Independent Communications Authority of South Africa Amendment Bill: briefing

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
21 October 2005

Independent Communications Authority of South Africa Amendment Bill [B32-2005]
Department of Communications Presentation

SUMMARY
The Department briefed Members on the Independent Communications Authority of South Africa (ICASA) Amendment Bill, which aimed primarily to strengthen the Regulator. Chapters 1, 2 and 4 contained most of the issues raised. New definitions had been inserted, and old definitions amended. It was proposed to rename the Authority, and the functions of the Authority and Chairperson were clearly defined. Provision was made for registration of licenses, conduct of inquiries, appointment procedures and performance management for councillors and the Chairperson. It was noted that staff of the Postal Regulator were to be transferred from the Department of Communications to ICASA.

Members focused specifically on the issues of independence of the Regulator, the appointment of councillors, and the funding of the Regulator. It was agreed that it was important to wait for input from stakeholders before coming to a final decision on the method of appointment of councillors. The Department felt that sector input was required in the selection, but Members were concerned that the proposed process bypassed parliamentary oversight.

MINUTES
The Chairperson noted the death of Mr S Haasbroek (DA), a Member of the Committee, and extended the Committee’s sympathy to his family and party. Ms D Smuts (DA) gave a brief eulogy.

The Chairperson noted that the ICASA Amendment Bill and the Convergence Bill would be debated on 3 November 2005.

Briefing on the Independent Communications Authority of South Africa (ICASA) Amendment Bill

Ms L Shope-Mafole (Director-General) explained that the process had been initiated in 2002. The Convergence Bill process had included ICASA issues, and this had been clear from the public comments received on the Convergence Bill. The Bill sought to strengthen the Regulator by clarifying the functions of the Authority, consolidating certain powers and duties of the Authority and facilitating the appointments of the best candidates for councillors and Chairperson. It was also intended to improve the funding of the Authority, to transfer the Postal Regulator from the Department of Communications to ICASA and to establish a performance management system for the regulator.

The bulk of the issues raised in the Bill were in Chapters 1, 2 and 4. Chapter 1 dealt with the insertion of new definitions, and the amendment of old definitions. Chapter 2 covered the renaming of the Authority, the functions of the Authority and the Chairperson, and inquiries by the Authority. The Chapter also dealt with the registration of licences, conduct of inquiries, and the management of confidential information. An appointment procedure for councillors and performance management for councillors and the Chairperson were stipulated here, together with the transfer of staff from the Postal Regulator.

Confidentiality for councillors and staff of the Authority was provided for, as well as the limitation of liability of councillors. Provision was made for the establishment of the Complaints and Compliance Committee, and functions and procedures of this Committee. The appointment of inspectors, and their powers to enter, search and seize were provided for, together with the appropriate offences and penalties.

Although important, the Bill was fairly brief and dealt only with those issues relating to the Authority. One of the biggest issues related to the appointment of councillors, and some information was given on world trends on appointments. The process in the United States was closest to the South African situation, where the President appointed Commissioners, and Congress ratified these appointments.

Discussion
Ms Smuts noted the importance of the issue of appointment, tenure and removal, suggesting that those three aspects of independence should be dealt with together. She had noted with alarm that it was proposed to replace "Independent" by "Electronic" in the title of the Authority, and asked for confirmation that the communications regulator should be independent of the government of the day. The courts had developed key tests relating to independence, and these would have to be applied. Speaking under Parliamentary privilege, she cited an instance of alleged interference with the independence of SA Telecommunications Regulatory Authority (SATRA). It was unconstitutional in terms of broadcasting, and undesirable in terms of telecoms, that the Minister should appoint the Councillors. The Independent Electoral Commission (IEC) model could be used, where an independently constituted panel invited the public to nominate councillors, interviewed them, and referred the list to Parliament.

Mr G Oliphant (ANC) asked why there was a move away from the current model of appointing councillors. He noted that independence did not depend on the word, but on the actions of the Regulator. There had been numerous inputs suggesting that there was nothing unconstitutional in the proposed method of appointment. Any suggestion that this was contrary to the Constitution should be motivated.

Mr R Pieterse (ANC) questioned the accuracy of Ms Smuts’s statement, and noted that changes to regulators occurred under various circumstances.

The Chairperson reiterated a call for the Committee to hear submissions from stakeholders before deciding on this issue. The State Law Advisor and Parliamentary Legal Advisors had been requested to put together an opinion, particularly on the suggestion that there might be constitutional problems on the issues. The debate appeared more political than Constitutional, and referred more to the method to be used. He reiterated Mr Oliphant’s querying the move away from the current model of appointment.

Ms Shope-Mafole concurred that the appointment tenure and removal were very important elements. The Department believed in a strong Regulator, as it was responsible for ensuring that South Africa had a vibrant communications sector. The Regulator needed to be independent, professional and effective. In respect of the changes to appointment procedures, it had been felt that, after eleven years of independence, it was important to look at the processes and at international best practice. It was decided that it would improve the system to change the processes. A panel would be chosen to choose the best people. The vital issue was to be getting the best people, and reducing other considerations, such as politics. The panel would be carefully composed to be able to interview the most appropriate and competent people.

Mr M Mohlalonga (ANC) supposed that the international experience would also be informed by some of the protocol standards ratified and acceded to by South Africa. There were very clear imperatives that any authority in the area of broadcasting or telecommunications should be independent, and adequately protected against interference. The bodies were also required to be constituted by a multi-party forum, in this instance Parliament. He asked whether there was a problem with the profiles of people selected according to the current process.

Ms Shope-Mafole replied that the Department had been part of the drafting of the provisions mentioned. In terms of interference and independence, South Africa was preparing for the World Summit on Information Societies in Tunis. There had been considerable discussion on this specific issue. The challenge for developing countries was less about independence from government, but about independence from industry. Industry had big budgets, and could afford to interfere. It was also important to protect its independence from civil society. She concurred that public bodies, particularly the Regulator should be formally accountable to the public. She could not respond to the question about the profiles of people selected according to the current process.

Mr Pieterse asked for comment on the problems with the current system. The Chairperson noted that one of the weaknesses of the current system was that it was heavily politicised. Other Members suggested that this was, in fact, a strength.

Mr Mohlalonga reminded Members that the Authority would be regulating Sentech, amongst others, and that these were bodies established by government. Government was thus a player.

Mr S Kholwane (ANC) asked why the desired outcome could not be reached if the names were submitted to Parliament, as proposed by Ms Smuts.

Ms Smuts requested input on the thinking about the approach to the funding of the Regulator. An earlier draft of the Bill had included a provision for the Authority to retain a portion of the licence fees.

Mr Pieterse concurred that funding was important, but noted that, in a country with competing needs; it was not possible to have funders retaining funds. A model had to be found to give funding to those who needed it.

The Chairperson asked how Clause 15 helped the funding situation. It was essential that the Regulator should receive the required amount to carry out its full responsibility.

Ms Shope-Mafole concurred that there had been other elements of funding in previous versions of the Bill. The Department had engaged with the Regulator and within the sector, and the office of the National Treasury. A way had to be found to give the Regulator adequate funding. Clause 15, in fact, allowed the Authority to receive money "in any other manner", and this spoke to additional finding. This would require special circumstances, but did improve the situation.

The Chairperson recommended that this be explicitly stated.

Ms Smuts asked why the postal sector had been included. It was an entity working literally with paper and cardboard, and she questioned the rationale behind the decision.

Ms Shope-Mafole replied that there were two elements to the issue. Postal services were changing, and the trend was slowly moving away from simple paper transactions, closer to the ICT sector. Most of the services provided were electronically based. Globally, most Regulators included the postal services.

Ms Smuts suggested that it was undesirable for the Minister to run a performance evaluation system, and that a poor rating could be cause for dismissal.

Ms Shope-Mafole replied that it was the understanding of the Department that everyone had to render an acceptable performance. The provisions in the Bill were an attempt to ensure there was a fair and objective system of performance management of the councillors. The Bill provided for the Minister to set up a system, it did not state that she would administer that system. A panel was being considered.

Mr Pieterse noted the lack of timeframes for the Complaints and Complaints Committee, and proposed that a 60 day period be stipulated. Ms Shope-Mafole noted the issue, and said that the Department would look at it.

Mr Mohlalonga requested information on the delays experienced through the current process. Ms Shope-Mafole noted that the delays could be better but stressed the need to secure the best possible people.

Mr Oliphant noted that other countries should also be able to learn from South Africa. It was also important not to be looking for a Minister who did nothing. Government had to govern efficiently, and it was important that issues should not simply bypass her. The role of Parliament became critical in this process. It was also important to review the progress made over the last eleven years, and requested the Department to provide input on this. Law could not be made on the basis of grievances. Issues of law had to prevail.

The Chairperson noted that it was important to distinguish whether the appointment of councillors was a technical or political matter. It was reasonable to argue that, if it was a technical matter, it was important to include practitioners in the industry. It was also possible to politicise an appointment done in the current form. He appealed to stakeholders to assist the Committee to find a middle road.

Ms Shope-Mafole reiterated the need to appoint the best possible councillors, and stressed that no aspersions had been cast on the competence of the Members. It was, however, also important to have sector experts in the process. The Department was not inflexible on the process. It was important to be able to look back and ask how the process could be improved. The independence of the Regulator was also vital.

The Chairperson reminded Members that public hearings on the Bill would be held on the following Monday, and that the Committee would deliberate on and conclude the two Bills on Tuesday, Wednesday and Thursday.

The meeting was adjourned.