Committee Report on ICASA council recommendations: replacement

Meeting report

ICASA council: additional recommendations
The Chairperson announced that the Committee had received a legal opinion which had been sent to all Members for consideration. Without the legal opinion, the Committee could not consider the referral of the sixth vacancy. The legal opinion would not be discussed except if Members sought clarity.

Mr C Mackenzie (DA) said that the legal opinion was very thorough. It was important to consider the legal advice given without leaving anything out.

The Chairperson said eight names were considered and not nine which the legal opinion speaks to and that the names were placed in order of priority. The Committee should consider its recommendations and how to move forward on the matter.

Ms N Kubheka (ANC) said a legal opinion was requested to ensure that the Committee was following the correct procedure. The Committee should not restart the process. The process should simply be corrected where the Committee went wrong. The ninth person should be a woman. She recommended that Ms Dikeledi Mushi’s name be added to fit the criteria of having nine names with Ms Mushi being the ninth in order of priority.

Ms P Van Damme (DA) said she agreed with the legal opinion. If the Committee Report of 11 May 2020 needs to be withdrawn to be improved, but not necessarily changed, then this should be allowed. The DA had recommended five people and had agreed to deviate from that. The Committee must recommend 10 candidates and she suggested Mr Ashraf Patel be the ninth or tenth recommended candidate as he was on both the DA and ANC’s list of recommended candidates. Mr Patel was on three party lists and Ms Mushi was on fewer than three lists.

The Chairperson said that there was disagreement on which other candidate should be recommended, but that it was important that the Committee accept the legal opinion which it received and complete the process by ensuring that the Minister has enough candidates to choose from to reach six chosen candidates.

Ms Van Damme pointed out that the legal opinion the Committee received did not offer an opinion on an individual who takes over from another who has resigned, but rather on filling vacancies. She suggested that the Committee get a legal opinion on this specifically. The Committee should not make a decision on this without being certain.

Mr L Molala (ANC) said he did not see how Ms Van Damme would differ in the representation of women and that the Committee should deliberate on how it could include Mr Patel in the list of candidates it recommends. He asked what the implications would be if the Committee agreed to withdraw its 11 May 2020 report awaiting National Assembly approval to make an addition. He noted that the term of office for the ICASA board was ending on 8 June. Both Mr Patel and Ms Mushi should be included. He did not think Ms Van Damme was differing on Ms Mushi being added to the list, but rather on the number of candidates for recommendation.

Ms Van Damme said she wanted to withdraw her previous point and that she agreed with Mr Molala to add both Mr Patel and Ms Mushi’s names to the list of recommended candidates. However, she did not want to be blackmailed into supporting a candidate simply because they shared the same gender. Mr Patel should be the tenth recommended candidate as he was on the list of three parties and Ms Mushi was only on the ANC’s list. She supported Mr Molala.

The Chairperson asked the Committee Secretary to clarify the point on the number of candidates that the Committee would be recommending according to what the Act specifies as well as the legal opinion.

Committee Secretary, Mr Thembinkosi Ngoma, said ten names would be submitted to the Minister. The Act states that a list of suitable candidates should be recommended to the Minister  at least one and half times the number of councillors that need to be appointed. The National Assembly would sit on 9 June and consider the Committee Report. He doubted there would be any issue if the Committee Report was amended and resubmitted. The National Assembly was aware the Committee was making a decision on the matter now.

Ms Fatima Ebrahim and Adv Frank Jenkins from Parliament's Legal Services were present and Mr Ngoma asked them to advise the Committee on the number of candidates to be recommended.

The Chairperson asked Ms Ebrahim to address the Committee.

Ms Ebrahim said that one and a half was the minimum number and that nothing prevents the Committee from adding a tenth, eleventh or twelfth name as the Minister would have the discretion to choose out of a slightly bigger list. On the individual who resigned, she said the Act clarifies that when an individual is appointed; it can be for a full term and does not have to be in line with the remaining term of the predecessor. Continuity, cost and the effort involved is taken into consideration when appointing someone. A maximum of 45 days of additional time can be given to the councillor four-year term if Parliament is still busy with its process. If the 45 days is exceeded, there will be a situation where there is not a complete board. This should not happen as the Committee recommendations should reach the National Assembly in time.

The Chairperson said the Committee was clear about its recommendations and that there was consensus on the ten names to be recommended. The Committee had also agreed on a full term as it was about the stability that ICASA required. The Committee would amend the report to deal with the sixth vacancy.

Ms P Faku (ANC) referred to legal opinion specifying vacancy which occurred during the course of the term and asked that legal services clarify this.

The Chairperson clarified that this was a vacancy which occurred during the course of the term which leaves a remaining period on the councillor’s term and someone can be appointed to complete that term. However, there is also the option of appointing the individual for a full term.

Ms Ebrahim said the Chairperson was correct.

The Chairperson said that the ten names should be placed in order of priority in the Committee Report.

Committee Report on ICASA council recommendations
The Committee Secretary read out the amended Committee Report which included this addition:

During the processing of the above-mentioned recommendation of the Committee, another letter, dated 12 May 2020, was received from the Acting Minister of Communications and Digital Technologies, Mr JM Mthembu, MP informing the National Assembly of the resignation of Ms Nomonde Gongxeka-Seopa, a councillor on the ICASA Council, with effect from 11 April 2020 with the notice period ending on 11 July 2020; and requesting the National Assembly to initiate a process of filing the vacancy in terms of the ICASA Act.

On Friday, 29 May 2020, the Committee met to consider the referral of the request by the Acting Minister of Communications and Digital Technologies relating to the vacancy in the ICASA Council and resolved that the vacancy which arose as a result of the resignation of Ms Gongxeka-Seopa be filled together with the other five vacancies, subject to a legal opinion on the matter before proceeding.

On 4 June 2020, the Committee considered the referral together with the legal opinion and resolved that:

1. Two additional suitable candidates from the interviewed candidates be added to ensure that the amended report contains ten names, being at least one and a half times the number of the vacancies;

2. The National Assembly approve the following ten names from which the Minister should appoint six persons as ICASA Councillors in order of priority, for a full four-year term: Dr Keabetswe Modimoeng, Ms Yolisa Kedama, Ms Zolani Kgosietsile Matthews, Mr Peter Zimri, Adv. Luthando Mkutumela, Dr Charles Lewis, Ms Amanda Cuba, Ms Sandisiwe Ncemane, Ms Dikeledi Mushi and Mr Ashraf Patel, taking into consideration that section 9(2)(b) of the ICASA Act provides that a Councillor is appointed to hold office for the rest of the period of the predecessor's term of office, if the Minister, acting on the recommendation of the National Assembly, appoints such Councillor for a longer period which may not exceed four years; and

3. The previous report of the Committee published in the Announcement, Tablings and Committee Reports (ATC) document on 13 May 2020 (ATC No. 52-2020) be rescinded and replaced with this amended report.

The Chairperson asked Members to consider the report for adoption with the suggested changes.

Ms Van Damme reflected that the Committee had worked well together, but that it was disappointed by the quality of candidates that were nominated, it would have preferred a different situation and this was also why it had only recommended the number which it did. In the National Assembly, it would address this matter that the Committee did not think candidates were good enough and that this should be noted, but it should not derail the progress made during the meeting.

The Committee Report was adopted.

Committee Programme
Ms Van Damme said that since Parliament has extended the term, she would like to make recommendations to the Committee Programme. The Committee should consider the SABC and its projected revenue loss, the Post Office, and ICASA on the spectrum allocation.

The Chairperson said this would be considered.

Mr Mackenzie said that when the Committee Programme was submitted before, he submitted quite an extensive list of subjects which should be discussed. He did not receive any feedback or acknowledgement of this. He asked that Ms Van Damme's recommended items be considered. Vodacom, Telkom Rain and Liquid should be invited to meet with the Committee on the spectrum and the spectrum auction.

The Chairperson said these matters would be considered and that forums were being considered, but this was interrupted by the COVID-19 pandemic.

Meeting adjourned.