President’s Referral of Independent Communications Authority of South Africa Amd Bill to Parliament: discussion

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
12 May 2006
PRESIDENT’S REFERRAL OF THE INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA AMENDMENT BILL TO PARLIAMENT: DISCUSSION

Acting Chairperson:Mr G Oliphant (ANC)

Documents handed out:
None

SUMMARY
After the Independent Communications Authority of South Africa (ICASA) Amendment Bill had been passed by the National Assembly, the amendments made by the National Council of Provinces were approved by the National Assembly, with reservations expressed by some Members, and the Bill was referred to the State President. The State President had referred clauses 7, 9 and 11 of the Bill back for further consideration of their constitutionality. The issue essentially turned on the power of the Minister in the appointment, removal and performance management systems of the ICASA Council.

Democratic Alliance representatives proposed that there should be a return to the provisions of the principal Act, so that the removal and appointment procedures remain as in the Act, and that the performance management system clause fall away. Since the Department of Public Service and Administration was already reviewing all Chapter 9 Institutions, there was no need to include these provisions. If, on conclusion of the Chapter 9 review, it was decided that there was still a need for performance management systems, there could be a further amendment to the Act. They therefore proposed that Clause 9 be deleted altogether; that in Clause 7 the number of councillors be amended from seven to nine; and that the description of the areas of expertise of Council members be amended. They suggested that the DA would accept a recommendations panel to advise Parliament, in line with the Independent Electoral Commission procedures.

ANC representatives believed that it was vital to reassert the central role of the National Assembly. They agreed that in Clause 7 the number of Councillors should be nine. They suggested that the selection panel consist of eleven (not seven) persons, and that its terms of reference be drawn up by the National Assembly. Six panellists, including the Chairperson, should be Members of Parliament. The panel should submit recommendations to the Minister, and the Minister must refer the recommendations to the National Assembly, which could ask for a review of the recommendations. Clause 9 should not be removed from the Bill, but the National Assembly should play a critical role. The performance management system should be established by the Minister but there must be consultation with the National Assembly. Any performance reports and recommendations for removal should similarly be referred to the National Assembly for consideration.

In summary, representatives from the DA, referring to the Minister’s comments and to an opinion from Advocate G Marcus, felt that the problem lay in perceived and actual independence of ICASA, and that any involvement at all from the Minister would result in lack of independence. The ANC representatives believed that this was not so and that provided there were sufficient safeguards, through limitation of the Minister’s powers by the National Assembly, the provisions would not offend against the Constitution or the principle of the Chapter 9 Institutions.

The Acting Chairperson suggested further time was needed for consultation and consideration, and for referral to the State Law Advisors. The matter would be concluded at the Committee’s meeting on Wednesday, 17 May.

MINUTES
Mr G Oliphant (Acting Chairperson of the Committee) proposed that, in view of other meetings that Members and observers needed to attend, the items on the Agenda relating to election of a new Chairperson, and consideration and adoption of Committee programmes, reports and minutes stand over until a future meeting, and that this meeting only consider the President’s reservation on the Independent Communications Authority of South Africa (ICASA) Amendment Bill. Members of the Committee agreed.

ICASA Amendment Bill: Clauses 7, 9 and 11
The Acting Chairperson reported that the NCOP had made some amendments to the ICASA Amendment Bill, endorsed by the National Assembly, with the reservation of some parties. The President had however now sent the Bill back to Parliament, expressing reservations in regard to the constitutionality of certain clauses. The Rules of Parliament required the Committee and the National Assembly to deal only with the matters referred, being Clause 7(amending Section 5 of the principal Act, relating to the appointment of the ICASA Council), Clause 9 (inserting a new section into the Act, relating to Performance Management Systems over the chairperson and members of the ICASA Council) and Clause 11 (substituting Section 8 of the principal Act, relating to removal from office of ICASA Councillors) of the Bill.

Discussion
Ms D Smuts (DA) believed that the President had detailed his objections forcefully and clearly. These related to the clauses of the Bill which attempted to give the Minister absolute power, so that there was no allowance made for Parliament to disapprove Ministerial recommendations or appointments, and essentially Parliament was merely represented on the panel (This was contained in the version sent back by the NCOP). The President had made it clear that performance management systems for the Council should be driven by Parliament, that independence in the Chapter 9 entities was vital, and he had given a "ringing endorsement" of the need for a truly independent Regulator.

Ms Smuts therefore believed that the original compromise reached in the National Assembly did not go far enough. Since the President wished the process to be driven by the National Assembly, she proposed a return to the provisions of the principal Act, so that the removal and appointment procedures remain as in the Act, and the performance management system clause fall away.

Ms Smuts reminded Members that the Department of Public Service and Administration (DPSA) was currently undertaking a review of the Chapter 9 Institutions, who shared the same profile as ICASA. DPSA, during the review process, would address problems, including performance management. She proposed that the matter be dealt with as follows:

Clause 9
Ms Smuts proposed that since these issues would be dealt with by the DPSA, there was no need for Clause 9 which should be deleted.

Clause 7(a)(1): Ms Smuts proposed that the Council should consist of nine, and not seven councillors appointed by the President on the recommendation of the National Assembly;

Clause 7(d)(ii): that the reference to "broadcasting [and telecommunications policy]" should be removed and substituted with a reference to "broadcasting, communications and postal policy…" since it was clear that expertise was needed in postal authority areas. She also suggested the inclusion of frequency and bandwidth planning as key areas.

Ms Smuts suggested that another possibility that would be acceptable to the DA would be to retain a recommendations panel that advised Parliament, similar to the situation with the Independent Electoral Commission (IEC).

Mr M Mohlalonga (ANC) commented that "a wise man always changes his mind". The ANC agreed with the reservations raised by the President on the possible unconstitutionality of the Bill and therefore the ANC wished to re-assert the central role, or "centrality" of Parliament in the performance management systems, appointment and removal of ICASA Councillors. He affirmed that ICASA must be an independent body, answerable to the Constitution and the law, whilst being permitted to exercise its mandate without fear. He proposed that the sections referred back should be redrawn to reinstate the position of the National Assembly as agreed originally by the National Assembly, but that more concessions could be added to reinforce the centrality of Parliament in the three areas of performance management, appointment and removal.

He therefore suggested the following amendments:
Clause 7
He agreed with the DA that the number of Councillors should be nine. The independent and impartial selection panel should consist of eleven (not seven) persons, and the National Assembly should draw up the terms of reference for the panel, and invite submissions on panellists. Six of the panellists should be MPs, and the Chair of the panel should also be a MP. Once the panel had submitted recommendations to the Minister, the Minister should approve them and refer them to the National Assembly for approval or disapproval. The National Assembly could require the Minister to review his/her recommendations.

Clause 9
Mr Mohlalonga did not at this stage wish to debate each sub clause or the specific wording but wanted to concentrate on the principle. He submitted that Parliament should play a critical role in the system, and therefore that the Minister, in consultation with the National Assembly, should establish a performance management system to evaluate the performance of the Chairperson and Councillors of ICASA. In other words, the Minister would still have some powers but would have to act in consultation. Once again, when Councillors had been assessed on performance, the reports should be submitted to the National Assembly for consideration.

Clause 11
Mr Mohlalonga suggested that a Councillor of ICASA could be removed only if the National Assembly approved a recommendation for removal, and once conditions of removal had been stated.

Adv P Swart (DA) asked for clarity on Clause 9 (4)(a), which stated that any evaluation of the performance of the chairperson of the ICASA Council would be conducted by a panel constituted by the Minister for that purpose. He asked if the ANC had any comment on the Minister’s involvement in that process.

Mr Mohlalonga replied that this had not been considered in detail, but that the ANC Members believed that any performance management system would have to be set up in consultation with the National Assembly, and that the final decision on the outcomes of any performance management review over Councillors or the chairperson of the Council would lie with the National Assembly.

Adv Swart summarised that essentially the views of DA and ANC Members differed in regard to the management systems. The DA’s view relied upon the comments made by the President around the role of the Minister and proposed a total disengagement, whereas the ANC’s proposal tried to cut the powers of the Minister by giving more powers to the National Assembly, but did not remove the Minister’s involvement. He therefore suggested that Members should concentrate on Clause 9, which was crucial to reaching agreement on amendment of the other two clauses.

Mr Swart stressed that the issue related to independence of the ICASA Council. Independence was both real and perceived. The moment that a Minister became involved in an independent body, whether in terms of its performance or even of its evaluation assessment, this gave rise to concern. Whilst the DA would be happy that a performance management system performed by the National Assembly would alleviate the problem, there still remained the problem that the panel would be constituted by the Minister. This was not factual independence. Although the panel would conduct the assessment and make its recommendations to the National Assembly, the Minister could still suspend after conclusion of the proceedings. Any involvement by the Minister could be seen as impinging upon the independence of ICASA as the Minister would impact upon the panel. Adv Swart urged members to remove Clause 9 altogether and move on to consideration of Clauses 7 and 11. Whilst performance management systems were necessary to address problems, such as capacity problems, he believed that they should operate entirely independently of the Minister and the Department. Furthermore, he believed that there was no need for performance management systems to be included in the Act at all, in view of the Review of Chapter 9 Institutions, and that if that Review resulted in it being necessary to revisit the matter, there could still be a further amendment to the ICASA Act.

Mr K Khumalo (ANC) did not believe that Mr Swart had indicated precisely his objections to the National Assembly driving the process, nor had he stated precisely what harm would be caused if the Minister appointed the panel. It was clear that the National Assembly would be central and crucial to the process. This would include performance as well as appointment and removal. He agreed that proper performance management systems were vital. The issue essentially was that there might be "suspicion" that the Minister could intend to or have the effect of interfering.

Mr Mohlalonga believed that the system proposed by the ANC had sufficient safeguards. Consultation with the National Assembly was an important delimiter, providing significant independence to ICASA and separating it from the executive. The role of Parliament must be clearly understood and stated. When reports had been submitted to Parliament and approval given, the Minister would in any event process the reports. It was at the stage of approval or disapproval of the recommendations of the panel that the powers of the Minister should be curtailed by reaffirming the role of Parliament.

Mr M Kwolwane (ANC) pointed out that Clause 9(4) had greater impact in so far as Chairpersons were concerned, since the other panels were in fact appointed by the ICASA chair. He believed that this was a further safeguard.

Ms Smuts believed that whilst the ANC proposals did go some way to addressing the issues, the problem was succinctly summarised in an opinion sought by ICASA from Advocate Gilbert Marcus SC. Adv Marcus had referred to the provisions of the Bill that gave the Minister power to determine performance criteria, and stated that the system of performance management was aimed at ensuring better performance. The fact that this would be evaluated by the Minister directly or indirectly impeded upon the independence and perceived independence. Even though the panel would notionally monitor the position, the fact that the Minister had been involved in the appointment of the panel meant that the Minister was indirectly involved in the process. This was in violation of the Constitution. Furthermore, Advocate Marcus had given the opinion that all Chapter 9 Institutions, and therefore also ICASA should be accountable only to the National Assembly. Advocate Marcus had referred to a recent judgment involving the South African National Defence Force Union and a Military Arbitration Board that had faced a substantially similar problem. In that case it had been found that the Military Arbitration Board would not be perceived as acting independently if the members had been appointed by the Minister, had no security of tenure, and could be removed by the Minister. Those who appeared before the Board would find it impossible to forget that the Board members were beholden to the Minister for their appointment and continuation in office, and therefore, on an objective test, a reasonable person would not consider the Board to be independent.

Ms Smuts submitted that the same would apply to the ICASA Council. Whilst she agreed that the National Assembly should consider performance management, she asked whether in reality the National Assembly was really equipped to run performance management systems. She pointed out that it was not possible to measure performance against a set of ready-drawn criteria such as number of meetings attended; the danger always existed that the authority measuring performance simply disagreed with the rulings of the Council. She was not sure that this would be an appropriate system. She urged again that the Members should await the outcome of the DPSA Review before dealing with questions of performance.

Ms Smuts touched briefly on the removal procedure. The usual grounds for dismissal were misconduct, inability to perform, failure to attend meetings and so forth. The ANC Members had only been speaking to the performance assessment panel, who were not able to deal with misconduct. Removal would occur in really serious offences, so that perhaps the performance management aspects had been overemphasised. She suggested that the new wording follow the original Act, so that the National Assembly, after having made its findings, should refer the matter to the President, as the appointing body.

Ms Smuts suggested that the Committee go back to her original proposals to the Committee; namely that the ICASA Council be modelled on the IEC appointment procedure (IEC also being a Chapter 9 Institution), that the panel set the criteria publicly and send its recommendations to the National Assembly, who should vote on the matter, and refer the decision to the President. The President would sign and make the appointment. The Minister would have no role at all in the process. She stated that both the IEC panel and ICASA Council had pre-legislated components, both were Chapter 9 Institutions and both played a vital role. In regard to the constitution of the Council she suggested that, like the IEC, the ICASA Council should include a Constitutional Court judge, and a commissioner from the Human Rights Commission (HRC) (which had an important role in ensuring freedom of speech) to affirm its profile and stature. The IEC included a Gender Equality Commissioner and the Public Protector, and she suggested that although these might not be appropriate for ICASA, persons of similar standing in relevant bodies should also be included, such as the Head of the Competition Commission Tribunal, who could advise on economic regulation. She believed that her proposals would make the whole process "clean and clear", remove all constitutional problems and accord to ICASA the importance it deserved.

Mr Mohlalonga believed that the proposals contained some contradictions. He reminded Members that there was some discrepancy, as ICASA was not listed in Section 181 of the Constitution, and independent authorities were listed in Chapter 9. Parliament could, in terms of Section 181, develop a process for appointment of other bodies. He believed that there was only one correct approach to ensure independence, and that this was the involvement of the House of Assembly. His suggestions asserted the independence of the authority and the role of Parliament.

The Acting Chair believed that there was no real difficulty between the Members, all of whom were concerned that independence should be maintained.

Mr Khumalo was concerned that the Committee should not simply revert to the original proposal made by Ms Smuts. "Independence" had been defined as comprising security of tenure, financial independence, administrative independence, and accountability. Administrative independence was interlinked to performance. He was not certain of the DPSA position and suggested that Members should check how this affected ICASA. He reminded Members that there were other institutions apart from the IEC appointed under Chapter 9, and that they should not simply be assumed to be the best possible example.

Ms Smuts stated that, in the interests of time, she would not deal with the points raised nor go into the history of ICASA . She reiterated her proposal to revert to the old Act, with the amendments proposed to Clause 7 and 11; or, if the ANC maintained its position on the panel, then one must look to the history. She did not deny that a case could be made out in respect of the panel, and that Members needed to consider it further.

Ms L Shope-Mafole (Director General, Department of Communications) reported that the Bill, as referred to the Department from Cabinet, had included the provisions in regard to the appointment, removal and performance management, and that therefore the Department’s mandate extended to all provisions in the Bill as received.

With regard to the perception of independence, she pointed out that although this debate was based on a historical context, it was of note that other developed countries’ regulatory authorities were appointed by the executive, and that there had not been any abuse of power.

She agreed that performance management was vital, whatever its final structure, and this was one of Government’s particular areas of emphasis. Industry and consumers looked to the National Department to rectify matters where there was poor performance and the Department of Communications therefore had a most important responsibility in developing a sector that was modern and followed a responsive and accountable approach. The task of the Regulator in this regard was vital. She urged that in considering the panel, the views of the industry must be taken into regard.

The Acting Chairperson suggested that the Members satisfy themselves on the question of powers delegated to the Minister by the President. He suggested that the best way to proceed would be to allow further time for consultation and consideration, and for referral to the State Law Advisors, and that the matter should be concluded at the meeting on Wednesday 17 May. He noted that Adv P Swart would need to excuse himself from that meeting to attend another.

Appointment of Council members whose terms of office expired on 30 June 2006
The Acting Chairperson stated that the term of office of some of the current ICASA Council members would expire on 30 June 2006, but reminded Members that there was provision in the current Act for them to voluntarily stay on Council for a further 45 days.

Ms Smuts believed that there was, notwithstanding this additional period, some urgency in dealing with the matter. She wondered if the Committee should not rather start the appointment process in terms of the existing Act, since she was not sure that any amendments could be assented to within the period mentioned.

The Acting Chairperson replied that the speed of amendments depended largely upon progress made by Members in reaching consensus, and that he believed that the matter did not necessarily need to be dealt with today, but would be discussed at the next meeting of the Committee.

The meeting adjourned.