ICASA on Compliance and Complaints Committee (CCC) rulings, broadcasting licencing, industrial action and impact

Meeting report

Compliance and Complaints Committee (CCC) rulings, broadcasting licencing, industrial action and impact: : Independent Communications Authority SA (ICASA) briefings
Mr Rubben Mohlaloga, Acting Chairperson, ICASA  for ICASA said the presentation looked at the legislative framework that  establishes the authority and governs the broadcasting sector including the SABC. It would also consider the Universal Service Mandate of the public broadcaster.

Ms P Van Damme (DA) asked why the Compliance and Complaints Committee (CCC) was not present in the meeting.

Mr Mohlaloga replied that is a committee of Council and not an Independent council. For that reason, although ultimately ICASA takes a decision the CCC makes recommendations to the Council. There are two councils that represent ICASA in the CCC.

This presentation looked at the SABC broadcasting licence since the licence is issued by ICASA. Further he looked at the content monitoring of ICASA on the SABC, its programming obligations and the ruling on the Media Monitoring Project vs SABC.

Mr Mohlaloga pointed that ICASA is an entity government by the Act, and section 192 of the Bill of Rights enjoins the Broadcasting authority to regulate broadcasting in the public interest. He also highlighted the legal frameworks that direct ICASA, and Universal Service Obligations (USO) of the SABC (see document). He also noted that in terms of the licence and conditions SABC has programming obligations, financial obligations, and complaints handling obligations, as well as having to deal with human resources and development as well as the equity obligations. SABC has two types of licences; namely the public licence which is SABC 1 & 2 and commercial licence, and another to over SABC3 ,” in the public interest” In terms of programming obligations overall local content percentages are measured annually as per current effective Regulations from 2006, although the new Regulations will become effective from March 2016

Complaint against SABC: Background and Process (see document)

Mr Mohlaloga gave a synopsis of the background and process of the Complaint against SABC by the Media Monitoring Project Benefit Trust, S.O.S Support Public Broadcasting Coalition and Freedom Of Expression Institute. The CCC made its findings regarding the Complaint and the Authority issued a media statement endorsing the recommendations by the CCC and ICASA decision (see document).

Update on IMT Spectrum ITA Process

Mr Mohlaloga also dealt with the issue of the IMT spectrum process by looking at the context, and the basis of the court action. He also looked at the court’s decision on Part A of the Minister’s application and amendments to the IMT ITA (see document).
The basis of the court action s in August 2016 the Honourable Minister of Telecommunications and Postal Services proceeded against  ICASA in an urgent application to review and set aside the licensing process for IMT ITA. Part A is an interdict suspending the implementation of the decision pending the review and part B set aside the decision to implement the licensing process on the basis of certain conditions (see document)). In relation to Part A of the court case (urgent Interdict) the court found in favour of government. Part B in respect of final relief to set the ITA aside is currently pending before the court. The ITA was amended, prior to court’s decision on Part A to clarify the application date, the coverage obligations and the participation in the auction process (see document on page 18).

Update on Industrial Relation

Mr Mohlaloga said historically ICASA employees belonged to the Communications Workers Union, where matters of collective bargaining such as salaries were negotiated between the Union and the Authority. Over a period of five years since 2010, negotiated salaries were not qualified, were very far removed from norms in the labour market and the ICT Industry. Unfortunately it created a squeeze between Managers and senior Managers, who were part of the Bargaining Council, as well as creating internal anomalies and remuneration inequalities within the Authority, with very little difference between managers and senior managers. Adam Smith International was asked to conduct a detailed study on Organisational Development and this then triggered the restructuring or structural alignment that started in 2009 but was never executed, and this plan was presented to the Committee. ICASA embarked on an organisational re-alignment process during 2014, ,in terms of section 189 of the Labour Relations Act and it consulted CWU from the commencement of the process.

Mr Mohlaloga highlighted the sequence of events, as follows:
-From September 2015, employees had started resigning from the CWU and as a result the Union’s membership threshold fell below 30%. The Union was notified of the decline in membership and was given 90 days to rectify the situation.
- In November 2015 the situation had not changed, and the Union was given notice of one month to terminate. In December 2015, the Recognition Agreement with CWU came to an end. 
- However, prior to that, and on 16 November 2015, the Authority received a group grievance in line with the provisions of ICASA’s Grievance Policy.
- On 27 November 2015 the employees’ representatives were invited for a meeting with the CEO to discuss the grievances, but they failed to attend the meeting, giving no explanation or apology.
- On 3 December a letter was sent to the employee representatives, in response to the grievances, and the employees referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) for dispute resolution, in accordance with the grievance policy.
- On 1 April 2016 ICASA received a letter from the Labour Consultant acting on behalf of ICASA employees, setting out certain demands (see attached document for full details)
- Both parties met at the CCMA  to engage in conciliation, on 31 May 2016. However, when no agreement was reached, the CCMA issued a Certificate of Non-Resolution.
- On 22 June 2016 a notice of intention to embark on a protected strike was received from the Labour Consultant.
- The strike commenced on 4 July 2016, with 39% (or 139 in number out of 356) of the workforce participating in the strike.
- Those employees who were not participating in the strike signed attendance registers twice a day, at 09h00 and 15h00, and these enabled daily statistical reports to be compiled with the percentages of striking and non-striking employees.
- By August the number of participants in the strike was gradually reduced and the strike was fairly peaceful, with no major incidents reported. A management team was appointed to engage with the representatives of the striking employees and both parties mutually agreed to a Mediator.
- Mediation process commenced on 29 July and concluded on 8  August.
- Management committed to reconsider all the remuneration-related disputes in accordance with the relevant Governance structures (REMCO) and approval of the Council
- Striking employees commenced duties on 10 August 2016. Meantime, deliberations on the presented disputes were held with the management Team (see document)
- After the strike the Management Team made recommendations that were supported by REMCO and approved by council. ICASA now has 163 employees that joined the National Trade Union Congress (NTUC) and the first meeting with this Union was held on 14 September to discuss Organisational Rights of the Union in accordance with section 21 of the LRA. A second meeting was held on 24 October to discuss matters of a collective agreement.

Discussion

Mr M Kalako (ANC) asked about SABC and ICASA. He asked what would happen to anyone, after the decision was taken by the CCC, who did not respond in time, and what penalties would be imposed for failure to respond. Why did ICASA not penalise SABC already? He could not see that there had been any clear answer from SABC.

Mr M Gungubele (ANC) took this point further, saying that during the previous interface, a request was made that if CCC had not made a decision with particular requirements, Members should be told what processes were to be followed?  There is a need to find a balance between dispute resolution and the mechanical way of implementing the law. He asked what the ultimate results are and assumed that, with input from the Ministers, ICASA was on the same page.

Ms P Van Damme (DA) said her concern was that ICASA seem to be complacent, and were passive participants who were not proactively regulating the situation. It had been four months since the CCC decision and she asked what has been done by ICASA to make sure the decision has been implemented? No action has been taken against SABC for the non-response, and she wondered what would then follow.

Ms N Tolashe (ANC) also wanted to know the outcome. In regard to the new Trade Union, she asked what role had been played by ICASA as an employer, in the new direction taken by the employees. She also said she wanted to know whether the Trade Union is progressive.

Mr P Tsedi (ANC) had an issue on the powers of the CCC, and he had asked this earlier. ICASA had explained that CCC makes recommendations to the Council, and then the Council makes the final decision.  He suggested that ICASA should at the forefront and challenge some of the decisions, because the judgement made it clear that this involved both the CCC and the Council. They feature nowhere. He also raised another issue on the realignment of the organisational structure. He asked for the outcome of the process to date – pointing out that the presentation only gave an indication of the position at the beginning of the realignment. He asked what happened in the financial year where performance meant that no employees got bonuses, and he would like to hear about consequences for poor performance by employees.

Mr L Mbinda (PAC) also asked ICASA what it is realigning. He wanted to know more about policies mentioned in the presentation and referencing in terms of section 189. There was no mention of the outcomes. All the presentation talked about was the change in the policies – was that the reorganisation? 

Mr W Madisha (COPE) asked ICASA to elaborate on the  new union and explain the agreed percentage, how ICASA reacted to that and how interaction would follow. He thought ICASA was acting wrongly and should give the workers space to negotiate. Secondly he asked if ICASA is necessary and should continue to be in existence? He asked ICASA to prove why It should continue, and if it was not wasting public money. This presentation had not shown any achievements in monitoring or the success or otherwise of the operation and that was a major problem. He emphasised that he wanted a response on the workers. He asked how a conclusion would be reached.

Ms V Van Dyk (DA) asked about penalties, noting that convictions and fines could follow for failure to comply with a decision, and asked if the Board here was acting on behalf of the public, if this was constitutionally correct and who would be liable -the board, or the public. She asked if imprisonment applied to board members.

The Chairperson asked for an explanation about page 16 of the presentation, the court action, at point number two. He said he is struggling to understand ICASA’s independence in the entire operations led by the Ministry, and wanted more elaboration on that point. The annual report had raised issues about communication between the Ministry and ICASA. Another point was the strike management plan and asked if there were routine signatures twice a day, and what was the reason for those times being chosen, as different to times when workers were not striking.

Mr Mohlaloga responded to the question of communication and noted that historically ICASA would communicate directly to Parliament and the Portfolio Committee would communicate directly with ICASA. That had changed because ICASA now should submit their presentations to the Portfolio Committee through the Ministry.

Mr Mohlaloga said that ICASA cannot do anything unless empowered by the law to do so and that is why most of the decisions are subject to review. The review is based on three issues; what is the legal authority that it has; are the actions consistent with the regulations; is the process correct?  The law has established the CCC and the mandate is well explained in the Act. The issue raised by Mr Tsedi about the findings of the CCC is dealt with in section 17(d) on the findings by CCC. It can make a finding and recommend to Council, which will make the final decision. The Act sets out how to enforce this decision and also prescribes penalties. However if these penalties are not effective enough then the law makers should look at them again and strengthen the provisions.

Mr Mohlaloga answered questions on SABC. SABC wrote to CASA saying it will comply with the judgment given. ICASA asked for proof to show that SABC have accepted the findings, which should be in the form of a Board resolution. That is where ICASA stands at the moment, because there is no proof yet. CCC is looking at the matter. Where there is non-compliance it will need proof of non-compliance so that it can raise the reasonable penalty that can be imposed on SABC.

Ms Tolashe asked Mr Mohlaloga to take the Portfolio Committee into his confidence as to whether SABC writing the letter was enough. She thought it  important to highlight all details of where the SABC complied, if it was after the specified deadline and if it was according to the law. If SABC said it did comply, then proof must be given.

Mr Gungubele made a follow up question, saying that if ICASA was not checking, what had been done? ICASA made the decision and thus ought to know whether there had been compliance to date.  It is not acceptable to say that ICASA is waiting for proof of compliance by SABC – there is a need for particular evidence and in his view it was not up to SABC now, but for ICASA to enforce its own requirements.

Ms Van Damme repeated that ICASA is simply passive and is not monitoring the compliance. She wanted specifics of what exactly it was doing to ensure that the order was complied with. She questioned why Mr Mohlaloga suggested that if the penalties were not effective, the lawmakers should look at them again. ICASA must use the tools at hand and actually implement the law as it stands. The legislators cannot look at the effectiveness of the law when ICASA is not implementing what is already there.

The Chairperson said ICASA was not answering the questions and nothing was clear, and he wanted a more precise answer from Mr Mohlaloga.

Mr Mohlaloga said maybe he had been misunderstood on the penalty issue. ICASA can only impose penalties that are provided for in the Act, so he had been suggesting that if the Committee felt those penalties were not strong enough, they may need to be revised.

Mr Gungubele said the question is not whether the penalties are too low or otherwise, but why ICASA had not implemented them already against the SABC.

Mr Madisha, on behalf of the Committee, pointed out that ICASA had been given a chance to speak, and the Committee was now indicating what it felt that ICASA should be doing.

The Chairperson pointed out that the Portfolio Committee was clearly not happy, and Members were saying that ICASA had not satisfied them as to what had been done.

Mr Willington Ngwepe, Chief Operations Officer, ICASA, highlighted what had happened thus far. The  order and the endorsement of CCC were issued on 11 July. On 20 July ICASA received a letter from SABC, undertaking to abide by the order. The order is in two parts, as highlighted in the presentation. SABC in essence they gave a commitment to comply with one part of the order. The second part of the order deals with the resolution by the board, and SABC had to confirm that indeed the board had resolved officially to comply with the Order. So far there was no indication that SABC had complied by taking a board decision or by showing that it still was not broadcasting violent protest actions. However ICASA has taken cognisance of some of the developments around this issue, including the court action by some of the employees to the Constitutional Court. This suggested that some policy was still in place that was contrary to what ICASA had ordered, and ICASA would be proactively engaging with those who suggested that the policy was still in place. In regard to the board decision,  which suggests that there is still some policy in place that is contrary to what ICASA has ordered. He said therefore ICASA will be taking action to proactively engage those people who made the allegations that the policy is still in place. On the second part, dealing with the resolution of the board, ICASA had been advised to go to court for a mandatory order to compel SABC to comply with part B of the order. However, if the order was in place, it would be a waste of taxpayers’ money to chase up a resolution if in substance the organisation was complying already.

Ms Katharina Pillay, ICASA Councillor, said that the response from SABC was essentially to the effect that SABC was complying, but had not had a policy review yet. ICASA was investigating this in order to confirm it. Depending on what was found, a penalty might be imposed, but if it were inappropriately low ICASA might approach the court asking for alternative relief to what was in the Act.

Mr Ngwepe again said that the key issue to highlight was that ICASA, having made the decision, was still to observe whether SABC was continuing along the same lines. It was waiting for the results of the monitoring, but thus far had not seen that there was a blanket ban on broadcasting protest actions. If that was still in place, then ICASA will have to go to the next stage of investigation which will bring a much tougher form of penalty.

Ms Van Damme said it is a good thing that ICASA has admitted that there is something that needs to be looked at in regard to SABC. However Mr Ngwepe and Ms Pillay contradicted each other. They now suggested that there was a need for an investigating. It was disappointing that it took ICASA four months to get to that viewpoint. ICASA should do its job. It had an Act, this prescribed penalties and they should be used, rather than wasting taxpayers’ money approaching the court.

Ms Pillay shook her head, indicating her disagreement that she had contradicted her colleague.

The Chairperson pointed out that it was not good to merely gesture, pointing out that in some cultures, a shake of the head was an indicator of agreement.

Mr Madisha said that the issue of workers must be addressed, not shrugged off, and he asked ICASA to explain why it was saying it had not seen non-compliance.

Ms Tolashe questioned the systems monitoring this issue. The judgment was handed down in July. Today, ICASA had still not been able to give proper answers. This went back to Mr Madisha's question whether there was merit in even having ICASA.

Mr Gungubele said the biggest question was what SABC was guilty of, and what did it have to correct? If that could not be answered, then nothing could be done. Independently-verified facts were needed. What was ICASA charging SABC for? How had SABC been at fault? ICASA should have known, from its own assessment, what the impact was. ICASA said SABC had written to ICASA – but where was the proof of that? Why, between 11 July and now, is there nothing to say that the resolution has been withdrawn retrospectively? Given the number of questions outstanding, he queried why ICASA was still in existence if it was having no impact.

Mr Tsedi said he wanted to approach the same question from another angle. A complainant could lodge a complaint against the SABC with ICASA. Nothing had been said about whether the complainant in this case was satisfied, and he wanted clarity on that, suggesting that no complaint could be closed without feedback to the complainant.

Mr Mohlaloga said the complaint was about the decision that SABC took on coverage of burning property due to violent protests. SABC was asked to respond to the complaint. Hearings were held and recommendations were made. ICASA is mentioning the constitutional rights such as freedom of expression because they have a bearing on the decision. ICASA is also speaking to the Broadcasting Act to locate the decision. ICASA received a letter of undertaking that SABC would comply with the order. However, ICASA still needed a SABC board resolution saying that the policy was to be withdrawn, retrospectively. That had not yet been provided.

Mr Mohlaloga indicated that there are monitoring systems in place. In regard to broadcasters, there are annual reports on compliance, and there are also robust mechanisms, although there is no national footprint to ensure that ICASA can be in some of the provinces.

Ms Tolashe said that ICASA should accept that it did not have the tools to implement, and there was no time frame, and supported the view of Mr Madisha that this brought the necessity for ICASA's existence into question.

The Chairperson thought ICASA should exist, but should correct the way it operated.

Ms Van Damme said ICASA does not have any sense of urgency. She suggested that the Committee should now request clear deadlines and specifics on how the order was to be implemented.

The Chairperson agreed and asked ICASA to give the Committee clear deadlines.

Mr Tsedi asked whether ICASA has proactive mechanisms to deal with matters of regulation and compliance. He asked if it had any forum where it could speak to all bodies in the Industry.

Mr Pakamile Pongwana, Chief Executive Officer, ICASA, clarified that within ICASA there is a Broadcast Monitoring System, which would monitor specifically what SABC continues to broadcast. That unit checks all obligations that a licensee has, especially in the broadcasting environment. That system can monitor whether SABC has stopped broadcasting violent protests, but he conceded that perhaps the monitoring had fallen short her because ICASA had asked the SABC to provide the proof of what was being broadcast. He said that there was seemingly no resolution by SABC, but rather a media statement. ICASA would provide deadlines and notify these to the Committee.

Mr Pongwana clarified that Mr Ngwepe was trying to explain, in relation to the observations, that the ICASA Council had taken a decision last Thursday that it would be pointless to go back to the CCC if it is found that SABC is not compliant. In that case, ICASA would rather take further action, going to court asking for an interdict.

He also answered the questions on realignment. ICASA was formed in 2000 as a combination of the South African Telecommunications Regulatory Authority and the Independent Broadcasting Authority. (That Act was amended in 2006, in relation to a postal regulator which already existed in the Department of Communications). Subsequent to 2002, the Electronic and Communications Transactions Act was introduced and became a responsibility of ICASA.

Adam Smith's research indicated that this was not an appropriate structure, and that all employees below management positions were part of the Bargaining Council, which meant that the structure had to be revised. There were a number of discrepancies, such as managers getting 10% increases and senior managers who fell under the public service getting the CPI-related increase. IN the public service, all policies should be revised yearly. It had been found that some policies were not. The Communication Workers Union recognised that if ICASA were to continue like that, the organisation would go down. At the moment ICASA was sitting with 55 extra people who were handling purely administration, but there had been an undertaking in 2013 that ICASA will not retrench. It had begun a restructuring process, therefore, on 1 April 2015, and those who were sitting in positions for which they were not qualified were given bursaries to go and improve their education.

He added that employees decided to leave CWU just because they felt that it was no longer serving their interest. They ended up joining the National Trade Union Congress, and there were still discussions ongoing as to whether this met the 30% membership threshold.  Restructuring was discussed by both the CWU and the employers' representatives.

In regard to the strikes, he said that in 2013 it had been difficult to prove who was or was not working, and the sign-in of employees during the strike was one way to implement the “no work, no pay” system, as this would monitor who was working and who was not. In relation to Mr Tsedi's question, he pointed out that there was always a discrepancy where some employees would believe they had performed, and management disagreed.   Performance is the starting point to measure whether or not bonuses are justified. Performance Improvement Plans are meant to put an employee who is below threshold under training, and if they still do not improve, the organisation can let this employee go.

Ms Van Damme asked ICASA to update the Committee about etv ‘s application that required an amendment on its licence about the airing on prime time news.

Mr Mbinda asked ICASA what its plans are about the 55 excess employees. He wondered, if employees resigned from the CWU so that it could not meet the threshold, at what point the 90 days would start the run for the union to correct the situation. He thought the process seemed rushed and asked if the issues raised had been solved.

Mr Madisha commented that he was now more satisfied that perhaps ICASA was relevant, but the issue was still whether it could implement what it had. The weaknesses had been noted; ICASA needed to give clear dates, with deadlines, and establish what had to be done. He asked the Chairperson to give a ruling on that. In public broadcasting there were many challenges and things to be done. He suggested that there should be deadlines, and that by a particular period, certain actions should be taken.

Mr Tsedi asked if SABC and ICASA reported to the same Minister and Acting Director-General. He wanted to know more about the attitude of the Minister and Acting Director General, and whether ICASA had “hit a wall” in this report, what interventions it could come up with, and whether it got assistance to deal with matters.

Ms Tolashe thanked the CEO for a clear response. She asked if ICASA was making itself vulnerable; if other organisations were to commit the same mistakes as SABC, how would it handle that? She wondered if it was not creating a precedent that it could not sustain. She asked what made it not able to implement and supported Mr Madisha in the question of getting deadlines.

Mr Gungubele thanked the CEO for highlighting issues more clearly and in perspective. He understood section 189 to be the result of a process of interventions, but said the detail of how this was handled differed between institutions. He asked what has been concluded about SABC. He understood that this was a resolution being dealt with, and that, subjectively, SABC had to abide by the judgment of the CCC. If ICASA agreed that there were monitoring systems, then he wanted to know how they were implemented, to reach a common understanding. The fact that the monitoring systems were not used is not a good reflection. On reporting, independence and dependency is important, and ICASA must advise Parliament about the challenges in this relationship, and not undermine authorities.

Mr Mohlaloga agreed that there were complexities. Ministers were shareholders in the entities that they were regulating, but were also the policy makers.

In relation to etv, he said that an application had been received the previous week from etv asking that the licence terms and conditions be amended. Performance periods ran from 5am to 11pm, but prime time was 5 pm to 10pm, and there were prescriptions in that time as to how much time etv could dedicate to news. Etv's request related to performance time. SABC objected to that. The CCC was still sitting to see if that application could be granted and ICASA would revert with the judgment.

The Chairperson asked that an answer be given on that, before Parliament rises.

Mr Pongwana said the 90-day period of notice to CWU was not rushed; it was discussed. Mr Pongwana said, in answer to the question on whether the 90 days to CWU was a rush, that it was not rushed because it was discussed. He therefore asked the Executive Human Resource to elaborate further on the labour issues.

Ms Busi Mtsweni, Human Resources Executive, ICASA, provided more clarity on section 189 of the LRA. ICASA embarked on section 189 processes in terms of restructuring, but did not want to unsettle the restructuring with dismissals based on operational reasons. It was agreed with CWU that ICASA will not be dismissing employees based on operations. Instead of using the term “restructuring” it had used “realignment” to place employees on their rightful positions. CWU was made aware, on a monthly basis, of the numbers dropping and confidence was lost as the numbers continued to drop. The 90 days started from September and ran to December, to give sufficient time to address this. ICASA is aware that every employee has the right to join a Trade Union. At one time ICASA was out of the union but received a petition from employees who did not have representatives, were not prepared to elect or nominate the representatives and expected the management to be involved with all employees, which was not practical. Those employees also did not attend a meeting. In regard to the excess employees, it had been agreed that ICASA would not dismiss, and most of these were in support functions. They were employed, but were not idle. ICASA was managing the numbers by not filling positions that fell vacant.

The Chairperson reiterated that the pending issues must be answered before Parliament rises.

Other business
Adoption of Committee minutes
18 October 2016
Minutes from the meeting on 18 October were adopted. ~

25 October 2016
Members then discussed the minutes of 25 October 2016, which had considered the Budgetary Review and Recommendations Report.

Ms Tolashe said it is an agreement of the amendments to the BRRR and thought it was clear.

Ms van Damme agreed with Mr Tsedi that the recommendations were thinly noted.

Mr Gungubele said minutes can be short, as long as they reflect what was discussed.

The Chairperson asked if there were any objections on the minutes, noted that there were none and confirmed the adoption of the minutes.

27 October 2016
The minutes of 27 October were adopted.

The meeting was adjourned.