an applicant to be furnished with reasons for a decision under the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).
[Section 35 substituted by section 9 of Act 64 of 2001]

(1) Notwithstanding sections 34 and 35—

(a) in the case of a licence referred to section 34(2), the Minister may in specific instances determine the manner in which applications may be made, such as by way of’ auction or tender, or both, and the licensing process and the licensing conditions that will apply; and
(b) for all other licences, the Authority may in specific instances prescribe the licensing conditions that will apply.
[Section 35 added by section 10 of Act 64 of 2001]

(1)

(a) Telkom shall be deemed to be the holder of a licence to provide public switched telecommunication services as contemplated in section 78(1) of the Post Office Act, 1958 (Act No. 44 of 1958), as that section existed immediately before its repeal by this Act: Provided that as at the date of commencement of this Act, Telkom shall be deemed to have applied for a licence in terms of this Act, and after the provisions of subsections (6), (7), (8) and (9) have been complied with in relation to the terms and conditions of the licence, the Minister shall grant the application and the Minister shall issue such licence to Telkom with a period of validity of 25 years from the date of commencement of this Act.
(b) For the purposes of this subsection, the telecommunication services to be licensed as provided in paragraph (a) shall include—

(i) national long-distance and international telecommunication services, subject to the provisions of section 48(4); and
(ii) local access telecommunication services and public pay-telephone services.

(c) Any service of Telkom contemplated in this subsection may be provided by a wholly-owned subsidiary of Telkom, without such subsidiary being required to hold a licence in terms of this Act.
(d) Where it appears to the Authority that Telkom, in the provision of its telecommunication services, is taking or proposing to take any step which confers or may confer on it an undue advantage over any person who may in future be granted a licence in competition with Telkom, the Authority may direct Telkom to cease or refrain from taking such step, as the case may be.

(2) Telkom and any other holder of a licence to provide a public switched telecommunication service shall, until a date to be fixed by the Minister by notice in the Gazette, after consultation with the Authority and the Agency, comply with conditions specified in the licence in question relating to the extension of its public switched telecommunication service to areas and communities which are not served or not adequately served by telecommunication services, with a view to the achievement of universal service.
(3) In the licence to be issued to Telkom in terms of subsection (1) there shall be specified, in respect of any service rendered by Telkom immediately prior to the commencement of this section and specified in the licence after consultation with Telkom, a fixed period during which no person other than Telkom shall be licensed—

(a) to provide a similar service; or
(b) in the case of any service in respect of which an alternative is provided for in the licence issued to Telkom, to provide a similar service otherwise than in accordance with the special limitations stipulated in respect of it.

(4) All the fixed periods specified in terms of subsection (3) shall commence on the date of commencement of the licence issued to Telkom, and the length of each such period shall before such commencement be planned in such a way as to result in the phasing-in and completion over a number of years, determined by the Minister, of the process of licensing or, as the case may be, discontinuing the application of special limitations imposed in the licensing of persons other than Telkom to provide services similar to those specified in the licence issued to Telkom.
(5) The fixed period or, as the case may be, the fixed period and special limitations, in respect of any particular service specified in the licence issued to Telkom as contemplated in subsection (3), shall be subject to the approval of the Minister, and notwithstanding any provision to the contrary contained in this Act or any other law, the fixed periods and limitations specified and stipulated in the licence issued to Telkom shall be binding on the Authority and the Minister, and shall not be subject to alteration without the concurrence of Telkom.
(6) The licence to be granted under subsection (1), shall be granted on conditions appropriate to the licence and consistent with the objects referred to in section 2 and the other provisions of this Act and stated in the licence that the Minister may determine.
(7) In respect of Telkom's application for a licence under subsection (1), the Minister shall—

(a) issue a notice in the Gazette, making known the conditions contemplated in subsection (6) on which it is proposed the licence shall be granted and inviting interested persons to lodge representations in relation to the application within the period mentioned in the notice;
(b) consult with and obtain the views of the Authority on the representations received pursuant to paragraph (a);
(c) after the period for lodging representations in terms of paragraph (a) has passed, hold a hearing in respect of the application and such terms and conditions.

(8)

(a) All representations and other documents relating to Telkom's application for a licence in terms of subsection (1) which are lodged with the Minister shall, subject to this subsection, be open to public inspection during the normal office hours of the Minister, and the Minister shall at the request of any person and on the payment of such fee as the Minister may prescribe, furnish him or her with a copy thereof.
(b) The Minister may, at the request of Telkom or a person who has lodged representations, determine that any document or information relating to the financial capacity or business plans of any person, or to any other matter reasonably justifying confidentiality, shall not be open to public inspection, if such document or information can be separated from Telkom's application or the representations or documents in question.
(c) If the Minister refuses a request contemplated in paragraph (b), Telkom or the person concerned shall be allowed to withdraw the document or information in question.

(9)

(a) A hearing contemplated in subsection (7)(c) shall, subject to paragraph (b), be open to the public.
(b) Before considering any document or information which the Minister has determined shall not be open for public inspection, the Minister may direct that the public or any member or category thereof shall not be present at the hearing: Provided that before making such direction, the Minister shall notify those present of his or her intention to do so, allow persons to object to such direction and give due consideration to any objection made.

(1) A ‘public switched telecommunication service’ shall be a telecommunication service to the general public on a subscription basis, which shall include services such as—

(a) national long-distance telecommunication service;
(b) international telecommunication service;
(c) local access telecommunication service contemplated in section 39;
(d) public pay-telephone service;
(e) maritime telecommunication service;
(f) service comprising the provision of telegrams;
(g) fixed-mobile services;
(h) the supply of telecommunications equipment, the installation, bringing into service, maintenance and repair of that part of the public switched telecommunication network that is provided, maintained and operated by the public switched telecommunication services licensee for the purposes of providing any telecommunication service, such as the provision of telecommmication circuits for—

(i) private circuits;
(ii) links between sites of the same operator or multiple operators;
(iii) telecommunication facilities used for the provision of private telecommunication networks;
(iv) telecommunication facilities used for the provision of value-added network services;
(v) telecommunication facilities used for the provision of telecommunication services in under-serviced areas contemplated in section 40A;
(vi) telecommunication facilities used to provide voice over internet protocol;
(vii) third generation telecommunication facilities;
(viii) telecommunication facilities to provide fixed-mobile services in the 1800 MHz frequency band; and
(i) any other service reasonably complementary to the provision of those services (whether provided on a fixed or fixed mobile basis) such as the provision, repair and maintenance of equipment located on a customers premises and any other telecommunications apparatus of any kind.
[Section 36A inserted by section 11 of Act 64 of 2001]

(1) A ‘public switched telecommunication networks’ shall be the telecommunication systems which are installed or otherwise provided, maintained and operated by a public switched telecommunication service licensee for the purpose of providing public switched telecommunication services and fixed-mobile services such as—

(a) a local access network;
(b) a national long-distance network; and
(c) an international network;

by whatever means such as copper cables, wireless loops, microwave links, optic fibre cables, satellite earth stations, space segments and satellite systems, by means of which signals can be conveyed between all or any of—

(i) two or more terminal connection points;
(ii) two or more network connection points;
(iii) a terminal connection point. and a network connection point;
(iv) a terminal connection point or a network connection point, as the case may be, and a corresponding point in another country;
(v) a public pay-telephone and the terminal connection point, a network connection point or a corresponding point in another country.

(2) The systems contemplated in subsection (1) shall not include telecommunication equipment located on the premises of a customer, unless it is meant for public pay-telephones or mobile telecommunications on the premises of a customer.
[Section 36B inserted by section 11 of Act 64 of 2001]

(1)

(a) Vodacom (Pty.) Ltd. and Mobile Telephone Networks (Pty.) Ltd., companies incorporated in terms of the Companies Act, 1973 (Act No. 61 of 1973), shall each be deemed to be the holder of a licence in terms of this Act to provide a mobile cellular telecommunication service in accordance with the terms and conditions of the telecommunicationslicences and multiparty implementation agreement published under General Notice No. 1078 of 29 October 1993: Provided that each such company shall apply to the Minister through the Authority within six months after the date of commencement of this Act, or such extended period as the Authority may allow, for such a licence and the Minister shall grant the application and the Authority shall issue to that company a licence which shall, subject to section 42(3)(a), incorporate those terms and conditions.
(b) Cell C (Pty.) Ltd., a company incorporated in terms of the Companies Act, 1973 (Act No. 61 of 1973), shall be the holder of a licence in terms of this Act to provide a mobile cellular telecommunication service in accordance with the terms and conditions as specified in its licence issued to it by the Authority on 25 June 2001.

(2) A licence contemplated in subsection (1) shall contain a condition prohibiting the mobile cellular telecommunication service in question, until a date to be fixed by the Minister by notice in the Gazette, from utilising any fixed lines which may be required for the provision of the service other than fixed lines made available by Telkom or any other person providing a public switched telecommunication service.
(3) The holder of a licence in terms of this section shall not be required to hold a licence contemplated in section 34(2)(a)(i), (iii) or (iv) or section 39 or 40 to enable him or her to provide the mobile cellular telecommunication service in question.
(4)

(a) Before 31 December 2003 the Minister shall—

(i) determine, by way of a market study, the feasibility of granting a mobile cellular telecommunication licence in addition to the licences referred to in subsection (1); and
(ii) by notice in the Gazette, publish the determination.

(b) In conducting the market study contemplated in paragraph (a) the Minister shall consider the Republics international obligations;

(5) If the Minister determines that any additional licence may be granted, such licence may be issued after 31 December 2003 in terms of section 34.
[Section 37 substituted by section 12 of Act 64 of 2001]

(1)

(a) No persons other than Telkom shall be granted a licence to provide a local access telecommunication service until after 7 May 2002.
[Paragraph (a) substituted by section 14(a) of Act 64 of 2001]
(b) Every licence contemplated in paragraph (a) shall contain a condition requiring the telecommunication system by means of which the service concerned is provided, to be interconnected, in terms of section 43, to the telecommunication system of Telkom or any other person providing a public switched telecommunication service.

(2)

(a) No persons other than Telkom shall be granted a licence to provide a public pay-telephone service until after 7 May 2002.
[Paragraph (a) substituted by section 14(b) of Act 64 of 2001]
(b) Every licence contemplated in paragraph (a) shall contain a condition requiring the telephones in question to be connected to the exchanges or local network of the telecommunication system of Telkom or any other person providing a public switched telecommunication service, and Telkom or such person shall permit such connection.
(c) nothing in this section shall be construed as limiting applications for a licence contemplated in paragraph (a) to public switched telecommunication services licensees only.
[Paragraph (c) added by section 14(c) of Act 64 of 2001]

(3) Different dates may be fixed under subsections (1)(a) and (2)(a) in respect of different areas.
(4) In fixing dates in terms of this section, the Minister shall have regard to any relevant provision made in terms of section 36(3) in the licence issued to Telkom.

(1)

(a) Telkom shall be deemed to be the holder of a licence to provide, subject to subsection (3), the value-added network services provided by it immediately before the date of commencement of this Act: Provided that as at the date of commencement of this Act Telkom shall be deemed to have applied to the Minister for a licence in terms of this Act in respect of each such service, and the Minister shall, after the provisions of section 36(6), (7), (8) and (9) have been complied with, in relation to the terms and conditions of the licence, grant the application and issue such licence to Telkom with a period of validity of 25 years from the date of commencement of this Act.
(b) Any person who, immediately prior to 20 May 1996, provided a value-added network service in terms of a lease contemplated in section 78(2)(a) of the Post Office Act, 1958 (Act No. 44 of 1958), as that section existed immediately before such commencement, or in terms of any other agreement with Telkom, shall be deemed to be the holder of a licence to provide the service in question: Provided that such person shall apply to the Authority within six months after the date of such commencement or such extended period as the Authority may allow, for a licence in terms of this Act in respect of such service, and the Authority shall, notwithstanding the provisions of sections 34 and 35, grant the application and issue to that person such a licence, which shall, subject to section 42(3)(a), incorporate the terms and conditions of such lease or other agreement.

(2) A licence to provide any value-added network services, including, but not limited to, electronic data interchange, electronic mail, protocol conversion, access to a database or a managed data network service, shall contain a condition that the service in question be provided by means of telecommunication facilities—

(a) until 7 May 2002 provided by Telkom or made available to Telkom as contemplated in section 44; and
(b) after 7 May 2002, provided by Telkom and the second national operator or any of them until a date to be fixed by the Minister by notice in the Gazette.
[Subsection (2) substituted by section 15(a) of Act 64 of 2001]

(3)

(a) No person who provides a value-added network service shall permit that service to be used for the carrying of voice until a date to be fixed by the Minister by notice in the Gazette.
(b) Without prejudice to any rights of Telkom under its public switched telecommunication service licence which exist at the commencement of the Telecommunications Amendment Act, 2001, the second national operator and the licensees contemplated in section 40A may provide voice over internet protocol after 7 May 2002.
[Paragraph (b) added by section 15(b) of  Act 64 of 2001]

(4)

(a) A person who provides a value-added network service—

(i) shall, until a date to be fixed by the Minister by notice in the Gazette, not be entitled to cede or assign his or her rights to use such facilities or to sublet or part with control or otherwise dispose of the telecommunication facilities in question; and
(ii) shall, after such date, be so entitled.

(b) The provisions of paragraph (a)(i) shall not prevent the due and proper use of such facilities by the customers of such person, in the course of utili sing the service in question.
(c) Any agreement which is inconsistent with the provisions of paragraph (a)(ii), shall be unenforceable to the extent of such inconsistency.

(5) The holder of a licence in terms of this section shall not be required to hold a licence contemplated in section 34(2)(a)(iii) or (iv) to enable him or her to provide the value-added network service in question.
(6) The provisions of section 39(4) shall apply, with the necessary changes, to the fixing of dates by the Minister in terms of this section.

(1) The Minister shall by notice in the Gazette determine those geographic areas where there is teledensity of less than 5% and in respect of which small businesses may apply to the Authority for under-serviced area licences to provide such services or facilities.

(2)

(a) The Authority may issue an under-serviced area licence to a small business on application in the prescribed manner.
(b) In the consideration of applications in terms of this section, due regard shall be given to applications—

(i) by persons from historically disadvantaged groups; and
(ii) from applicants which are managed and controlled, or owned, by women.

(3) An under-serviced area licensee shall provide any telecommunication services, including voice over internet protocol services, fixed-mobile services and public pay telephones, in respect of the area to which the licence applies.
(4) Under-serviced area licences granted by the Minister shall become effective after 7 May 2002.
(5) All under-serviced area licences granted under this section shall be issued on materially the same terms and conditions.
(6) Under-serviced area licensees may by agreement obtain interconnection to the networks of public switched telecommunication service licensees and mobile cellular operators, and through the national long-distance telecommunication service of a public switched telecommunication service licensee to the international telecommunication gateway of a carrier of carrier’s licensee, if such agreement complies with—

(a) section 43 and any regulationsprescribed to give effect to that section; and
(b) the prescribed terms and conditions, including price, in terms of which under-serviced area licensees may obtain such interconnection.

[Section 40A inserted by section 16 of Act 64 of 2001]

(1)

(a) A person providing a telecommunication network for purposes principally or integrally related to the operations of such person (hereinafter referred to as a private telecommunication network), shall, notwithstanding the provisions of sections 32(1) and 33(1) and regardless of whether or not such network is utilised by means of telecommunication facilities made available by Telkom, or the second national operator, not require a licence except as contemplated in paragraph (b).
[Paragraph (a) substituted by section 17(a) of Act 64 of 2001]
(b) A private telecommunication network licence shall, subject to the regulations, be required for the provision of a private telecommunication network, where such network is interconnected to the telecommu­nication syste  of Telkom or any other person providing a public switched telecommunication service.
[Paragraph (b) substituted by section 17(a) of Act 64 of 2001]
(c) Any person who, immediately before the commencement of this Act, provided a private telecommunication network, other than a network contemplated in paragraph (a), in terms of a lease contemplated in section 78(2)(a) of the Post Office Act, 1958 (Act No. 44 of 1958), as that section existed immediately before such commencement, or in terms of any other agreement with Telkom, shall be deemed to be the holder of a licence to provide the service in question: Provided that such person shall apply to the Authority within six months after the date of such commencement or such extended period as the Authority may allow, for a licence in terms of this Act in respect of such service, and the Authority shall, notwithstanding the provisions of sections 34 and 35, grant the application and issue to that person such a licence, which shall, subject to section 42(3), incorporate the terms and conditions of such lease or other agreement.

(2)

(a) A private telecommunication network shall not be provided by means of telecommunication facilities other than facilities made available by Telkom or any other person providing a public switched telecommunication network service as contemplated in section 46(1), except as provided in paragraph (b).
(b) The provisions of paragraph (a) shall not apply in respect of—

(i) a private telecommunication network provided by means of a telecommunication system situated on a single piece of land or contiguous pieces of land owned by the same person; or
(ii) any private telecommunication network maintained by Transnet or Eskom.

[Subsection (3) deleted by section 17(b) of Act 64 of 2001]

(4) A private telecommunication network shall not be restricted to the carrying of voice only or data only or to any other such limited use.
(5)

(a) A person who provides a private telecommunication network with telecommunication facilities—

(i) shall, until a date to be fixed by the Minister by notice in the Gazette, not be entitled to resell spare capacity on such facilities or to cede or assign his or her rights to use such facilities or to sublet or otherwise part with control thereof;
(ii) shall, after such date, be so entitled.

(b) The provisions of paragraph (a)(i) shall not prevent the due and proper use of any such facilities by any person for any purpose principally or integrally related to the operations of the person providing the network.

(6) Any agreement which is inconsistent with the provisions of subsection (3) or (5)(a)(ii) shall be unenforceable to the extent of such inconsistency.
(7) Where a private telecommunication network is interconnected to Telkom's telecommunication system, the person providing that private telecommunication network shall not permit any telecommunication which originates in Telkom's system and which is intended to be received in that system to bypass that system by being transmitted via the private telecommunication network.
(8) Transnet or Eskom shall not be required to hold a licence contemplated in section 34(2)(a)(iv) to enable it to utilise any private telecommunication network maintained by it for purposes related to its operations outside the Republic.
(9) The provisions of section 39(4) shall apply with the necessary changes to the fixing of dates by the Minister in terms of this section.
(10)

(a) The Minister shall, with the concurrence of the Minister of Education, establish an entity to construct and operate an educational network.
(b) The entity contemplated in paragraph (a) shall be deemed to have been granted a private telecommunications network licence to link all public schools and public further education and training institutions defined in the South African Schools Act, 1996 (Act No. 84 of 1996), and the Further Education and Training Act, 1998 (Act No. 98 of 1998), respectively, as well as such other education and training institutions as may be determined by the Minister of Education.
[Subsection (10) added by section 17(c) of Act 64 of 2001]

(11)

(a) The Minister shall, with the concurrence of the Minister of Transport, establish an entity to construct and operate a private telecommunication network to fulfil South Africa's obligations in terms of—

(i) the International Convention for the Safety of Life at Sea (SOLAS) 1974/78;
(ii) Annexure 12 to the Convention on International Civil Aviation, signed by South Africa on 7 December 1944 in Chicago; and
(iii) the International Convention on Maritime Search and Rescue, 1979.

(b) The entity contemplated in paragraph (a) shall—

(i) be referred to as "Maritime and Aeronautica1 Radio Services"; and
(ii) be deemed to have been granted a private telecommunications network licence.
[Subsection (11) added by section 17(c) of Act 64 of 2001]

(1) Any licence which was issued or authority which was granted under section 78(2)(b) or (5) of the Post Office Act, 1958 (Act No. 44 of 1958), as that section existed immediately before its repeal by this Act, and which was valid immediately before the date of commencement of this Act shall be deemed to be a licence issued in terms of this Act.
(2) Any condition which was prescribed generally under section 78(2) of the Post Office Act, 1958, and to which a licence issued under paragraph (b) of that section was subject immediately before the commencement of this Act, shall be deemed to be a condition of the licence in terms of this Act referred to in subsection (1) in so far as such condition is not inconsistent with anything prescribed by or under this Act.
(3)

(a) A licence issued in terms of section 37(1), 40(1)(b) or 41(1)(c) shall not incorporate a term or condition of the applicable agreement referred to in those sections which is inconsistent with a provision of this Act or which relates to interconnection or making available the telecommunication facilities of Telkom.
(b) A term or condition of an agreement referred to in section 37(1), 40(1)(b) or 41(1)(c) requiring any consent or approval by Telkom, the Director-General or any other authority shall, subject to paragraph (a), be incorporated in the licence in question as a condition requiring consent or approval by the Authority.
(c) Any term or condition of an agreement which is incorporated in a licence referred to in paragraph (a) shall be unenforceable in contract to the extent to which it is so incorporated.
(d) The Authority shall furnish to the holder of such licence or to Telkom, on request, a statement in writing of the terms and conditions of such agreement which are unenforceable as contemplated in paragraph (c).

(1)

(a) Any public switched telecommunication service licensee shall, when requested by any other person providing telecommunication services, interconnect its telecommunication systems to the telecommunication system of the other person, in accordance with the terms and conditions of an interconnection agreement entered into between the parties, unless such request is unreasonable.
(b) For the purposes of paragraph (a), a request is reasonable where the Authority determines that the requested interconnection—

(i) is technically feasible;
(ii) will promote the efficient use of the public switched telecommunication network;
(iii) can be implemented on a reciprocal basis between the parties.

(c) An agreement contemplated in paragraph (a) shall be entered into within the prescribed period or such extended period as the Authority may allow in any particular case.
(d) The parties concerned shall, unless exempted by regulation—

(i) notify the Authority if any request contemplated in paragraph (a) is made;
(ii) where the reasonableness of any such request is disputed, refer the dispute to the Authority for its decision;
(iii) where the parties are unwilling or unable to negotiate or agree on terms and conditions within the period or extended period contemplated in paragraph (c), submit all outstanding issues to the Authority for resolution.
[Subsection (1) substituted by section 18(a) of Act 64 of 2001]

(2) Every agreement for the interconnection of telecommunication systems, including any agreement contemplated in subsection (1), shall, unless exempted by the regulations, be lodged by the parties with the Authority to enable it to determine whether the agreement is consistent with the guidelines contemplated in subsection (3).
(3) The Authority shall prescribe guidelines relating to the form and content of interconnection agreements, and such guidelines shall determine, among others—

(a) the time by or period within which interconnection pursuant to the agreement shall be carried out;
(b) the quality or level of service to be provided by means of the one telecommunication system for the other telecommunication service;
(c) the fees and charges payable for such interconnection;

Provided that within 12 months after the date of commencement of this Act the Minister shall determine by notice in the Gazette such guidelines in respect of Telkom, and such guidelines shall be in force until the third anniversary of the date on which the Minister issued a licence to Telkom in accordance with section 36(1)(a).

(4) The Authority shall, after considering any written representations and after hearing the parties—

(a) in the case of a dispute relating to reasonableness as contemplated in subsection (1)(d)(ii), make a determination taking into consideration the factors referred to in subsection (1)(b), and any other relevant factor;
(b) in the case of unwillingness or inability by the parties to negotiate or agree on the terms and conditions of interconnections, the Authority may—

(i) impose terms and conditions in accordance with the guidelines contemplated in subsection (3); or
(ii) propose terms and conditions in accordance with the guidelines contemplated in subsection (3) which, subject to renegotiations, shall be agreed to by the parties within such period as the Authority may specify.

[Paragraphs (a) and (b) substituted by section 18(b) of Act 64 of 2001]

(c) in the case of an agreement lodged as contemplated in subsection (2), inform the parties that it is satisfied that the agreement is consistent with the guidelines contemplated in subsection (3) or, where it determines that any terms and conditions of the agreement are not consistent with those guidelines, furnish the parties in writing with particulars of those terms and conditions and the reasons for its determination.

(5)

(a) The Authority may, on the request of either party, determine that a particular portion of that party's written or oral representations discloses confidential commercial information and should on that account not be disclosed to the other party, and the requesting party shall be entitled, where the Authority refuses such request, to exclude such information from his or her representations.
(b) Where the Authority determines that any terms and conditions are not consistent with the guidelines contemplated in subsection (3), it may direct the parties to renegotiate and agree on new terms and conditions within such period as the Authority may specify, or itself propose terms and conditions consistent with those guidelines and which, subject to renegotiation, shall be agreed by the parties within such period as it may specify, and the provisions of subsections (1)(d)(iii) and (4)(b) shall apply with the necessary changes.
[Paragraph (b) substituted by section 18(c) of Act 64 of 2001]

(6)

(a) Terms and conditions declared to be applicable under subsection (4)(b) shall be enforceable between the parties.
(b) Terms and conditions determined under subsection (4)(c) to be inconsistent with the guidelines contemplated in subsection (3) shall not be enforceable between the parties.

(7)

(a) The provisions of subsections (1) to (6) shall apply, with the necessary changes, in relation to an amendment or proposed amendment of any term or condition contemplated in this section.
(b) For the purposes of paragraph (a), any interconnection agreement entered into before the commencement of this Act, including terms or conditions relating to interconnection referred to in section 42(3)( a), shall be deemed to be terms and conditions contemplated in this section.

(8) This section shall not be construed as preventing negotiations for interconnection before the issue of a licence authorising the provision of any telecommunication service.
(9) The provisions of section 39(4) shall apply, with the necessary changes, to the fixing of dates by the Minister in terms of this section.
(10)

(a) Five years after the date on which an interconnection agreement is concluded a party to that agreement may request the other party or parties to promptly negotiate in good faith to modify or amend some or all of the terms of such agreement.
(b) Subsections (1) to (6) and the regulations promulgated under this section shall apply, with the necessary changes, in relation to any proposed modification or amendment of any term or condition contemplated in paragraph (a).

(11) Interconnection rates and any agreement with regard thereto shall be made public.
[Subsections (10) and (11) added by section 18(d) of Act 64 of 2001]

[Subsection (1) deleted by section 19(a) of Act 64 of 2001]
(2) Telkom and any other provider of a public switched telecommunication service shall, when requested by any other person providing a telecommunication service, including a private telecommunication network, lease or otherwise make available telecommunication facilities to such other person pursuant to an agreement to be entered into between the parties, unless such request is unreasonable.
(3) The provisions of section 43(1)(b)(i) and (ii), (c) and (e) shall apply, with the necessary changes, in relation to any request and agreement contemplated in subsection (2).
(4) Every agreement for the leasing of telecommunication facilities or resale, including any agreement contemplated in subsection (2), shall, unless exempted by the regulations, be lodged by the parties with the Authority to enable it to determine whether the agreement is consistent with the guidelines contemplated in subsection (5);
[Subsections (2), (3) and (4) substituted by section 19(b) of Act 64 of 2001]
(5)

(a) The Authority shall prescribe guidelines relating to the form and content of agreements for the leasing or other manner in which telecommunication facilities are made available as contemplated in section 43(3), with the necessary changes.
(b) The guidelines contemplated in paragraph (a) may relate to—

(i) resale, including the basis for determining wholesale and retail tariffs;
(ii) the manner in which telecommunication facilities are made and available.

[Paragraph (b) added by section 19(c) of Act 64 of 2001]

(6) The provisions of section 43(4) to (8) shall apply, with the necessary changes, in relation to the leasing or other manner in which telecommunication facilities are made available.
(7)

(a) In the application of section 43(1)(d)(iii) and (4)(b) in relation to making the telecommunication facilities of a public switched telecommunication service licensee available to another person and where the Authority is satisfied that the holder of a public switched telecommunication service licence is unwilling or unable to make suitable facilities available to that person within a reasonable period of time, the Authority may, instead of proposing terms and conditions as contemplated in section 43(4)(b), authorise that person to provide or obtain any necessary telecommunication facilities other than from such holder on conditions determined by the Authority, notwithstanding the provisions of sections 38(2), 40(2) and 41(2)(a) and this section.
(b) Subject to section 32A(2) and (4), notwithstanding the guidelines contemplated in subsection (5), no public switched telecommunication service licencee shall be required to unbundle its local loop for the period of two years referred to in section 32A(2)(a) and (4).
[Subsection (7) substituted by section 19(d) of Act 64 of 2001]

(8) The provisions of section 39(4) shall apply, with the necessary changes, to the fixing of dates by the Minister in terms of this section.

(1) The fees and charges which may be levied by a licensee in respect of the provision of a telecommunication service shall be determined in such manner as may, subject to subsection (2), be prescribed.
(2) The manner of detemining fees and charges shall be prescribed only in respect of fields where no or insufficient competition exists: Provided that within 12 months after the date of commencement of this Act, the Minister shall determine such fees and charges in respect of Telkom, and such fees and charges shall be in force until the later of—

(a) the third anniversary of the date on which the Minister issued a licence to Telkom in accordance with section 36(1)(a) ; and
(b) the date when the Authority prescribes a new determination of fees and charges in respect of Telkom.

(3) From a date to be determined by the Minister, all public schools as defined in the South African Schools Act, 1996 (Act No. 84 of 1996), and all public further education and training institutions as defined in the Further Education and Training Act, 1998 (Act No. 98 of 1998), shall be entitled to a 50% discount on—

(a) all telecommunication calls to an internet service provider; and
(b) any connection or similar fees or charges levied by an internet service provider for accessing the internet or transmitting and receiving any signals via the internet or for such access and transmission and recepion.

[Subsection (2) substituted and subsection (3)  added by section 20 of Act 64 of 2001]

(1) A telecommunication service licensee shall keep such accounts and records relating to the provision of his or her telecommunication service as may be prescribed.
(2) Telkom shall keep such accounts as may be prescribed, in respect of—

(a) each telecommunication service provided by it, where another person also provides such a telecommunication service in competition with Telkom;
(b) each interconnection to its telecommunication system or instance where its telecommunication facilities are made available;
(c) any other prescribed part of its operations.

(1) A telecommunication service licence may be amended, only—

(a) in the case of a licence to provide a public switched telecommunication network service, if the amendment relates to universal access or universal service obligations contemplated in section 36(2) and is necessary, in the opinion of the Authority after consultation with the Agency, as a result of changed circumstances or an amendment of the definition of universal access or universal service;
(b) in the case of Telkom's licence issued in terms of section 36(1), if the amendment is necessitated by the introduction of competition to Telkom in any field as contemplated in section 34(2)(a)(iii) or (iv) or 39;
(c) to make the conditions of the licence consistent with conditions being imposed generally in respect of all licences issued in the same category, for the purpose of ensuring fair competition between licensees in that category;
(d) to the extent necessitated by technological change;
(e) to the extent requested by the licensee.

(2) The Authority shall give the licensee concerned written notice of a proposed amendment contemplated in subsection (1)(a), (b), (c) or (d) and an opportunity to be heard.
(3) The provisions of—

(a) section 34(3), (4) and (5) shall apply, with the necessary changes, in relation to an amendment contemplated in subsection (1)(e);
(b) section 35 shall apply, with the necessary changes, in relation to any amendment of a licence in terms of this section.

(1) A licensee may, during the prescribed period, apply for the renewal of his or her licence.
(2) The provisions of sections 34 and 35 shall apply, with the necessary changes, in relation to the renewal of a licence: Provided that, where a licence contemplated in section 37(1) or 42(1) makes provision for its renewal on substantially the same conditions as applied during its previous period of validity, no other conditions contemplated in section 35(4) shall be imposed on renewal of the licence in question which are not acceptable to the holder of the licence.
(3) An application for the renewal of a licence shall be refused only if—

(a) the licensee has failed to comply materially with the licence conditions or the provisions of this Act during the term of the licence; and
(b) the Authority or the Minister, as the case may be, is satisfied that the applicant would not so comply if the licence were to be renewed.

(4) A licence shall continue to be valid until such time as a decision has been made regarding the application for its renewal.

(1) The Authority may by regulation restrict or prohibit the ownership or control of or the holding of any financial or voting interest in—

(a) a telecommunication service of any category or kind;
(b) two or more telecommunication services of the same category or kind;
(c) a telecommunication service of one category or kind and another telecommu­nication service of a different category or kind.

(2) No regulations referred to in subsection (1) shall be made until the Authority has conducted an enquiry in terms of section 27 into the regulations proposed. (3) The provisions of this section and section 53 shall not derogate from the provisions of the Maintenance and Promotion of Competition Act, 1979 (Act No. 96 of 1979).

(1) If it appears to the Authority that the holder of a telecommunication licence is taking or intends taking any action which has or is likely to have the effect of giving an undue preference to or causing undue discrimination against any person or category of persons, the Authority may, after giving the licensee concerned an opportunity to be heard, direct the licensee by written notice to cease or refrain from taking such action, as the case may be.
(2)

(a) The Authority may, with regard to the matters referred to in subsection (1), make regulations to ensure efficient and effective monitoring and investigation of uncompetitive actions, ensuring protection of consumer interests and for the speedy resolutions of complaints in regard thereto.
(b) The Authority shall report annually to the Minister on the overall status and efficiency of the regulations contemplated in paragraph (a).
[Subsection (2) inserted by section 21 of Act 64 of 2001]

(1) No person shall use, supply, sell, offer for sale or lease or hire, any type of telecommunication equipment or facility, including radio apparatus, in connection with telecommunication unless that type has, subject to subsection (2), been approved by the Authority.
[Subsection (1) substituted by section 22 of Act 64 of 2001]
(2) The Authority may prescribe—

(a) types of equipment or facility the use of which shall not require such approval;
(b) circumstances in which the use of telecommunication equipment or facilities shall not require such approval.

(1) The Authority, taking into account the provisions of the Standards Act, 1993 (Act No. 29 of 1993), may prescribe standards for the performance and operation of any telecommunication facility or equipment, including radio apparatus.
(2) Any such standard shall be aimed at—

(a) protecting the integrity of the telecommunication services network;
(b) ensuring the proper functioning of connected facilities or equipment;
(c) avoiding radio or other interference with telecommunication.

(3)

(a) The regulations may, for the purposes of this section, incorporate any technical standard, without publishing the text thereof, merely by reference to the number, title and year of issue thereof or to other particulars by which it may be identified sufficiently.
(b) Any technical standard incorporated in the regulations as contemplated in paragraph (a) shall, in so far as it is not contrary to the regulations, be deemed to be a regulation.
(c) Whenever any technical standard is, at any time after the incorporation thereof under paragraph (a), amended or substituted by a competent authority, the regulation whereby such technical standard was incorporated in the regulations shall, unless otherwise stated therein, be deemed to refer to such technical standard as so amended or substituted, as the case may be.
(d) The Authority shall keep the text of each technical standard incorporated in the regulations under paragraph (a) and of each amendment or substitution thereof, and such text shall be open to inspection during the normal office hours of the Authority, and the Authority shall at the request of any person and on payment of such fee as may be prescribed, furnish him or her with a copy thereof.
(e) The provisions of section 31 of the Standards Act, 1993 (Act No. 29 of 1993), shall not apply to any incorporation of a technical standard or to any amendment or substitution of a technical standard under this subsection.