Joint meeting with Independent Communications Authority of South Africa as an Institution Supporting Democracy

Meeting report

Opening remarks by Chairperson

The Chairperson received an apology on behalf of the co-Chairperson Ms J Moloi-Moropa. Apologies were further received from Mr M Ndlozi (EFF) and Ms M Mafolo (ANC).

The agenda for the day was adopted.

The Chairperson asked where the Chief Executive Officer (CEO) of the Independent Communications Authority of South Africa (ICASA) was as an apology was not tendered on behalf of the CEO.

Mr Stephen Mncabe, Chairperson of ICASA apologised for the absence of the CEO.

The Chairperson asked for the reason for the absence of the CEO.

Mr Mncabe replied that the CEO was working on the Annual Report and a certain document was awaiting signage.

The Chairperson said that that apology was not accepted as it was a lame and unacceptable excuse.

Mr Mncabe said that the point was taken and apologised profusely.

The Chairperson interjected and said that the apology was not accepted.

Mr Mncabe started talking about the absence of the CEO.

The Chairperson asked Mr Mncabe to stop addressing the issue of the CEO and proceed with the briefing.

ICASA Briefing: Mandate and Way Forward as an Institution Supporting Democracy (ISD)

Mr Stephen Mncabe, Chairperson, ICASA, explained the Mandate, Vision, Mission and the principles central to ICASA’s decision making process. ICASA was an institution which supported democracy as per Section 192 of the Constitution. This was one of the tenets of the institution as an Institution Supporting Democracy (ISD)

Challenges

Some of the challenges and concerns of the institution were outlined as follows:

• ICASA wished to point out to date that it had not been consulted in the discourse on its role and reporting lines;
• ICASA was an economic regulator in terms of the ICT and Postal Sectors.
• It was also a content regulator in so far as broadcasting was concerned;
• ICASA had proposed that it be a self-funding regulator;
• ICASA tabled it submission to the former Department of Communications and the Kader Asmal report on Chapter 9 institutions;
• ICASA proposed that it be allowed to keep a percentage of the fees it collects in order to cover the costs of administering the sector4 it regulates;
• ICASA Council had discussed the matter of reporting to Ministers of Communications as well as Telecommunications and Postal Services.
• ICASA found itself at the risk of :

• Considering a policy directive from the Minister which was not specifically mentioned in the Electronic Communications Act (ECA) or ICASA Acts; and
• Increased exposure to litigation if the extant legislation was not amended to mirror the proclamations or vice versa.

Complaints about ICASA

Ms Miki Ndlovu, Councillor: ICASA said there were concerns raised about the elections. People were confused about the work of the Complaints and Compliance Committee (CCC) and ICASA. According to Section 17A ICASA had to be represented by one Councillor in the CCC. The complaints came from the South African Broadcasting Corporation (SABC) because ICASA had refused to flight their advertisements. Confusion arose when the media reported that ICASA had received complaints. Ms Ndlovu made it very clear she alone represented the CCC, not ICASA members.

Mr Mncabe said that there was also a complaint about how spaces were allocated during elections. ICASA had gone to all the provinces and explained to all political parties how spaces had been allocated. The Committee was thanked for their inputs and guidance.

Discussion

Mr C Mackenzie (DA) asked about the status of ICASA as a Chapter 9 institution and if there were plans to clean up the legislation around ICASA as an institution.

Mr Willie Currie, ICASA Councillor agreed that ICASA warranted being a Chapter 9 institution. It would be useful to read the Kader Asmal Report.

Mr Mncabe said that ICASA had received a qualified audit, a clean audit. ICASA had an interim structure and had done an inventory to ascertain who owned what. It had become apparent that change could not happen overnight. There had, however, been changes at ICASA.

Mr MacKenzie said that ICASA’s location had been mentioned in the presentation, that it made more sense for ICASA to be located in telecommunications. He asked for more information about this matter.

Mr Currie replied that the Chairperson of this Committee had already talked to this issue. 

Ms M Shinn (DA) asked what had happened with Wireless Business Solutions (WBS). She asked if they had paid, how much was paid and when payment was made.            

Mr Mncabe replied that the matter had been handed over to the legal team.

Ms Shinn said the definition had changed for what was a license service. She asked why it had changed and how was this communicated.

Mr Currie replied that a written response would be provided.

Ms Shinn asked for progress on the Mobile Terminal Rates (MTR) rates and what further steps needed to be taken about this in the next month.

Mr Currie said ICASA was under enormous pressure to meet the deadline of 30 September but it would have a short expedited consultation on the new regulations. 

Ms Shinn asked if the ICASA was going move the Telecommunication Ministry.

The Chairperson referred specifically to Ms Shinn and said a team of State Law Advisors had identified legal gaps and the matter was to appear before the President on 29 August.

Ms L Maseko (ANC) asked how ICASA ensured the education of ordinary citizens.

Ms Ndlovu replied that ICASA mainly had Roadshows around particular projects. There was not enough money in the budget so ICASA could not do many things. It did partner with the SABC where possible.

Ms Maseko asked how many complaints were received.

Ms Ndlovu replied that ICASA was unable to answer this question now and would need time to answer adequately. The answer would be provided to the Committee in writing.

Ms Maseko asked what the turnaround time was for responding to the complaints.   

Ms Ndlovu replied that the Act prescribed 90 days for a response.

Ms Maseko asked for clarity about ICASA being a self-funding regulator and the proposal that it be allowed to keep a percentage of the fees to cover the costs of administering the sector it regulated.

Mr Currie replied that ICASA would provide a written response.

Ms Maseko asked for clarity about equitable space for political parties during the election.

Ms Ndlovu said that Committee was better placed to answer this question.

A Committee Member asked about PAJA.

Mr Currie said that this was related to how one ran the administrative procedures and policies of the organisation. ICASA often fell short and was unable to make the grade.

Ms Maseko asked how often the CCC reported to ICASA.

Ms Ndlovu replied that the CCC reported to ICASA on a weekly basis.

Ms Maseko asked what was happening with the licensing issue regarding Alex FM.

Ms Ndlovu said the license had been renewed last year but not this year. Therefore Alex FM did not have a license for this year.

Mr M Kekana (ANC) asked what ICASA did when it was not consulted.

Mr Currie said ICASA had mostly not been consulted, but the Chairperson of ICASA had had meetings with certain parties.

Mr G Davis (DA) asked if ICASA felt the CCC’s independence should be more deeply entrenched.

Ms Ndlovu replied that this matter would be better addressed by the Committee. ICASA showed its independence in a number of ways.

Mr Rubben Mohlahuga, Councillor: ICASA said that the independence of ICASA should be a human rights issue and it was important that it became a Constitutional issue.

Mr Davis said given the split now between the Department of Communications and the Department of Telecommunications, did ICASA foresee a split within itself; and did ICASA think the split was a good idea.

Mr Currie said this was not possible because of the increased convergence in the telecommunication arena. There was no way to turn back now.

The Chairperson said the question about Councillors was an unfair question. She recommended that the Committee find a way to deal with this. The Chairperson said this referred to ICASA’s role as a Chapter institution. She did feel that this institution warranted being a Chapter 9 institution, but the Committee needed further guidance on this matter.

Ms Ndlovu said the status of ICASA as a Chapter 9 institution was something that the Committee should address.

The Chairperson asked how relations between ICASA and the CCC were working as ICASA had not provided any information about this.

Ms Ndlovu replied that the mandate of the CCC was covered in the Act and was not ICASA’s creation. The Committee could provide guidance in this area.

Mr Currie said the relations were good as there was a Memorandum of Understanding.

The Chairperson asked for assurances that relations between management and the Council were better. It was worrying that it looked like everything was intertwined.

Mr Currie said a Memorandum of Understanding existed which facilitated relations especially between for example Telkom and Neotel.

The Chairperson asked if ICASA had a system that monitored cellphone charges. She asked if ICASA had a mechanism that monitored Spectrum usage.

Mr Currie said there were Quality of Service reports. There were some problems with mobile networks.

Ms Shinn said she was waiting for a response to her question. She asked if ICASA had received a response from the National Treasury and how was money going to be recovered from municipalities. She had also not received a response to her question about the WBS. The Chairperson of ICASA was unable to answer the question about the WBS.

Ms Van Dyk noted that her question had also not been answered. She asked if there was a timeframe for answers.

Mr Curry said she should have received acknowledgement of receipt of her letter.

Ms Shinn repeated her question and asked what resolution had been passed on to the legal team and if it was approved.

The Chairperson said that it appeared that Ms Shinn was being unfair.

Ms Shinn said that the Chairperson of ICASA was the final accounting authority and she expected an answer. He was derelict in his duties.

The Chairperson reiterated that she felt Ms Shinn was being unfair.

Mr Currie said that the CFO would be asked to respond to the Committee in writing about the WBS and outstanding fees.

The Chairperson said that the Council should assist the Committee to shape and guide the institution.

Questions asked for which written responses would be provided.

Mr MacKenzie referred to slide 14 where it was stated ‘…inform ICASA’s future regulatory activities regarding net neutrality……promoting a level playing field for competitors such as wholesale market regulation. He asked what was meant by ‘net neutrality’ and ‘wholesale market regulation’.

Ms M Shinn (DA) said that municipalities owed ICASA close to R2 million. There was a hope that the National Treasury would sort out this matter. She asked what was happening with this situation and how ICASA was going to get the money from municipalities.

Mr Davis asked if ICASA agreed that funding mechanisms should be reviewed. It would be better if ICASA got funding from elsewhere.

The Chairperson asked how ICASA was funded and if it was a percentage of Spectrum.

The Chairperson asked how ICASA envisaged its future.

Questions asked and not responded to directly

Ms Maskeko asked how many legal personnel there were in ICASA.

Mr Davis asked if ICASA agreed that Parliament should have more powers to elect Councillors and Minister fewer powers.

Mr Davis asked if ICASA agreed that funding mechanisms should be reviewed. It would be better if ICASA got funding from elsewhere.

Mr Davis asked if ICASA agreed that Parliament should have more powers to elect Councillors, and the Minister fewer powers.

The meeting was adjourned.