Page 31 - EngineerIt February 2021

ICT - LEGAL OPINION

Then, (surprisingly,) ICASA directions under it. But ICASA’s
announced on 27 November 2020 that amendment of its Covid-19 State of
— Licensees with temporarily-assigned Disaster regulations must be exercisable
spectrum would have to pay fees to in the same way and subject to the
continue using it in the extended period same conditions as the regulations.
to 31 March; ICASA had not required ICASA’s amendment of those
fee payments when it released this Regulations to require licensees to pay
spectrum for temporary use to meet the fees for temporarily-assigned spectrum
high demand for services during high bands must accord with the relevant
lockdown levels and the national state considerations in the Disaster
of disaster; but ICASA was aware that Management Act and the ministers’
licensees generated revenue growth regulations and directions issued under
during this period; and ICASA therefore the Act.
resolved to amend the regulations to Those relevant considerations are
require fee payment for use of this whether a contemplated measure (here,
spectrum in the extended period. The imposing fees) will contribute to
same day, ICASA amended its Covid-19 alleviating the disaster’s effects by
State of Disaster Regulations to require assisting or giving relief to the public, or Gary Moore
licensees to pay fees for temporarily- addressing Covid-19’s spread, or
assigned spectrum bands for the period relaxing spectrum regulations as far as Covid-19 State of Disaster Regulations
1 December 2020 to 31 March 2021 possible. Yet ICASA based its decision so as to impose fees on licensees for
(prorated in terms of the 2010 Spectrum to require licensees to pay fees on the using emergency spectrum: ICASA’s
Licence Fees Regulations), and failure consideration that licensees amendment regulation imposing a fee
to pay by 15 December would result in experienced revenue growth during the on licensees for their use of the
the temporary licence becoming invalid. national state of disaster and lockdown emergency spectrum can be reviewed
ICASA has the power to amend its But licensees’ revenue growth is not and set aside by the courts, because
Covid-19 State of Disaster regulations. one of the relevant considerations to ICASA failed to apply its mind to
The statute governing interpretation of which ICASA should have regard in relevant issues and took irrelevant
laws declares that where a law (which determining whether to amend its considerations into account. n
includes the Disaster Management Act)
confers power to make regulations, that
About the author
includes a power exercisable in the
Gary Moore is a Senior Researcher at the Free Market Foundation. He was a
same way and subject to the same
practising attorney in Johannesburg for 30 years. He is the author of published
conditions to amend those regulations,
articles and monographs about the rule of law, the legality of state action, the
unless a contrary intention appears.
meaning of statutes, and laws affecting small business. The views expressed in the
No general contrary intention
article are the author’s and not necessarily shared by the members of the Foundation
appears from the Disaster Management
or EngineerIT. n
Act or the ministerial regulations and

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