Independent Communications Authority of South Africa (ICASA) Amendment Bill: voting

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
26 October 2005

INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA AMENDMENT BILL (ICASA) AMENDMENT BILL: VOTING

Chairperson: Mr M Lekgoro (ANC)

Relevant documents

ICASA Amendment Bill [B32-2005]
Proposed Amendments to ICASA Amendment Bill
ICASA Amendment Bill [B32B-2005] as voted on by Portfolio Committee

MINUTES
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Clause 7
Ms Smuts (DA) said that the reference to simply "licences granted and amended" would give lead to a register that would not reflect everything that was going on in the industry. She proposed that the register should include 'licences registered and de-registered, amended and revoked'. The main issue was what the Committee wanted the authority to record. Should it only record licences granted and amended and any transfer thereof or did the Committee want it to also record licences that were registered by authorisation.

Mr Oliphant said that there was still a difficulty. The proposed section 4A(1) referred to "underlying statutes" and this was the Convergence Bill. The Convergence Bill contained provisions for registering or de-registering all things that Ms Smuts was concerned about. Actually, the Bill covered more than what the member had proposed. He said that he was not opposed to the principle but he was of the view that it was not necessary to include it in the Bill.

The Committee disagreed with the DA proposal.

Mr S Kholwane (ANC) said that the proposed section 4A(1) should refer to licences granted or amended in terms of the Electronic Communications Act and not this Bill.

Ms Smuts said that the Committee had agreed that section 4B(2) provide that "the authority must, in the Gazette, give notice of its intention to conduct an inquiry and such notice must indicate the basis and the reasons for the inquiry and invite interested persons". She said that she had moved that there should be a specific reference to a requirement of a discussion document to be published. This was rejected and members had argued for and accepted reference to the basis and reasons for the inquiry. The Chairperson remembered the discussion.

Ms L Shope-Mafole (Director General: Department of Communications) said that there was no problems if members had agreed to "the basis and reasons for the inquiry". However, the Department's records showed that they had accepted "the reasons".

Ms Smuts agreed with the Director General's recollection. She said that Ms T Cohen (ICASA) had argued the clause should include the basis of the inquiry and she had been very persuasive on this. She felt that it was better to refer to "basis" because this would require the authority to point to provisions of the Act in terms of which they had acted. It would have to argue the conditions in the industry that created the basis of the inquiry.

Mr Oliphant said that there was a need to separate reasons from basis. There was no need to burden the authority with making such a distinction. He felt that reference to 'reasons' was enough. The Chairperson disagreed with this and argued for the inclusion of both.

The Committee agreed that the clause should refer to 'basis and reasons' of the inquiry.

Mr Oliphant said that the proposed section 4B (b) and (c) had been moved to an appropriate place.

The Director General replied that the Department had spent a lot of time trying to find an appropriate time for the two provisions. She wondered if the provisions did not cover something things that were already covered elsewhere in the Bill.

Mr Oliphant proposed that the provisions should moved back to their original position.

Ms Smuts felt that the proper place for the clause would be in a clause that dealt with the Complaints and Compliance Committee (CCC) because they were complaints of non-compliance with the Act and terms and conditions of licences.

The Committee agreed with the proposal by Mr Oliphant.

Ms Smuts said that there was a proposal that the proposed section 4C(2), (3), (4) and (5) should be moved to section 17 because they dealt with alleged transgressors. They belonged to a complaint provision.

The Director General said that it would be preferable to repeat the provisions in section 17. There would be no provision that supported the enforcement of cooperation in an inquiry should the provisions be removed from section 4C.

Mr Oliphant said that the understanding was that the CCC would conduct the inquiry.

The Director General was of the opinion that the authority would conduct the inquiries and that the CCC about complaints.

Mr Oliphant asked if the CCC would not handle inquiries. It would be better to have ICASA's opinion on the matter.

The Chairperson said that the CCC would be responsible for conducting hearings.

Mr Oliphant said that the provisions should remain in section 4C if it was agreed that the CCC would not deal with inquiries.

The Director General said that she had raised the issue from her experience with the Independent Broadcasting Authority (IBA). Section 28 of the IBA Act referred to powers and procedures in relation to inquiries and hearings. The industry was in some cases not enthusiastic to participate in an inquiry and this was there would be provision to ensure that the inquiry was successful. People might decide not to participate in an inquiry should they suspect that the outcome would not be favourable to them.

A representative of ICASA said that the provision would give ICASA an additional opportunity to get the information. The Director General was correct in terms of the way the IBA Act was drafted. She did not remember ever subpoena any of the operators, broadcasters or licensees during an inquiry process. However, the point that had been raised was valid. The ability to revoke a licence was critical and one could not understand how it had disappeared.

The Committee agreed on Clause 7. Two members abstained.

[Part of the discussion could not be covered due to technical problems]

Clause 12
Ms Smuts said that she was shocked by the amendment because the Committee had indicated that it did not want to change the provisions throughout its discussion. She wondered where the amendments came from and said that they were wrongly phrased. She proposed that the Committee should go to the original wording that proposed that a councillor might be removed from office only on a finding to that effect by the National Assembly and after the adoption by the National Assembly of a resolution calling for that councillor's removal from office. One could add "after following a recommendation to the effect by the Minister or a majority of other councillors". There was silence on what would prompt the National Assembly to hold a hearing in the first place. There was reference to a finding and this implied a hearing. One could not limit the circumstance under which the National Assembly could take action to a recommendation by a Minister. The Clause seemed to assume that the Minister was in charge and had a hand in the regulator. The clause would be open to political problems should the amendments be accepted. The bodies were accountable to Parliament and Parliament should be able to identify problems in them as they happened. Parliament should not be limited to the Minister reporting to it.

Ms Smuts said that a section in the Electronic Communications Act had been put in the Bill. The Committee had to consider how to deal with clashes. There were provisions dealing with similar things. It terms of the failure to comply with a subpoena notice or answer a question at the hearings was an offence. This carried a penalty of about R100 000. The Electronic Communications Act provided a penalty of R50 000. The offences provided in the Bill and the Act were pretty much the same but the Bill also provided for new offences such as the use of ICASA's logo or name. It was important to be consistent.

The Director General said that she would look at the inconsistencies referred by the member.

Mr Oliphant said that was no cross-reference between this Bill and the Convergence Bill. It was brought to the Committee's attention that the penalty of a fine not exceeding R100 000 was inconsistent with a penalty of R250 000 set out in another provision. He was of the view that both penalties should be R250 000.

Ms Smuts said that there were two offence clauses. One set out the offences the transgressions and penalties. The second clause was written for the Electronic Communications Bill because it referred to licensing. The Committee just had to clear up the inconsistencies. Section 17H(1)(a) refereed to failure to comply with notices and subpoenas and carried a fine of R100 000. Failure to make a statement or produce a document before the Authority without sufficient cause carried a penalty of R50 000. Paragraph (c) dealt with the making of a false statement before the Authority on any matter and carried a penalty of R100 000. Paragraph (h) also dealt with the same matter but carried a penalty of R50 000. She proposed that the words "or not knowing or believing it to be true" should be deleted from paragraph (c). A person who believed that what they were saying was true did not knowingly make a false statement.

Mr Oliphant said that the words "or not knowing or believing it to be true" had been deleted from section 17H(1)(c).

The Director General said that the Department had been requested to incorporate some views that came from ICASA. The Committee just had to look at which ones were superfluous and remove them.

The Committee adopted clause 20 with amendments.

Clause 21 Repeal of sections 18, 19, 20 and 21 of Act 13 of 2000
The Chairperson said that there was an agreement that section 21(2) should not be deleted.

Clause 23
The Chair noted that the Committee agreed to the clause, without amendments.

Clause 24
Mr Oliphant proposed that the references to "independent" and "electronic" be reinserted in the provision.

 

The Chairperson read the motion of desirability for the Bill and the Committee agreed that legislation was desirable to amend the Act. The Committee voted on each clause:

Preamble and Clause 1
Mr Oliphant said that the phrase "to amend the short title" should be deleted because the Committee was not going to change the name "ICASA" to something else.

Ms Smuts said that she had proposed that the words "broadcasting" should be removed and that the clause should simply refer to electronic communications and the convergence of networks and services. She wondered what had happened to the proposal.

The Director General was not aware of the proposal.

Mr Oliphant said that there had not been agreement to delete "broadcasting". The decision was that the Committee should replace "telecommunication" with "electronic communication".

Clause 2
Mr Oliphant said that there was a proposal that paragraph (b) should be deleted. The Committee agreed.

Clause 3
The Committee agreed to the clause.

[Due to confusion over the correct version of the amendments, there was an adjournment.]

Clause 4
There was a new clause. This was the delegation clause which stipulated that the power to make regulations might not be delegated. Paragraphs (3) to (6) had been deleted as suggested by ICASA.

Ms Smuts could not remember the Committee agreeing to the deletion of these paragraphs. The paragraphs contained important statements.

Mr Oliphant asked if the Department had deleted the provisions because they were covered elsewhere or were superfluous.

The Department replied that the issues contained therein were covered in other provisions of the clause.

The State Law Adviser said that sub-clause (4) to (8) were alternatives to having a new sub-clause 4A under Clause 6.

The Chairperson said that the issue was whether the provisions that the Department had proposed deleting were covered elsewhere in the Bill.

Ms Smuts lamented the fact that the Department had introduced new amendments at a stage where the Committee was formally considering the Bill. She was opposed to the deletion of the paragraphs.

Clause 6
Ms M Smuts wondered why the monitoring of the postal sector had been deleted. The proposed Section 4(3)(e) (Clause 5) referred to "grant, renew and amend" and the words "transfer, revoke register and de-register" appeared in brackets. She asked what was the intention of the brackets. The granting of a licence was different from registering it and this was why it was necessary to mention both. She asked if the brackets could be deleted.

Mr Oliphant said that the Committee had tried to get motivation for all these because there was a proposal from the DA that they should all be included. The contention was that there were separate provisions in the Convergence Bill that dealt with the registration and de-registration of licences. The principle was accepted but it was important not to duplicate things.

Ms Smuts said that it might be better to provide that "must administer the scheme for granting or registering licences". The Chairperson asked if anybody agreed to the proposal.

Mr Oliphant said that it was not necessary to incorporate the proposal.

Ms Smuts said that she was under the impression that the list of functions would be increased, after paragraph (i), by the inclusions of ICASA's proposed "j, k, l, m, n and o".

The Committee agreed to Clause 6

Ms A White, SABC Legal representative, stated that 24(i) cannot include the deletion of the entire Clause 21, as the Committee decided to retain Clause 21(2). She proposed that 24(i) refer only to Section 21(1).

The Chair noted that the Committee agreed to the amendment and to the clause, as amended.

Clauses 25 and 26
The Chair noted that the Committee agreed to the clauses, without amendments.

Long title
The Chair noted that the Committee agreed to the long title, without amendment.

Schedules
The Chair reminded Members that the Committee had already gone through the schedules, and noted that the Committee agreed to it.

Mr Oliphant begged the indulgence of the Committee as he wished to revisit certain provisions.

Clause 7
Mr Oliphant stated that the State Law Advisors advised that the phrase "basis and reasons" be removed and that "purposes" be reinserted in the proposed Section 4B(2), which he agreed with.

Ms Smuts moved for the retention of "basis".

The Chair noted that the Committee agreed to Mr Oliphant’s proposal.

Long title
Mr Oliphant proposed the deletion of the reference to the restructuring of the Council, as no provision in the Bill dealt with any form of restructuring.

The Chair noted that the Committee agreed to the proposal.

Clause 6
Mr Oliphant suggested the reinsertion of "revoke" in the proposed Section 4(3)(e). He proposed the deletion of "register and deregister" as the Convergence Bill contained sufficient provisions on those matters.

The Chair noted that the Committee agreed to the proposal.

Clause 15

Mr Oliphant suggested the substitution of "as chief executive officer of the Council" in the proposed section 14(1)(a) with "as chief executive officer of the Authority".

The Chair noted that the Committee agreed to the proposal.

Adoption of ICASA Amendment Bill
The Chair noted that the Committee had adopted the ICASA Amendment Bill, with amendments. He also noted the abstention of the DA and the IFP.

Committee Report on ICASA Amendment Bill
The Chair read the Report, to which the Committee agreed.

The meeting was adjourned.