By Lehlohonolo Lehana.
The African National Congress (ANC) has raised concerns over a government gazette issued by Minister of Communications and Digital Technologies Solly Malatsi, accusing him of overstepping his legislative authority and undermining South Africa’s transformation framework.
In a final policy directive published on Friday, 12 December 2025 and issued more than six months after a draft version was published for public comment, Malatsi has asked Icasa urgently to align its ownership regulations with the ICT BEE sector code, including recognition of equity equivalent investment programmes (EEIPs), which are already lawful under the Broad-Based Black Economic Empowerment Act and administered by the department of trade, industry & competition (DTIC).
In simple terms, Malatsi is telling Icasa it should not pretend it sits above the national empowerment framework – and to end a regulatory interpretation that has, for several years, placed South Africa at odds with its own B-BBEE legislation.
Icasa does not allow for the use of EEIPs – a mechanism explicitly designed for multinational companies whose global shareholding structures prohibit local equity dilution – in its licensing regulations.
According to Malatsi, this has created a legal inconsistency: the B-BBEE Act requires that sector-specific empowerment be measured only in terms of the approved sector code. Second, it has chilled investment by signalling Icasa could impose empowerment conditions that differed materially from those recognised by the DTIC.
Malatsi first proposed the changes in May and drew criticism from opposition political parties and some lawmakers that he was going too far to accommodate foreign businesses like Starlink.
But 90% of public comments on the draft changes were in favour of the policy, while a minority raised concerns about possible dominance by large or foreign operators.
These changes would allow ICT companies, in certain circumstances, to meet transformation obligations through EEIPs rather than the standard 30% black ownership requirement.
In a statement, the ANC said the policy directions contained in the gazette exceed the powers granted to the minister under existing law and pose a threat to the integrity of the country’s ICT and postal regulatory environment.
The party warned that the move risks weakening hard-won transformation measures, particularly those linked to ownership and empowerment in the communications sector.
The ANC further framed the issue as part of a broader pattern, alleging that ministers from the Democratic Alliance are increasingly seeking to bypass Parliament by using policy directives to effect changes that should be made through formal legislative processes.
The ANC urged Parliament, through the Portfolio Committee on Communications and Digital Technologies, to hold Malatsi accountable and to interrogate the legality, intent and consequences of the gazette.
It also called on the communications regulator, ICASA, to uphold its statutory obligations and reject any ministerial directive that is inconsistent with the law.