Sakeliga’s court challenge in Pretoria is, at its core, a fight over how telecoms infrastructure gets built in South Africa, and whether regulators can hold up licence decisions that determine who may roll out networks and how quickly. The business organisation, which campaigns for free-market policies, property rights and the rule of law, is asking the high court to clear a path for operators to qualify for telecoms licences without selling 30% of their local operations, and without waiting for parliament to amend the law first.
The practical stakes are laid out in the organisation’s founding affidavit, filed on 9 November and authored by legal officer Johann Venter. The 30% ownership floor, it argues, excludes multinational investors whose global corporate structures do not permit the sale of equity in local subsidiaries. The result, according to the affidavit, is less investment, less competition and slower broadband roll-out. Starlink, Elon Musk’s satellite operator, has seen its entry into South Africa stall precisely because SpaceX has refused to cede 30% of its local operation to historically disadvantaged groups.
The dispute sits between communications minister Solly Malatsi and the regulator he is responsible for overseeing. In December 2025, Malatsi issued a policy direction telling Icasa to “urgently consider” aligning its ownership regulations with the ICT sector code. Icasa responded on 13 May with a brief statement saying the Electronic Communications Act (ECA) “requires a minimum 30% ownership by historically disadvantaged groups for individual licence holders”, and that full alignment with the amended code, including equity-equivalent investment programmes, “would require a legislative amendment”. Sakeliga now asks the court to set aside that decision.
The delivery mechanism at the centre of the case is the equity-equivalent investment programme, or EEIP. Recognised in the broad-based black economic empowerment code for the ICT sector and administered by the department of trade, industry & competition, EEIPs let multinationals invest in skills development and enterprise support instead of selling equity in their local subsidiaries. Sakeliga argues that the ECA does not impose a fixed 30% minimum as a pre-condition for granting, renewing or transferring an individual licence, and that Icasa may accept alternatives instead.
The case turns on section 9(2)(b) of the ECA, which requires Icasa, when inviting applications for individual licences, to set out the percentage of equity ownership to be held by persons from historically disadvantaged groups, “which must not be less than 30%, or such other conditions or higher percentage as may be prescribed”. Sakeliga argues that the words “or such other conditions” give Icasa a choice, and that the regulator’s reading leaves those words with no meaning at all. “A 30% equity ownership requirement is one condition Icasa may prescribe. But it is not the only one,” the affidavit says. The policy direction makes the same argument and points to the section’s legislative history: as originally enacted in 2005 it allowed only for a higher percentage, and the words “other conditions” were added by amendments in 2014. The explanatory memorandum to the 2013 bill said the 30% requirement had been retained for the time being, provided that empowerment requirements prescribed by Icasa may replace it in due course.
Sakeliga also argues that Icasa’s decision breaches the ECA’s requirement that the regulator act in accordance with the ICT charter when granting licences, and breaches the B-BBEE Act, which requires organs of state to apply the relevant sector code when setting licensing criteria. It calls the decision irrational and says Icasa failed to consider relevant factors, including the policy direction’s goal of promoting broadband roll-out.
The affidavit leans heavily on the minister’s own statements, including his July 2025 speech to parliament and the policy direction itself, in effect backing Malatsi against his own regulator. But even a win on the main argument would not oblige Icasa to adopt EEIPs, since policy directions are not binding and the regulator need only consider them. If the court finds Icasa read the law correctly, Sakeliga’s fallback is to have section 9(2)(b) declared unconstitutional, to the extent that it makes 30% ownership a precondition without recognising EEIPs and the rest of the ICT sector code. On that reading, the section operates as an unlawful quota, “an absolute bar against those who do not meet it”, infringing the rights to equality and to choose a trade freely. Any high court declaration that an act of parliament is invalid has no force until confirmed by the constitutional court. Sakeliga has acknowledged that even a win would leave empowerment requirements in place; in its words, the state “would replace a racial quota with a racial handicap, which, while remaining objectionable, constitutes an improvement over the current quota system”.
The court route matters because the legislative route has stalled. The day before Icasa’s May statement, Malatsi told parliament the government would pursue legislative amendments enabling equity-equivalent investment programmes to complement ownership requirements in telecommunications. Yet the Electronic Communications Amendment Bill, tabled in parliament in April, does not deal with ownership or equity equivalence. Pressure has also come from inside the industry: Telkom, in which the state is the biggest shareholder, told Icasa in February that its ownership regulations go beyond what the B-BBEE Act and the ICT sector code envisage. The ownership test is set to matter more, since Icasa has proposed letting new operators apply directly for network licences, though applicants would still have to meet the ECA’s ownership requirements.
Malatsi is cited as a respondent, along with Icasa, its chairman and the director-general of the department of communications & digital technologies. Under the court rules, Icasa has 15 days to file the record of its decision, after which Sakeliga may amend its case; the respondents then have 15 days to say whether they will oppose. Sakeliga, a Pretoria-based non-profit company founded in 2011 and funded largely by recurring donations from about 8 000 individuals and businesses, has brought a string of challenges to empowerment requirements it argues were imposed without legal authority. In June, the high court ruled in its favour that international airlines could not be made to meet B-BBEE criteria to obtain licences, Moneyweb reported, because the law governing those licences does not require it. This case, however, is different, since the 30% ownership requirement is written into the ECA itself. The direction itself dismisses “the perception that the policy direction is intended to benefit Starlink”, saying it would apply to all licensees equally.
What remains open is whether the court will treat the 30% floor as a fixed precondition or read the ECA as Icasa’s critics do, and whether that answer finally unblocks the licence applications now sitting behind it.