Independent Communications Authority Bill: discussion

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
4 April 2000
SACRA BILL: DISCUSSION

 

SATRA - Further Comments on the SACRA Bill
Vodacom - Further Comments on the SACRA Bill
SABC - Further Comments on the SACRA Bill
Multi-Choice Africa and M-Net - Further Comments on the SACRA Bill

SUMMARY
The Committee reviewed the South African Communications Regulatory Authority (SACRA) Bill, and discussed possible amendments to the Bill.

The DP and IFP argued that the size of the Council should be increased to nine members as outlined in the Darling Report. The current number of five to seven members was not thought to be representative of a broad cross-section of the population, and could not ensure that both the broadcasting and telecommunications industries were adequately represented. The ANC was adamant, however, that the Council consist of seven members.

The committee agreed to implement the "lot system" for the new Council, with the chairperson sitting for a period of five years, and the councillors sitting for four years. Under the "lot system", the Minister would no longer be responsible for designating three of the members to serve for a period of two years.

The IFP put forth the position that it was inappropriate for public servants to be able to serve on standing or special committees, since their involvement would create political interference and jeopardize the independence of the Authority. Both the Department of Communications and the ANC rejected the argument stating it was necessary to include public servants in order to ensure that members of these committees were aptly qualified.

MINUTES
Mr Kekana (Chairperson) stated that there were two items on the agenda. First, a review of the SACRA Bill, and secondly, a briefing by the Minister on the third cellular licence.

South African Communications Regulatory Authority Bill
Further written representations had been submitted on the SACRA Bill by the South African Broadcasting Corporation (SABC), Vodacom, and the South African Telecommunications Regulatory Authority (SATRA) which made specific recommendations on changing clauses within the Bill. The Chair stated that all clauses pertaining to finances and accounting would be held over until discussions occurred with the State Expenditure and the Office of the Auditor-General.

Clause 2: Objects of Act
Ms Smuts (DP) argued that it must be clearly stated that the regulation of telecommunications was done in the public interest. In addition, a new subsection must be added to address the institutional independence of the Authority. It was suggested that in order to express the "administrative and institutional character" of the new Authority, the new subsection incorporate 3(3) of the Independent Broadcasting Authority (IBA) Act, and 5(3) of the Telecommunications Act. The Chair agreed, stating that the additional subsection would also link the Objects of this Act to the objectives outlined in the underlying statutes. All members agreed.

Clause 5: Constitution of and appointment of councillors to Council
Ms Smuts (DP) raised concern over the number of councillors, preferring the nine members as suggested in the Darling Report. The current number of five to seven members was not thought to properly represent a broad cross-section of the population of the Republic. It would also be difficult to find people with the necessary qualifications in both the broadcasting and telecommunications industries. By increasing the size of the Council, it would ensure greater representation of the country, and allow for both broadcasting and telecommunications to be adequately represented.

The Chair stated in determining the size of the Council, it was necessary to consider the cost to the public of the councillors and the support staff, the need for "expert administration", and the Council's workload. Mr Abram (UDM) asked that the committee be made aware of the salaries councillors would receive before a decision on the size of the Council was made.

Ms Smuts (DP) refuted this request stating committee members must understand that in order for the Council to consist of highly skilled and experienced members, their salaries must be commensurate with the private sector.

Ms Magazi (ANC) asked why it would be necessary to increase the size of the Council. Ms Vos (IFP) responded that the regulator had clearly stated they were unable at present to complete the tasks they were mandated due to a lack of economic and human resources.

Ms Smuts (DP) asked if the ANC would support maintaining the existing Councils to fulfill the role of the underlying statutes? No answer was given.

Clause 6: Disqualification
Ms Vos (IFP) asked the committee to consider the submission of Multi-Choice Africa which stated a person must not be appointed if they had controlling interests in the broadcasting or telecommunications industry for a period of twelve months prior to their appointment.

Ms Smuts (DP) doubted the fairness of excluding a potential councillor on the basis that a family member had a controlling or financial interest in either industry. Family members with little influence or only a small financial interest would not create a serious conflict of interest. It was thought the Bill should stipulate precisely what levels of controlling and financial interests would be deemed controversial. Ms Vos (IFP) also suggested that for the purpose of clarity, all references to financial interests be preceded by the terms direct and indirect, instead of substantial. The Chair said both points would be noted for further discussion.

Mr Pieterse (ANC) raised concern that no specific mention was made of disqualification on the basis of gender-specific crimes, or of failure to pay maintenance for children.

Adv Smuts, the State Law Advisor, replied that it was standard practice that such crimes were included under offences involving dishonesty. To include specific crimes would be problematic since there were too many to list.

Clause 7: Terms of Office
The committee agreed to implement the "lot system" for the new Council, with the chairperson sitting for a period of five years, and the councillors sitting for four years. Under the "lot system", the Minister would no longer be responsible for designating three of the members to serve for a period of two years.

The ANC suggested that a notice of resignation by a councillor be changed from one month to three months. Mr Mjwara, Senior General Manager of Broadcasting Policy for the Department of Communications, stated that it had been decided that one month be used, since councillors who resign from office would more than likely have accepted a position within the private sector, and that to ask them to remain for three months would lead to a conflict of interest.

Ms Vos (IFP) asked if councillors would be able to hold directorships while sitting on the Council. Mr Hoon, the State Law Advisor, stated that councillors would not be able to hold directorships if they received remuneration for those positions.

Clause 8: Removal from office
It was agreed that the removal of councillors from office would be the responsibility of the Portfolio Committee, and not the President.

The Chair was concerned that the clause did not adequately outline the process by which a councillor would be removed from office, referring to the IBA Act which had established an appointing body to handle such matters. It was also thought that the reasons stated for removing a councillor from office such as "misconduct, or any other good reason" needed to be more clearly defined. The State Law Advisors were asked to look into the underlying statutes to address these concerns.

Clause 9: Vacancies
Ms Vos (IFP) argued that it was problematic that a councillor appointed during a vacancy should only hold that office for the remainder of the predecessor's term. It was unrealistic to expect people to leave the private sector for a term that may only be for a few months. Mr Hoon stated that it was common practice that the appointee would only fulfill the remainder of the vacant term. The Chair asked the State Law Advisors to look into this issue further, emphasising the need to balance attracting highly qualified people against standard practice.

Clause 10: Remuneration
The Committee agreed that the remuneration of councillors should be determined in consultation with the Minister of Finance instead of with the Minister's approval. A question was raised as to whether the clause should state that the remuneration and allowances for councillors would be set at a market-related level, however, Mr Hoon stated that direct mention of market related salaries did not usually appear in legislation. Ms Vos (IFP) noted that it was important the committee refers to section 219 of the Constitution, and involve the Departments of Finance and the Treasury on discussions surrounding remuneration.

Clause 11: Meetings of Council
The Chair reminded the members that the purpose of this clause was to differentiate between regular Council meetings and special meetings by request of at least two councillors. The Chairperson of the Council must then convene a special meeting within two days of receiving the request. Ms Vos (IFP) argued that it would be difficult for a majority of the members, which would constitute the quorum, to avail themselves within such a short period of time. Mr Hoon replied that the Chairperson must take action within two days of receiving the request to establish the date that the meeting would be held, and not that the meeting would have to take place within that time frame.

Clause 12: Conflicting interests
The ANC suggested that the fine for councillors found guilty of an offence pertaining to conflicting interests as outlined in subsections (1) or (2), be increased to R500 000, and include a jail sentence not to exceed five years. The Chair asked the Law Advisors if this would be enforceable. Mr Hoon replied that the monetary equivalent of jail sentences had already been set by the Minister (of Justice) under the Adjustment of Fines Act, but that it was possible for the Portfolio Committee to set its own fine. The Chair felt it was necessary to have strict sentences in place to reflect the seriousness of the crimes.

Clause 13: Validity of proceedings
Ms Smuts (DP) argued that this clause did not properly encapsulate what the committee was trying to express, and suggested that it be replaced by section 16 of the Telecommunications Act. The committee agreed.

Clause 14: Staff
The ANC suggested that 1(a) be deleted in its entirety and replaced with subject to section 36 of the Public Finance Management Act, 1999(PFMA). This would ensure that the chief executive officer of the Council would not be subject to the Council's direction and control in any financial, clerical, or administrative functions arising from the SACRA Bill, but would instead be subjected to the PFMA.

Dr Mulder (FF) asked if it was necessary to include 14(2) which makes reference to the advancement of disadvantaged persons, and to equal opportunity employment practices, since they are both covered in the Employment Equity Act.

The Chair asked the Law Advisors to consider both options.

Members also raised concern that persons in the employ of the Authority would receive remuneration and allowances that were consistent with the public sector, and not the private sector. It was thought that salaries consistent with the public sector would not be sufficient to attract highly qualified people. Mr Mjwara refuted the claim stating that public sector salaries were competitive with the private sector. He added that councillor salaries would be commensurate to the work they would be performing, and that they would also be negotiable. The Chair asked that salary schedules for the current Councils be made available to the committee.

Clause 15: Financing of and accounting by Authority
The ANC asked that this clause be brought in line with the PFMA. All members agreed. The Chair asked that the Law Advisors redraft the clause.

Clause 16: Annual Report
The committee agreed that this clause needed to be redrafted to be brought in line with the PFMA.

Clause 17: Standing and special committees
Ms Vos (IFP) queried why members of standing or special committees must not be subject to the disqualification's outlined in 6(1)(e) to (k). The involvement of Members of Parliament or public servants in these committees would create political interference and would jeopardize the independence of the Authority. Mr Mjwara responded that the Authority must include public servants in order to ensure that additional members were aptly qualified. Ms Vos was not satisfied with the response.

The Department of Communications argued that the remuneration of members of standing or special committees should be determined by the Council and not by the Minister and Minister of Finance. The committee agreed.

Clause 18: Dissolution of IBA and SATRA, and first meeting of Council
There was discussion as to whether councillors should be dealt with in accordance with section 189 of the Labour Relations Act, 1995. The committee was unclear as to what other laws would cover the councillor's contracts. The Law Advisors were asked to look into this issue.

No problems were raised pertaining to clauses 19 through 24.

The committee looked at the Bill's Schedules The majority of the references to amendments and repealing of sections of the Independent Broadcasting Act and the Telecommunications Act were agreed to.