Independent Communications Authority of South Africa Amendment Bill [B18-2013] & Electronic Communications Amendment Bill [B17-2013]: proposed amendments

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30 October 2013
Chairperson: Mr S Kholwane (ANC)
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Meeting Summary

The Chairperson tabled both the Amendments to Independent Communications Authority of South Africa (ICASA) Amendment Bill and the Proposed Electronic Communications Amendment (ECA) Bill to the Committee.

Members checked if the amendments in the ICASA Amendment Bill were captured as agreed in the previous Meeting. There were no corrections to be made and the Bill was proposed for adoption by Ms R Morutoa (ANC) and seconded by Ms Z Ndlazi (ANC) as a true reflection of the previous deliberations and amendments.

One of the DA Members indicated that she had an issue with what she termed as lack of detail in the ICASA Amendment Bill and therefore did not support its adoption. She was of the view that it needed to capture all the proposals Members had made including those that had not been taken forward. However, the Chairperson indicated that it was not possible to include that as Parliament had a specific format of writing reports but that it was possible to present those views to the House during presentations.

Nonetheless, Ms S Tsebe (ANC) moved for adoption of the Report and was seconded by Ms R Morutoa.

Furthermore, there was another concern from one of the DA Members that the process of coming up with the entire legislation was flawed as it appeared to be driven more by the Department than the Committee. She was concerned that deliberations of public hearings were not made available and Committee Members did not have chance to deliberate on them.

Other members did not appreciate those comments and felt that it was not right to say the process was flawed just because they never attended the hearings.

From the previous meeting, the ECA Amendment had three main issues that the Department had agreed to work on and present to the Committee. These were presented under Clause 20 and Clause 24. Members had questions around who determined the percentage of market share to which the Department responded that it was responsible for that and would do so in public consultative process.

By the end of the Meeting, members had the ‘A-list’ document.

Meeting report

Portfolio Committee Amendments to Independent Communications Authority of South Africa Amendment (ICASA) Bill
The Chairperson tabled and asked Members to work from the document entitled “B18A-2013”. He informed them that they were to check if the amendments in each Clause were captured as agreed.

Ms J Killian (DA) mentioned that she observed the body language of the Principle State Law Adviser and it made her a bit uncomfortable, that perhaps something in Clause 7 was not right.

Ms S Tsebe (ANC) questioned whether it was right if a Member was not part of the Meeting and a decision was reached on particular matter to restart the process in the next Meeting when the Member was available. She said that in the previous Meeting the day before, issues were dealt with.

Ms Kilian responded that while she agreed that if one missed the meeting Members could not go back on some of the principles, she believed that the issue being dealt with was not only a matter of principle, but a document and that as full Member of the Committee she had not only the right but the responsibility to make sure that Members checked against their notes. She said it was not right that one could not be allowed to ask if that was a correct reference. She clarified that it was about the detail of the reference and not the principle that she was asking about.

Ms R Lesoma (ANC) responded to Ms Kilian saying that in the Meeting the day before, it was agreed that the Team, together with the State Legal Advisers should be part of the formulation, and that was why they had the particular document in front of them, unless there was something else she was referring to that the Committee was unaware of.

Ms R Morutua (ANC) was worried that it was becoming a norm that every time when Meetings started, Members must crisscross each other and that it was not right. She since Ms Killian was talking about principles, said one of the principles was that the document was a product of what the Committee required from the Department and this was way after she (Ms Kilian) had left. She requested that Ms Killian listens to those who were there if that was indeed a true reflection.

The Chairperson said it was not clear what exactly Ms Killian meant by just saying body language. He advised that it would have been more helpful if she mentioned a particular phrase or sentence in the Clause specifically.

There were no corrections to be made and the Bill “B18A-2013” was proposed for adoption by Ms Morutoa and seconded by Ms Z Ndlazi (ANC) as agreed by the Committee.

Independent Communications Authority of South Africa Amendment (ICASA) Bill
The Chairperson tabled and asked Members to work from the document entitled “B18-2013” where they would go clause by clause.

Ms Kilian stated that she was not ready for a Clause by Clause because according to the programme it was only stated for the following Tuesday.

Ms Tsebe responded to Ms Kilian that after her apology in the Meeting held the day before, the Committee agreed on what needed to happen in the next meeting.

Ms M Shinn (DA) commented that the whole process of the Legislation was flawed. She was concerned that the public hearings held in the first week of October and the decision to hold them were not a Committee process, and that neither Committee deliberations nor independent discussions after, aside from a presentation that was made by the Department. Furthermore, the Committee had no idea of deliberations in public hearings as the Committee Secretary did not provide information despite repeatedly being asked to do so. She referred to the Meeting which took place the day before, in which herself and Mr A Steyn (DA) were allowed to ask questions to the Department of Communications. She stated that it revealed that there was no thorough interrogation of the law clause by clause with the Department and the fact that it had taken over an hour to respond some questions, a result of which saw a whole clause being dropped clearly showed that there had not been a thorough interrogation as it should be. She added that the documents received in the same meeting that the Department presented were merely a repetition of concerns and complaints expressed in the public hearings. She therefore was of the view that the process was driven by what the DOC needed rather than an impartial interrogation by the Committee.

Ms Lesoma begged that the Meeting proceeds adding that they were going back to what was discussed and debated on the previous day and the previous week and that it was not fair. She added that as an ANC member she felt insulted by Ms Shinn’s insinuation that they did not have the intellectual capacity to engage with the Act and also with the public hearing inputs that were made.

Ms Morutoa reminded Ms Shinn that in the same meeting, she was told not to proceed with questions in the manner in which she did but she did. She added that Ms Shinn had questions simply because she was not at public hearings where those questions needed to ask those questions, as such that didn’t qualify as a reason to say the process was flawed. She asked that the Meeting proceeds.

Ms Tsebe clarified that the Department of Communications took long to respond not because of their own making but that the Committee had asked them to take their time, even when they were ready to respond. She said the Deputy Director General was trying to respond but the Committee had asked the Chairperson to give them more time.

Clause by clause consideration
Clause 11
Ms Shinn wanted to know what happened to someone who didn’t abide by the Code of Ethics.

Mr Alf Wiltz, Director Legal Services, Department of Communications replied that in that case they would have to be referred to the courts of law, as covered by clause 7(b).

Clause 32
Ms Shinn inquired if there should be a paragraph at the end stating that the State Legal Advisers found no problems with the legal compliances. Also if there should be a statement on the financial implications if any.

Ms Tsebe requested the Department to kindly note in their notes that all members fully participated, particularly in light of what Ms Shinn had just asked.

The Chairperson then put the Memorandum of Object on the ICASA Amendment Bill 2013.

Ms Kilian requested that the Report captures everything, including that which the Committee had originally proposed in its amendments but was not taken forward.

The Chairperson noted Ms Kilian’s comments but stated that such did not form any part of the Report as Parliament had a format of writing reports. He however said that in the presentation to the House, the Committee could mention in detail and such matters would be captured.

Ms Tsebe moved a motion to adopt the Report.

Ms Kilian stated that she had a problem with the detail in the Report, as opposed to having a problem based on principle. She therefore did not support the adoption of the Report.

Ms Morutoa seconded the adoption.

The Chairperson noted Ms Kilian’s comments.

He further asked Mr Herman Smuts, Principle State Law Advisor from the Office of the Chief State Law Advisor if there were any other issues and they were none. He went ahead to thank the Director General and her team, the team from legal services, all the Members and everyone else involved for the participation.

Ms Morutoa asked the Chairperson to tell the Principal State Law Adviser that the Committee took exception to body language and that he must not do it again, whatever it is that he did.

Electronic Communications Amendment (ECA) Bill and proposed amendments
The Chairperson tabled and asked Members to work from the document entitled “B17A-2013”

The Director General presented to the Committee the three issues as agreed that it needed to work on from the document entitled “B17A-2013”, which were in Clause 20 and Clause 14.
Clause 20
The first issue was in this Clause and it read as follows;

“ (5) The interconnection regulations may include a framework for the exemption (in whole or in part) of licensees that have less than 25% market share from the obligation to interconnect under section 37(1).”

In view of the above, Ms Shinn wanted to know who was responsible for determining market share.

Ms Lerato Molete, Director Legal Services explained that the Department established that during the process of public consulting, whereby an entity would have to prove that it had less than 25% market share and provide data to that effect. She added that it was a less expensive and less timeous way of doing things otherwise the Department would have had to be using long processes. She added that it was not a decision made by the regulator on its own, but also through the public consultation process.

Ms Kilian followed up on this and wanted to find how the 25% was arrived at and what this possibly meant for small businesses.

Ms Tsebe was afraid that the Meeting was going back on what had already been asked before and asked that they proceed.

Ms Lerato however replied that it was a ‘rule of thumb’. She went on to explain that anyone with less than 25% market share was regarded as not having sufficient market share, a standard that was adopted generally by Economics.

Clause 24 (New Clause)
The second issue was this Clause and the Director General read the Amendment of section 44 of Act 36 of 2005 in which subsection (3) was substituted for paragraph (k) as follows:

“(k) the framework for determining technical and financial economic feasibility and promotion of efficient use of electronic communications networks and provision of services contemplated in section 43(4)”

The third and last issue that the Director General presented as having worked on was a continuation of the new Clause in which subsections (5) and (6) were substituted as follows:

“(5) The electronic communications facilities leasing regulations may include a framework for the exemption (in whole or in part) of electronic communications network service licensees that have less than 25% market share from the obligation to lease electronic communications facilities in terms of section 43(1).

(6) Where a licensee is exempt from the obligation to lease electronic communications facilities in terms of subsection (5) and such exempted licensee enters into (a) an electronic communications facilities leasing agreement with another exempted licensee, or a person providing services pursuant to a licence exemption, section 43(7) and section [45(3) and (4)] and (7) do not apply to any such electronic communications facilities leasing agreement.”

The Chairperson checked with Mr Smuts if the new clause was in line with the legal aspects and he confirmed they were.

The Chairperson then informed the Members that the ‘A list’ document and what was needed was to ‘clean’ it as it had many issues that they had worked on. He hoped that by Friday 1st November, 2013 Members would have had the ‘clean A List’ document.


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