Convergence Bill and ICASA Amendment Bill: consideration

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Communications and Digital Technologies

25 October 2005
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Meeting Summary

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Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
25 October 2005
CONVERGENCE BILL AND ICASA AMENDMENT BILL: CONSIDERATION

Chairperson:

Mr M Lekgoro (ANC)

Documents handed out:

Independent Communications Authority of South Africa Amendment Bill [B32-2005]
Legal Opinion on Constitutionality on Appointment of Councillors
Legal Opinion on the Bill from Office of Chief State Legal Adviser

SUMMARY
The Office of the Chief State Legal Adviser gave a presentation on the constitutionality of the ICASA Amendment Bill to the Committee. The Bill was then put up for discussion clause by clause in order for Members to raise various concerns and problems with the current draft. Amendments were either agreed upon or suggested for future consideration or vote. A legitimate mechanism for the appointment of Councillors was debated. The independence of ICASA, with particular reference to the appointment of external experts and overseas advisers was considered. The appropriate role of the Complaints and Compliance Commission (CCC) was also a particular area of concern. It was decided that more investigation into the offences created by the Bill and how this should work within the requirements of the Promotion of Administrative Justice Act was required.
There was no finalisation of the ICASA Amendment Bill at this stage and no discussion of the Convergence Bill. The discussion would be continued at the next meeting.


MINUTES
State Law Adviser Presentation
The opinion on the ICASA Amendment Bill from the Office of the Chief State Legal Adviser was presented by Ms A Johaar (Senior State Law Adviser). The Committee had asked them to consider whether the new procedure for the appointment of councillors of the ICASA was constitutional and whether ICASA would be the independent body envisaged by the Constitution if the proposed amendments were effected.

According to s192 of the Constitution an independent authority to regulate broadcasting in the public interest must be established by national legislation. ICASA was one of the institutions envisaged by Chapter nine of the Constitution. Such institutions were state institutions supporting constitutional democracy. ICASA was not however, listed under s181 which listed institutions that strengthened constitutional democracy and therefore enjoyed the highest level of independence, free from interference by any person or organ of state, and accountability only to the National Assembly. The Legislature’s intention was therefore interpreted as to ensure the creation of an independent broadcasting regulator but not to dictate all its functions, nor to dictate the appointment procedure to be adhered to when appointing its members, and, most importantly, not to dictate the level of independence it would enjoy.

The meaning of ‘independence’ which was not defined in legislation, was then analysed using case law. From this it was possible to conclude that when considering independence three factors had to be considered. These were the manner of appointment; security of tenure and removal; and institutional independence and the existence of guarantees against outside pressures. Each of these was taken in turn and applied to the proposals of the ICASA Amendment Bill. Other factors that had been held as having an impact on independence were financial independence and administrative independence. Again these further tests were applied to ICASA in the context of the Amendment Bill under discussion.


The conclusion was that many factors worked together to render ICASA independent. The ICASA Amendment Bill would therefore pass constitutional muster as ICASA was independent because the standards and requirements set out by the Constitution had been met; the independent broadcasting authority envisaged by Chapter nine was not to be held to the same requirements as institutions listed in s181; section 91(2) of the Constitution provided that the President could assign any power or function to a Minister and thus could assign the power to appoint ICASA’s councillors to the Minister of Communications; and finally, that ICASA did in fact enjoy institutional, financial and administrative independence, free from outside pressures.

Discussion

Long Title
Ms M Smuts (DA) said that because it had been agreed that an offences provision was to be included in the Electronic Communications Bill (ECB) the phrase ‘to provide for the creation of new offences and penalties’ should be deleted from the long title.

Clause 1
‘Electronic communications’ should replace ‘broadcasting’ in the preamble.

Clause 2
The reference to the ‘Convergence Act’ should be changed. The definition of Convergence Act in subsection (c) should be deleted. In subsection (g), ‘Electronic Communications and Transactions Act 2002’ should be deleted and ‘Electronic Communications Act’ should be inserted.

Clause 4
This should be deleted altogether as in effect it renamed ICASA and the decision had been taken that ICASA would remain the same.

Mr G Oliphant (ANC) asked why it was necessary to drop the reference to broadcasting in the preamble.
Ms Smuts replied that it would be possible to keep ‘telecommunications and broadcasting’ but not ‘broadcasting and electronic communications’ as there should not be a specific form followed by an all-encompassing one.
Mr Oliphant said that it would be interesting to hear the Director General’s view on this matter. For instance would they want postal services to be removed from electronic communications?


Ms L Shope-Mafole (Director-General: Department of Communications) answered that postal services were considered to fall under the umbrella of electronic communications. However, in the Convergence Bill broadcasting was kept separately so was there a consistency reason for doing so in this Bill?

Clause 5
Ms Smuts said that as the name change was no longer taking place, both subsections (a) and (b) needed to be deleted. Only subsection (c) would remain.

Clause 6
The Chairperson stated that ‘by any other law’ in section 4(a) should be replaced with ‘by law of general application’. Ms Smuts agreed saying that a law must apply before powers can be exercised under it.
Mr Oliphant did not agree as ‘any other law’ spoke specifically to the functions of ICASA.

Ms Smuts said that additional expressions such as ‘transfer, revoke, register, de-register’ were also necessary in subsection (e). She also proposed the inclusion of ICASA’s proposed subsections (j) to (o) which could be found in ICASA’s submission. The Council should not be able to delegate regulation-making or licensing powers. The point was to retain the power to revoke things done in their name. As this provision stood it went too far in allowing the Council to delegate all its powers.


Ms Shope-Mafole expressed concern with subsection (o). This was simply a restatement of the object of the Act and so should be left out.

Ms Smuts felt it should be made expressly clear what was being given as a power.


Mr Oliphant said that this was an opportunity to reconcile the current Bill with the Convergence Bill and that (o) was therefore needed to facilitate this reconciliation. He sought clarification on the implication of the inclusion of ICASA’s proposals.

Ms Smuts replied that by implication this would become the new 4(a) and that 4(4) would be deleted.

Ms T Cohen (ICASA) said that the scope covered by subsection (o) was in fact broader than the object of the Act.

Ms Smuts also supported ICASA’s proposed amendment on the issue of the title of the clause and recommended deletion of ‘and chairperson’.


Clause 7
Ms Smuts stated that under Section 4A (1) it was necessary to delete ‘this Act’ and replace this with ‘The Electronic Communications Act’ as this was the Act that dealt with this action. Additional ways licences would be dealt with also needed to be inserted such as ‘registered, transferred, revoked, deregistered’ after ‘licences granted’.

The Chairperson felt that the phrase ‘for the purpose of improving the performance of its functions’ in 4B (1) was limiting.

Ms Cohen said that it gave a condition for conducting an inquiry. For instance it would preclude something which did not have performance improvement as its outcome, such as a public interest hearing.

Mr Oliphant asked why a public interest hearing would necessarily not improve the performance of ICASA. It was necessary to understand the rationale behind such words.


Ms Smuts stated that subsections (c) and (d) should be deleted. ICASA had proposed a subsection (e) which would now become subsection (c). This would take the place of ‘for the purpose of improving the performance of its functions’ should that be deleted.

Mr Oliphant expressed concern at these deletions as he had a problem with taking powers from ICASA.

Ms Smuts replied that the intention was not to take powers away; it was simply a matter of ensuring they were in the right place.

Ms Smuts also noted that in section (2) of 4B ‘and reasons’ should be inserted after ‘notice of its intention’.

There was also discussion as to whether the Authority should be required to publish a discussion document setting out the basis and the reasons. Mr Oliphant felt this was not the appropriate place to set out the agenda for ICASA to follow in such detail. He pointed out that they did this anyway.


Ms Cohen asked whether the Minister of Justice would require ICASA to publish reasons for conducting the inquiry, and felt that the more appropriate stage to publish reasons would be after the finding had been made.

Ms Smuts said that in relation to 4C, 4C (1) should remain and 4C (6) should remain, although ‘hearing’ should be replaced with ‘inquiry’. 4C (2) to 4C (5) should be transferred in its entirety to Clause 20 which dealt with Section 17 of the Principal Act, governing the Complaints and Compliance Committee.

Ms Shope-Mafole said these provisions were necessary in this place as it was often difficult to get people to cooperate with an inquiry. The purpose was to ensure ICASA could get the persons needed for the purposes of the inquiry. Such inquiries could often address important points so this was a necessary inclusion.


Clause 8
Mr Oliphant stated that there was nothing wrong with the Minister appointing Councillors. Parliament should not be excluded from participating in the selection process. Whether it was through a Panel or not, Parliament should have the final say on the appointment. He would accept debate on who should appoint the Panel itself.

Ms Smuts said that if this was in reference to the administrative function of the appointment, she welcomed the ANC proposal that Parliament should not lose its role. However, there was room for improvement. Involving a Panel would work well and would ensure that constitutional standards of independence would be upheld.


Ms Smuts said that they should borrow the mechanism from the Independent Electoral Commission Act where the Panel brought proposals to Parliament for consideration. She read a proposal which would be made available at the next meeting. She suggested that the Council consist of 9 or 11 Councillors. These would be appointed by the President on the recommendation of the National Assembly. These recommendations would come from a list of recommended candidates referred to the National Assembly by the Panel. There should be twice the number of names as there was the number of vacancies available. The President would appoint one of the Councillors as Chairperson. The proposal for the Panel was taken from the IEC Act. It should consist of the Chief Justice of SA or his delegate; a Commissioner of the SA Human Rights Commission; a Commissioner of the Commission for Gender Rights; and the Public Protector. In addition, this Panel would add a representative from a professional body of electrical engineers. This should not be an industry body. There should also be a person of standing in the field of economics.

The Chairperson replied that the Panel had to be workable.


Ms Smuts replied that if the Chairperson meant that technical expertise was needed, this was not the case. This was a fact body, subject only to the Constitution and the law. It was a body with a degree of independence outside the government and people of comparable standing and independence were needed on the Panel.

Clause 11
The Chairperson queried whether in 11(a) the sentence ‘the chairperson may at the end of his or her term of office’ should in fact read ‘the chairperson may at the end of his or her first term of office’. The intention was surely not to allow the chairperson more than one term?

Ms Shope-Mafole said that there should be no such restriction as there may be times when a chairperson would be required to stay in office for longer. The flexibility was needed.


Clause 12
Mr Oliphant said that 12(d) should be deleted. Ms Smuts suggested that the whole of Clause 12 should be deleted. In her view, it was not desirable for a line minister to have anything to do with a performance system relating to a body such as this. The involvement of the executive in this way would cause problems. If a performance management system had to be introduced, it should consist of objective measurements. It was not wise to include refusal to sign such a performance agreement as a ground for removal.

Mr Oliphant took the point about the line minister but stated that the performance agreement was a feature of SA’s new democracy. If a Director General would not sign such an agreement he would not be a Director General. It should be a condition of employment.

Ms Smuts accepted this, but said this still did not mean it should be a ground for removal. Why should they need to sign such a thing before it became applicable to them? Was this a matter of labour law?


Clause 13
Ms Smuts wanted to move Clause 13 for deletion. As they were no longer changing the Principal Act, this should remain as in that Act.

Mr R Pieterse (ANC) said that the phrase ‘such councillor holds office for a longer period which may not exceed four years’ should in fact read ‘such councillor holds office for a longer period which may not exceed the remaining period of their term and an additional four years’ to avoid confusion.


Clause 15

Ms Smuts proposed an addition of (c) in terms of which the Council may appoint a senior official as an acting CEO. Mr Pieterse said that there might be a problem when a CEO left for a longer period of time.


Clause 16
The Chairperson stated that the line minister should not be giving approval. ICASA had proposed the old IBA Clause 27 here. This was an area in which international expertise was often of benefit and there should not be a limitation placed on this. It was obvious that the Authority and the expert would enter into a contract for remuneration.

Ms Smuts said that as ICASA was a Chapter nine body for the purposes of the Constitution, it was supposed to be elevated and under serious independent control. It would not be appropriate for line ministers to give approval. This had been made clear by a recent ruling in the courts. Line ministers should not be able to "turn taps on and off" in relation to such appointments.

Mr Oliphant asked whether the suggestion was to delete subsection (2). His concern was for the security of SA from outside influence. Approval by the minister was an important limitation to protect SA from external ‘radicalisation’. The public service was currently spending a lot of money on consultants. Such consultants were charging excessive fees and this should not be allowed to happen.

Ms Cohen asked for clarification on whether Clause 16 was intended for consultants or full time employees.

Mr Pieterse said that it was necessary to accept the intention of the minister. The minister was the only one that would take responsibility for bringing in such experts. ICASA would not do this. It was not about spending correctly but rather locating this final responsibility. It should not be deleted.


Ms Johaar said that the point of 14B (4) (b) was that when a transfer of staff took place and an inquiry was instituted, ICASA would take the position the DOC would have been in had the transfer not occurred. ICASA should study the appropriate laws.


Clause 18
Ms Smuts pointed out that ‘except with the consent of the Authority’ needed to be added at the end of section 16A.

The Chairperson asked for an explanation.

Ms Cohen said that this was in reference to the use of ICASA’s logo. Companies would often put this logo on advertising to indicate this had been approved by ICASA. It was also used in support of particular events.


Clause 19
Ms Smuts asked for clarification on the reasons behind deletion of subsections (2) to (9). Was the argument that they no longer wished to be tied to the requirement of having a Councillor on each committee? Chapter three was a useful chapter and should not be deleted unless ICASA said they could not have all committees including a councillor.

Ms Cohen stated that this was the concern.

Ms Shope-Mafole said that they could amend it to say ‘or such other member of staff’ so that the problem could be removed and the subsections could be kept.


Mr Oliphant asked what the difference was between this and the reference made to ‘other members of staff’ in subsection (b) of the Principal Act. He was not opposed to standing committees. However, if the CCC would be doing the bulk of the work, what would the other committees do? He understood this deletion as part of the strengthening of the CCC and, therefore, as part of the strengthening of ICASA.

Ms Cohen stated that other committees would include those that had nothing to do with licensing such as audit committees.

Ms Smuts suggested that these would only increase in number after the ECA so would need this flexibility. There was a need in subsection (8) for deletion of the reference to the BMCC which would now be subsumed under the CCC.


Mr Oliphant said that he felt it should be left as it was and the Chairperson sought clarification as to what this deletion was trying to achieve.

Ms Shope-Mafole said that ICASA had been over-zealous in its simplification. It was happy to retain these subsections as they enabled a necessary flexibility which would be helpful in terms of the constitution of future committees. Subsection 2(b) that Mr Oliphant had referred to referred to additional members. This was seeking to amend subsection 2(a) on whether the constitution of a committee was required to include a Councillor. The function of the subsections was different and therefore needed different treatment.

The Chairperson expressed concern that if subsection (8) were removed, subsection (9) would not make sense.
Ms Smuts pointed out that it was only the outdated reference to the BMCC within subsection (8) that would be deleted.


Clause 20
Mr Pieterse said that section 17B was where the CCC received its mandate from the Authority. Section 17B (a) (ii) should therefore be deleted as it gave the impression that someone could complain directly to the CCC. Complaints should go through the Authority.

Mr Oliphant asked if this meant that the CCC would only receive complaints from ICASA. Mr Pieterse replied that they should receive complaints from anyone but the decision as to whether to act on these should come only from ICASA.

Ms Smuts said that a sifting mechanism was needed so the receiving body should be ICASA who could then decide what to refer to the CCC. The way this was written meant that the CCC would have to convene on every complaint.

Mr Pieterse cautioned against creating two centres of power.


The Chairperson said that complaints should be made directly to ICASA. However, there was a concern that the public would want to complain to the complaints body. He asked the Department if they could find a way to word this.

Ms Smuts added that, however it was worded, 17B (b) should be removed as this was a complaints and compliance body. It was therefore not appropriate to give it the function set out in this subsection.

Ms Shope-Mafole said that as the body would receive complaints of all kinds it would be in a position to make recommendations. Mr Oliphant agreed. The kind of people that would be on the CCC would have views worthy of respect. These would be recommendations only so there would be no harm in giving them this function. They were in the correct position to do fieldwork.

Ms Cohen said there was a need to summarise. The wording used had not yet captured the delineation of complaints and compliance. There was a need to ensure no trespass. Section17B (a) produced confusion between the role of the CCC as adjudicator and the role of inspectors as investigators and prosecutors. Could the drafters apply their minds to this?


Ms Smuts felt that in 17C (1) (a) a person lodging a complaint should be required to do so ‘in writing’ and such a complaint should be properly substantiated. Subsection (6) was also out of place. As expressed earlier, 4C (2), (3), (4) and (5) should be substituted for subsection (6) here. These subsections did not belong in the inquiries section, but here.

Ms Shope-Mafole replied that in sectors such as this there was a need to take complaints via means of electronic communications other than in writing. This would include the telephone.

Ms Cohen agreed, but expressed concern that beginning the complaints process on the basis of a phone call might not be administratively sound. Ms Shope-Mafole said that this was in the process of being changed.


Mr R Padayachie (Deputy Minister) asked what kind of complaints this body should be dealing with. It should deal with complaints primarily about licensing provisions. Was it intended this body should investigate complaints by ordinary consumers? Would it not be more appropriate that a consumer authority deal with consumer complaints with no bearing on licensing? His concern was that the current mandate was too wide.

The Chairperson asked why it was set out in law that ‘any person who is not in the full-time service…must be paid such remuneration as the Authority may determine consistent with that paid in the private sector’. He felt that the phrase ‘may determine consistent with that paid in the private sector’ should be deleted and the matter should be left to the discretion of the Authority.


Ms Smuts said that it was necessary to decide the situation on offences. Section 17H should be deleted because it was dealt with by the Electronic Communications Bill. Ms Johaar said that the Bill needed this section because it covered offences that were not found in the other Bill.

Ms Smuts asked in reference to 17E whether it could be right that ICASA should consider all these factors when making their decision. Should the decision not be based on the recommendation of the CCC?


The Chairperson asked what the effect of the recommendation of the CCC would be. Was the ‘finding’ referred to in 17D binding on the Authority or could ICASA override it under 17E?

Mr Oliphant said that the CCC would carry out its functions on behalf of ICASA and that ICASA should therefore have the final word.

Ms Smuts asked if this was appropriate when ICASA had not heard the arguments as the CCC would have.


Mr M Mohlalonga (ANC) said in reference to the section on offences that this created the impression that contravention of certain provisions of the Act would be a criminal offence. Did this mean that the CCC could convict and sentence, or recommend the Authority to do so? Was this in line with jurisprudence?

Ms Johaar said that the CCC was not a tribunal. They were there to assist ICASA to carry out its functions. Taking heed of s17 of the Principal Act, the CCC was a statutory body whose findings could affect the right of every licence holder. When administrative action was taken which had the potential to adversely affect licence holders each person must be given a chance to complain. There were therefore many requirements that had to be complied with, for instance in relation to notices. The Promotion of Administrative Justice Act needed to be considered and worked into the ICASA Act. If an offence in terms of 17H was a criminal offence this would be tried in a court of law, not in the CCC.

Clause 21
Ms Smuts stated that Section 21 (2) of the Principal Act should not be repealed.

 

The meeting was adjourned for lunch.

The meeting reconvened at approximately 4pm.

The Chairperson stated that the amendments to the ICASA Amendment Bill were not ready, so the Committee could not continue. However, comments would be taken from the ANC since the draft Bill represented the DA's version.

Mr G Oliphant (ANC) enumerated the ANC's comments on the appointment of Councilors. The ANC recommended having a five-person panel, appointed by the National Assembly, to perform interviews for Councilor positions. The panel would consist of: two independent experts, one practicing civil academic from the telecommunications field, one representative who would make sure labour issues are addressed, and one representative from a consumer-interest group. Following interviews, the panel would recommend to the Minister one and one-half times the number of candidates needed. The Minister would prepare a list of Councilors,  which would be submitted to the National Assembly for approval.



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