Minister of Communications progress report; Electronic Communications Amendment Bill: adoption

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Communications

05 November 2013
Chairperson: Mr S Kholwane (ANC)
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Meeting Summary

The Minister of Communications, Mr Yunus Carim, said that since his 20 August 2013 meeting with the Portfolio Committee, significant progress had been made on its strategy and programme for the period until the 2014 elections. He reported back on these areas:
• A more effective Department of Communications (DoC)
• A less fragmented and fractious ICT sector
• Finalisation of the Broadband Policy, Strategy and Plan
• An effective Spectrum Policy
• A Policy Directive on Transparent Pricing Policy
• Setting foundation for further reducing the costs to communicate
• Beginning the Roll-out of Digital Migration
• Greater focus on Rural and other underserviced areas
• Corporatisation of Postbank
• ICT Policy Review Green Paper
• National ICT Forum
• Progress on Community Media as well as Community Broadcasting Support Policy
• Merger of e-Skills organisations

The Minister’s comments on progress included noting that three deputy directors general would be employed by the end of the month, a new CFO was being interviewed over the next few days. To improve performance against targets, the Department had, through engagement with National Treasury, agreed on project management training for managers to begin 8 November. An integrated Action Plan had been developed to address issues raised by the Auditor-General in the 2011/12 and 2012/13 audit reports. Under the commitment to connect 788 schools as part of increasing focus on rural, under-serviced areas, 61 of the 788 schools have been connected thus far. Progress had been slow due to lack of the required equipment for the WAN and LAN installation. The DoC had made no progress with finalising a new Community Broadcasting Support policy. He apologised for this. The DoC was working with National Treasury which would release R15 m at the end of November to ensure that it met the regulatory requirements in establishing the single integrated entity for e-Skills. The policy directive on Transparent Pricing Policy had been deferred until early next year to provide space for further consultation to see first how the Mobile Termination Rates (MTR) review process pans out. The Department was also in the process of issuing a tender for subsidized satellite Set Top Boxes (STBs) using the funding available for the 2013/14 financial year. The facilitators were unable to get consensus from the feuding parties, so the matter was being taken to Cabinet. The National Integrated ICT Policy Green Paper had been drafted and would be presented to the Policy Review Panel on 5 November 2013 for final consideration

The Members thanked the Minister for the good work he had done. They were concerned about the satellite Set Top Boxes (STBs) as no consensus had been reached by the feuding parties, and asked why the matter was being taken to Cabinet if the SABC could resolve it. They asked about the Gobodo Report, the Ethic Committee Report and many other issues.
 
The Committee went through its proposed amendments to the Electronic Communications Amendment Bill [B17A-2013] and approved them. Subsequent to this, the Democratic Alliance proposed two changes which the Members voted on and rejected. COPE then proposed a change to the definition of “political party” which the legal advisor agreed would add clarity and the Committee agreed this should be adopted. The Bill was approved by the Committee with these amendments.

Meeting report

The Chairperson welcomed the Minister and the Department of Communications (DoC) team. Communications was a key sector the Members were looking forward to the progress report.

Progress report by the Minister of Communications
Mr Yunus Carrim, Minister of Communications, thanked the Portfolio Committee for managing and processing Bills efficiently. He regretted he was absent when the Department’s Annual Report and audit report was discussed by the Committee. Due to the forthcoming election campaign, he understood the commitments that the Members had.

Since the 20 August 2013, significant progress had been made for a more effective Department of Communications (DoC). Three outstanding deputy directors general (DDGs) would be employed by the end of the month as interviews had been held. A new CFO was being interviewed over the next few days. The posts of Chief Director (CD): Human Resource Management and CD: Internal Audit had been shortlisted and interviews would be held by mid-November 2013. For a more effective DoC, 80% of employees have been migrated into the revised organizational structure and DoC hopes to finalize the migration process by the end of November. All outstanding labour matters have been finalized. An integrated Action Plan had been developed to address issues raised by the Auditor-General in the 2011/12 and 2012/13 audit reports. To improve performance against targets, the Department had, through engagement with National Treasury, agreed on project management training for managers to begin on 8 November. The Minister had had engagements with over 180 organisations and individuals as part of contributing towards a less fractious and fragmented ICT sector. The Broadband Policy Strategy would be processed through Cabinet by 4 December 2013. To develop an effective spectrum policy to facilitate the development of wireless technologies in support of universal access and economic development, a multi-stakeholder consultative workshop was convened on the 15 October 2013. This had solicited stakeholder views on any amendments to the 2010 National Spectrum Policy. The workshop concluded that Ministerial Policy Directives were required on spectrum training for non-commercial spectrum usage as well as policy directives on the licensing of suitable spectrum for broadband applications. The development of such policy directives had commenced.

The policy directive on Transparent Pricing Policy had been deferred until early next year to provide space for further consultation to see first how the Mobile Termination Rates (MTR) review process pans out. A forum had been set up for this that would not undermine ICASA. Under the commitment for Sentech to provide 84% of the country with network for the roll-out of the Digital Terrestrial Television (DTT), the DTT network now covered 81.7% of the population. The Department was also in the process of issuing a tender for subsidized satellite Set Top Boxes (STBs) using the funding available for the 2013/14 financial year. The facilitators were unable to get consensus from the feuding parties, so the matter was being taken to Cabinet. Under the commitment to connect 788 schools as part of increasing focus on rural and other underserviced areas, 61 of the 788 schools have been connected thus far. Progress was slow due to lack of required equipment for the WAN and LAN installation. The equipment had now been received and connectivity could now be accelerated. On the commitment for South African Post Office (SAPO) to build 50 new post offices as part of increasing focus on rural, under-serviced areas, four post offices were under construction, 11 were at tender stage, three post offices were at the drawing stage and 32 post offices were in the planning stage.

With regards to the commitment to provide clearer shareholder compacts and exercise more stringent oversight of the state-owned companies (SoCs), most shareholder compacts have been resubmitted with amendments. No shareholder compacts would be accepted without AG approval as clear action from companies was needed. The DoC had had regular meetings with the boards and management of the SOCs for effective monitoring. The Board of the Universal Services and Access Agency of South Africa (USAASA) had been engaged on the recommendations of the Gobodo Report and the legal issues were being managed by the Office of the Chief State Law Adviser. With the DoC’s commitment to finalize the Postbank licence and the appointment of Board members to the Postbank, a cooperation agreement had been developed that required SAPO and the Postbank to enter into an agreement on pertinent issues such as the sharing of infrastructure. He would prefer the Portfolio Committee to deal with this. The Memorandum of Incorporation (Mol) which seeks to incorporate the Postbank as a company had been updated and circulated to all stakeholders for comment.

The Minister said on the commitment to finalize a National Integrated ICT Policy Green Paper, that a draft Green Paper, with all 12 chapters, had been drafted and was currently being edited and would be presented to the Policy Review Panel on 5 November 2013 for final consideration. A programme of engagement would be implemented, including provincial hearings from mid-December onwards. The DoC had made no progress with finalizing a new Community Broadcasting Support policy. He apologized for this. The DoC was working with National Treasury which had released R15 m that would come out at the end of November to ensure that it meets the regulatory requirements in establishing the single integrated entity for e-Skills. He asked the Chairperson to allow the Director General of the DoC to make a few remarks.

Ms Rosey Sekese, DoC Director General, explained that to stabilise the Department, the progress of getting migration of staff going had been good. She added that the three DDGs would be appointed by December with the memos going to Cabinet in a few days. This would definitely improve capacity turnover.

Discussion
Ms M Shinn (DA) thanked the Minister for the rapid report-back. She was concerned about the satellite STB issue as no consensus had been reached by the feuding parties, asking why the matter was being taken to Cabinet if the SABC could resolve it. She asked what the financial and legal risks involved were to government for the way things were being done now as government said they were not going for universal access. She asked what would be the impact on manufacturing strategy made by the SABC on STBs. She asked if the tender would be reworked for local assembly of the STBs or would they embark on the importation of STBs. She also asked what support structure exists for putting computers in schools and what plans would ensure the structure was effective and secure as she saw more money was being allocated for this initiative. It was good that shareholder compacts were made to account to the AG. On USAASA enquiry, she asked what types of charges were being looked at by the state law adviser and when could they expect fast-tracking action as some could be a result of corruption within USAASA.

The Chairperson said some questions may not be answered as they were pressed for time.

Mr A Steyn thanked the Minister for the quick report saying that he hoped "the implementation will also be as rapid as the report-back" had been. He referred to slide four of the presentation on the agreed project management training for managers to begin on 8 November. He asked how long it would take for all managers to be selected for the training. He referred to page 7 of the presentation on national spectrum licensing amendments and asked for the views of the Minister on omitting “let and sub-let” from Clause 10 of the ECA Amendment Bill. He noted that all outstanding labour related matters were finalised, but he also wanted to know whether the findings of Parliament’s Ethics Committee were included in the labour matters.

Ms J Kilian (COPE) thanked the Minister for the work done by the DoC. She said credit was due to the Minister who was doing a great job cleaning up the Department. On the STB issue, to her what was outstanding was the capacity, resources and other challenges of the state owned companies. There were still allegations of corruption, specifically with SOEs. She asked if the Minister thought legislation being processed by Parliament would have significant impact on the effectiveness of the regulator. She asked if Minister had advice on how ICASA could become an effective independent regulator to manage operators in the industry. Was the legislation at present not prone to executive creep in the operations of the regulator? It was important that the USAASA body was seen to be correct in all respects. The DoC needed to clean up what had been identified by the Gobodo Report. She asked how the Minister felt about this and what should be done to clean it up. He had referred to the current view of SABC’s financial sustainability and asked whether the Minister was ensuring that the entity performed as it should, especially with the new board, and was performing well in order to reach into the households of all people, especially those who could not afford pay TV.

Ms A Muthambi (ANC) commended the ANC Minister on ensuring the Department delivered on its mandate. She said not much had been said in the finalization of the shareholders’ compact about dealing with managerial positions in the SABC and financial sustainability. She referred to slide 10 of the presentation asking when the “Freevision” satellite platform which provides 100% geographical and population coverage would be available for retail. She asked how soon the STBs would be subsidized and whether the department was ready to provide free STBs. She referred to slide 12 on school connectivity saying it was not enough to say DoC commits to connecting 788 schools. A proper detailed plan was needed with proper oversight done on a month to month basis. She referred to SAPO saying the majority of post offices do not have broadband access. She asked if the 15 new offices being built would have broadband access and what would be done to ensure broadband access was available for people using post offices in the rural areas. She referred to slide 20 on the community broadcasting support policy and asked what the legal matter was that was holding back community broadcasting.

The Minister said the questions and comments of the Portfolio Committee were very helpful. He was not aware of the broadband issues at SAPO and the idea of month to month reporting. He suggested bringing the broadband policy to Parliament in February to brief the Committee. The policy would be reviewed yearly. On the question of whether the SABC Board was deciding for Government, he said no. The SABC could not decide policy for its shareholder, but what it says must be taken seriously. He explained the negotiations process was because some people want STBs with conditional access but others did not. Each side threatened to take legal action to hold up the process. The previous Minister had been considering reviewing the process to include a non-mandatory process. On 19 June she wrote that she was moving in that direction. When he came in as the new Minister on 10 July that contract had already been agreed to. Government had to decide on public interest and where there were differences between government and the SABC, the decision of government must prevail before taking it to Cabinet. They had been asked to do the following: try to reach consensus on most issues and see where there were differences for robust control. Facilitators said they could not take it forward, so Government had to decide. Since the facilitation process had ended, the opposing parties asked if they could say publicly what their positions were. The SABC took the position it had declared with its interim Board. The DG and Minister inducted them within 48 hours with facilitators and the Chief State Law Advisor. They said this matter had been running for five years. It was for Government to decide whether SABC would decide for themselves and he said that would not happen. He posed five questions to the Portfolio Committee: Firstly, what would best protect the electronic industry and create jobs? Secondly, how could they ensure indigenous entrepreneurs benefit from the roll-out of STBs? Thirdly, how could the DoC allow new entrants to enter the pay TV sector to channel a monopoly but not at the expense of the STB subsidy? Fourthly, what was the fastest and most effective simplest way to move forward given they were so far behind schedule with the June 2015 deadline? Lastly, which legal challenge was likely to be less strenuous? He said there were no easy answers. He pleaded that they did not politicise this and use the STB issue to settle issues with people they did not like at the expense of the people. Parliament had done oversight on its side. These were world-class facilitators. He said that e-tv had opted for Peter Harris and DSTV had opted for Charles Newman. Even Basetsana Molebatsi was on the list. On e-connectivity, he said the Deputy Minister was dealing with this and would brief the Portfolio Committee.

Mr Jabu Radebe, DoC Acting DDG: ICT infrastructure, said connectivity at schools had been moving slowly due to the slowdown in equipment delivery. The 61 or so schools connected was through Telkom. The project would be completed in 2014. He added that schools were closing in December which was a bridge that would slow down speed. A detailed project plan would be made available to the Portfolio Committee.

The Minister said the STB issue was too big for the Minister and Deputy Minister and must go to Cabinet for them to decide. Cabinet might maintain or tweak existing policy – it was for them to decide. The Gobodo Report was an internal report and made proposals for further enquiries which would be costly and time consuming. The DoC tried to engage but failed so handed it over to the Chief State Law Advisor who about eight days ago rejected what the Report said. Minister Carrim said he would like swifter movement but it was not easy as people fight back legally. Negotiations did not work. He did not understand what Mr Steyn meant about rapid implementation because the report he presented was not just words but feedback on work that had actually been done. He said Mr Steyn must tell DoC what was it they should have done that they did not do. He said his comment was unfair.

Ms Sekese said the “let and sublet” issue in Clause 10 of the Bill had been taken to ICT Policy Review as it was a broader policy issue. This would be reviewed in 2015 to be aligned with what comes out the review. On ICASA, the legislative amendment on the size of the Council would be taken to ICT Policy Review. Parliament went through the process of appointing Councillors who have capacity and capability to perform their function. There were certain legislative and governance challenges that were a problem, some of which were dealt with under ICASA and other under ICT policy review. The reviews would strengthen the role of the regulator. She thanked the Portfolio Committee in its finalisation of the SABC Board issue. The Board helped with finalising audit committee. All these actions would help stabilise the SABC.

Mr Carrim said with regards to the Ethics Committee, the DoC could not do anything. They had waited on its report to arrive and then acted on it. The Ethics Committee answers to Parliament. The DoC could not dictate to the Public Service Commission when it have its outcome. On ICASA, the law alone would not serve these issues. ICASA said they lacked recourses and funding so DoC set up a joint task team with ICASA. There were concerns about how an executive could have a joint task team with an independent authority. He pointed out that ICASA may be an independent entity, but it was not independent of the country. So they had sought legal advice for the issues with joint task team as he was unsure how to engage with ICASA. He then asked Portfolio Committee to explain what could be done as there was a complaint that he was interfering.

Ms Sekese said the DoC had engaged with ICASA with the view to align policy so further policy directives worked for the authority.

Mr Carrim said this would not happen overnight. The goal of the DoC was to provide a firmer foundation for more effective service delivery and development. He had asked Ms Radebe to provide a draft for the Portfolio Committee. Moving forward with SAPO, he had asked the Chief State Law Adviser, Enver Daniels, to facilitate meetings. Reviewing the role of ICASA and USAASA on Green Paper would be done. He said new SABC Board should be given space to find its feet. On its financial sustainability, he asked the Members to advise on what should be done as the issues were complex. He said DoC would move forward with the Joint Task Team in mid-December. He said one of the key management positions would be filled in the next 48 hours. He thanked members for their questions.

On the legal matter that was holding up the roll-out of community broadcasting studios, Mr Themba Phiri, DoC Deputy Director General: ICT Policy Development, explained that delivery issues had resulted in legal issues with the service provider, about charges for the provision of new stations, who finally agreed to the plan that Government wanted. DoC would complete 15 new community radio stations within budget.

Mr Joe Mjwara, Chairperson of the ICT Policy Review Panel, explained that the issues related to the mandate and legal framework structure and activities of USAASA. USAASA had researched the state of universality across the broadcasting, telecommunications and postal services sectors. In the Green Paper, the issue of universal access would be addressed. A status quo report would be produced specifying where universal service had been advanced and what should be done going forward.

Mr Farhad Osman, DoC Chief Director: Strategic Planning & Monitoring, said that DoC was engaging with National Treasury for advice on its Annual Performance Plan. The manager training on 8 November was for top management only, but DoC aimed to expand the reach going forward and look into more advanced training to assist with its Annual Performance Plan.

Ms Sekese explained that the DoC was hamstrung by availability of funding when it came to providing connectivity in schools. DoC had engaged with the Department of Basic Education and National Treasury for more funding. SAPO used satellites where there was no connectivity in rural offices. The STBs require encryption for signal especially when dealing with neighbouring countries. In Botswana, for example, SABC and e-TV required Sentech to have encryption in satellite. Cabinet had given DoC approval for subsidizing STBs in the Northern Cape area for connectivity.

Minister Carrim did not think what had been done should be reduced to one individual. In February the Deputy Minister would be able to answer the Members’ questions on the issues from a political perspective. He said the job done was a collective action and the Director General was working hard to pull people together. The problems would not fade away but they have been reduced. The Department was better off now and he thanked the Portfolio Committee for their commitment.

The Chairperson said there was not enough time for further questions. He thanked the DoC for their answers which had been done well. He said quite a number of questions coming up had been repeated. He gave Ms Shinn a chance to ask any follow up questions.

Ms Shinn asked if the Minister had said consensus between warring parties had been reached on encryption for STBs.

The Chairperson said the Minister had already said the answer was no.

Ms Shinn said she wanted the Minister to respond, not the Chairperson.

The Chairperson said it was not a point of clarity because Ms Shinn asked a question which had already been answered and that was a waste of time. He told the Minister he could respond if he wished.

Mr Carrim said the opposing parties had agreed on the technical aspect but not on encryption. He did not see why once Cabinet had finalised everything, the report should not be made available.

The Chairperson closed discussion on the presentation.

Proposed amendments to Electronic Communications Amendment Bill [B17A 2013]
The Chairperson went through the Portfolio Committee proposed amendments (the A list of the Bill) and asked Members to contribute any further inputs.

Clauses 1 to 42
The Members approved these clauses.

New clause to replace Clause 45                                                                                                        
Here a new clause was added: “The law referred to in the first column of the Schedule was hereby amended to the extent indicated in the third column thereof.”

Amendment of Long Title
Mr Herman Smuts, Principal State Law Adviser, said that the amendment of the long title had not occurred in the previous versions of the proposed amendments. He said this was simply a consequential amendment flowing from earlier amendments to bring the long title in line with what the amendments seek to achieve.

The Committee approved these changes.

Clause 32 amending section 72A in Act 36 of 2005
Ms Shinn asked if she could raise two issues she had with respect to the Broadband Council. She suggested changing “may” to “must” in section 72A(2) on the National Broadband Council. She also proposed adding section 72A(3)(g) which would say something like, “Minutes of the deliberations of the Council would be made public and all resources made available for public interaction and information.”

Ms Morutoa said the Portfolio Committee had already agreed to its amendments. She did not understand what was happening now. She asked the state legal adviser what the legal implications would be of replacing “may” with “must.”

Mr Smuts said “must” imposes an obligation and he was unsure if “must” changed the statement. It depended on the idea that Ms Shinn wants to convey by changing the statement.

Ms Shinn said she wanted it to be an obligation to include members from both the public and private sector on the Council.

Ms Morutoa suggested that the statement remain as is.

Mr Steyn said the intention was that members did come from both sectors so “must” imposed an obligation.

Ms J Kilian (COPE) proposed phrasing it as “must be from both public and private sector” because this would clear things up in the statement.

The Chairperson asked by a show of hands which Members want to change the statement.

Mr Steyn and Ms Shinn voted for changing the statement.

Ms Muthambi, Ms Newhoudt-Druchen, Mr Kekana, Ms Ndlazi, and Ms Morutoa voted against changing the statement.

The other Members at the meeting remained neutral.

The Chairperson confirmed that statement would remain as is.

Mr Shinn referred back to her second proposal about adding (g) under section 72A(3) which suggested that the National Broadband Council share its minutes and supporting documents of its decisions with the public. She felt the information would be valuable and should be shared with the public.

The Chairperson asked what exactly would be the work that the Councillors were supposed to do. To his own understanding, Councillors only advised the Minister on decisions.

Ms Sekese referred to section 72A(3) of the original ECA Bill which says that the Council only reports to and advises the Minister of Communications on broadband policy issues.

Mr Smuts said it was the decision of the Committee whether the deliberations and related documents of the Council would be made readily available.

Mr Steyn said there was no harm in making this a requirement with a caveat in (3) that says it was up to the Minister to give permission for making information publicly available.

Ms Shinn asked if there was any harm in publishing research documents to inform the sector as money was spent on researching this valuable information so it might as well be made readily accessible.

The Chairperson said it depended on the role of the Council. If decision of the Council was published when the Minister made the actual final decision then what were the implications.

Ms Shinn said the conversation was being taken too far. She said that minutes, research and reports used to inform the Council on the advice they provide to the Minister should be valuable as a resource.

Ms Morutoa said she thought the concerns surrounding the request made by Ms Shinn to add (g) was clarified by the referral of the DG to section 72A(3). She asked where exactly they were now so that she could participate.

The Chairperson agreed the Portfolio Committee amendments had been moved and seconded already. He wanted to accommodate everyone as this was a legislative process and he had allowed Ms Shinn to raise her arguments even though they were already done with amendments.

The Chairperson clarified that the issue with Ms Shinn’s suggestion was that of publishing material of the advisory body which the Minister had not necessarily agreed to yet.

The Chairperson asked Members to vote by a show of hands who was in favour of the addition.

Mr Shinn and Mr Steyn voted in favour of the addition.

Mr Kekana, Ms Ndlazi Ms Morutoa and two other members voted against the addition. Ms Kilian remained neutral. The Chairperson then said the proposed addition would fall away.

Clause 1(m) definition of “political party”
Ms Kilian said even though it was too late to change this definition, she was not happy with the phrasing. She referred to the original ECA Bill and said the phrasing used was the same as in the original Act. She said the line which started with “which for the purposes of any particular election…” should have been indented because this section should be for both (a) and (b) because the statement was meant to narrow down the parties to only those who would participate. She said the Electoral Act was very open. She would have proposed a slight adjustment to wording even though it was not necessarily feasible now.

Mr Smuts said that the last part did only apply to (b) so there was merit to Ms Kilian’s suggestion.

The Chairperson asked what this meant this far into the adoption process they were in.

Mr Smuts said he would come up with an amendment for that section.

Ms Sueanne Isaac, Parliamentary Legal Adviser, said the committee had already voted on an A-list so the Members would have to vote again for things to change.

Mr Morutoa said Ms Kilian who recommended this adjustment should reformulate and restate the statement herself.

Ms Kilian explained that the statement in Chapter 9 had implications for party electoral broadcasts and advertisements and clarity was needed on who was able to claim space in the elections. She recommended moving the “which” out and then say, “for the purpose of any particular election, had submitted its list of candidates for the National Assembly or any other legislature contemplated in the Constitution …” and then add a reference to “in terms of the election timetable.” That would determine which other parties become eligible for chapter 9 privileges so to speak.

The Chairperson asked ICASA on the impact of ICASA’s role during elections.

Ms Marcia Socikwa, ICASA Councillor, said that ICASA was redrafting their election regulations. She said ICASA had had a flood of complaints from political parties. Independent candidates also wanted to participate in the same fashion as registered political parties. Their framework would be what the Constitution permits. She could not comment on this until drafting was complete.

The Chairperson said what mattered was what the constitutional implications were as some parties could not be excluded.

Ms Morutoa said if section was omitted as Ms Kilian suggested, even if they have submitted their lists, the definition of political party was fine. There was nothing meaningful to her about what Ms Kilian had said. The matter was also constitutional. Ms Morutoa said she remained satisfied with what was written in the Amendment Bill as agreed to by the Portfolio Committee.

Ms Isaac said the proposed amendment by Ms Kilian to reword the definition of “political party” was correct.

Mr Smuts also agreed as he saw no negative legal implications. He said the Portfolio Committee could choose to entertain the amendment.

Ms Kilian said she welcomed the amendment if the Committee so agreed to allow other parties to participate in the election. She said the constitutional issue could be in the Electoral Act. Its Section 20 on Election timetables included the schedule of the election and the dates she was referring to.

The Chairperson asked Members if they have a consensus.

Ms Newhoudt-Druchen (ANC) asked for the reformulation of the clause to be written on the screen.

Ms Morutoa said she was concerned about what the state law advisers had agreed on now because she was seeing them running around the room when she thought they understood what had been agreed on.

Ms Kilian explained again that she had requested for an indent before the phrase “which for the purposes of any particular election…” to make it applicable to both (a) and (b) and she was not changing any wording.

Ms Muthambi referred to Clause 26 amending Section 55 and suggested omitting “scheduling of adverts” as ICASA regulations do not seem to deal with regulation of advertisements.

Ms Muthambi noted her concern that “let and sub-let” was omitted from clause 15 on the A-list but not from clauses 9 and 10 where the phrase was also mentioned.

The Chairperson repeated Mr Muthambi’s concern and asked someone to check what was going on there. He asked the state law advisor to put up the amendment on the screen.

Inserted after:
‘political party’, for the purposes of Chapter 9, means—
(a) any registered party defined in section 1 of the Electoral Act, 1998 (Act No. 73 of 1998); or

The amendment read: On page 4 from line 23, to omit (b) and substitute:
(b) any alliance of such registered parties, as the case may be, which, for the purpose of any particular election, has, before the commencement of the relevant election period, submitted its list of candidates for the National Assembly or any other legislature, contemplated in the Constitution;
 
The Chairperson asked if this would suffice legally.

Ms Isaacs agreed saying the indented statement would now apply to both (a) and (b).

The Chairperson asked if this amendment was in line with ICASA regulations.

Ms Socikwa said she needed certainty that this aligned with Electoral Act. The ICASA reference for allocating airtime was the IEC list and she felt the amendment now opened the door for anything. She suggested referring to the IEC list it would publish first.

Ms Kilian agreed with Ms Socikwa. She said this would bring the law in line with ICASA practice. The IEC list was in terms of the election timetable for all parties who made the deadline. She said they would check the relevant clause in the Electoral Act to clarify which parties participate in the election. They could refer to this list. It would be far better for that paragraph to refer to both (a) and (b). There was always a practical implementation period which makes it complex and this would tighten things further.

Ms Morutoa said it did not help if people spoke in parables. She said the list that comes from the party and what would be published by IEC was something else. She said there was no need to elaborate because they were talking about political party.

Mr Phiri said the state law adviser must advise on this because the only difference seems to be the wording. The principle was in line with the processes of ICASA. So the only issue was drafting and if Legal Services agree, it was fine.

Ms Isaacs asked for original Bill to be put up on the screen. “any political party defined in section 1 of the Electoral Act 1998 or any alliance of such registered parties…” It should apply to both registered parties and alliance of registered parties. So the rewording was for (a) and (b) to be the two type of parties that were recognized.

Ms Newhoudt-Druchen said she understood the explanation, but said even though (a) the registered party was defined in Electoral Act, she wanted to know if the alliances need to be defined in the Electoral Act.

Mr Smuts said the alliance referred back to the registered parties contemplated in the Electoral Act.

The Chairperson explained that in an alliance, the registered party would be the main representative of the alliance. So alliance now becomes qualified along with the registered party.

Mr Collin Mashile provided an example, saying if ANC and DA were allies during the election period and the DA becomes the representative of the alliance. This created problems in terms of the allocation of airtime by ICASA from a regulatory perspective. So ICASA had an issue with allocating airtime for the elections in terms of debates and so forth.

Ms Newhoudt-Druchen said her question had not been answered. She understood ‘registered party’ as defined in the Electoral Act but she wanted to know whether ‘alliances’ were defined in the Electoral Act.

Ms Kilian said there was only provision for registered election entity in the Act. She read section 26 of Electoral Act. So the party must register and submit a list of candidates to contest an election. If the definition was not amended, nothing stopped individual parties from demanding selected airtime even though they were in alliance. The limitation was that the party must submit the list to be accommodated by ICASA.

The Chairperson asked the DoC if this solved their problem. He said the legal adviser should respond.

Mr Smuts said it did help clarify the matter.

The Chairperson said so this means in an alliance, parties could not request airtime individually but the party that submitted the list would be the representative.

The Members agreed.

The Chairperson then asked what the way forward was.

Ms Socikwa said as drafted there, airtime issues had not been solved. ICASA gives airtime according to the list provided by the IEC.

The Chairperson interrupted and explained that a coalition was not the problem of ICASA.

Ms Socikwa said when looking at the airtime minutes allocated, ICASA issued them to the SABC. She requested that the list be submitted in line with the IEC submission.

Ms Morutoa said the legal advisors should fix the draft so that it made sense in terms of minutes. She said ICASA’s input made things sound more complicated.

The Chairperson said the amendment should be effected on the A-list and then the rest of the Committee should agree.

Mr Alf Wiltz, DoC Director of Legal Services, then explained about why the phrase “let and sub-let” appeared in Clauses 9 and 10 (amending Section 13 and 16) but was not omitted from Clause 15 (amending section 31). There was no mistake. Where “let and sub-let” appeared in section 31 it referred to radio frequency spectrum trading. He suggested rather leaving it out of section 31 for now for further consideration by the Policy Review. In section 13 there was no risk of spectrum trading. He went through ICASA’s amendment for section 13 which said before letting and sub-letting, seek permission from ICASA first. He read the actual wording in the Act from November 2011. DoC had aligned itself with this view of ICASA and would include “let and sub-let”.

The Chairperson said he understood the explanation, but what would be done about the proposed amendment to Clause 15 of the Amendment Bill proposing to omit “let and sub-let”.

Mr Wiltz read the original clause 15 that amended section 31. He said that the proposed amendment to take out “let and sub-let” was to avoid spectrum trading and take it further to Policy Review.

Ms Isaac said the original Bill must be referred to in order to understand the amendments.

Mr Steyn asked if “let and sub-let” was to avoid trading. Where spectrum was involved then, would it not defeat the purpose of avoiding trading if the words were omitted.

Ms Kilian said her concern was similar to that of Mr Steyn. With taking out “let and sub-let”, it was wrong not to require the written permission of the Authority for letting and sub-letting.

The Chairperson explained that the DDG said it was a change in policy hence they were referring it to the ICT Policy Review Process.

Mr Phiri said the Chairperson’s explanation was good. That which was not law was not permissible and thus not allowed.

The Chairperson said Ms Muthambi’s issue was not in the Bill. The issue of “let and sub-let” was not in legislation yet. The DoC was instructed by the Committee to remove “let and sub-let” in Clause 15.

Ms Muthambi said the wording in the Act makes no provision for someone to let or sub-let. Originally letting and sub-letting was allowed if ICASA gave permission.

Mr Phiri said Mr Wiltz had emphasized two issues: Individual licence transfer was perpetuation of the illegal activity on licence issues. ICASA said the practice needed to be contained and the DoC wanted to address this problem but when it comes to radio frequency accountability issues, the DoC wanted proper accountability to curb bad practices and account for any payments as it were. There was a policy vacuum when it came to spectrum transfer. The parties at the Johannesburg public hearing who supported this section said they were happy as they could make a submission to the Authority to allow them to let and sub-let. So another interpretation was that the administrative body must consider those who want to trade.

The Chairperson said Ms Muthambi’s reference was wrong. He said the motivation was that they were changing something that still needed to be approved legally.

Mr Steyn said clause by omission was not something that should not be allowed.

Mr Wiltz disagreed with Mr Steyn. He said there was a framework outlining what should and should not be done. Licence was needed. The DoC could not go around letting and sub-letting because the spectrum was a scarce resource. The policy recommendations would still be dealt with. One could not just transfer the licence to someone else and would take away from the fact that you need a licence to use the frequency.

The Chairperson said cross-referencing had been done and would be confirmed and they should move on to the next issue.

Ms Muthambi said the misunderstanding was about trading in individual and class licences.

Ms Kilian said this institution must scrutinize amendments to ensure that regulation was improved.

The Chairperson said that Ms Kilian was out of order. The cross-referencing had been ironed out. He asked what exactly she wanted to achieve as the matter was not introduced on its substance. He said the issue was being opportunistic, which was a problem. The issue should be raised in the first instance. The A-list had been passed and adopted. He had even allowed discussion with Ms Shinn.

Ms Kilian said she wanted to say that the complexity in this matter was that they were awaiting the policy review. DoC could not allow gaps to exist in BBEEA. She said she felt pressure cooking and could not take part in the rest of this process.

The Chairperson asked Ms Kilian to save it and said that he was simply following process.

Ms Kilian left the meeting.

After a break, the Chairperson said that Ms Sekese had asked to be excused from the meeting due to another commitment. He asked Members if they accepted the amendment for addition under the definition of “political party”.

Ms Shinn motioned that the amendment be included in the A-list. Ms Muthambi seconded her.

The Chairperson said the matter had now been concluded.

The adoption of the Portfolio Committee amendments, including the change to Clause 1(m) which was read out, was formally considered and adopted.              

Ms Isaac confirmed that this was legally acceptable.

Voting on Electronic Communications Amendment Bill
The Chairperson asked about the implications of the amendment of the Long Title.

Mr Smuts said the amendment to the Long Title seeks to effect consequential amendments because of earlier amendments.

Long Title
The Committee agreed to the Long Title as amended.

Clause 1                                                                                                                                    
Ms Shinn asked if they accepted Clause 1(m) as amended at this stage.

Ms Isaac confirmed saying it should be accepted as part of clause 1 and would be published later.

Clause 1-45                                                                                                                             
 
The Members agreed with all amendments.

Schedule of Law Amended
The Members agreed.

The Committee adopted The Committee Report on the Bill.

The Chairperson thanked opposition parties for their participation in the meeting.

The meeting was adjourned.

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