Issue

Section

Provision

Effect on Telkom / SNO

Comments / suggested amendments

Definitions

1

These terms are both defined to include telecommunication services

This subjects telecommunication services and facilities at ports to a dual system of regulation under the National Ports Authority legislation and the Telecommunications Act

The reference to telecommunication services should be deleted

This may include services within a port which the Authority designates as port services

The Authority technically has the power to designate telecommunication services and facilities as port services and port repair facilities

The Bill should exclude this power

This includes services provided at a port terminal and related services

The related services could include telecommunication services and facilities provided at a port terminal

Telecom services and facilities should be specifically excluded

Licence – means a licence to provide a port service or operate a port facility

Port facilities are not defined. Presumably this refers to port infrastructure which includes telecommunications services and facilities

This should exclude telecommuncations

Licensed operator – means a person licensed to provide a port service or operate a port facility

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National Ports Authority

3(1), 4(1)

The Act incorporates the Authority as a public company.

The Authority is currently a division of Transnet. The Bill seeks to incorporate the Authority as a company with its own juristic personality separate from Transnet.

The Bill should exclude Transtel from this process.

Functions – include:

11(1)(a)

• to plan, provide and maintain port infrastructure

This includes telecommunication services and facilities, given that "port infrastructure" is defined to include telecommunications

The reference to "telecommunications" should be deleted from the definition of "port infrastructure" in s1

11(1)(e)

• arrange for services including telecommunications

Only operators licensed by ICASA under the Telecommunications Act

The references to telecommunications should be deleted from this section

11(1)(h)

• encourage and facilitate private sector investment and participation in the provision of port services and facilities

This could include telecommunications services and facilities

Telecommunication services and facilities can only be provided

11(1)(j)

• ensure that adequate, affordable and efficient port services and facilities are provided

This implies that the Authority may set quality of service standards for port telecommunication systems.

There is an overlap with ICASA, which may impose quality of service conditions on telecommunication service providers under the Telecommunications Act.

11(1)(l)

• ensure that persons who provide port services and facilities do so efficiently

11(1)(k)

• license and regulate port services and facilities

This section implies that the Authority may licence port telecommunication systems.

This creates a dual regulatory system with ICASA, which is required to license telecommunications under the Telecommunications Act.

11(2)(c), 12(d)

The Bill authorises the Authority to provide port services and to operate port facilities

The Bill effectively permits the Authority to self-provide its telecommunication services and facilities at ports, in contravention of the Telecommunications Act.

The Telecommunications Act only permits 3 operators to provide their own telecommunication facilities – Telkom, the SNO and Sentech.

Transfer of undertaking provisions

2(b)(iii)

The objects of the Bill include the facilitation of the transfer of technology, information systems and managerial expertise through private sector involvement and participation

This does not specifically exclude the Transtel PTN.

Otherwise the Bill could undermine the SNO licensing process, as Transtel’s PTN is going to be allocated to the SNO

27(1)

The Authority will become the successor to Transnet’s National Ports Authority Division

The Transtel PTN should be excluded from the transfer of undertaking provisions in the Bill.

27(2)

The transfer will be effected as a going concern

27(2)

Ports Regulator

29

The Act establishes the Ports Regulator as a regulatory authority

Functions – include:

30(1)(d)

• ensuring equitable and non-discriminatory access to ports and port facilities

This could include telecommunication services and facilities

The Ports Regulator should not have any jurisdiction over port telecommunication systems.

30(1)(h)

• advising and receiving advice from any other regulatory authority

This could include ICASA

Licensing / concession agreements

35(1)

It is illegal to provide a port service or operate a port facility without a licence or a concession agreement.

34(1)

The Authority may enter into concession agreements and public-private partnership agreements with a third party to:

The Bill effectively permits the Authority to authorise port telecommunication systems via concession.

The authorisation of telecommunications is a competency that has been reserved for ICASA under the Telecommunications Act.

35(2)

The Authority is responsible for issuing licences to provide port services and to operate port facilities

If telecommunication services and facilities are not specifically excluded from the ambit of the Act, this will establish ICASA and the Authority as dual regulators at ports

The Bill should not permit the Authority to license port telecommunication systems.

Construction, development and maintenance of ports

46

This could include telecommunication facilities.

Obviously this needs to be done in the context of the regulatory framework for telecommunications

Fees and tariffs

50(1)

The Authority must publish an annual tariff book with the approval of the Minister

The book must contain tariffs for services and facilities offered by the Authority

This could lead to the Authority being empowered to prescribe fees and tariffs for telecommunication facilities and services at ports

The setting of fees and tariffs for telecommunications is a competency that has been conferred on ICASA by s45 of the Telecommunications Act.

51(1)

The Authority may charge fees for:

Port Consultative Committee

60(3)

The Authority must consult the Port Consultative Committee regarding any substantial or structural alteration in the Authority’s tariff

This could include tariffs for port telecommunication systems.

The Authority should not have any jurisdiction over telecommunications

Port regulations

59(1)(d) 59(1)(i)

The Minister of Transport may make regulations in respect of:

This could include port telecommunication systems.

This is a competency that has been reserved for ICASA and the Minister of Communications under the Telecommunications Act.

59(2)(c) 59(2)(d)

The Authority may make regulations in respect of the following, with the Minister’s approval:

This could include port telecommunication systems.

The Authority should not have any prescriptive powers over telecommunication systems.