The Department of Communications briefed the Select Committee on Labour and Public Enterprises on those aspects of the Independent Communications Authority of South Africa (ICASA) Bill that it had been directed by the Committee to reconsider since its previous briefing. These were the quorum requirements for the ICASA council meetings, issues around payments or core signatures and the role of staff members. Members had felt that clause 9(b) was too difficult for lay persons to understand, and a simplified version was now presented by the Department, with another version also being proposed by the Parliamentary and State Law Advisers. However, the Committee thought, from the explanations provided by the Department, that the Department might be trying to use this clause to remedy a wider problem concerning the scope of the powers assigned to the Chairperson of ICASA council in relation to the appointment of an Acting Chairperson, and what that person was mandated by the Chairperson to do. The Parliamentary Law Advisers suggested that the problem might be able to be remedied by amending section 5(2) of the principal Act, essentially reflecting the wording that had been in the ICASA Act before an amendment in 2006. It was explained that the Committee had the power to recommend an amendment, to the National Assembly, that had not been in the original Bill, and it was then up to the National Assembly to decide whether or not to accept that. The Department was asked to consider that point, and the final consideration of the Bill was deferred to the next meeting.
The Committee had previously been briefed on the Electronic Communications Amendment Bill, and deliberated on it, and it now agreed to pass that Bill without any new considerations being raised. The Bill was adopted after clause by clause approval, as well as the Committee Report.
Chairperson’s opening remarks
The Chairperson accepted an apology from Ms Rosy Sekese, Director General: Department of Communications for her absence from the previous sittings of the Committee.
Independent Communications Authority of South Africa Amendment Bill: Department of Communications briefing
Ms Sekese referred to the two matters which the Committee had brought to the attention of the Department of Communications (DoC or the Department) during a previous presentation on the Independent Communications Authority of South Africa (ICASA) Amendment Bill, on 29 January 2014.The first was the issue of the required quorum for the ICASA council, and the second was the issue of payments or core signatures, and the role of staff members in relation to that. She stated that the Department had discussed the matters and had undertaken a benchmarking process in order to determine how other pieces of legislation dealt with such issues in the past.
Mr T (Collins) Phiri, Deputy Director-General, Department of Communications, led the presentation. He started by reading out the new wording which the Department had crafted for clause 9(b), dealing with the required quorum for ICASA council meetings(see attached presentation, slide 5). He said the wording proposed was synthesised from a number of other pieces of legislation with similar provisions, these included the National Environmental Management Biodiversity Act of 2004, the Local Government Municipal Property Act of 2004 and the Higher Education Act of 1997. He stated that the Department had identified certain patterns in the wording used in the various pieces of legislation, but similar wording in other legislation varied according to what type of decision making body was involved and what type of function it performed. In this case, he stressed that the ICASA council was performing an executive function.
A Senior State Law Advisor, from the Office of the Chief State Law Adviser (OCSLA), commented that his Office had believed that the existing wording was legally sound; but that he had agreed with other colleagues that it was rather long winded and could be shortened for the sake of better understanding by lay people. He said that the Office of the Chief State Law Advisor also had proposed new wording and wanted to know if this had been circulated to the Committee Members.
Mr M Mbebe, Senior Parliamentary Legal Advisor, was asked by the Chairperson to express his opinion on the proposed wording, which had been circulated among the Members of the Committee. He pointed out that this provision differed from the initial wording in that the words ‘in office at the time’ were replaced by ‘presently serving as councillors’. This change had been made at the behest of the Committee, for better understanding. There were some concerns about the length of the rest of the sentence, and the fact that it essentially repeated what was already in section 5(2) of the principal Act, but he explained that it had been crafted in this manner in order to ensure that there was certainty as to the requirements under the section, specially in terms of the presiding function of acting chairpersons. A further reason was to avoid cross referencing between Acts or even within the same Act, which was in line with modern legislative drafting practices.
Mr D Feldman (COPE, Gauteng) stated that he preferred the existing wording of Clause 9(b) of the Bill. The Chairperson then noted that Mr Feldman had been absent from the previous deliberations, but he reiterated that this notwithstanding, he had a right still to express his preference.
Mr M Jacobs (ANC, Free State) said that, Mr Mbebe having spoken to the issue, there was really now only one proposal. He believed that the existing wording of clause 9(b) was too much of a repetition of what was stated elsewhere in the principal Act.
The Chairperson then read the shorter version of the clause that had been submitted to the Committee, for the benefit of the Department, as follows: “the quorum for any meeting of the council is a majority of the councillors in office at the time, presently serving as councillors, including the Chairperson or Acting Chairperson as referred to in section 5 subsection 2”. She asked the Department to comment.
Mr Phiri explained that the Department had grown to understand the nature of the dynamic within the ICASA council and the propensity for vagueness to invite confusion. He stated that the Department’s position was that the short version was legally acceptable, but he again emphasised that the Department felt it was important for the Committee to take into account that the inclusion of the words ‘presiding over meetings’ would bring. He reminded the Committee that this provision would apply when an Acting Chairperson was presiding over meetings, which would happen when the Chairperson of ICASA, who was a presidential appointee, was absent. The Department, therefore felt that the initial version it had read out was preferable.
Mr Jacobs commented on the question of certainty and said that when a person was named Acting-Chairperson (stressing the latter word), this would indicate that all the normal powers of the office of Chairperson would follow, including the power to preside over meetings. Therefore, he felt that it was an unnecessary repetition to include it in the clause.
Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Adviser, indicated that both constructions, from a legal standpoint, had the same effect and neither could be faulted. However, he felt that the second construction, which only included a reference to section 5(2), was simpler.
The Chairperson then asked the Committee whether it was the version which had been proposed by the Senior State Law Adviser, and it was confirmed that this was so.
Ms Sekese then intervened, wishing to bring to the Chairperson’s attention her experience with ICASA. She said that in her experience the council had been prone to exploiting technicalities and thus she fully supported what Mr Phiri had said about attempting to avoid any vagueness. She stated that despite the repetition that the Department’s version contained, it was important for the efficient running of the public regulator. She conceded that it was ultimately up to the Committee to decide which version to adopt, but made a plea for the Committee to be aware of the challenges that even the Department faced when it had to interpret its interactions with ICASA.
The Chairperson thanked Ms Sekese for her input, but repeated her question to the Committee. She then asked the Department if they wanted an opportunity to caucus.
Mr M Sibande (ANC, Mpumalanga) accepted the input of Mr Jacobs, but said that the technicalities that the Director-General had referred to motivated him to enquire from the State Law Advisor and the Parliamentary Advisor whether they were satisfied with this consideration. He also asked the Department to state what its actual fears were.
Mr Jacobs also asked what the fear was in relation to presiding over meetings. In his view, it should be clear what the duties of the Acting Chairperson were, and felt that, even from a layman’s position, it would be clear in the shorter version.
The Chairperson then proposed that the Department caucus and return with its arguments as to what exactly it saw as the problem in the shorter version, and what technicalities may cause problems, because it was important to have simple, understandable legislation.
After a short break, Mr Jacobs who made a plea to the Department to be quite open with the Committee, so that the true issues and solutions could be identified. This statement was seconded by the Chairperson.
Ms Sekese made a reference to section 5 of the principal Act and pointed out that this section was not explicit about the Acting Chairperson presiding over council meetings. She said that the vacuum this created could be a problem if the regular Chairperson was absent for a long period of time, and certain matters may not be dealt with because of the absence of the Chairperson. She said that the Department did not wish to labour the point, however, and would leave it up to the Committee to settle what it felt was the best wording that would be in the interests of ICASA.
Mr Phiri added that section 5 of the principal Act did not set out a full list of the functions of the Chairperson. He reminded the Committee that the ICASA council was an executive council which was required to make collective decisions, and if there was any vagueness about the full extent of the Acting Chairperson’s functions, the delegation of the functions could be discretionary. The Chairperson could therefore delegate a limited number of functions only, reserving others for his/her return, if there was perhaps any vested interest in a matter.
Mr Feldman asked for clarity as to whether the Chairperson was really vested with all the power, including the power to appoint the Acting Chairperson, and whether it was not possible for the other councillors to collectively appoint an Acting Chairperson.
Mr Jacobs also sought clarity whether there was anything in the existing Act about the scope of the Chairperson’s powers, whether this person was to appoint the Acting Chairperson, and the scope of the Acting Chairperson’s powers.
Mr R Tau (ANC, Northern Cape) agreed with the previous two speakers that clarity on the powers and functions of the Chairperson was required. He found the manner in which the Department was presenting the issues somewhat unhelpful, because the Chairperson was being presented as being capable of stalling the functions of the full ICASA council, as evidenced by the selective delegation example used as illustration. He also questioned what the fear would be in letting the Acting Chairperson execute the functions assigned to him or her, pointing out that this person would be accountable to full council and ultimately to the President. This discussion seemed to illustrate more clearly why there had been so many problems in ICASA.
Mr Sibande was pleased to hear the response to his query about the technicalities feared, but wanted to give a practical example. He asked that the Senior Parliamentary Law Advisor read the short version of the clause, and this was done. Mr Sibande then said that he saw no difference between section 3 of the ICASA Act and the proposed clause. He then asked the Senior Parliamentary Law Advisor to read section 5(2)(a), which stipulated that the Chairperson was to appoint an Acting Chair in writing to perform his/her functions, and where the Chairperson was unable to do so, then the ICASA council would elect an Acting Chair from their number. Mr Sibande then challenged the Department to state why these sections did not cover the scenario that was outlined earlier.
Mr Z Mlenzana (COPE, Eastern Cape), said that the additional phrase did not allay the fears of the Department, because the Department’s honesty as to the cause of its concerns showed that the issue was not the powers of the Acting Chair, but the powers of the Chairperson. He therefore proposed that the true problem lay in section 5(2).
Mr Jacobs agreed that Mr Mlenzana had correctly identified the source of the problem, which was that the Chairperson may appoint the Acting Chair and stipulate what functions s/he may perform. He thought that having a Standing Acting Chair may solve the problem.
Ms Sekese thanked the Committee for these deliberations, which made her reflect further on her interactions with ICASA and agreed that the new version made sense. She noted that the Department was busy with a whole ICT policy review and that the issues being raised could be better handled in that process.
The Chairperson once again asked if the Committee was prepared to adopt the shorter version.
Mr Vanara then repeated the concern raised by Mr Mlenzana that neither version fixed the problem that the Chairperson could decide not only who the Acting Chairperson could be but also could dictate what issues s/he could deal with. This problem had arisen from an amendment made in 2006. The Act, in its original form, had allowed the Council, in the Chairperson’s absence, to collectively elect an Acting Chairperson to perform all the functions of the Chairperson. He submitted that if the Committee wanted to resolve the issue, perhaps it should change the current wording of section 5 of the principal Act back to reflect the original position.
Mr Jacobs liked this suggestion and said that in his view the Committee ought to reinstate that provision.
Mr Alf Wiltz, Director: Legal, Department of Communications, countered that the present subsection only differed in that it did not set out all the functions of the Chairperson. He submitted that the law was clear, and that the practical problems that the Department was experiencing were due to an incorrect interpretation by ICASA. He thought that ICASA should merely be cautioned to follow the correct interpretation.
Mr Jacobs rebutted Mr Wiltz’s argument by stating that the current wording allowed the Chairperson, rather than the Council, to appoint the Acting Chairperson. He said that if there was a problem with ICASA that the Department had not managed to solve, this indicated that the law was not clear enough.
Mr Vanara said that the challenge was presented as a technicality, and that the Committee wished to pass an unambiguous law which was not open to misinterpretation by the Chairperson of the ICASA council.
The Chairperson then commented that at the beginning of the session the Committee had invited the ICASA council, but it appeared that the Chairperson of ICASA had not passed the message on to its councillors, although some had appeared before the Committee only because they were in Parliament already to attend a Portfolio Committee meeting. She assured the Department that the Committee was trying to help rectify the problems.
Mr Phiri thanked the Chairperson for her support, but raised the concern that section 4(5) of the principal Act had wanted to emphasise the executive role of the Chairperson of the council, as distinct from the council itself, for example in providing leadership to the council. This raised the issue that if the power to nominate an Acting Chairperson was taken away, then the nine council members may not agree on who ought to be the Acting Chairperson. He therefore appealed that the short version rather be adopted and that the issue of who elected the Acting Chairperson, or consideration to appointing a Deputy Chairperson, should be debated at a later stage.
Ms L Mabija (ANC, Limpopo) doubted whether deferring this broader issue would be a good idea, pointing out that when the Department presented its White Paper, it would be presenting to a new Committee which may not yet have a grasp of all the issues. She would prefer this matter to be finalised in this Parliament.
Mr Jacobs agreed with Ms Mabija and added that it was part of the legislative function of this Committee to amend legislation where a problem was found in law.
Mr Tau stated that this was a section 75 Bill, submitted to this Committee for it to make its own amendments, which it could do wherever it saw fit. The National Assembly may reject those amendments if it saw fit, but that was another process. He proposed adopting the necessary amendments before the Committee dissolved, pointing out that it would be subject to a further check of the National Assembly, which would in turn influence the policy changes to be adopted by the Department.
The OCSLA representative said he wanted to be very cautious, for it would stifle the will of the people to suggest that Parliament could or could not act in a certain way. However, this Bill, as a section 75 bill not affecting the provinces, could only be dealt with by this Committee by accepting it, proposing amendments to it, or rejecting it. He raised the principle of legality, a principle endorsed by the Constitutional Court, which said that public functionaries were constrained by the power that they had been delegated under law. He went on to state that amendments to section 5(2) of the principal Act had not been envisaged in the original Bill, and therefore that they were not a subject for amendment by the Committee. Secondly he stated that the Bill ought to be read as a whole, and if selected amendments were viewed from a past amendment perspective, then this could lead to confusion.
Mr Jacobs stated that these submissions did not assist the Committee and asked that he help the Committee by proposing a solution.
Mr Tau said that the Senior State Law Advisor was merely doing his job, which was to defend the interests of the executive and this was the very reason why Parliament saw fit to create its own legal division. He asked Mr Mbuxu to explain how this section ever came up for discussion, when it did not form part of the Bill.
The Chairperson responded that the Parliamentary Law Advisor had raised a possible amendment to this section as a solution to the overall problem with the ICASA council that was facing the Department.
Mr Vanara wanted to comment on OCSLA’s point. He assured the Committee that there was in fact nothing unconstitutional in this Committee proposing the amendment to section 5(2) to the National Assembly. How the National Assembly responded to that proposal was a different matter. In the Rules of the National Assembly, there was a provision which empowered a Committee to seek the permission of the House to propose additional amendments that were not included in the Bill as originally tabled.
Mr Tau stated that this would not be the first bill which had been amended by a committee of the National Council of Provinces; another example would be the Protection of State Information Bill.
The Chairperson then instructed the Department to look further into the issue of amending section 5(2). She stated that the work of this Committee was not merely to “rubber-stamp” legislation. The Committee had agreed on the shorter version of clause 9(b) presented by the State Law Adviser and the Senior Parliamentary Law Advisor. She also agreed with Mr Jacob’s statement that the Department’s proposal must be made to, and settled by, this Committee, before Parliament rose.
Mr H Groenewald (DA, North West), said that he would like any other proposals that the Department may make to also be sent through to Members at an early stage.
Mr Groenewald reminded the Committee that in the previous week he had raised some concerns with use of the word “must” or “may” in section 4(3)(h)(a), saying that this was important for the protection of ICASA’s Chapter 9 status, so it was important that the Minister did not have the final say in the decision.
Mr Wiltz replied that the section had been controversial for a long time, and when this Bill was first published the wording was “must implement”, rather than “must consider”. However, he wanted firstly to point out that this wording had been used in other legislation. Secondly, ICASA knew what the section meant, which was that ICASA, as the regulator, must apply its mind to the policy of the Minister, but was not bound by the directives of the Minister, so there was no problem around infringement of their Constitutional Independence.
The Chairperson then suggested that the Committee might be able to move to a clause-by-clause consideration of the Bill.
Mr Wiltz proposed that whilst he took the Committee through the Bill, the Senior Parliamentary Legal Advisor could perhaps craft a new section 5(2) for the Committee to consider.
Mr Jacobs proposed that the Committee should defer going through the Bill clause by clause until the next meeting. The Department had been asked to give feedback and new proposals. If the Committee were to approve the wording now, it could be accused of not applying its mind properly.
Other Members agreed.
It was resolved to consider the Bill, with the new suggestions, at the next meeting.
Electronic Communications Amendment Bill: Adoption
Mr Phiri stated that the Committee had not directed the Department to do anything further in connection with the Electronic Communications Amendment (ECA) Bill, and thus that it remained to be adopted by the Committee.
Mr Tau objected to the Department reading the bill clause by clause, pointing out that at this stage it was the function of the Committee to decide upon the Bill.
The Chairperson then read the Electronic Communications Amendment Bill, clauses 1 through 45, as well as the schedule and memorandum. All of it was unanimously agreed to by the Committee.
Adoption of Committee Report
The Chairperson read out, and the Committee approved, the Committee Report, noting that the Select Committee on Labour and Public Enterprises, having considered the subject of the Electronic Communications Amendment Bill [B17B-2013] from the National Assembly, section 75, reported that it had agreed on the Bill.
The meeting was adjourned.
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