ATC200723: Report of the Portfolio Committee on Communications on the consideration of the communication received from the Minister of Communications and Digital Technologies on the filling of six vacancies on the Council of the Independent Communications Authority of South Africa (ICASA), dated 22 July 2020

Communications

Report of the Portfolio Committee on Communications on the consideration of the communication received from the Minister of Communications and Digital Technologies on the filling of six vacancies on the Council of the Independent Communications Authority of South Africa (ICASA), dated 22 July 2020

 

The Portfolio Committee on Communications (“the Committee”), having considered correspondence by the Minister of Communications and Digital Technologies (“the Minister”) on her recommendations after considering the 10 names submitted by the National Assembly on 9 June 2020, reports as follows:

 

On 30 June 2020, the Minister addressed correspondence to the Speaker of the National Assembly in which she requested permission to appoint Councillors in only four of the six vacant positions.

According to the Minister, the proposed candidates did not possess skills relating to the digital economy, cybersecurity and trends of emerging technologies which are necessary for ICASA to effectively execute its mandate. Accordingly, the Minister requested that the National Assembly embark on a new appointment process to fill the two vacancies that would remain if her request was agreed to.

 

On 13 July 2020, the Minister addressed further correspondence to the Speaker of the National Assembly, identifying the names of the four candidates that she intended appointing, namely Dr Keabetswe Modimoeng, Mr Peter Zimri, Advocate Luthando Mkumatela and Ms Yolisa Kedama.

 

The Minister addressed a third letter to the Speaker of the National Assembly later that day, identifying the names of two additional candidates that she intended appointing if her request to appoint only four Councillors was not agreed to, namely Dr Charles Lewis and Ms Dikeledi Mushi.

On 14 July 2020, the Committee met to consider the three letters from the Minister and made the following observations and recommendations:

 

 

  1. Observations
  1. The Committee has complied with the procedural steps to fill the current vacancies on the ICASA Council, including advertising the vacancies, short listing candidates, allowing public participation, conducting interviews and finally reaching a unanimous decision on the names to be recommended. Furthermore, the National Assembly concluded the process of identifying suitable candidates when it adopted the 10 names on 9 June 2020.

 

  1. The Minister has exercised her discretion as provided for in the ICASA Act by considering the 10 names from which she recommended the following six names:

 

 

 

  1. The Committee is of the view that the requirements in terms of section 5(3)(b) of the ICASA Act would be met with the following selection as proposed by the Committee, however the Committee differs with the Minister in respect of one candidate only.

 

 

 

 

 

 

 

 

 

 

 

(iv)    The Committee supports the Minister’s choice of candidates 1 to 5.  

 

(v)     However, the Committee is of the view that the recommendation to appoint Ms D Mushi would result in the provisions of section 5(3)(B)(ii) of the ICASA Act not being met. The relevant section reads as follows:

“(3) Persons appointed to the Council must be persons who—

(b) when viewed collectively—

(i) are representative of a broad cross-section of the population of the RepublicÍž and

(ii) possess suitable qualifications, expertise and experience in the fields of, amongst others, broadcasting, electronic communications and postal policy or operations, public policy development, electronic engineering, law, information technology, content in any form, consumer protection, education, economics, finance or any other relevant expertise or qualifications.”

 

(vi)    The Committee, having considered the candidates’ skills set as recommended by the Minister, is of the view that the crucial skill of postal services experience is lacking. The Committee is further of the view that only Mr ZK Mathews possesses postal services experience, which it deems necessary for the effective functioning of the Council. The Committee notes that whilst Ms D Mushi possesses expertise in ICT Policy and Regulation, five candidates already possess this skill, over and above the broader skills and expertise they possess individually.

 

(vii)   The legal opinion received from the Constitutional and Legal Services Office in Parliament dated 14 July 2020 affirmed the discretion of the Minister and the Committee’s compliance with the process in terms of the ICASA Act.

 

It is in the interest of South Africans and necessary for the stability and functioning of ICASA, as well as in the interest of the communications sector, that the appointment process of ICASA Councillors be urgently completed. There are currently only three Councillors, which may lead to ineffective and compromised governance of ICASA at a critical time when the ICASA Council has crucial decisions to make.

 

  1. Recommendations 

The Committee unanimously recommends that the National Assembly:

  1. rejects the request by the Minister to fill four vacancies;
  2. accepts the first five names submitted by the Minister in as far as these names are drawn from the list of preferred candidates adopted by the National Assembly; informed by (a) the appointment process the Committee undertook; (b) the broad sense of skills set required, responding to the convergence phenomena and as annotated in legislation; (c) the individual performance of candidates during the interviews; (d) the demographics of the country; and (e) other imperatives such as gender balance; and
  3. requests that the Minister, in terms of section 5(1B)(b) of the ICASA Act, review her recommendation in respect of one of her proposed candidates (number six - Ms Dikeledi Mushi) and consider the appointment of Mr Zolani Matthews, who brings the expertise and experience in the postal sector, which are skills necessary for ICASA to realise its regulatory objectives of a converged sector.

 

Report to be considered.