Following legal action, a high court has ruled that ICASA’s 2021 Regulations were flawed and disregarded the views of both MTN and the Competition Commission
A high court judge has set aside key aspects of ICASA’s Mobile Broadband Services Regulations
On 19 September 2025, in South Africa, a high court judge ruled that certain provisions of the Independent Communications Authority of South Africa’s (ICASA) 2021 Mobile Broadband Services Regulations, published in March 2022, should be set aside. The judge determined that the Regulations, which designated MTN and Vodacom as having significant market power (SMP), lacked the sufficient legal basis for the finding of ineffective competition in the country’s mobile market. As a result, the judge has declared invalid several key aspects of the Regulations, such as market definitions, competition assessments, SMP designations and pro-competition interventions, without giving scope for ICASA to adjust its conclusions. The court also ordered ICASA to pay costs, stating that the regulator had been unwilling to reconsider its stance, and criticised ICASA’s record keeping, finding that key documents relating to its decision making process may have been deleted.
The regulator has been criticised for failing to take into account all information presented to it
ICASA’s work on the Regulations began in November 2018 when it opened a six-stage inquiry into the competitiveness of wholesale and retail mobile markets (together “mobile broadband services”) between 2015 and 2018. During the inquiry, MTN submitted data on a sample of 1m customers, rather than the 30,000 that had been required by ICASA, contending that the regulator’s proposed smaller sample size ignored its drop in subscriber market share relative to its competitors, Telkom Mobile and Cell C, whose shares had significantly increased in the years prior. The growth in these operators' market shares was recognised in the court ruling. In March 2021, ICASA issued a draft version of the Regulations as well as a final findings document, concluding that competition in the mobile broadband services markets was ineffective, arguing that MTN and Vodacom were dominant in them. Despite further public hearings and input from stakeholders, ICASA proceeded to publish the 2021 Mobile Broadband Services Regulations alongside a reasons document that largely mirrored its findings. MTN called for a review, arguing that ICASA prematurely treated the inquiry’s findings as final and refused to properly consider all of the information and representations it was presented with.
The judge determined that ICASA wrongly disregarded the views of the Competition Commission
In its legal challenge to the 2021 Regulations, MTN argued that competitiveness should be assessed on a national basis rather than regionally, as ICASA had done, making the point that infrastructure sharing may not be properly taken into account. While Vodacom supported the regulator’s approach, the South African Competition Commission (CompCom) agreed with MTN in its submissions to ICASA that defining markets geographically would be arbitrary and not properly justified. The judge found that while the Mobile Broadband Services Regulations did fall under ICASA’s remit, the regulator’s opposing view to CompCom warranted further analysis of the issues and a more justified conclusion on the appropriate approach to market definition. In July 2024, ICASA published amendments to the Regulations, claiming they were needed to correct a number of issues in the 2021 rules, such as areas of unnecessary regulatory oversight and clerical errors in the text. The judge stated that ICASA had failed to seriously consider data given by MTN in these 2024 amendments too, which were not the subject of this court decision. MTN has also separately brought the 2024 amendments to the courts due to the fact that such a review should not typically take place when the 2021 Regulations had not yet been implemented.
