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SCIENCE AND TECHNOLOGY PORTFOLIO COMMITTEE
31 July 2007
ASTRONOMY GEOGRAPHIC ADVANTAGE BILL: HEARINGS
Chairperson: Mr E Ngcobo (ANC)
Documents handed out:
Astronomy Geographic Advantage Bill [B17-2007]
Transnet PowerPoint presentation
National Association of Broadcasters (NAB) PowerPoint presentation
National Association of Broadcasters (NAB) submission
National Research Foundation submission
SNO Telecommunications submission
Audio recording of meeting
The Transnet delegation spoke about their support for the Astronomy Geographic Advantage Bill, their activity in the proposed Astronomy Geographic Advantage (AGA) area and their concerns about the consultation process, cost implications and safety implications. Transtel, a division of Transnet, highlighted the sections in the Bill that it felt would significantly impact on its business. The need for greater cooperation between the affected / stakeholder parties was underlined in the presentation.
Members asked questions about the technical nature of the problems identified by Transnet. The role of the Independent Communications Authority (ICASA) and the levels of consultation were scrutinised by the Committee. The Committee was of the view that the stakeholders should have sorted out these issues amongst themselves prior to coming to Parliament.
The National Association of Broadcasters said that they supported the SKA Project and the Bill but discussed their concerns about constitutional, legal and regulatory issues and its impact on universal service, broadcasters, listeners and viewers. The main thrust of their presentation centred on the exclusive jurisdiction of ICASA to regulate broadcasting and other electronic communication services in the country. They maintained that this Bill created a second regulator which was unconstitutional.
Some Committee Members queried the constitutionality of the Bill and ICASA’s involvement in the consultation. The Department of Science and Technology (DST) and legal advisors provided a response to the submissions, maintaining that the Bill was not unconstitutional.
Ms Indira Reddy, General Manager: Group Compliance, Transnet, expressed her organisation’s support for the SKA Project as the country would derive significant benefits from hosting this initiative. Some of these advantages included attracting foreign direct investment, enhancing the country’s reputation and standing in knowledge-intensive countries and the associated socio-economic benefits for the affected region.
Mr Danie Botha, Chief Engineer: Telecommunications, Transnet Freight Rail, discussed Transnet’s activity in the proposed astronomy geographic advantage area. It managed three important railway lines in the affected area: the Sishen-Saldanha Railway Line, De-Aar-Nakop General Freight Business Line and Cape Town-De-Aar Line. Mr Botha unpacked the primary activity, rate of usage and primary train authorisation systems for each line and looked at the digital technologies that would be used in the design of the Square Kilometre Array Telescope (SKA) telescope.
Mr Sherwin Thomas, Senior Manager: Service Delivery, Transnet Freight Rail, indicated that Transnet was generally concerned about how the AGA Bill impacted on current rail operation and planned rail expansion activities. The specific concerns about the AGA Bill centred on the consultation process, cost implications, safety implications and Transnet contractual obligations. The clauses that were problematic were highlighted and Transnet provided proposals for amendments that they would like to be effected. Mr Thomas called for cooperation between affected/stakeholder parties and requested that the Bill provide for a stronger right than ‘consultation’ for organs of state. He reiterated their support for the SKA project and the intent of the Bill.
Mr J Blanche (DA) noted that Transnet was concerned about the impact that the SKA project would have on the economy. He wondered if the state organ believed that the SKA project was a "nice thing to have" but that in the long run it could negatively affect their business.
Mr Botha replied that the organization was proudly South African. He believed that their concerns would diminish if the Committee accepted their proposals and if they managed to resolve their differences with other stakeholders.
Mr C Morkel (PIM) observed that the problems identified by Transnet were of a technical nature. He also supported the idea of establishing a stakeholder forum to iron out unresolved issues.
Mr Botha responded that some of the technical stumbling blocks existed because competing companies were worried about confidentiality matters. It would be worthwhile for all parties to work together in a manner that would ensure proper discretion and prosperity.
Ms B Ngcobo queried the state organ on their thoughts about the right of consultation.
Mr Botha answered that the word 'consultation' defined a certain process. This concept was often abused by employers who deemed that they had consulted sufficiently and could then proceed. There needed to be some rights entrenched in this concept that would allow the party, who had been adversely affected, the power to stop matters.
Ms Vanessa Wilson, Company Secretary and Legal Counsel: Transnet Restructuring, proffered that consensus was a greater right than consultation. This could be achieved at the outset by the relevant stakeholders.
The Chairperson advised that the stakeholders consider a different approach before appearing in Parliament to discuss a Bill. They should engage in dialogue at a stakeholder’s forum and iron out their issues prior to their appearance.
Prof I Mohamed (ANC) wondered whether other countries had similar objections as those that had been raised in South Africa and whether this would affect South Africa's chances to host the SKA project.
Dr Bennie Fanaroff, Project Director, Square Kilometre Array South Africa (SKASA), explained that South Africa and Australia had been short listed to host this project. The quiet nature of the designated space remained a fundamental factor in determining the most appropriate place. It was confirmed that the level of interference in Australia was lower than in South Africa. SKASA was looking at ways to improve the country’s chances. Dr Fanaroff said that he welcomed any engagement with stakeholders.
Mr Morkel suggested that ICASA play a more prominent role in discussions on this Bill.
The Chairperson recommended that DST first consult with ICASA to ensure that it understood all the technicalities. After acquiring this mandatory information, DST would be in a position of strength and could then invite other stakeholders to a forum. This process would be simpler and could culminate in the matter subsequently coming to Parliament.
Dr Bethuel Sehlapelo, Deputy Director General, DST, accepted the wisdom of the suggestion. He asked Dr Fanaroff to elaborate on the level of consultation that DST had undertaken.
Dr Fanaroff explained that the SKASA had established a committee with ICASA in 2004. This committee had met monthly for nearly two years while the Bill was being drafted. This committee had since been re-established. The Minister of Communications requested that ICASA participate at all levels. When the first draft of the Bill was completed, comments were invited from major operators. Not all operators responded at that time. Dr Fanaroff maintained that he was keen to talk about technical issues and solutions. ICASA was providing DST with support and this collaboration would continue.
The Chairperson asked how Eskom’s intended project of building two nuclear power stations in the province would affect the SKA project.
Dr Bethuel Sehlapelo offered to provide a complete response at a latter date. DST was aware of the announcement by Eskom and intended to interact with them and the Department of Minerals and Energy.
Dr Fanaroff explained that the Bill did not prevent anybody from ever operating a radio transmitter in the Northern Cape. DST would have to sit down with all stakeholders and ask them, given the terrain and the territory, whether they would be able to continue their business while at the same time making it possible for the SKA to operate. The same applied to Eskom. Depending on where and how far away they were situated, the nuclear power stations might not affect the SKA.
Mr Blanche was pleased that a delegation from the Northern Cape was present because that province would stand to lose if they were not involved in the process. They needed to articulate their interest and be satisfied with the process. He suggested that the passing of the Bill might result in the sterilization of communication in the area.
The Chairperson added that communication gave rise to a knowledge economy. The restriction of information, as a result of this Bill, would impact on this notion.
Mr Siphiwe Dlamini, Chief Director: Communications and ICT, Office of the Premier-Northern Cape, said that the Northern Cape government was fully represented in all structures of the process. After debating the pros and cons internally, the provincial government decided in favour of the SKA project. The SKA would establish South Africa as a scientific hub on the continent and in the world. The Minister of Education would be lobbied to declare the Northern Cape as the scientific province of the country. Mr Blanche’s comments on sterilization were countered with the argument that the province was already sterilized. The speaker was convinced that the SKA project would benefit the people and have positive spin-offs for the region.
Ms Ngcobo wanted to establish by when DST hope to finalise the Bill.
Dr Bethuel Sehlapelo replied that a decision on the SKA was expected to be made by 2009. DST hoped to finalise the legislation by the end of 2008. This legislation would enhance the country’s bid because it protected the potential investments.
The Chairperson requested that DST interact more regularly and intensively with the various stakeholders.
National Association of Broadcasters (NAB) submission
Mr Dan Moyane, NAB Chairperson, described the organisation’s history, credentials and membership composition. He said that their submission was intended to clarify the role of ICASA and ensure universal access for broadcasters. He voiced support for the SKA bid and the Bill.
Ms Dimakatso Qocha, Deputy Executive Director, NAB, stated that the Constitution was supreme and that any law which was in conflict should be declared null and void. In light of this, she pointed out that the Bill contravened section 192 of the Constitution. This section provided for the establishment of an independent authority (ICASA) to regulate broadcasting and other electronic communication services. It did not provide for multiple institutions to regulate broadcasting and ICASA did not have the authority to delegate or share its powers. NAB raised its concern about the constitutionality of certain sections of the Bill. These were Sections 18, 20, 22, 23 and 28. The Bill also contravened and undermined provisions of the Electronic Communications Act (ECA). She argued that there was a lack of recognition for the appropriate constitutional structure, ICASA.
Mr Linden Petzer, Consultant to NAB, said that ICASA was obliged to comply with the International Telecommunications Union (ITU) Constitution, Convention and Radio Regulations. The ITU Radio Regulations contained rules for the use and operation of frequencies, and specify operating procedures for transmitting and receiving stations. The effect of Radio Regulation 4.6 meant that radio astronomy had no special status in terms of protection from interference. The radio astronomy protection levels sought by the SKA were much greater than what was required by the ITU for the protection of other electronic services. As a result, the SKA conflicted with Radio Regulation 4.6. He concluded by calling for further discussions and interaction amongst all the relevant stakeholders.
Ms Lynn Mansfield, Chairman: Technical Committee, NAB, stipulated that broadcasters would not be fulfilling their licence conditions by not providing services in astronomy geographic advantage areas. The Bill was therefore likely to have an adverse impact on universal service, customers (television viewers and radio listeners), signal distributors and broadcasters. While alternative technology existed for television, there would be huge cost implications for the customers. No viable alternative technology existed for radio.
Mr Johann Koster, Executive Director, NAB, reiterated that the organization was not opposed to the SKA Project and the Bill. He asserted that ICASA had the exclusive jurisdiction to regulate broadcasting and other electronic communication services. He emphasised the need for greater consultation between the Ministers of Science and Technology and Communication. ICASA should work closely and co-ordinate with the Department to advance the science of astronomy in the country. The NAB believed that there was insufficient information available in respect of radio astronomy to determine the impact on broadcasting. It remained however supportive of radio astronomy and committed to the success of the SKA.
The Chairperson asked the state law advisors to comment on the constitutionality of the Bill.
Ms Xoliswa Mdludlu, State Law Advisor, stated that her Office had certified the Bill and that there was nothing unconstitutional about it. The ECA was national legislation and could be amended by any other legislation. There was nothing peculiar about that. It was further motivated that the Bill focused on astronomy geographic advantage areas and did not regulate broadcasting. She promised to make a proper presentation at the conclusion of these hearings.
A member of Parliament's Legal Services Office was unable to provide an opinion on the matter. She undertook to furnish a response at a later stage.
The Chairperson requested DST to comment on the issues raised by NAB.
Mr Puseletso Loselo, Manager: Legal Services, DST, stated that the Bill was not unconstitutional. He cited an example where the Constitution stipulated that there should only be one prosecuting authority in the country. However, the Constitutional Court (CC) decreed that the existence of a prosecution authority in the defence force did not render it unconstitutional. The CC looked at the purpose and intention to reach that conclusion. It was important to have a broad view when interpreting the Constitution. The AGA Bill did not seek to regulate broadcasting. It sought to regulate only astronomy related areas. Regarding consultation on the Bill, DST believed that they had consulted sufficiently. Earlier in the year, the Bill had been published in the Government Gazette for comments. This exercise did not yield any response. The only time DST started getting enquiries about the issue was after it was published again in the Government Gazette, this time by Parliament.
Dr Tshepo Seekoe explained that DST had instituted a co-ordinating committee two months previously, to manage technical issues and matters pertaining to radio and optical astronomy. There were various stakeholders represented on this co-ordinating committee. Both the Department of Transport and the Civil Aviation Authority were active members of the committee.
Mr Neil Smuts of SKSA explained further on the levels of consultations which took place. The first series of consultations had taken place in March 2006 when the Bill was in its early drafting stage. Twenty-one entities, both in the private and public sector, that had been involved in the operation of communication networks, had been approached for comments. Written comments had been received and several changes had been made to the Bill. ICASA and the Department of Communications had been part of this process. An agreement had been signed between DST and ICASA to work together and promote the scientific interests of the country. ICASA had established a special committee to deal with the SKA project. The DST had held several meetings with this committee.
The Chairperson described the NAB’s submission as enlightening and invited the NAB to offer its observations on the various responses.
Mr Johann Koster stated that only ICASA was allowed to change the licence conditions of a broadcaster. The Bill was unconstitutional because it would establish a second authority in terms of spectrum.
The Chairperson commented that ICASA would be working closely with DST. It would therefore regulate matters in a manner that would take that into account.
Mr Koster stated that according to his interpretation, the Bill was not clear and did not empower ICASA. It appeared to do the opposite - minimizing its role. The Bill would create conflict as it was too broad. He was willing to get an opinion from senior counsel on this matter.
Mr Blanche said that there should be better processes. The questions raised by NAB should have been put to ICASA earlier to avoid duplication and delay.
Mr Loselo disagreed with Mr Koster. The Bill did provide for some form of consultation. He maintained that the Bill did not create two regulatory bodies.
Dr Fanaroff stated that there were many instances in South African legislation where one law over-ruled another. Examples were provided to illustrate this point.
Ms Xoliswa Mdludlu emphasized that the DST was the custodian of the Bill and not ICASA. The Bill had a narrow focus, only dealing with astronomy geographic advantage area.
The Chairperson mapped out the process that should ensue. DST was mandated to facilitate a process whereby they engage all the relevant parties. The Chairperson mused that Public hearings were an important platform to refine the Bill and make it compact.
The meeting was adjourned.
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