iKamva Bill: finalisation; SA Connect: status report

Telecommunications and Postal Services

30 October 2018
Chairperson: Mr J Mahlangu (ANC)
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Meeting Summary

The Committee met to deliberate on the IKAMVA Bill [B10B -2018] and to get an update on the progress report on SA Connect’s activities.

There was discussion on Members’ concern that training in the IT sector was through accredited courses provided by registered service providers and whether the board and CEO could be held accountable for this.
There were some technical corrections made under definitions. The Committee deliberated on whether to use ‘directive’ or ‘direction’ in Clause 4(4) but opted to use ‘direction’ as requested by the Department. Concern was also expressed on the abuse of holding too many board meetings and Clause 13.6 was adjusted to force the board to report on holding meetings which ran above the norm for a year. There was also a discussion on the position of the current Acting CEO in any new structure. It was clarified that the board was in the process of getting a CEO. Any acting CEO post was subject to replacement at any time and to safeguard matters Clause 23.8 was amended to exclude anyone holding an acting capacity post, but those people would still have the right to apply for the CEO post of the new institution. On deliberations on the Memorandum of the bill, the requirement for a Regulatory Impact Assessment was discussed and the Department was asked to supply one forthwith.

The Committee adopted the Bill and the report on the Bill.

Moving on to SA Connect, the Department said that apart from SA Connect, there were other broadband initiatives by provinces and through the Universal Service Access Obligations. SA Connect connected government, business, and individual users. SA Connect had four key strategic pillars, namely digital readiness, digital development, digital future, digital opportunity.

On digital development, there was a two phased implementation approach. In Phase 1, 6 135 facilities in eight District Municipalities would be connected and in Phase 2, 35 211 facilities in 44 District Municipalities would be connected, but budget cuts had resulted in a drastic reduction in the number of the facilities being connected. The Department applied for Phase 2 funding to Treasury in October 2017 and Treasury responded with a recommendation that the Department conduct a comprehensive feasibility study for the funding of Phase 2 and resubmit the application. DBSA, on behalf of the Department, was in the process of appointing a service provider to develop a scope for the feasibility study.

Members proposed that discussion on the presentation be deferred to the following week.

The Chairperson agreed and apologised to the Department. He asked that the Department also inform the Committee at that meeting when SITA would switch on connections.

On another matter relating to SITA, he said the Committee had in the previous week dealt with SITA matters relating to putting SITA personnel at risk. He had a meeting with the chairperson of SCOPA who had been shocked to learn the SITA CFO had left. The SCOPA chairperson said the Department of Police and SITA would be appearing before the SCOPA and invited Committee members to sit in on the meeting.

Meeting report

iKamva Bill: deliberations
Ms J Kilian (ANC) was concerned about training in the IT sector because some courses were not accredited, and some institutions were not registered with the Department of Higher Education (DHE). Where certificates were not recognised or used by the qualification body, people’s money was being wasted. The clauses need to be tightened to allow only for the use of registered service providers.

Ms Fatima Ebrahim, Parliamentary Legal Advisor, said she was originally concerned, but Colabs were linked to post school training as defined in the bill and there were measures to prevent such occurrences.

Ms Kilian asked if the Skills Development Act (SDA) should also not be covered as some Institutions were registered but their courses were not accredited.

Ms Ebrahim said that clause 5(4) meant that accredited courses were developed.

Ms Kilian asked if there was anything in the bill that held the board and CEO accountable for this.

Prof Walter Claassen, Chairperson, NEMISA, said that the board and NEMISA ensured that the laws of the land were followed. Short course accreditation was done but might not be linked to a particular NQF level. He added that most of the Colabs did short courses and the issue was complex.

The Chairperson asked if the Department rather than the bill was best placed to close gaps.

Clause-by-Clause Consideration

The Committee went through the Bill, clause by clause.

Long Title

There were no objections to the long title and it was adopted.

Clause 1
Ms Ebrahim said that that section 6(8) should read section 6(7) under definitions 1, with reference to the clause [ "chairperson" means the chairperson of the Board appointed in terms of section 6(8)]. 

Ms Ebrahim said that where it said, “Higher Education and Training Act”, the words “and Training” had to be removed.

Ms Kilian asked if the Skills Development Act (SDA) should not be referenced.
Ms Ebrahim said the SDA dealt with the workplace. The SDA was in 4(1)(g) and 4(2).
Clause 1 was adopted with amendments.

Clauses 2 and 3
Clauses 2 and 3 were adopted

Clause 4                
Ms Ebrahim said the Department wanted to change ‘directive’ to ‘direction’ in clause 4(4) to standardise terminology in all its bills.

Ms Kilian suggested using ‘directive’.

Mr C Mackenzie (DA) agreed with ‘direction’ to streamline terminology. 

Ms Kilian noted that clause 4(4) should also be only Department of Higher Education.

Ms M Shinn (DA) said the bill was under one minister. Did it need the involvement of two ministers; otherwise there would be parallel regulatory boundaries?

The Chairperson agreed with Ms Shinn.

Ms Kilian said the NQF guaranteed skills training. Would the bill need stronger clauses in case the National Qualifications Framework (NQF) changed?

Ms Ebrahim said the only place the NQF was relevant, was the accreditation of courses. Policy direction here was about where the establishment of Colabs would be placed for example. She said there was automatic compliance with the law even with other ministers. She added that the Department would prefer the word ‘direction’ and not ‘directive’ in clause 4(4).

Mr Omega Shelembe, DDG: SOC Oversight, Department of Telecommunications and Postal Services (DTPS), said the call for the word ‘direction’ came from legal advice that there be consistency.

Mr Alf Wiltz, Chief Director: Telecommunications Policy, DTPS, said whatever was chosen would also have to occur in clause 22 as well and the Department had been using ‘direction’ since at least 2005.

Ms Kilian said one should change it to “must implement policy and consider direction”

Ms Ebrahim said the word ‘consider’ in law meant one needed grounds to deviate. One could not just ignore a clause because that would be grounds to dissolve the board. She said the word ‘consider’ was the key word, not ‘directive’ or ‘direction’.

Ms Shinn said ‘must implement’ limited the Minister to policy input only.

Ms Kilian suggested that Clause 22(2) read ‘may make’ policy.

Mr Wiltz said policy and policy direction went together and gave direction or focus to what the policy was, and this flowed from clause 22. The term ‘must consider’ was used because ICASA was an independent body. The Department could include additional functions but suggested that clause 4(4) be used with the word ‘direction’ replacing ‘directive’.

Ms Kilian agreed to this and the amended Clause 4 was adopted.

Clause 5
Mr Shelembe proposed that the word ‘must’ be replaced by ‘may’ to allow for the rollover of unspent funds.

Ms Kilian said that misappropriation carried weight.

To accommodate that, Ms Ebrahim proposed the wording ‘treatment of unspent surplus funds and return of misappropriated funds’

Ms Kilian suggested ‘recovery’ instead of ‘return’ of misappropriated funds.

The amended Clause was adopted

Clause 6
Ms Kilian asked if clause 6(9) referred to the board as a whole, or to individuals on the board.

Ms Ebrahim said it referred to the board as a whole.

Ms Kilian asked how individual assessments could be ensured. 

Mr Shelembe said there was an agreement between the board and the Minister to achieve strategic objectives and this was difficult to attribute to individuals. The board should adopt a code of ethics on how the board should behave. The board took decisions on the running and direction of the entity.

 Ms Kilian said there should be a way for good board members to be retained.

Ms Ebrahim said that when the Minister dissolved the board, there was nothing stopping the Minister from re-appointing members of the previous board.

The Clause was adopted.

Clause 7
Ms Kilian asked why the person with a legal background on the board was not required to be a specialist in ICT law.

Ms Shinn said that it could be that the board needed access to other parts of the law such as commercial law.

Ms Ebrahim said that in clause 7(3)(a), ‘subsection (1)’ should read ‘subsection (4)’

Mr Mackenzie asked where the short-list derived from.

Ms Ebrahim said it was from the 20 suggested in clause 7(4).

The amended Clause was adopted.


Clause 8
Clause 8 was adopted.

Clause 9
Ms Kilian said she thought Clause (9)(i) had been deleted.

The Chairperson said that an hour had been spent on the issue in a previous meeting in which Ms Kilian had been absent and the meeting had agreed to it.

Clause 9 was adopted.

Clause 10
Ms Ebrahim said that in 10(1)(a), section 9(2) and (3) should read ‘section 9(2) or (3)’.

Clause 10 with amendments was adopted.

Clause 11
Ms Ebrahim said that in Clause 11(8), subsection 4 should be excluded because it could not be contravened. 

Ms Kilian asked if it was correct to limit the court to a fine.

Ms Ebrahim said that inserting the minimum amount was an instruction to the court that it could not be less, and the minimum was to make the penalty be in line with other legislation.

Mr Mackenzie noted that the period was annually and queried whether it should not read ‘when the conflict arises’. 

Ms Shinn said it was covered in Clause 11(2).

Ms Ebrahim said it was covered in Clause 12(2)(b).

The Chairperson reminded the meeting that the fine had been raised from an amount of R250 000 to R500 000.

Clause 11 with amendments was adopted.

Clause 12
Mr Mackenzie asked if there was a definition for misconduct

Ms Ebrahim replied that there was no definition. There had been discussion and misconduct fell under labour relations. The code of ethics would be used. The problem was that if such a definition was inserted it would limit the available scenarios to act.

Clause 12 was adopted.

Clause 13
Ms Ebrahim said that in clause 13(2)(b)(iii) should read ‘Non-executive members of the Board’.

Ms Kilian expressed concern that 13(6) - which allowed the committee to meet as often as necessary - might lead to micromanagement or be lucrative for the board.

Ms Shinn said that it was necessary in case of crises.

Prof Claassen said the number of meetings was regulated by the formal governance agreement and the Department could take the board to account.

Ms Ebrahim said that the problem was that the PFMA was forgotten. Entities were seldom held to account through implementation of the PFMA. Those laws should be adhered to and extra laws should not be added on to legislation.

Ms Kilian asked how it could be ensured that if there were more than the stipulated meetings, the board had to report such meetings.

Ms Ebrahim provided a redrafted version: “The Committee, with due regard to financial prudence, may meet….”

The amended Clause 13 was adopted.

Clause 14
Ms Ebrahim gave a correction to Clause 14(8) where “via an Electronic Communication facility” would now read “via Electronic Communication”

With regard to Clause 14(2), Ms Kilian asked if an executive member could be the chairperson and was this advisable.

Clause 14 with amendments was adopted

Clauses 15-21
Clauses 15-21 were adopted

Clause 22
Clause 22 had already been discussed and was adopted.

Clause 23
On 23(8), Ms Kilian asked what the position was regarding the current incumbent head of NEMISA.

The Chairperson said the matter had been dealt with the previous week and decided it was an operational matter. It was about procedure.

On the concern around the Acting CEO being the Acting CEO in the new institution, Mr Shelembe said the board was in the process of recruiting a CEO. The new CEO would be appointed from February and the old CEO would be acting until January.

Ms Kilian asked if the requirements of the Public Service Act were covered.

Mr Shelembe said the current CEO was appointed in an acting capacity and so it was not an entitlement. The acting person could be replaced at any time.

Ms Kilian suggested that a legal opinion be sourced.

The Chairperson said it was a labour issue.

Mr Shaun Van Breda, State Law Advisor, said the clause could be adapted to exclude persons serving in an acting capacity.

Ms Ebrahim expressed concern at reasonable expectation but said there was nothing stopping a person from re-applying for a post once it was advertised.

Clause 23 with amendments was adopted.

Clause 24
Clause 24 was adopted.

Memorandum
On Clause 1.2 of the memorandum, Ms Kilian asked if the rankings had been updated.

Prof Claassen said the updated ranking in 2016 was 65th.

On Clause 1.36, Prof Claassen said he was unsure whether Ikamva was the final name agreed upon for the entity.

Ms Ebrahim said it was just a shorter name to use in the bill.

On Clause 1.6, Mr Mackenzie asked why the term ‘e-skills’ was used and not ‘digital skills’

The Chairperson said it would be changed.

On Clause 5, Ms Kilian asked if it was not compulsory for the Regulatory Impact Assessment (RIA) to be done before the adoption of the bill.

Mr Shelembe said a Socio-Economic Impact Assessment (SEIA) was done and was submitted. He was not sure about RIA.

Ms Shinn said RIA was a waste of time because it did not give an impartial analysis and was rarely done in Parliament. She said the RIA was not done and the SEIA was favoured.

Ms Kilian noted that the Committee had to report on the matter and it could not be done if no assessment was done.

Mr Shelembe said that models were done as part of developing the business case and it had become clear that there were not enough financial resources to attain the NDP targets. The business model was adjusted to allow for a phased input. He said information could be extracted from the business case and from the presentation to the Cabinet.

Ms Ebrahim said it should have been done prior to the introduction of the bill. Her view was that the Department had to give detailed figures. Parliament did not do it.

The Chairperson said that the figures would be required by that same day.

Mr Shelembe said the Department would use the figures from the existing business case and from the Cabinet presentation.

On Clause 6, Mr Shelembe said certification had been received from legal advisors.

The bill with amendments was adopted.

Committee Report on Bill
The Chairperson read out the report on the bill highlighting that the Committee had adopted the bill.

Briefing on SA Connect
Mr Tinyiko Ngobeni, DDG: ICT Infrastructure, DTPS, said that apart from SA Connect, there were Provincial led broadband initiatives and Universal Service Access Obligation (USAO) broadband initiatives. He said the SA Connect approach was to connect government, business, and individual users. The four key strategic pillars of SA Connect were digital readiness, digital development, digital future, digital opportunity.

On digital development, there would be a two phased implementation approach which would connect schools, clinics, post offices, police stations and other government facilities. In Phase 1, 6 135 facilities in eight District Municipalities would be connected and in Phase 2, 35 211 facilities in 44 District Municipalities would be connected. He then spoke to the Phase 1 implementation plan and implementation model. He noted that the SA Connect programme was directly affected by macro environment factors. Budget cuts had resulted in a drastic reduction in the number of the facilities being connected in 2018/19 with only 570 out of the planned 2 700 government facilities being connected.  To date 375 had broadband connections of which 63 had broadband services activated.

He said Treasury has approved the Department’s roll-over request for R110m in 2018/19 and the Department extended broadband infrastructure and services to an additional 602 facilities, to make a total of 1 172 facilities during this financial year. He gave a breakdown where the additional 602 connections would be made. He said a request for additional funding was made to Treasury to sustain the rollout as initially planned. 1 630 government facilities need to be rolled out in the 2019/20 financial year to get close to the SA Connect implementation timeline. The budget of 2019/20 was cut by one third and that of 2020/21 by two thirds.

He said the Department applied for Phase 2 funding to Treasury in October 2017. Treasury responded with a recommendation that the Department conduct a comprehensive feasibility study for the funding of Phase 2 and resubmit the application. DBSA, on behalf of the Department, was in the process of appointing a service provider to develop a scope for the feasibility study.

On Provincial led broadband initiatives, he said SITA connects approximately 7 000 government entities. These include the Western Cape Broadband Initiative with1 897 facilities activated; Gauteng Provincial Government had connected 1 066 facilities and SITA was working with the Gauteng Provincial Government to connect 2 000 sites within Gauteng Province. The procurement processes for this program was concluded. To date a total of 349 facilities have been connected by USAASA to the under-serviced areas in Eastern Cape and KZN. The presentation contained detailed lists of where the connections were made in the various municipalities.

Discussion
Ms Shinn proposed that discussion on the presentation be deferred to the following week.
 
Mr Mackenzie seconded the proposal.

The Chairperson agreed and apologised to the Department. He said it had not been anticipated that the passing of the Ikamva bill would take so much time. He asked that the Department also inform the Committee at that meeting when SITA would switch on connections.

On another matter relating to SITA, he said the Committee had in the previous week dealt with SITA matters relating to putting SITA personnel at risk. He had a meeting with the chairperson of SCOPA who had been shocked to learn the SITA CFO had left. The SCOPA chairperson said the Department of Police and SITA would be appearing before SCOPA and invited Committee members to sit in on the meeting.

The meeting adjourned.

 

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