ICASA Amendment Bill: hearings

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
24 October 2005

Independent Communications Authority of South Africa Amendment Bill [B32-2005]
Cell C PowerPoint presentation
Cell C Submission
MTN PowerPoint presentation
MTN Submission
SNO PowerPoint presentation
SNO Submission
Telkom PowerPoint presentation
Telkom Submission
Vodacom PowerPoint Presentation
Vodacom Submission
NCRF Submission
NCRF PowerPoint presentation
T-Systems Submission
ISPA Submission
Internet solutions Submission
National Association of Broadcasters Submission
Independent Communications Authority of South Africa (ICASA) Submission
Submission by Prof. Guy Berger (Rhodes University)
Orbicom Submission
Sentech Limited PowerPoint presentation
Sentech Limited submission
Media Institute Southern Africa Submission
Internet Solutions presentation
Media Diversity and Development Agency submission
National Community Radio Foundation submission
Freedom of Expression Institute submission

SUMMARY
The Committee heard submissions from the Independent Communications Authority of South Africa, the South African Post Office, Internet Solutions and the Freedom of Expression Institute.

MINUTES
Independent Communications Authority of South Africa (ICASA) submission
Ms Tracy Cohen (Acting Chairperson) presented the ICASA submission, stressing that regulation was at its best at the overlap of independence, implementation, and resourcing.

South African Post Office submission
The delegation from the South African Post Office expressed concern that the Post Office might be sidelined, as ICASA might be assumed not to have expertise in the postal area. The Post Office did, however, fully support the aims of the ICASA Bill.

Internet Solutions submission
Mr S Mathibe presented the Internet Solutions submission.

Freedom of Expression Institute (FXI) submission
Mr C Tleane noted the limited time available for comment on the Bill. There were a number of areas of serious concern, and others that required strengthening. It was particularly worrying that the powers of the Minister appeared to have been enhanced. There was a close working relationship between the Authority and the Minister, and it was important that there should be a sense of distance between the two. The proposed renaming of the Authority was also questioned, as the term independent had meaning within the communications sector. This developed buy-in within the broader public.

Discussion
Ms D Smuts (DA) noted that two of the most important sections were those relating to inquiries and the Complaints and Compliance Committee (CCC). Why had ICASA not objected to the inclusion of sub clauses (c) and (d) in the inquiries clause? Inquiries were surely held preparatory to making regulations.

Ms Cohen noted that ICASA had proposed a redraft to avoid the confusion created by the current wording.

Ms Smuts noted that sub clause 4(c) was written as if for transgressors, and asked what a punitive approach was doing in an inquiries provision.

Ms Cohen concurred, and proposed that sub clause 4(c) be shifted, or deleted.

Mr R Padayachie (Deputy Minister of Communications) noted that one of the submissions had suggested a possibility of administrative conflict between the investigative powers of the CCC and the decision-making authority of ICASA. Please could ICASA clarify the current position?

Mr Mathibe replied that the CCC was supposed to make recommendations to ICASA, but noted that whenever there was a situation where one body heard facts and another made decisions, there was administrative discomfort.

Mr Padayachie noted that Internet Solutions had raised the issue of the separation between adjudicative decisions and investigative powers, and asked for clarity.

Mr Mathibe replied that at present, there was no separation of investigating, prosecuting and judicial officers, in the way in which ICASA functioned.

Mr M Mohlalonga (ANC) remarked that the Committee had engaged with the Department of Communications the previous Friday with regard to some of the concerns raised about the current parliamentary-based process. What was ICASA’s comment regarding the concerns about the best people, and time frames, for example?

Mr Padayachie noted that ICASA had advanced a number of issues in its opposition to the new appointment procedures for councillors, but had noted that the President had the power to delegate his decision-making function to Ministers. Did that mean that ICASA was not fundamentally opposed to the idea that the Minister might choose the councillors?

Ms Cohen replied that the proposal was to ensure that the current Parliamentary process was not excluded, and queried the need for such a drastic revision of the process.

Ms Bulbulia (ICASA councillor) concurred, expressing concern at the changing mechanism.

Mr Mathibe replied that there were no fundamental problems with the envisaged change, but that there was a concern that the Bill in its current form did not indicate the open nature of the process to be continued going forward.

Mr Padayachie noted that three aspects relating to independence had arisen in all submissions. Section 192 of the Constitution was a matter on which there might be different views. Was the suggestion that the IBA had the same class of independence or status of independence as one of the designated institutions, such as the IEC? Was the notion of independence inextricably tied to the process whereby councillors were appointed, or did it deal fundamentally more with the independence of decision-making of the councillors?

Mr Mohlalonga queried whether a body had to be referred to as "independent" in order to be independent.

Mr R Pieterse (ANC) remarked that ICASA had become a brand name, and that this could not just be wiped out. He also wondered whether the independence of the Authority was located in the appointment of the councillors, or in the execution of their task.

Ms Cohen replied that the only guidance was in existing case law. A number of cases had been well addressed in the NAB submission. It was very difficult to unscramble the implementation "egg".

Ms Bulbulia replied that this went to the strength of the decision makers as independent thinkers, and was strongly linked to the way in which the councillors were appointed.

Mr Tleale submitted that one of the conclusions reached by the FXI was that ICASA was one of the Chapter 9 institutions that had really attempted and demonstrated a level of experience. This best practice should be consolidated. It appeared that it might work best if the appointment of councillors was ultimately continued as at present. It would still be possible to advance a "people-centred" approach of independence.

Mr Mohlalonga noted that ICASA had expressed discomfort at the proposed performance management systems for councillors and the chairperson, because there were no job descriptions. This was of concern.

Ms Cohen replied that councillors had a mandate in terms of the Act, and that their jobs were set out in terms of legislation. Their work was not set down in quantifiable measurable indicators, however. These would be required for a performance management system. ICASA was not opposed to such a system, but supported it strongly, with the emphasis on its being implementable.

Mr Mohlalonga noted that Internet Solutions had expressed concern at the process of appointments in terms of investor confidence. If there was a US investor, where the President appointed the FCC, would this be alarming to him or her?

Mr Mathibe replied that the reality was that the government played a very direct role in the South African market. If government still played an active role, and the Minister played an oversight role with a direct part in the appointment process, it could create the perception that the same councillors who should be giving direction to the industry, were too closely tied to some of the institutions in the market.

Mr Mohlalonga asked the FXI to elaborate on its point regarding the current deficits in the parliamentary-based process.

Mr Tleale replied that the perceived deficit within the current process was that there might be political jockeying around or during the process. If the panel as proposed was to be as independent and fair as stated in the draft legislation, it might be worth considering. Greater scrutiny would then be placed on councillors’ distance from a number of key stakeholders and their vulnerability to possibly advancing certain interests. Such a panel could have more time and resources to scrutinise possible councillors.

Ms S Vos (IFP) noted that ICASA was opposed to the proposal to create an elevated status for the Chairperson, and asked the reason behind this.

Ms Cohen replied that the King Report was the litmus test in terms of generally acceptable principles. ICASA was proposing a more appropriate level of language, and was not ready to abandon the idea of collective leadership, particularly in respect of a broadcasting body.

A Member suggested that South Africa should not become selective when taking international experience. It was currently the only country where Parliament appointed councillors.

Mr Padayachie asked whether ICASA had a more substantive reason not to add two more councillors.

Ms Bulbulia replied that ICASA foresaw more consolidation with the Convergence Bill. A bloated top-heavy structure was not required. Skills and structures were required in the institution, not necessarily at a high level. It was hoped, going forward, to work more efficiently and effectively, and actually reduce councillors. People with expertise and skills would be incorporated into the institution when they were inherited from the Postal Regulator, for example. Councillors currently dealt with all matters, as there were no portfolio councillors. A more streamlined approach in annual reporting was also required.

Mr Padayachie noted that the FXI had made the point that ICASA councillors had to demonstrate accountability, but did not explain how the notion of accountability manifested itself in the operations of the authority.

Mr Tleale replied that this was a complex issue, and highly nuanced. One argument that had been advanced was that one way in which accountability could be exercised was through elected structures such as Parliament. There was merit in this argument, but it could be an exercise in creativity to check whether this was sufficient. The current accountability was Parliamentary, but there might be further for a to firm up accountability structures and mechanisms.

The Chairperson referred to the dismissal and appointment of councillors, and noted that, although the present one appeared to work, others were not inherently wrong. In a sense, Parliament was the panel at present. The problem was how to constitute a panel. The suggestion that the Minister should put together a panel was causing discomfort. It might be useful to stipulate that people with specific qualifications should serve on the panel. The amendment also appeared to give the Minister the power to dismiss a councillor. The current process of dismissal was through the National Assembly. This deliberately put the councillor beyond dismissal, even when that would be desirable. Surely there were other credible methods for dismissing a councillor?

Ms M Matlala (Senior Manager: Telecommunications Policy, Department of Communications) replied that no major amendments had been proposed in respect of dismissals. The President had been substituted by the Minister, and a clause had been added providing that councillors would be removed from office if they refused to sign a performance agreement.

Ms Smuts argued that there was room for improvement in the appointment process. Her own and other opposition parties had opposed councillors because they were not the best candidates. The fundamentals of the appointment mechanism could not really be changed. The Deputy Minister had asked about independence and the status of the broadcast regulator under Section 192 of the Constitution. The answer to both questions could be found in the same set of case law. The courts had repeatedly said that independence meant more than impartiality, and had to be measurable by objective criteria. The fact that the broadcast regulator was not listed under Section 181 was irrelevant, because an independent body was legislated for. The African Union instruments required, inter alia, that accountability should be to a multiparty body (in this case, parliament), and beyond the reach of commercial and political interests. The IEC system seemed to work very well.

Mr G Oliphant (ANC) noted that the accountability of ICASA still rested with Parliament. It was, however, important to note that one of the issues in the interviewing process was that some people were uncomfortable with a public interview. It was also inappropriate to think that there was no influence when Parliament interviewed. ICASA was also correct to want to own the process, but the public could not be excluded. It was also important to look creatively into the process of the panel’s duration, and that it might have to be engaged by Parliament.

Mr Pieterse noted that some people had argued that the current process did not deliver the best individuals, but suggested that ICASA represented the best team. It was of concern that the time and effort used to appoint a panel could be better used to select councillors. If there was a problem with the current process, this should be addressed, and strengthened.

Ms Smuts replied that she was proposing a panel similar to that convened ad hoc for the IEC.

It was agreed that the issue of the panel would be addressed.

Ms Cohen asked for clarification that the amendment in Clause 12 spoke to the deletion of Sections 2 and 3, which pertained to a councillor being removed from office. Who would then remove a councillor from office?

Ms L Shope-Mafole (Director General, Department of Communications) replied that the Department would re-visit the issue, and Sections 2 and 3 would be accommodated accordingly.

Sentech submission
Mr Dingane Dube, Executive of Regulatory and Government Affairs, was accompanied by Mr Matime Nchabeleng, Specialist: Government Relations. Their oral submission covered the following matters: additional powers and functions, enquiries, the Complaints and Compliance Committee, the constitutional appointment of councillors, delegation and confidentiality. (See Sentech's written submission).

Media Institute Southern Africa submission
Mr Raymond Louw (MISA board deputy chairperson) and Ms Rene Smith (MISA researcher and broadcasting officer) presented. MISA believed that Chapter Nine of the Constitution was being contravened as ICASA as an independent institution would have its independence reduced by means of this Bill. It would be a pity to remove this at a time when South Africa was about to start its African Peer Review Mechanism where reducing independence would cause its good governance section to come under question. The change in the appointment process of ICASA Commissioners was criticised. It also expressed concern about the short notice period for comment on the Bill and the fact that this Bill and the Electronic Communications Authoirty. Convergence Bill had not been tabled together. (See document for all MISA’s concerns and proposals.)

Internet Service Providers Association submission
Mr Ryk Meiring (Regulatory Advisor to ISPA) and Mr Greg Massell (ISPA Co-chair) presented. ISPA also complained about the short ten-day period provided for comment on the Bill which had not allowed ISPA to consult its membership properly. The amendment of the appointment process and conditions of tenure of ICASA Commissioners was a concern. ISPA had full confidence in the current process and believed that any proposed change should go through a full consultation process. The independence of the regulator was of significant importance and ISPA was very concerned about the potential threat to the independence of the body as its effectiveness hinged on this. The image that South Africa presented in the light of this to the rest of Africa and international would be negatively affected. (See document for all ISPA’s comments).

Media Development and Diversity Agency submission
Mr Mashilo Boloka (MDDA board member) said that said that the existing neutral name of the Authority should remain in contrast to the proposed name "electronic communications" which it found to be limiting and specific in this fast changing environment. It was concerned that the Bill did not outline a specific procedure for ICASA to recommend policy proposals to the Minister. It preferred the current transparent, participatory and public-centric appointment of Commissioners. (See document for all MDDA’s comments).

National Community Radio Foundation submission
Mr Daniel Moalosi (NCRF Projects Officer) submitted that the removal of the independence of ICASA would be very detrimental to media players. Regulation should promote compliance in a developmental manner intervening for public interests and be far from stifling political and commercial interference. The NCRF stance was, "if it ain’t broke, why fix it?" and the Bill must protect the regulator’s independence. The Ghana example was referred to where it was found that if the Minister was given all the powers, using these powers to appoint the board of the regulator, the public had a negative perception of the regulator and equated it with the Minister and it undermined the development of communications in that country. (See document for all NCRF’s comments).

Second National Operator (SNO) shareholders submission
Mr Kennedy Memani, chairperson of Nexus Connexion, one of the shareholders in the second national operator (SNO), and Ms Carla Raffinetti, law advisor to the SNO shareholders, reminded the Committee that the setting up of the Second National Operator aimed at effective competition – which needed a strong and stable regulatory environment to attract investment. The independence of the regulator was threatened by the Bill. Improving ICASA’s effectiveness was what was needed such as attracting high-calibre people and keeping them. A structural conflict of interest was identified as a problem created by the Bill. The premise in the White Paper on Telecommunications was a the three-tiered separation of powers in the form of regulation by ICASA, policy making by the Department and operations management by the industry. This separation had been blurred in the hands of the Ministry. The Ministry was policy-maker, had veto powers over major licences, had regulation-making powers and the shareholder representative was the Department rather than the policy maker. Its view was that the current appointment process should be left as is. It suggested that the regulator needed to be capacitated by means of retaining some of its licence money instead of submitting all to the National Revenue Fund. (See document for all SNO comments).

Cell C submission
Mr Karabo Motlana, Head of Regulatory Affairs, made comments about ICASA's financial autonomy, its functions, transparent and non-discriminatory procedures involving the register of information, conduct of enquiries and establishment of the Complaints and Compliance Committee. (See document for all Cell C's comments).

Telkom Submission
Dr Gabriel Celli, Telkom Acting Group Executive, stated that Telkom substantially supported the Bill as it strengthened ICASA’s ability to execute its mandate. He presented the submission which outlined Telkom’s concerns with the purpose of enquiries conducted by ICASA, its far too broad powers to delegate any of its functions, standing and special committees that did not need to comprise a councilor, examples of the powers granted to ICASA by the Bill that were not explicitly linked to its underlying statutes and the possible overlap between the Complaints and Compliance Committee and the inspectors.

Vodacom Submission
Mr Pakamile Pongwana, Vodacom Managing Executive, indicated that the submission’s comments were limited to a few sections in the Bill and were specifically aimed at eliminating ambiguity and uncertainty regarding ICASA’s authority. Vodacom requested the clarification of the functions of ICASA in the proposed Section 4(3)(e), the purpose of the inquiry conducted under the proposed Sections 4B and 4C, the reasons for the proposed deletion of Sections 17(2)-17(2) and 21of the Act and on the procedure of the Complaints and Compliance Committee in the new Section 17C.

MTN Submission
The MTN representative explained that the Managing Director, Mr Maanda Manyatshe, was unable to attend the meeting, due to airline difficulties. He indicated that MTN was of the view that the contents of the Bill might not advance the objectives of the Bill, especially those provisions that dealt with the appointment of ICASA councilors and the financing of ICASA. He conducted the presentation which outlined MTN’s views and concerns regarding the manner in which the Bill dealt with the appointment of ICASA councilors, the financing of ICASA, the conduct of inquiries as well as the establishment and functioning of the Complaint And Compliance Committee.

National Association of Broadcasters Submission
Ms Clarisa Mack, Chairperson of the National Association of Broadcasters (NAB), indicated that the broadcasters agreed that NAB would present a single submission on behalf of all broadcasters. The submission would focus primarily on the broadcasting-related provisions in the Bill. The NAB queried how the Electronic Communications and Transactions Act, 2002 ("the ECT Act") fell within the definition of the underlying statutes in the proposed Section 2(g), its objection to the inclusion of the proposed Section 4(3) and the unacceptable intention of the proposed Section 4B(1) which appeared to entitle the Authority to conduct an inquiry only "for the purpose of improving the performance of its functions". NAB was most concerned about Sections 5(1) and 5(1A) as they effectively allowed the Minister of Communications to appoint the Council members, and NAB believed that the effect of our Constitutional jurisprudence on the issue of independence was that a body that was effectively appointed by the Minister, without the involvement of Parliament, was not an independent one. NAB was extremely concerned about the amendments to Section 12 which proposed significant amendments to section 8 of the ICASA Act, and was concerned about the provisions of proposed Section 14A(2) which required the approval of the Minister should the Authority wish to appoint non-South African experts.

Discussion
Ms M Smuts (DA) sought clarity on the attendance of ICASA at United national Special Agencies conferences, such the World Summit on the Information Society (WSIS).

The Director-General replied the decisions of summits took the form of general assembly resolutions. The implementation of summit resolutions was voluntary but countries were on occasion required to report regularly on the progress they had made with regard to the decisions taken by the summit, as was the case with the Beijing Platform for Action. There were many summit resolutions that required regulators to perform a host of functions, but the implementation of each of those functions was not mandatory.

With regard to conferences, the ITU was the major agency that dealt with telecommunications and electronic communications matters, including broadcasting signal distribution. However the scope was broadened because ICT’s had ceased to be the concern of simply one agency because there were now other agencies besides the ITU that were involved with issues that ICASA currently dealt with, such as the World Intellectual property Organisation (WIPO), the World Trade Organisation (WTO), United Nations Educational, Scientific and Cultural Organisation (UNESCO) etc. The provision thus sought to ensure that ICASA was able to attend the conferences, irrespective of the particular specialised United Nations agency responsible, and to implement the issues that South Africa had agreed to.

The jurisdiction of ICASA was local and had no jurisdiction outside the borders of South Africa. Thus any interaction by ICASA in international organisations was in support of government objectives. ICASA would however be able to participate in any international meetings convened by regulators themselves, but it would not have the authority to unilaterally represent the South African government at any conferences on inter-governmental matters.

Ms S Vos (IPF) asked whether Parliament was in fact passing a law that government would be unable to implement, due to funding constraints.

The Director-General responded that Cabinet had approved funding for nine councillors.

The Chair invited discussion on the election of the Chairperson and the performance assessment of councilors.

Ms T Cohen, ICASA Councillor, believed that the Chairperson should not enjoy an elevated status, as the aim was to enshrine leadership for collective wisdom and to prevent a single individual from dominating. The Chairperson was the stakeholder manager and generally the spokesperson for the Council. It was envisaged that the panel could play a greater role with regard to the performance management system. The number of five councillors was not based on any scientific study.

The Director-General stated that the foreign experts that would be appointed would work closely with the Council. ICASA itself must indicate the additional resources it would be needed to properly implement the Bill. She indicated that government did have a scarce skill allowance, and the remuneration of councillors was being evaluated within that context.

She explained that the Chairperson was in fact a councilor who had the added responsibility of being the Chairperson of the regulator, and the Bill clarified the distinction by providing for separate provisions on appointment and responsibilities. Concerns raised by the industry on this included the view that the Chairperson was Chairperson in name only, and had no legal status in terms of providing leadership to the council. The Department believed similarly that if the election of the Chairperson was dealt with in a separate provision it would ensure that the person with the proper calibre would be appointed.

With regard to the performance assessment of councilors, she indicated that it was currently difficult to enforce good professional conduct because there was no mechanism to ensure that. The Department was thus of the view that there was a real need to put in place structures of personal accountability for every member.

Ms Cohen replied that ICASA was not proposing that councilors be allowed to evaluate themselves. Instead it was proposed that ICASA as a whole enter into a contract with the Minister, and not with the Chairperson alone. This model was followed by other regulatory authorities, such as the Civil Aviation Authority (CAA). The model provided several benefits, such as the promotion of unified objectives and sets clearly identifiable measures. The latter was especially important as it ensured objectivity and the production of measurements that could be evaluated.

An alternative would be to consider a model in which Parliament played a greater role in the evaluation of performance of councilors.

Mr S Kholwane (ANC) sought the views of the Department on the suggestion that the functions of the Chairperson and the council itself be separated.

The Director-General replied that, as she had indicated, the Chairperson was in fact a councilor who simply had additional responsibilities.

Ms Cohen responded that the issue essentially involved two central points: firstly, as a matter of principle ICASA felt that the elevated status for the Chairperson was simply contrary to the spirit of regulations on telecommunications and broadcasting. The current legislation was at pains point out that the Council needed to be broadly representative, which ICASA interpreted to mean leadership through collective wisdom. ICASA was thus is favour of the "first among equals" approach.

Secondly, "first among equals" did not mean that every single councilor was equal, it did mean that the Chairperson had a slight elevation above the rest. The current position was that the Chairperson did have a very different role as he was the figurehead, the stakeholder management official, the spokesperson and councilors used to account to the former Chairperson Langa. The argument in favour of collective leadership sought to prevent the situation in which a single individual dominated the activities of the regulator.

She stated that ICASA was of the view that the role needed to be clarified. The current wording of the provisions do not make that clear, but the wording of the King II Report expresses the role of the Chairperson much more clearly.

Mr Kholwane stated that the explanation offered by ICASA did not provide any substantive argument against the elevation of the Chairperson amongst councillors.

Mr Oliphant stated that ICASA pronounced itself very emphatically on the number of councilors that would constitute the Council. He was not sure why the reduction of the number of councilors from nine to seven was so vehemently opposed as he was of the view that ICASA needed as much personnel as possible to discharge its mandate, especially in view of the additional responsibilities imposed by the Convergence legislation. He requested additional clarity from ICASA on the matter.

Ms Vos reminded Members that the former ICASA Chairperson Langa used to constantly inform Parliament that it was passing laws that ICASA simply did not have the necessary funds to properly implement within the stated timeframes. She asked the Department to explain whether it had conducted any costing exercise on the implications of the Convergence legislation and the Bill.

Ms Cohen replied to the two questions by stating that ICASA was not wedded to the idea of a reduction. The important issue was not solely increasing the number of councilors but really the replication of the support structures as well, the advisors, the support staff etc. This created the potential situation in which more energy was invested in the top level than buttressing the resources at operational level. Many of the other regulatory bodies that have either eleven or thirteen councilors included part-time councilors, who were academics or legal practitioners, for example.

She stated that ICASA had not based the proposed figure of five councilors on any scientific research it had conducted into the matter. Instead it was based on the allocation of resources and that ICASA believed that once the postal directorate moved into the regulator that expertise would be at hand, and it would thus not be necessary to increase the number of councilors to nine solely to accommodate the postal directorate.

Mr Kholwane noted the concern raised by SAPO in its submission whether the current number of ICASA councillors had the relevant expertise to ensure SAPO’s concerns were attended to. He proposed that, in the absence of any scientific evidence that increasing the current number of councilors would improve the work done by ICASA, Ms Cohen’s explanation should be accepted.

Ms Vos noted that it was proposed that only the Minister could approve the appointment of an expert who was not a South African citizen without the approval of the President.

[PMG note: Tape change]

Ms Vos stated that ICASA’s submission had argued consistently that it was unable to secure the expertise it required because they were locked into public sector remuneration. She asked whether the inclusion of "private" in the proposed Section 14(3) would address the matter.

Mr G Oliphant (ANC) he sought input from the industry on their concerns with the funding of ICASA. He stated that his understanding was that the funding related to funds additional to the funds allocated by Parliament, and was thus not a replacement of the Parliamentary funds. The purpose of those funds was to ensure that ICASA was adequately staffed to enable it to properly discharge its mandate.

Ms L Shope-Mafole, Department Director General, responded to the two questions by stating that the Department did inform ICASA that it would need to consider the Convergence legislation and then inform the Department as to the resources it would need to take on those added functions imposed by the Convergence legislation. ICASA was subject to the Public Finance Management Act (PFMA) and government currently made an allowance for the retention of scarce skills, which allowed persons who provided such skills to be remunerated over and above the normal public service rate. She stated that the Department was currently looking into the issue of the remuneration of councilors, as a whole. She was thus of the view that the insertion of "private" would not really affect matters.

Ms Vos sought clarity on the approach of other jurisdictions with regard to full-time and part-time councillors.

The Director-General replied that Canada’s regulatory authority currently had thirteen full-time and six part-time councilors.

Mr Oliphant agreed with Ms Vos’s concerns regarding the appointment of the ICASA Chairperson. He proposed that, although he did not find any fault with the current wording of the provisions, they must be strengthened if they were creating difficulties.

Secondly, he asked how exactly non-performance by ICASA would be addressed in the Bill.

Thirdly, he stated that he sensed from ICASA’s submission that it no longer experienced any discomfort with the issue of its accountability to the Minister. The manner in which this would be dealt with in the Bill was crucial to the overarching issue of accountability.

The Chair sought clarity on ICASA’s ability to appoint non-South African experts, and the circumstances under which this would be allowed.

The Director-General reminded Members that the Act stipulated that one of the requirements for being an ICASA councilor was that the person must be South African. She was not aware of any established democracy that would allow a foreigner to perform the role of councilor on its industry’s regulatory authority. A mechanism will be put in place that ensured the protection of the intention of the provision as it currently stood.

Ms Vos stated that agreement had been reached on a previous occasion that a council member could not be appointed as Acting CEO, as was done in the past. Yet ICASA’s proposal for Section 14(1A)(c) confused the issue, and she requested clarity.

The Director-General replied that the amendment was merely making it easier for ICASA to appoint an Acting CEO.

The Chair stated that ICASA indicated the need to cater for the situation in which the CEO had vacated the post, whereas the proposed amendment merely dealt with the situation in which the current CEO merely appointed someone to act during an interim period in his stead.

Ms Vos asked whether the repeal of Section 60 in Schedule 1 had any consequences for the PFMA and corporate governance principles.

The Director-General responded that the Department would double check.

The Chair sought clarity on the change in name from the Independent Communications Authority of South Africa to the Electronic Communications Authority of South Africa.

Ms M Smuts (DA) stated that two arguments had been made by the submissions: the first was that once the South African Post Office was included it would not make sense to change the name to ‘electronic’. The second was the brand argument made during the morning session, by Mr Pieterse amongst others, that ICASA was well established. It involved other consequential changes such as change to letterheads and the ICASA seal of approval.

Mr Oliphant stated that he was not sure whether the inclusion of the South African Post Office (SAPO) necessarily rendered the reference to ‘electronic’ pointless, as the SAPO was also becoming digital at a fast pace. Secondly, the argument that the removal of "Independent" in fact removed the independence of the regulator did not hold water, because there were countless other independent bodies that did not include ‘independent’ in the name. The independence of the regulator was entrenched in law, and did not need a reference in its name to ensure such independence. Furthermore, there was nothing that could not be branded, and thus the new name could be branded as well.

Ms Cohen replied that the ramifications of the name change were huge, and time was needed even to digest the motivation for it. She stated that Mr Oliphant had hit the nail on the head but it did cut both ways as, if the new name did not alter the independent status of the regulator then it could be changed, then it would also make no problem to leave it as it currently stood. If the current name were retained the regulator would save tremendous costs in having to rebrand every item and cellphone it has licenced, as well as the trademark application for the ICASA logo that was currently being registered. Thus if there was no overwhelming justification for changing the name, then the current name should be retained for clear convenience.

The Chair asked the Department whether it was of utmost importance to change the name of the regulator.

The Director-General responded that her Department did endeavour to be visionary and progressive in an effort to taking the country forward into the digital age. She emphasised that the Department’s reasons for changing the name had nothing to do with the independence of the regulator, as the Department itself agreed with the need for the independence of the regulator. The Department’s motivation for the name change was thus as follows: one of the biggest tasks which the Department needed to perform, and which was an area in which it had not been performing well by international standards, was that the South African public in general had no idea what the "E" prefix attached to various products meant. She stated that for example that her vehicle registration plate read "E-Africa", yet many people had no idea what that "E" prefix meant. It was the collective task of government to educate the public on the meaning of the prefix. She believed that the public discussion on the name change alone would educate the public on the "E" society. The Department thus proposed the name change to educate the general public. The name change was not something that the Department would "die for", but it was of the view that it was a progressive strategy.

The Chair invited input on the overlapping between the complaints and compliance committee and the roles of inspectors.

[Tape ends]