Minister letter on ICASA Council; MDDA Board & Adjustments Budget Committee Reports

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Communications

14 July 2020
Chairperson: Mr B Maneli (ANC)
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Meeting Summary

Sub-Committee meeting on MDDA interview outcomes followed by Full Committee meeting
Committee Reports

Legal opinion and letters from Minister have been requested

In a virtual meeting, the Committee unanimously adopted its Committee Report recommending these candidates to fill the four vacancies on the MDDA Board: Mr Hlengani Mathebula, Ms Brenda Leonard, Ms Andiswa Ncingwana and Ms Marina Clarke.

The Committee adopted its reports approving the special adjustments budgets of the Government Communications and Information Systems (GCIS) and the Department of Communications and Digital Technologies (DCDT).

The Committee adopted its report supporting the President’s decision to freeze at 0% the salaries of all Councillors and Chairperson of the Independent Communications Authority of South Africa (ICASA).

The Committee agreed that it would not accede to a request by the Communications Minister to fill only four of the six ICASA Council vacancies. It also agreed that it would not alter the skills set in its recommended list in line with Section 5(3)(b)(ii) and would retain its initial recommendation in order of priority.

The Committee’s position is that the skills outlined in the ICASA Act need to be considered and it believes the Minister has failed to recognise this. The Committee resolved that it would recommend that all six vacancies should be filled taking into consideration the diverse skills set.

Members were concerned by this meddling with the powers of Parliament and said this was not observing the separation of powers and was unconstitutional. Some recommended that a strongly worded letter be sent to the Minister on the Committee’s disappointment.

A legal opinion recommended to the Committee that it should apply its mind to the Minister's proposed sixth appointee which differs to the order of names that was agreed on by the Committee and provide justification for its choice based on the provisions of Section 5(3).

The discussion became heated and the Chairperson reminded Members to be mindful of their conduct as South Africa was watching. Even when debating controversial matters, the Committee should be united in serving the people of South Africa. The Committee will meet on this again next week.

Meeting report

Committee Report on filling four vacancies on MDDA Board
The Committee Secretary read out the report recommending Mr Hlengani Mathebula, Ms Brenda Leonard, Ms Andiswa Ncingwana and Ms Marina Clarke for the MDDA Board. This report will be tabled in the National Assembly upon approval by the Committee.

The qualifications of the candidates were verified by upon request by Parliament's Human Resources division. The State Security Agency (SSA) checks have not been received yet as the SSA offices have been affected by COVID-19.

Mr L Molala (ANC) thanked the Sub-Committee for their good work and said the report should be adopted.

The Committee agreed to the adoption of the report.

Committee Report on Adjustments Budget of Vote 4: GCIS
The Chairperson noted that the GCIS Adjustments Budget has an upward revision. The Committee went through the report and Members were told to indicate if they wanted to raise a point on any aspect of it.

Ms N Kubheka (ANC) moved for the adoption of the report as it is.

Ms P Van Damme (DA) said she wanted to be clear on what the report was about – that the Committee was commenting on not the full budget, but only the amendments made to the budget.

The Chairperson said the focus was on the parts dealing with adjustments to the budget.

Ms Van Damme said the DA reserved its position on the report as it still needed to caucus on it.

The Committee agreed to the adoption of the report without amendment.

Committee Report on Adjusted Budget of Vote 30: Communications and Digital Technologies
On Observation 4, the Chairperson said the Committee should consider connectivity and laptops in future.

On Recommendation 10, the Chairperson said the Committee should not be seen as adjudicating the procurement process. The Committee only requested this for assurance that the procurement process was followed and whether legal challenges arose from set-top boxes which would have stalled the programme.

Mr C Mackenzie (DA) agreed with the Chairperson but said it should be rephrased to ‘present to the Committee a report on progress of the Digital Terrestrial Television (DTT) project. He thought holding the Department and the Minister to a month, could be consuming.

The Chairperson said he only wanted to ensure that it was understood that the report was required not because the Committee wanted to be involved in the tender process, but to complete its oversight.

The Committee agreed to the report with the amendment.

Committee Report on notice determining ICASA councillor remuneration
The Committee considered the report on the Independent Communications Authority of South Africa (ICASA) councillor remuneration.

The Committee supported the salary freeze and adopted the report.

Minister letter on ICASA Councillor recommendations
The Chairperson asked the Committee support staff to report on what was referred to the Committee for record purposes before the Committee engaged on the matter.

The Committee Secretary explained that the Committee received a referral from the Office of the Speaker of the National Assembly containing a letter from the Minister, which was shared with members. The letter from the Minister highlighted concerns about some of the candidates the Committee had recommended for appointment at ICASA saying that they do not possess the required skills and it emphasised some of the skills required by councillors. Two more letters were received indirectly as the Committee was copied in on them. One later indicated that the Minister was able to appoint only four candidates: Dr Keabetswe Modimoeng, Mr Peter Zimri, Adv Luthando Mkumatela and Yolisa Kedama. The last letter indicated that in the event the Committee wanted to proceed with the six names, the Minister would add the other two names: Dr Charles Lewis and Ms Dikeledi Mushi.

This matter was referred to Parliament's Constitutional and Legal Services Office (CLSO) and a legal opinion was received this afternoon. Ms Fatima Ebrahim from CLSO was present to speak to the legal opinion.

Ms Van Damme said she would first like to see the legal opinion and asked for it to be sent to her.

Mr F Mokoena (EFF) asked if the Minister was questioning the decision of Parliament. On what authority was the Minister doing this? The Minister should raise these issues with Parliament. He also wanted to hear the legal opinion first.

The Committee took a ten-minute break for the legal opinion to be emailed and read by the Committee.

Discussion
Ms Van Damme suggested that the Committee move straight into discussion of the legal opinion if members did not have questions for Ms Ebrahim.

Mr Mackenzie agreed and thanked Ms Ebrahim for the legal advice saying that it was crisply put together.

Ms Van Damme thanked CLSO for the opinion and said it was the same interpretation that she had of the Act. The Minister was allowed to give input but this was all that her role entailed as the responsibility was with Parliament to make a decision. If Parliament does not agree with the Minister's suggested appointments, it is allowed to change that. The report was sent to the Minister as seeking only her input. She had “never heard of what we had to experience here”. The Minister was questioning the authority of the National Assembly as the report was adopted by the National Assembly. “Surely the Minister would have done her due diligence to check if the law would allow what she has proposed be done, but she did not. It is a grave embarrassment that this is the person who is the Minister and is responsible for such an important sector but does not know the basic law that applies to her Department”.

She highlighted the fact that the Minister had sent three letters. First saying none of the candidates were suitable. Then she said only four candidates should be appointed and that the Committee did not do its job properly. This is unacceptable, in fact, she believe the Minister must be removed from her position. This is a simple process and this is how she acts and conducts herself. It makes one shudder to think what she does in the Ministry. The Minister has no idea what she is doing and must be removed from her position.

Ms Van Damme suggested that the Committee stick to the names it agreed on. She knew the Committee would not support her point that the Minister must be removed from her position, but asked that a very strongly worded letter be sent to the Minister expressing the Committee’s disappointment in the way the Minister has conducted herself. She stressed that it was “very, very deeply embarrassing”.

The Chairperson said Ms Van Damme had answered on the politicking side as she was dealing with something that is not to be dealt with by the Committee. He said Ms Van Damme had made her point.

Mr Mokoena shared Ms Van Damme’s sentiments saying he had never heard of this kind of thing before. “It is extremely disappointing of the Minister and the fact that the Speaker even forwarded this letter to the Committee is extremely, extremely disappointing. The Minister is setting a precedent which must not be entertained by Parliament ever again. It is not possible for Parliament to take a decision, for that decision to be ratified and taken to the executive and then the executive sends it back. On what constitutional basis is the Minister giving herself the latitude to do what she is doing? This must be communicated to her. Perhaps she is communicating as a human being, but this is not a personal conversation, this is Parliament, this is government and there are rules. There is the Constitution, there are brackets and she must abide by this. Without politicking and saying that she must be removed, he would say that a letter must be written to explain to her what her duties are. A letter must be written to the President to explain to him what his executive is doing because these are people that represent his tenure as President. He was extremely disappointed by the Minister at doing this.

Mr Molala thanked Ms Ebrahim for the legal opinion. The legal summary stated that Parliament should not accede. As an addition to this, perhaps the legal opinion could also have touched on the separation of powers so that in future there are not similar incidents. In his view the legal opinion stands and is a basis on which the Committee should write back to the Minister.

Ms Z Majozi (IFP) said the Minister knew she was not above National Parliament and that she should have known her powers were limited. She did not know how one person can think that one's wisdom is more than that of a subcommittee of six people, it does not make sense. She agreed with the previous Members that a letter must be written to the Minister to strongly emphasise that this precedent would not be allowed.

Ms Kubheka said the ICASA interview subcommittee had done its job exceptionally well and followed all processes. She did not want to raise more issues as the other members had done so. She emphasised that Committee had done its job and that South Africa should be placed first. “We as a Committee are not here by mistake or default”. She fully supported the recommendations the Committee made.

Ms Van Damme said the Committee had an extensive debate on the list of candidates and there was an order of preference. The position of the Committee would not change and she suggested that the top six names should be taken to the National Assembly. A very strongly worded letter must be sent to the Minister.

Ms Faku said the legal opinion was very clear but did not indicate the way forward. As a Committee we have done everything we were supposed to do and we did it correctly. She asked CLSO to provide clarity on a point made by Ms Van Damme [inaudible 02:32:05].

Mr Molala replied to what Ms Van Damme suggested and said that he did not think it would be proper to report on six names to the National Assembly when the Minister has not appointed six candidates. The recommendation of the legal opinion was that the Committee not accede to the request of the Minister. The Minister's letters refer to four names not six. The Minister should appoint six and then the list should be taken to the National Assembly.

Ms Kubheka asked how many names were mentioned in the Minister's letters.

The Chairperson replied that there were three letters. The Speaker's referral letter dealt with appointing four candidates instead of six and did not contain names. The second letter is on the same basis, but includes the names of the four candidates. The third letter includes the point that Parliament may want to go for six candidates and then adds the names of two candidates to the four names. He said that "not accede" means responding to the letters of the Minister. Ms Ebrahim should clarify this point.

Mr Molala said the Chairperson explained it very well. The Minister was saying that if Parliament did not agree to the re-advertisement, two names would be added.

Mr Mokoena said the ICASA appointment procedure is clear. One cannot consider the first, second or third letter. Once this is done, the separation of powers is crossed. We have a Minister who has come to Parliament and said she would make recommendations for the amendment of the Acts but does not discuss it with Parliament – but goes into her corner office and makes decisions there. This is how we messed up processes in the time of Minister Muthambi where she would go to her corner office and make decisions and think that she can impose those decisions on Parliament. We should not allow this. A decision has been made by Parliament and the Minister must implement it. It is that simple. We should not even be thinking about names. We must put our foot down so that the Minister understands her place as a Member of the Executive, because we are crossing lines now.

Ms Kubheka asked if CLSO could clarify what the role of the Minister was according to the Act.

The Chairperson handed over to CLSO to address the Committee.

Constitutional and Legal Services Office (CLSO) input
Parliamentary Legal Advisor, Ms Fatima Ebrahim, said the National Assembly recommends the number of names that is one and a half times the number of vacancies to be filled. This number was decided to be 10 to give the Minister some discretion. The Act states that if the Committee is not satisfied that the Minister in choosing her final appointees due to skills set or population representativity, then the Committee can confer with the Minister again and raise those concerns with her. For example, if the Committee compiled a list with two lawyers, which means either one or the other with a legal background should be chosen and the Minister chooses both, the Committee can question why both were chosen and state that it believed another skill was necessary. There is certainly discretion for the Minister and the only role for Parliament now is to consider whether the names that the Minister has chosen meet the requirements and skills set.

The Minister has recommended six names, but made one deviation. She has taken candidate number 10 and placed that candidate on the list of six appointees and removed another candidate. The Committee must decide whether its satisfied with this and if not, must approach the Minister to reconsider with reasons to back this up in light of the required skills set. The National Assembly does not need to be consulted about this as they have already adopted ten names. The only thing left to do is consult with the Minister and instruct her to proceed if there is agreement.

Discussion
Ms Van Damme said the Committee should give a list to the National Assembly for approval, then the list is sent to the Minister to choose names. The list is sent back to the Committee and then its sent on to the National Assembly. She suggested the Committee stick to the original list. She did not have confidence that the Minister has applied her mind correctly to the matter given her unprecedented and illegal action. The report absolutely does have to go back to the National Assembly.

Mr Mokoena said the Minister was being dodgy in a very serious way as she was literally questioning the list given to her by Parliament and this is not done. She has gone outside of her right as a Minister and it is not a hierarchy issue – it is a separation of powers. Once we allow this to happen we are setting a precedent which we will find untenable later on and we will end up in all kinds of constitutional entanglements. The decision has been made by Parliament; the names have been given to the Minister. She must do what she is supposed to do and choose the names and the names must be given back to Parliament to ratify and then they must be appointed. That’s it. She cannot come back with a new name. The Committee is governed by the Constitution and this is not done.

Ms Majozi said the Committee followed due process. All that needed to be done was for the Committee to write to the Minister saying that it could not accept her proposal and that she should reconsider. The Minister did not do the interviews. We should say firmly that she should appoint those six names as we did not make a mistake. That is the best option.

Ms Kubheka asked for clarity on the way forward as the Committee was fully satisfied with the six names it initially recommended. She agreed with Ms Van Damme that it needed to go back to the National Assembly.

Mr Molala asked Ms Ebrahim if the process should be finalised in the Committee or if it should go back to the National Assembly.

The Committee Secretary replied that the first letter which the Speaker had written is for consideration and then the Committee should report to the National Assembly. On the letter which contains the four names, and then an additional two names, he thought the National Assembly had to be reported to again.

Ms Ebrahim replied that the Committee Secretary was correct. The reason the Committee had to recommend candidates one and a half times the vacancies is because the Minister has a level of discretion on the matter and she can choose her preferred candidates from that list. The only time the National Assembly has a role to play is if the Committee is of the view, in terms of Section 5(3) that those preferred candidates do not meet the requirements for the skills set. What needs to happen now is that the Committee should apply its mind to the sixth vacancy because that name differs to the order that was initially agreed upon. The Committee must have a reason for this based on the provisions of Section 5(3) that candidate number 10 should not be appointed.

The Chairperson summarised what Ms Ebrahim said and the Committee agreed to this as the way forward.

The Committee Secretary asked if the Committee’s decision on the six recommended candidates still stands based on the skills set it recommended during the process.

The Chairperson said this was captured correctly.

Ms Kubheka asked if the Committee was now recommending five or six names.

The Chairperson said he was simply summarising the meeting and clarified that the Committee disagrees with one name that the Minister has added and wants to stick to the initial six candidates which it recommended and will advance reasons for this to ensure a broad set of skills.

Mr Molala asked if the Committee response would go to the Minister only or the National Assembly as well.

The Chairperson said the point was clarified as the legal advisor agreed that the referral is for consideration by the Committee and it will report back to the National Assembly. The Committee has to process the referral from the Speaker and then has to report back.

Members agreed that the matter was for the National Assembly as it had been referred from there.

Ms Faku said the Committee needed to be straightforward on the matter. She understood that the Committee should write to the Minister if it disagreed with her. She asked why Ms Van Damme was laughing and if she was out of order. She should not be undermined.

Ms Kubheka said that Ms Faku should not be distracted and carry on.

The Chairperson said the reason he told Members to switch off their cameras was because their facial expression may be due to their reading their own things.

Ms Van Damme continued to laugh.

Ms Faku said the Chairperson should not defend Ms Van Damme when she was doing something wrong and she was even unmuting her microphone. She said if members were not allowed to speak in the Committee the Chairperson should tell them so that “Van Damme” could be allowed to speak.

The Chairperson asked Ms Van Damme to mute her microphone and switch off her camera.

Ms Van Damme replied that she was not laughing at Ms Faku but since she was feeling self-conscious, she would switch off her camera.

Ms Faku said the Chairperson should ensure there was fairness in his Committee. She was not going to be undermined, especially by Van Damme. She could never be intimidated by her in any way.

Mr Mackenzie said he was sorry to interrupt but when one references an MP, one refers to either Ms Van Damme or Honourable Van Damme. This was now the third time that Honourable Faku has addressed Honourable Van Damme.

Ms Faku said Mr Mackenzie should also be consistent when raising such issues as Honourable Van Damme usually calls members by their names, but he never says anything. She asked for clarity on what the Legal Advisor was saying about reporting.

The Chairperson replied that the Committee Secretary explained this point and Legal Advisor confirmed his stance. The Committee would consider the letters sent to it and would report back to the National Assembly.

Ms Kubheka said it should be clear the Committee agreed to the five names, except the sixth name that the Minister added. She asked the Legal Advisor to clarify this.

The Chairperson asked Ms Ebrahim to speak to the process.

Mr Molala added that what Ms Ebrahim needed to respond to was whether the Committee referred the matter back to the Speaker or the National Assembly in a formal sitting or whether it is just being referred back to the Minister. When will the process be finalised?

Ms Ebrahim replied that there was no need to respond to the Minister on whether to accede to her request or not and that this did not need to go to the National Assembly as they cannot decide otherwise. This can merely be reported in the Committee Report and report back to the Speaker. The Committee should report that it disagrees with candidate number six and provide reasons for this. The National Assembly will report to the Minister and ask her to review her recommendation. Once she does this, the Committee can take the matter further.

Ms Kubheka said the matter should be considered with sensitivity so the Committee is not seen to be "collapsing" ICASA.

The Chairperson said it would not be the Committee that contributes to the collapse of ICASA – which should be placed on record. The Speaker would receive the report by the next day. It was important to ensure that Members be mindful that South Africans were watching the way in which they conducted themselves in meetings. He asked Members to treat each other with respect and understand that they need to speak through the chair and ask to be noted. He referred to the disagreement between Ms Faku, Ms Van Damme and Mr Mackenzie. The Committee was dealing with difficult matters and the Committee should deal with these in a way that would make South Africans say that the MPs are good representatives and have taken the Committee’s work to the next level. There will be times when it is heated, but when these controversial issues arise, we should be united as a Committee in serving the people of South Africa. He was saying this because another meeting would take place next week where Members would need to engage on this and they needed to avoid matters getting out of hand.

The Chairperson made brief closing remarks and the meeting was adjourned.

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