Amendments to the Independent Communications Authority of South Africa Amendment Bill [B32F-2005][B32d – 2005]: consideration

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
18 May 2006
AMENDMENTS TO THE ICASA AMENDMENT BILL [B32D – 2005]: CONSIDERATION

Acting Chairperson: Mr G Oliphant (ANC)

Documents handed out:

Reprinted version [B32D-2005] of the Bill, incorporating all options and amendments suggested on 17 May 2006

SUMMARY
The Committee met to try to finalise the amendments to clauses 7, 9 and 11 of the Independent Communications Authority of South Africa (ICASA) Amendment Bill, following the referral back to the Committee of those clauses by the President. The main issues outstanding related to who should be responsible for the appointment of Councillors, who should establish and run the performance management system, whether the same procedural system should apply to Councillors and the Chairperson of the Council, who should suspend a councillor from office pending proceedings, and who should have the power to remove a Councillor from office. The State Law Advisor’s office had drafted the various options and the Committee clarified and discussed the wording, and produced some further optional possibilities. The wording of some sub-clauses was approved.

The decisions on Clause 7(1A)(b)(vi); Clause 9 (subsections on establishment of performance management system, appointment of evaluation panel and conclusion of agreement to be redrafted and considered) and Clause 11 stood over until 16:30. The State Law Advisor was requested to produce a redrafted version for consideration at that time.

MINUTES
The Acting Chairperson (hereafter referred to for ease of reference as "the Chairperson") took the Committee, clause by clause, through the amendments that had been suggested and drafted as Version E by the State Law Advisor.

Clause 7
The Chairperson reported that two options had been proposed. It had already been agreed that the Council should consist of nine, and not seven, Members in total. The first option made provision for the Minister to appoint the Councillors. The second option made provision for the President to appoint the Councillors.

Clause 7(1)
Ms D Smuts (DA) recommended that the Committee support the appointment function of the Minister, provided that a proper oversight function by the National Assembly was in place for the selection process.

All parties agreed that the Council should be appointed by the Minister. Option 2 as drafted would therefore fall away.

Clause 7(1A) (a)
Ms A Johar (State Law Advisor, Office of the Chief State Law Advisor) reported that the Committee had been undecided on whether the National Assembly should "appoint" or "select" a selection panel. She reported that the dictionary definitions suggested that "select" would be more appropriate, as "appoint" could denote more than one function.

All parties agreed that the wording should read "…the National Assembly, must after drawing up terms of reference and inviting nominations for panellists, select an independent and impartial selection panel, consisting of eleven persons…"

Clause 7(1A)(b)(i)
This clause dealt with the qualifications of the selection panel. Sub-clause (b)(i) was originally worded "a person with knowledge and experience of the industry". The State Law Advisor suggested that the word "of" either be amended to "in" or that the wording be broadened further.

Ms Smuts pointed out that it would be preferable to have broader wording to allow that retired persons no longer in the industry could be appointed.

Ms L Shope-Mafole (Director General, Department of Communications (DoC) stated that there were many people with knowledge of the industry, but who had not been involved in it. She suggested that the wording be amended to "knowledge and experience in the industry".

Committee Members agreed with Ms Shope-Mafole’s suggestions and agreed that the wording should read "(i) a person with knowledge and experience in the industry"

Clause 7(lA)(ii)
Mr P Swart (DA) asked whether the "and" should be changed to "or" as it might be difficult to find someone with knowledge of legal matters, ICT sector and competition related matters. Ms Shope-Mafole indicated that there were such people available.

It was agreed that the words "and competition related matters" be inserted.

Clause 7(1A)(b)(vi)
It was firstly agreed that the selection panel should include six Members of the National Assembly.

The main issue related to whether the six Members must be stated as "including one or more Members of opposition parties", alternatively stated as "including two Members of opposition parties".

Ms Smuts believed that the legislation should specifically provide for a multi-party panel. She and Mr Swart agreed that they would be happy with the "one or more " option, as specifying two Members might be too harsh. They were concerned to uphold a proper multi-party democracy and pointed out that African Union (AU) provisions were similar.

Mr K Khumalo (ANC) asked whether the Judicial Service Commission (JSC) made provision for multi-parties, and Ms Smuts confirmed that it did; section 178 provided for appointment of the Commission "…at least three of whom must be Members of opposition parties".

Mr M Mohlalonga (ANC) stated that the National Assembly was already a multi-party forum and therefore all parties were still involved in the process. He did not believe that it was necessary to specify that opposition parties be included.

Mr M Kwolwane (ANC) did not see that there would be harm in including wording allowing for opposition parties.

Ms S Vos (IFP) reminded Members that South Africa was presently undergoing a country report. A golden thread running through the New Partnership for Africa’s Development (NEPAD) and peer review processes was the question of multi-party democracy. She believed it was important to make it clear by including Members of opposition parties, that the National Assembly was committed to upholding the multi-party democratic system and to doing so openly and transparently.

Ms M Morutoa (ANC) expressed agreement with Mr Mohlalonga.

Ms Shope-Mafole pointed out that the legislation was being drafted not for the current Parliament but for the future and asked whether it would be enforceable if there were no opposition party Members for inclusion. She pointed out that the legislation should allow for all eventualities.

No decision was taken on this point, which would stand over for a vote.

Clause 7(1A)(c)
This clause had two options: that the names of persons selected and the terms of reference of the selection panel should be published either by the Minister by notice in the Gazette, or by the National Assembly in a newspaper.

Mr Mohlalonga believed that since the National Assembly was to appoint the panel, it would be logical for the same body to make the publication.

Ms Smuts agreed.

It was agreed that the wording read, "that the names and terms of reference should be published by the National Assembly in a newspaper."

Clause 7(1B)
This clause had a number of options. It envisaged that the selection panel should invite the public to nominate candidates for appointment to the Council. It should then submit a list of names; the options were that the list should be submitted to the Minister, or alternatively to the National Assembly.

Mr Mohlalonga pointed out that the logical sequence would be for the list to be submitted to the National Assembly and that the list of candidates should contain one and a half times the number of councillors to be appointed.

Mr Swart agreed.

It was agreed that the third (b) option as tabled be approved; namely that the selection panel submit the list of names to the National Assembly, and that list must contain one and a half times the number of councillors to be appointed.

Clause 7(1C) and Clause 7(1D)
These clauses would fall away, following the decision on sub-clause (1B)

Clause 7(1E) and 7(1F)
It was agreed that it was still necessary to have the second option listed; namely that following approval by the National Assembly the Minister would appoint the Chairperson or other councillors by notice in the Gazette. It was also agreed that sub clause (1F) would remain as drafted.

Clause 7(2)(a) and (b)
It was agreed that the amendments set out in these sub-clauses were acceptable.

Clause 7(3)(b)(ii)
This clause contained the qualifications and experience required of the Members of the Council. The State Law Advisor stated that the two words suggested the previous day were more or less interchangeable, but that "relevant" was broader than "related" and would cater for the Director-General’s concerns.

It was agreed that the list of qualifications, expertise and experience fields listed should conclude with the words "…or any other relevant expertise or qualifications".

Clause 9

The Chairperson reported that this clause dealt with the establishment of a performance management system. Two options had been suggested: either that the Minister, in consultation with the National Assembly establish a performance management system, or that the National Assembly should establish a performance management system.

Ms Smuts felt strongly that this function should fall to the National Assembly.

Mr Mohlalonga believed that it would be appropriate for the Minister, in consultation with the National Assembly, to develop the process. He felt that the National Assembly retained sufficient limitations on the Minister’s powers by being able to amend or reject the system. He suggested that the drafting processes involved were purely administrative functions.

Mr Swart felt that this still did not address the problems of perception raised in the opinion of Advocate Marcus tabled at a previous meeting. He stated that there was a problem in the body regulating on the same criteria as that same body had set. He agreed that the National Assembly did not necessarily have the expertise alone and would need assistance with developing the criteria for performance management, and might even be prepared to accept wording of "The National Assembly, in consultation with the Minister". However, he felt very strongly that if the Minister were to play any part after developing the criteria, the independence of the Independent Communications Authority of South Africa (ICASA) would be put in jeopardy. There was always a problem if a person exercising an executive line function was thereafter involved in an assessment of the very criteria set by the same person.

Mr Swart suggested that the DA would be prepared to agree to the ANC proposal only on condition that the Minister were not, after setting the criteria, to play any further part at all in the process. He therefore believed that clauses 9 and 11 needed to be debated together.

Mr Swart therefore proposed that a further amendment to those already drafted; so that the three options would be:

1. that the Minister establish the performance management systems
2. that the Minister, in consultation with the National Assembly, establish the performance management systems (in which case his reservations expressed on Clause 11 would need to be considered too)
3. that the National Assembly, after consultation with the Minister, establish the performance management system. This in his view would take out the discretion awarded to the Minister, and allow the National Assembly to drive the process, obtaining the Minister’s input where important.

Mr Khumalo stated that the intention was clearly that ICASA Councillors should be accountable and act properly. He reminded Members that the Portfolio Committee retained oversight and believed that a consultative process would set clearer bounds for accountability. He suggested that whatever system was accepted should apply equally to Chairperson and Councillors.

Ms Vos agreed that clearly there should be accountability but she wished to prevent the situation where vested interests and shareholdings might be used to exercise influence on the Regulator.

Ms Smuts supported the concerns of Ms Vos, which reflected the DA’s concerns about the conflict of interest and support of the views expressed by the President. She believed that it was always problematic to put a line Minister with an active interest in the sector (both literal and figurative) in a position to make discretionary decisions. She still believed that the entire clause should be deleted pending the development of a system for all Chapter 9 Institutions.

Mr Swart agreed that this could be a further option, and that, in accordance with the National Assembly selecting a panel to choose councillors, it could in the same way select a panel to evaluate the performance. Although the Minister would constitute the panel, he would not be involved in the decision process. The National Assembly could select a panel to undertake the performance appraisals and sign the contract with the Chair of ICASA. In this way ICASA’s independence would remain intact and the vested interests of the Minister would be shielded.

Mr Khumalo conceded that there would be no problem with the National Assembly driving the process "in consultation with the Minister", although he felt that performance management was outside the real function of parliamentarians, and asked for input from the State Law Advisor.

Mr R Pieterse (ANC) stated that whilst it might be true that some councillors in the past had not performed properly it was dangerous to assume that people, including the Minister, were intent upon "getting up to mischief" and that performance management systems should not be drawn up on this basis. He suggested that if assistance was needed in drawing up the systems, the Minister was the appropriate accountable officer.

Mr Mohlalonga pointed out that whenever there were problems in delivery, industry players tended to approach the Minister or Department, not the parliamentarians, believing that the Minister must play a role in performance.

Ms Shope-Mafole agreed that it was indeed the responsibility of government to ensure that the sector operated properly and that it was vital to have a regulator who performed well. She confirmed that the DoC did receive complaints about the quality of service from the regulator. She urged that the Committee not wait for the Chapter 9 Review as other institutions were not under the same pressure as ICASA. The DoC was simply concerned that there should be a proper process to manage performance and protect the industry and councillors. Any decisions must be taken with a view to protecting both sides. The DoC felt that if the wording were changed around, the Minister might wait for Parliament to do the work before indicating agreement or otherwise, whereas if it was clear that the onus was upon the Minister to consult; this might speed up the agreement process.

It was resolved that no decision be taken on the issues, but that the Committee would in due course vote on the following three options: that the performance management system be established:
Either a) by the Minister, in consultation with the National Assembly
Or b) by the National Assembly
Or c) by the National Assembly, in consultation with the Minister.

Clause 9 (2)
This clause dealt with how the performance management system should set performance indicators, standards and review procedures. It was agreed that this clause was acceptable to all parties.

Clauses 9(3) and 9(4)

This clause dealt with the conclusion of performance management systems. The suggestion was that the performance agreements should be concluded between the Minister and the Chairperson, and the Chairperson and a councillor.

Ms Smuts suggested that the agreements be concluded between the National Assembly and the Chairperson. The Chairperson was accountable to the National Assembly, and therefore it was appropriate for the agreement to be between those parties. She suggested that it would be possible to develop a method to allow for signature. She believed that there should not be a distinction between the Chairperson and the councillors, but did not feel strongly enough to hold up proceedings on this issue.

Mr Khumalo pointed out that when interviewing potential councillors no distinction was necessarily made between those who could be the Chairperson and those who would sit as ordinary councillors. He believed that different standards should not apply to the procedures, as it would be extremely difficult for the Chairperson to evaluate fellow councillors. He believed that all Members of council, including the Chair, should be accountable to the National Assembly.

Ms Smuts agreed with this view.

Mr Mohlalonga stated that this would also impact upon subsection (4). He suggested that the Minister should rather appoint a panel to evaluate the performance of all councillors, and that reports should be submitted to the National Assembly by that panel. This would provide a safeguard.

Mr Khumalo replied that if the Minister appointed a panel, it would be cumbersome, in the evaluation process, to have the Chairperson evaluate the other councillors, unless he acted more like a Chief Executive Officer.

Mr Swart suggested that perhaps the two subsections should be read together. If the Minister were to appoint a panel, this would be the exercise of a purely administrative function in which there was no discretion. Signing an agreement would similarly be an administrative action. If the National Assembly were to drive the process of assessment of councillors, and the reports were submitted back to them, then there would be sufficient control, and there would seem to be no objection to allowing the Minister to sign the performance agreements. However, he should sign agreements with all councillors, not just the Chairperson. However, all evaluations should be exercised by the National Assembly so that the Minister had no discretionary powers or executive line functions to do with ICASA. The performance agreement would be protected by the consultative process. Mr Swart agreed that there should be no difference in the procedure to evaluate the Chair or councillors. He added that if the evaluation panel was constituted by the National Assembly, if should (subsection (5)) report back to the National Assembly.

Ms Shope-Mafole addressed the distinction between councillors and the Chairperson. When DoC sought an appointment, it did make a distinction in the appointment process. Some people, who were eminently qualified as chairpersons, would not be willing to sit as ordinary councillors. She pointed out that the responsibilities of ordinary councillors differed substantially from those of the Chairperson.

Mr Swart clarified that it was never his intention that the evaluation or performance agreements should be the same, but merely the procedures of the performance agreements, the signature and the evaluation procedure. The actual evaluation process would be based upon different criteria.

Ms Shope-Mafole indicated that she would be happy with this distinction.

The Chairperson summarised that in principle Members seemed to agree that (4)(a) should make provision for evaluation of Chairperson and Committee by the same panel and the question was merely who should constitute the panel.

Mr Khumalo believed that the panel should be constituted either by the Minister or by the National Assembly. He suggested that the Minister could do so as the National Assembly would still retain sufficient control, without detracting from its oversight function, which might happen if it were to drive every stage of the process.

Mr Swart understood Mr Mohlalonga’s argument to be based upon the premise that because the Minister made an appointment she should sign the document. By the same token, if the National Assembly made an appointment, the reports must be made to the National Assembly. If the Minister were allowed to take any discretionary decision in a line function affecting an independent body, this would not be acceptable and would, in his view, not be in accordance with the Constitution and in the best interests of South Africa. He would support the National Assembly appointing an evaluation panel, which he believed was complementary to the Portfolio Committee’s oversight role when considering briefings by the ICASA Chairperson.

Ms Vos proposed that if the ANC maintained their stance of the Minister being mandated to appoint the evaluation panel, the section should at least allow for terms of reference to be approved by the National Assembly.

Mr Mohlalonga indicated that he did not agree with this suggestion.

The Chairperson requested the State Law Advisor to note these suggestions and to find a formulation that would encompass these suggestions, and incorporate subsections (3) and (4) together

It was agreed that the final wording stand over for a vote at a later stage.

Clause 11
This clause dealt with removal from office of councillors. This clause had been rejected and two possible replacement drafts were tabled. The Chairperson stated that there did not appear to be any contention on subsections (a) to (f). A new subsection (g) had been added, giving refusal to sign a performance agreement as an additional ground for removal.

Mr Swart had understood the proposal to be that the National Assembly could request a councillor at any time to vacate office, if it had received representations and believed that this was appropriate. Once again, it was important to ensure that the Minister exercised no line-function actions, and he believed that the wording should ensure that the Minister, in suspending, was exercising a purely administrative action.

The Chairperson therefore summarised that the options were: either that the Minister suspend a councillor; or that the National Assembly could request the Minister to suspend a councillor. Subsection (b) would not be affected.

Ms Smuts suggested a third formulation: that the words "at the request of the National Assembly" be inserted at the end of subparagraph (a)

The meeting adjourned for a caucus.

On resumption:

The Chairperson reported that the general consensus was that the decisions on Clause 7(1A)(b)(vi); Clause 9 (subsections on establishment of performance management system, appointment of evaluation panel and conclusion of agreement to be redrafted and considered) and Clause 11 stand over until that afternoon. In the meantime the State Law Advisor would do a re-draft.

The meeting was adjourned until 16:30 on 18 May.