Electronic Communications and Transactions Bill: finalisation

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Meeting report

SELECT COMMITTEE ON LABOUR AND PUBLIC ENTERPRISE

LABOUR AND PUBLIC ENTERPRISE SELECT COMMITTEE
18 June 2002
ELECTRONIC COMMUNICATIONS AND TRANSACTIONS BILL: FINALISATION


Chairperson: Ms C Nkuna (ANC)

Documents Handed out:
As passed: Final version of amendments passed by Portfolio Committee [B8A-2002] [.pdf file]
As passed: Consolidated version of the Bill with amendments [B8B-2002] [.pdf file]
Presentation to Select Committee: Electronic Communications and Transactions Bill
JSE submission to Select Committee (Appendix 1)
SACF submission to Select Committee (Appendix 2)
Seven Public submissions (Appendix 3)
Submissions by various organisations
Presentation by Department of Communications


SUMMARY
The Director General of Communications briefed the Select Committee on the Electronic Communications and Transactions Bill. The Committee adopted the Bill without further amendment - with the DP voting against the Bill.

MINUTES
Mr Andile Ngcaba briefed the Committee on the tabled version of the Electronic Communications and Transactions Bill.

They were briefed on the original version of the Bill. There were several written submissions which were not considered by the Committee. The DP voiced its objection to the Chapter 10 position.

The Committee voted and accepted the B version of the Bill as passed by the National Assembly with no further amendments. The DP, represented by Mr Lever, voted against the Bill, specifically Chapters 4, 5, 9, 10, 12 and certain definitions, Clause 40 and 47. He abstained from voting on Clause 20.

Meeting adjourned.

Appendix 1

JOHANNESBURG STOCK EXCHANGE
11 June 2002

To: Select Committee of the NCOP on Public Entreprises and Communications

JSE PROPOSED AMENDMENTS TO ELECTRONIC COMMUNICATIONS AND TRANSACTIONS BILL ("the ECT Bill" or "the Bill") [B 8B - 2002]

INTRODUCTION

1.1 We thank you for affording the JSE Securities Exchange South Africa ("the JSE") the opportunity to present the Select Committee with the text of our suggested amendments to the Bill. We reiterate that the JSE is generally appreciative of the spirit of the Bill, which is aimed at regulating the e-commerce industry in South Africa.

1.2 We further appreciate the fact that the Portfolio Committee on Communications has recently dealt favourably with some of the JSE's proposed changes to the Bill. However, due to the regulatory nature of the JSE as a licensed securities exchange in South Africa, we request the Select Committee to consider the following proposed changes to the Bill as critical issues affecting the operations of the JSE as an exchange.

DEFINITION OF PUBLIC BODY
As this definition is worded, the JSE currently qualifies as a "public body" for the purposes of the Bill. However, an exchange as a licensed self-regulatory organisation ("SRO") is unique in its role and function and, we believe, clearly distinguishable from the traditional notion of an "organ of state".

The JSE believes it should be excluded from the definition of a "public body", as the ECT Bill appears to afford the Minister of Communications the ability to prescribe to "public bodies" what their role and function is in the National e-Strategy provided for in Chapter II as well as to prescribe policy guidelines in Part 2 of Chapter II. The JSE also currently possesses the powers provided for in Chapter IV and therefore does not require the provisions of this Chapter to specify requirements for electronic communications and transactions. Accordingly, we request that the JSE be excluded from the definition of "public body".

INTRODUCING THE CONCEPT OF "REGULATORY AUTHORITY" AND "REGULATED PERSON" IN DEFINITIONS, READ WITH CHAPTER VI
As stated above, the JSE as a licensed self-regulatory organisation ("SRO") is unique in its role and function. The JSE already uses electronic media extensively in its business and this is conducted in accordance with international standards and regulatory requirements. The Financial Services Board ("FSB") regulates the JSE in terms of the Stock Exchanges Control Act, 1985 and Financial Markets Control Act, 1989, to ensure that the JSE implements procedures which are designed for and suited to the specific and global needs of the securities industry and which achieve significant levels of investor protection.

The request of the JSE made to the Portfolio Committee to be exempted from the very generic provisions of, amongst others, Chapter VII has been partly accommodated by the introduction of a new subsection (3) to clause 42. The amendment reads:

"This Chapter does not apply to a regulatory authority established in terms of a law if that law prescribes consumer protection provisions in respect of electronic transactions."

Unfortunately this amendment lacks a definition of a regulatory authority and (on the assumption that it includes the JSE) merely means that the JSE is not subject to Chapter VII. The amendment does not have the desired effect requested by the JSE to ensure that the JSE (as a regulatory authority) has the unfettered ability to regulate the highly specialised securities industry. What needs to be achieved is that the JSE as well as those who are regulated by the JSE ("regulated persons") must be exempted from Chapter VII.

Accordingly the concept of a "regulatory authority" as well as a "regulated person" should be introduced in the definition section. In addition, the new clause 42(3) should be amended as follows:

"(3) Without detracting from the provisions of subsection 2, this Chapter does not apply to a regulatory body or a person regulated by that regulatory body, provided that the statute regulating that regulatory body or regulated person prescribes or enables the prescribing of consumer protection provisions in respect of electronic transactions, which further the objects expressed in this Chapter."

The JSE favours the introduction of the definition of "regulatory authority" as the same concerns raised above also applies to other regulatory authorities in specialised markets such as the Financial Services Board and the Registrar of Banks.

In the event that the Select Committee is not in favour of such definition of "regulatory authority", the Committee is requested to record at least the JSE, FSB and Registrar of Banks in the definition.

The following definitions could be used as a basis:

"regulatory body" means a body empowered by statute to (regulate a regulated person);

"regulated industry" means a sector of commerce or society that is subject to a statute;

"regulated person" means a private body licensed or otherwise authorised by a regulatory body to become a member of a regulated industry;

4. CHAPTER II, Part 1 - SECTION 5: National e-strategy
The JSE is not convinced that the ECT Bill should be prescriptive with regard to the establishment of a national e-Strategy. In our view, this should be an issue on the Cabinet agenda from time to time rather than being prescribed by legislation. In any event, the National e-Strategy as an internal governmental policy should not be binding on the "private sector". However, the JSE does not believe that this is made clear in the ECT Bill and section 5(4)(c)(vi) does not suffice to signify this.

In the event that section 5 remains in the Bill, the JSE does not believe that the JSE as a private sector body indeed entirely privately and highly regulated as indicated above, should be required to fall within the section and believes that the best way for this to be achieved is for the JSE to be excluded from the definition of a public body. The reasons for the JSE's proposed exclusion are set out above.

Proposed amendment

Add "on a voluntary basis" at the end of section 5(4)(c)(vi).



SECTION 20: AUTOMATED TRANSACTIONS
Section 20 (a) to (c) confirms the principle that agreements concluded by way of an "automated transaction" will be legally enforceable. Although the JSE believes these sections merely provide statutory confirmation of the common law of contract, the JSE does not object to their retention.

However, the JSE strongly disagrees with the provisions of section 20 (d) and (e) ("the relevant sections").

The relevant sections appear reasonable when one contemplates the so-called "electronic agent" software used on the Internet where a consumer sends pre-programmed "bots" to find certain goods on other websites. However, the wording of the section is wide enough to apply to almost all forms of electronic transactions, including ATM transactions, JSE trades, on-line banking, securities settlements, etc. The relevant sections are even capable of being interpreted to apply to legal entities executing an electronic transaction through their employees or officers.

As the relevant sections cannot be contracted out of - Part 1 of Chapter III creates a statutory right - these provisions will cause tremendous risks to the stability and legitimacy of trades conducted on the JSE and transactions on the STRATE systems. This will lead to substantial legal liability risks both on the part of the JSE and on the part of JSE members.

The JSE accepts that the relevant sections are intended to provide protection for a "consumer", as defined (see reference to "an individual"). However, the JSE submits that Section 43(2) on consumer protection affords adequate protection to a consumer, whether such consumer is engaged in an "automated transaction" or not.

The JSE further submits that unless practice indicates that "automated transactions" frequently cause the harm contemplated in this section, the freedom and sanctity of contract between parties to a transaction should not be unduly interfered with through statutory intervention. In the JSE's case, its trading rules provide a level of comfort that is at least equivalent to that offered by the Bill and which are guided by international securities law principles. We believe the JSE's ability to set these rules with approval from the FSB, with the obligation to ensure investor protection, should not unwittingly be affected by the Bill.

The JSE therefore strongly appeals for the removal of the relevant sections.

In the alternative, the relevant sections should only apply as deeming provisions to the extent that the parties have not otherwise agreed. This would require the relevant sections to be moved to Part 2 of Chapter III. The same exceptions as called for to be made to in section 43(3) should also apply.

Proposed amendment

We suggest that the following be included as a subsection (2):

"The provisions of subsections (d) and (e) do not apply to a regulatory authority or a regulated person.


CHAPTER IX - CRITICAL DATABASES
Regulators are tasked with maintaining the stability and veracity of the industries such regulators regulate.

Each industry has different challenges and stakeholders that require a sectoral approach to protection of critical infrastructure (e.g. banking, securities, insurance, etc). In the JSE's case, its licence is dependent on it proving to the satisfaction of the FSB that the JSE has and maintains adequate systems to operate a market and to ensure appropriate disaster recovery procedures and the like. In these issues, the JSE is judged by international standards applicable to global securities markets and we do not believe that it is appropriate for the Bill now to impose an additional and potentially conflicting level of oversight by possibly declaring the JSE to operate a critical database.

We therefore submit that Chapter IX should be qualified to apply only to databases that are not capable of being regulated by a regulatory authority. At the very least, and as a last resort, the Minister should be obliged to make regulations affecting a regulatory authority or regulated persons only in consultation with the relevant regulatory authority.

Section 57 audits must be subject to the same protection afforded by Section 56.

Proposed amendment

The following new subsection (2) should be provided for in section 52:

(2) This Chapter does not apply to a regulatory authority or a regulated person provided that the relevant empowering statute of that regulatory body or regulated person prescribes or is capable of prescribing database protection provisions.


7. SECTION 84(1): Preservation of confidentiality
It appears that this sub-section could limit the JSE's interaction with the FSB and the Securities Regulation Panel ("SRP"), for instance in relation to Insider Trading or other potential market misconducts. If this were the case, it would significantly impact the advances the JSE Securities regulators have made in combatting insider trading and other market abuses.

Accordingly, an additional qualification should be provided to allow for disclosures to be made in terms of any law.

Proposed amendment

The statement: "unless authorised or required to do so under any other statute" should be added at the end of subsection (1).

Yours sincerely

PHILIPPA STRATTEN
LEGAL COUNSEL


Appendix 2

A JOINT SUBMISSION BY THE SOUTH AFRICAN COMMUNICATIONS FORUM (SACF), BLACK IT FORUM (BIT4M), AND SUPPORTED BY THE BLACK BUSINESS COUNCIL (BBC) TO THE NATIONAL COUNCIL OF PROVINCES REGARDING THE E-COMMERCE BILL

The SACF is an industry lobby group consisting of over 600 black professionals and community organizations with nine (9) regional branches in South Africa. The membership includes women and disabled groups from previously disadvantaged communities.

The primary goal of the SACF is to promote universal services and access to under-served areas and communities, as well as facilitating the development of skills and ensuring that skills training and development is the key to the entry of disadvantaged communities in the high-tech super-highway.

The BIT4M represents over 1000 black IT professionals and businesses.

The BBC is an umbrella body representing over fourteen (14) organised national black business organizations in South Africa.
The SACF and the BIT4M participated in the e-law conference held in Midrand early 2001, as convened by the Department of Communications.

All major stakeholders were represented and participated in the various commissions that debated all key issues relating to the bill currently debated in parliament.

The organizations, as mentioned above, fully supports government's position, as it represents the outcome of the e-law conference referred top above.

"We have noted with concern the position taken by Mike Lawrie, the current administrator of the ZA domain. We certainly appreciate the work he has done up to now, and believe that he should continue to play a strategic role together with all key stakeholders" says Mr. Eddie Funde, the President of the SACF.

He continues: "The country domain name of any country represents an asset that should be utilized responsibly, so that the majority of the people can harness it for future generations to come".

It is particularly disturbing for Mr. Lawrie, if quoted correctly, to hold the country to ransom with the assertion that "he would not hand over the administration if government interference in the Internet was provided for in law".

"We are alarmed at the seemingly threat to of creating a situation that would lead to the ZA domain "collapsing" as the result of the involvement of a democratically elected government in the administration of the internet. Our organizations support the government's role in this regard as it represents the aspirations of those communities whose family names as potential domain names are under threat, says Funde.


Fundamental to universal service is the usage of the Internet and access to Internet based activities.

The introduction of the Telecommunications Act of 1996 was fundamental in ensuring that universal service and access is attained in South Africa. Today more than 2.5 million telephone lines have been rolled out to under-served areas as a direct result of the obligations and targets set by the regulator.

The state and penetration levels of the Internet market are highly undesirable. The current internet community in South Africa is around two (2) million users only, of which more than 70% of users are from the white community. The current low level of internet penetration is evidence of a lack of a regulatory environment that is able to provide a national strategy to grow the internet community, and open up the market to meet the broader needs of the communities.

The strategy to increase the access to the internet, as well as the prospect of attracting new users to the potential of e-commerce cannot be left to a few individuals who have, up to now, concerned themselves to their own personal needs and requirements without any visible strategic objectives to accelerate the penetration of the broader South African community to the technological space.

The growth of the Internet cannot be isolated from the issue of domain names, and contingent to the subject is the need to be sensitive and protective of indigenous names as a fundamental right to the protection of community and family heritage. As an example, the registration of the Madiba clan name as a domain name by someone other than members of the clan is not protected in terms of the current state of the registration environment; in fact those currently involved in the domain name registration could not care who registers such important family and community heritage.

The role of the authority as proposed in the current bill would ensure that such violation is protected and arbitrated accordingly.

More importantly, the authority would ensure that universal service is introduced in the sector, similarly to what government policy was able to archive in terms of accelerating the expansion of teledensity.

The domain names are an asset to the country and can be equated to the spectrum that gets licensed by ICASA.

The amount of R5 million that has been indicated as the likely cost to the tax payers should government's proposals become law, if correct, is totally justified because this would lead to the growth of the sector because of expanded usage, and therefore more registration fees would be payable to the registrar. The registration of Southafrican.com by an American citizen intensifies the argument for an authority, and should not have happened, if anything the current administrators failed the test of patriotism in this instance. The role of the authority would become more prominent in this regard.

The current fee structure of domain names registration is not transparent, and the assertion that the current administrators are doing it free of charge should be investigated by Treasury to evaluate the true structure of fees distribution, and if found to be true, perhaps someone deserves a Presidential award.

The proposed administrator, namely Namespace, is not representative, and its very formation during the process of policy formulation by government was premature, and left an impression of an opportunistic endeavour aimed at undermining government's initiative to make the administration inclusive. More alarming was the fact that the SACF, as one of the key stakeholders in the industry, was invited a day before the launch, perhaps as an after thought.

The creation of an authority by government which seeks to have the representation of all stakeholders, and users of the internet must be welcomed by anybody who has the interest of the nation, in particular, the vast majority of our people who have so far been marginalized by this industry.

Prepared by Xolani Qubeka in consultation with the SACF, BIT4M, and the BBC

Appendix 3

Seven public submissions addressed to the Select Committee on Labour & Public Enterprises:

Date:
Monday, June 17, 2002 3:23PM
Subject: A case for .ZA being under government control

Mike Lawrie's actions over the past few weeks has done nothing more than
strengthen the hand of those who believe that any and all administration of
the .za domain should be in the hands of a skilled government department and
or organisation which is closely monitored by the government.

Over the past few weeks Lawrie has spread fear amongst South African
internet users with rumors of Lawrie switching off his "eight-year-old"
computer which has been the primary host of a simple yet extremely vital
folder which essentially acts as a switchboard for the South African chapter
of the internet.

Then, even after reaching a compromise with the portfolio committee as to
the wording of the new Telecommunications and E-Commerce Bill, Lawrie,
evidently still unhappy with the present form of the new bill, proceeded to
move the .za primary folder abroad clearly placing it out of the reach of
the South African government.

Through his selfish and dogmatic attitude and actions Lawrie has
demonstrated the vulnerability of this vital "link" in the South African
internet while it remains in the public domain.

The folder in question does not determine who has the right to use or access
the internet. It cannot be used to censor the content of the internet, nor
can it be used to monitor the activity of individuals or organisations on
the internet.

But its loss will disrupt if not totally collapse the internet in South
Africa.

It's a "control" for the other, more lucrative, subdomains such as .org.za,
.co.za, .law.za and so on.

So all public debate about the handing over of this folder to the government
will lead to government intervention in the internet is not really true
(although it could be if the government does not act responsibly in becoming
the guardian of it).

In any case, freedom of speech and freedom to access mediums such as the
internet are not determined by who holds the key to the internet in South
Africa (if this party or parties are acting responsibly as is not the case
with Lawrie), it's determined by our Constitution.

It's my belief that Lawrie's action are nothing more than selfish and
irresponsible acts that do nothing but further endanger the internet in
South Africa (by having placed ideas in the heads of other individuals as to
a means to disrupt the internet here).

His actions are selfish and are being supported by other individuals who
seemingly do not want to relinquish their control of the internet in South
Africa.

Fact: the internet in South Africa is accessed by only about 3% of its
population - the majority of which are white (as far as I'm aware).

.co.za decided to take the debate public by polling its clients (i.e. those
who own and administer .co.za domains). The means for doing this was not to
post an open poll on their web site, but to mail the individual .co.za
owners. Owners were supposed to have received emails detailing the debate
and giving them the option to vote on the issue.

As the rightful and legal owner of two .co.za domains (www.i-soap.co.za and
www.isoap.co.za) I received NO correspondence from the .co.za
administrators.

By Friday evening media reports carried the outcome of .co.za's poll which
overwhelmingly opposed government intervention in administering the .za
domain folder.

Furthermore, .co.za's administrators added comment of support for Lawrie's
irresponsible actions.

To me Lawrie and the .co.za administrators actions and comments on this
issue are much like the AWB and rightwing invasion of the CODESA meeting in
Kempton Park. It's a last violent attempt of a minority to dictate to a
majority what it should be doing with a national asset.

After all, .za is as South African as our flag, anthem and our Constitution.
Its a national emblem which is being manipulated by a few individuals who
have long lost their right to control that icon.

Much has been written in the media about this issue. Much has been said.
Almost all that has been written about this issue have come from those who
carry ulterior motives.

As a South African and a rightful owner of .co.za domains I wish to express
my support for the argument to place the administration of the .za domain
firmly in the hands of this nation's government.

This will not lead to censorship of the internet in South Africa. Nor will
it result in the invasion of privacy of the individuals who use the
internet.

It will however prevent individuals such as Lawrie from holding the South
Africa internet hostage as has been the case over the past few weeks.

Thank you
Andrew P. October
______________________________________________________________________

2 July, 2002
The Chairperson
Select Committee for Labour and Public Enterprises
PO Box 15
Cape Town
8000

We are a small black empowerment IT company, providing software and network solutions to our customers. We have been following with keen interest the proceedings on the Electronic Communications and Transactions Bill. We are of the opinion that this is one of the brilliant legislations that government has ever promulgated. There is, however a concern that we have and we will be very disappointed if this could be allowed to happen. I am certain the rest of patriotic South Africans will be. The problem is that Mike Lawrie seems to be hijacking the Internet in South Africa. He is actually holding South Africa ransom over his empty arguments. In the portfolio committee, it was agreed that a Section 21 company be established to run internet in South Africa. Mr Lawrie is opposed to this, singing the same sings as the opposition Democratic Party.
In the Sunday Times newspaper of 16 June 2002, it is said that Lawrie took crucial files overseas and will only return them when the "dust has settled". We are not sure what this means, but it certainly is an insult to all South African and we suggest that if he has really done so, criminal charges should be laid against him.
Chairperson, what we are saying is that we as part of black business are opposed to Mike Lawrie running and administering the .za domain. We have confidence in both committed and patriotic South Africans, both black and white, in their ability to run South Africa's domain name. Let us not allow forces opposed to transformation, led by Lawrie distract us from reaching our objectives.


Ms U Mdingi
Managing Director
African Computers

______________________________________________________________________

The Chairperson of the Select Committee on Labour and Public Enterprises

I am perturbed and disturbed that Mike Lawrie wants to monopolize control of the .za domain name to himself. I read with awe a newspaper article that he has transferred vital files for the .za domain administration to some country abroad. I am deeply opposed to this. I believe the administration of the domain name should be placed under people who have the interests of South Africa at heart. I would like to support the notion that the Minister of Communications should safeguard the domain name and appoint people who would form a section 21 company to administer the domain name.

I hope madam chair that the call by the majority of the people to put in the hands of the majority the administration of our strategic assets.

Vatiswa Mzwakali

______________________________________________________________________

Madam Chair

Allow me to voice my opinion regarding the Mike Lawrie. There is no way that South Africa as a country could allow one man run single-handedly, our strategic asset, the .za domain name. I am of the opinion that the administration of the domain name should be the responsibility of committed and true South Africans. Mike Lawrie has given himself a title of being the father of Internet in South Africa, a title he is now trying to abuse. We cannot allow him to continue like this. The .za domain name belongs to all South Africans. I therefore support fully the idea that a Section 21 company which will include all stakeholders in this field be established to run our domain name. I am also of the opinion that this company should be run along the same lines as ICASA which oversees the communications industry in South Africa, with the Minister of Communications being a shareholder in this company.


Themba Mboniswa
Student: Wits University
______________________________________________________________________

The chairperson NCOP
Mrs Nkuna
South African Parliament
Cape Town

I would to address this letter to the DP, the press and Mike Lawrie the self-acclaimed intermet expert. It is political parties like the DP that usually say people are heroes when they are doing something that is not for public benefit .The DP must stop politicising the issue of Chapter 10 ECT Bill in order to get support from Mike Lawrie. The ECT Bill want .za to be the public assert regulated by the Minister and the DP is opposed to that and want Mike Lawrie to administer it or alternatively he take it abroad so that the South African people must be deprived of what rightfully belongs to them.


On the other hand, the press is ignoring the position of the government and only publish the DP and Mike Lawrie stories. There was a press conference sometimes last week about the ECT Bill but the press did not feel like it worth to report about but continue to report about the DP MP who was regarding Mike Lawrie as a hero. Yes, it is understandable why all this is happening. The DP, press and Mike Lawrie want to show the South African public on how they undermine the current government, the people who elected it and to show the public how strong they are to push the old apartheid policies that tend to undermine black South Africans.

To Mike Lawrie I have a simple massage please do not waste our time, we want development in our country, Internet and .za is one way to achieve this, so bring back .za so that it be administered by people in terms of chapter of 10 of the ECT Bill.

To parliament, I say we elected you to represent and protect us from monsters like Mike Lawrie, DP and others who share their view from taking what belongs to us and give it to people outside the Republic only for the reason of frustrating the process you are busy with. (ECT Bill that will make the .za to be administered by the people and not Mike Lawrie)

Hoping that my view will be shared with other MP,s who are working on the ECT Bill process.

Yours Faithfully
Bonginkosi Maphangwa

______________________________________________________________________

Attention: The Chairperson of the Provincial Council

The future of Domain Naming System
by Marcia Wilson , University of South Africa

A close study of the history of the internet reveals that the internet is a product and consequence of successful effective public-private partnership. It was not surprising then when ICANN, the first private-run international domain allocation organisation was formed, several concerns sighted potential problems with surrendering such an important feature of the Internet to private hands in 1999. Many scholars and decision makers queried the rational of the then US government.

Despite express belief in private organisations as the panacea, three years later, the leadership of the same private-run international domain allocation organisation lodged concerns about private-run domain naming systems. In a recent report, the President of ICANN submitted that the private-oriented organisation he managed
failed to be effective, nimble, and quick to react to problems
was overburdened with process, under-funded and understaffed
failed to provide for wider participation of critical stakeholders (across the full range of infrastructure operators, major users and national governments)
adopted a fatally flawed non-workable solution based on an unknown and self-elected membership and consequently failed to develop a public accountability mechanism
was overly inclined toward a technical orientation
failed to fulfill the objectives of its founders
used an impractical approach based on consensus and consent, rather than legal agreements

Following his introspective report, he proposed a replacement of the private-based model with a hybrid model comprising both public and private representation, which in his words " will incorporate the best of both extreme options." (ICANN President's report: 2002).

ICANN's previous critics, including the academia and ISP's world-wide, have embraced ICANN's recent sentiments. Meanwhile those still oblivious of forward thinking international developments and wide acceptance of the public-private sector model, such as the pro-private sector driven lobby group followed by a blind unthinking media in South Africa are advocating for and giving credence to an unaccountable private-sector oriented institution. What is most interesting about the case of South Africa, is the record of narcissistic tactics deployed by a lobby group called Namespace.

First, Namespace, self appointed and unknown to many, has mysteriously produced a mandate to self-administer the country's domain name system and proclaimed itself as representative of the multiple interest groups in the country. Its open meeting in August 2001 was the reserve of a limited and privileged section of the population, who have not demonstrated serious commitment toward incorporating black professionals in their fold. To date the constituency of this so-called representative body remains a mystery to many black IT professionals. The much publicised excitement created by Namespace about the single seat reserved for government in the existing Namespace executive can hardly be considered as an adequate measure of participation of the multiple interest groups in the country. ICANN has called for active participation of national governments in domain naming systems, not tokenism.

Second, Namespace has over-emphasised the technical skills required for the administration domain names and thereby sought to further limit participation of non-technical players, including government representatives. The administration of domain naming impinges on the cultural, economical and political framework of any country. The victory of South Africa in WIPO and the precedent set by WIPO's decision, demonstrates how critical domain names are to the political and cultural make-up of any self-respecting country. Furthermore, domain names have been used to generate significant profits for private individuals. In South Africa the names of influential leaders were technically stolen and used to establish virtual companies of which family members had no control. Domain name administration can hardly be simply relegated to technical experts. A holistics approach which involves the professional skills of economists, politicians, software and hardware specialists, cultural and policy analysts is more likely to be effective in managing the complexities presented by domain naming and e-commerce in general.

Third, Namespace then sought to blackmail the decision makers of the country by alleging that it had exported so called "primary zone files" to an unknown destination, until such time the government is willing to submit and relinquish full management to their organisation. Namespace simultaneously turned to the media to give credence to a rather misleading perception of the value of such files as evidenced in the Sunday newspapers. Such behaviour of the so-called technical experts in our country is instructive of the consequences of delegating the administration of domain names to private individuals who after years of exclusionary behaviour express great difficulty in relinquishing direct control. What Namespace is in fact demanding is for a group of private individuals to regulate themselves and the rest of the public. Strangely, they are intent on managing that which they have publicly acknowledged constitutes a "national and communal asset"accounting to none but themselves. They chose to hold to ransom those whose opinions differ from their own, much in antithesis to the democratic values upheld by the country.

In conclusion, it should be emphasised that domain names are scarce resources, and can be susceptible to manipulation by private agencies, which have elsewhere inclined to creating artificial scarcity of domain names to fulfil their private agenda. The unnecessary hysteria created by Namespace is sufficient evidence to warrant the establishment of a more credible and responsible agency. It would be dangerous and careless to render public concerns to the playground of private unknown and self-praising individuals indefinitely.

Chairperson: National Council of Provinces
Parliament
Cape Town

Dear Chairperson

Re: Electronic Communications and Transactions Bill

I am writing this letter in response to a Mail & Guardian Online article dated 13 June 2002. I want to voice out my disapproval what Mr. Lawrie has done. It is very much un-South African to entrust South African information to the outside countries. It is also undermining for him to think that people do not understand the Internet or technology because of their skin colour.

The fact that he has worked with whites only should not be misconstrued to mean black people do not understand technology. Mike Lawrie not only is a product of apartheid but he is disrespectful of black people. This is pure racist behaviour from a person who does not recognise democracy.

What the government is doing now is not something new; it is practices in countries such as Japan and Canada. The governments of these countries have put systems in place to allow proper allocation of domain names similar structures to the one we want to establish have been put into place. In Finland domain names are regulated by a Regulatory body (a structure similar to ICASA).

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