Framework for ICASA Council Performance Management System; disqualification of Councillors; interview shortlist

Meeting report

Independent Communications Authority of South Africa (ICASA): Framework for Performance Management System of Chairperson and Councillors
Ms Kedi Sekwele, Acting Chief Director: Human Resources: Department of Communications, presented the Framework model for the performance management of Chairperson and Council of the Independent Communications Authority of South Africa (ICASA) to the Committee. She said this was a performance management model already used being in the Public Service and was strongly recommended for use at ICASA as well.

She reported that the framework model of ICASA was a product of the Constitution, the ICASA Act, the Electronic Communications Act of 2005 and the Performance Management and Development System (PMDS) applicable in the Public Service. One of the underlying rationales for the establishment of the framework was to provide a fair, objective and regular assessment coupled with individual performance feedback. It would manage performance in a participative, supportive and non-discriminatory manner. The Minister of Communications would play a pivotal role in the establishment of the performance management system and would enter into performance agreement contracts with the Chairperson and every Councillor. The National Assembly would also have a role to play in as far as the evaluation of performance was concerned.

The evaluation panel would consist of the Minister of Finance and one national Minister, two representatives from the Portfolio Committee on Communications, three representatives from the broadcasting, postal and telecommunications sectors and the Director-General of the Department of Communications (DoC).

If there was poor performance, the first remedy would lie in taking corrective action. Such corrective action would, depending on the level of poor performance, could include personal counselling, on-the-job coaching, formal training and the development of a performance improvement plan. If the Chairperson or Councillor failed to respond positively to the attempted corrective measures, the National Assembly may invoke the provisions of Section 8(1) of the ICASA Act. There would be measures in place to deal with a dissatisfied Councillor or Chairperson emanating from the evaluation process. The Department would ensure that the framework was reviewed annually, in consultation with the National Assembly, as well as the Chairperson and the other councillors.

Discussion
Ms P de Lille (ID) asked for clarity regarding the role of the National Assembly. The most confusing part was the role of two Portfolio Committee members on the evaluation panel and the role of the National Assembly in the consideration of the report submitted to it by the evaluation panel. She said that this created a potential conflict of interest as Parliament had several conflicting roles.

Adv J de Lange (ANC) said the model was very similar to the model used for senior civil servants to determine if their salaries needed to be increased. The worry however, was whether or not that was what the legislation envisaged. He thought that a closer scrutiny revealed inconsistencies between what this framework seemed to be addressing, and what the Act envisaged for the Framework. He thought that this framework was nothing more than a salary increase mechanism. He hastened to add that this did not mean that a salary increase mechanism was not needed; it should, however, be a supplement to the real performance evaluation management mechanism envisaged by the legislation.

He shared Ms de Lille’s concerns about the several roles of Parliament in the whole process of evaluation and corrective measures. The model as presented was far too complicated and not desirable.

The Chairperson agreed with the previous speakers, saying he too was not comfortable with the idea of Members of Parliament becoming player and a referee in the same instance.

Adv de Lange said he also had a major problem with the provision granting the Chairperson and Councillors cash bonuses. The concept of giving people money for the work that they had to do in any event was wrong.

Mr Themba Phiri, Acting Director General: Department of Communications, said the issue of performance bonuses was something that was currently in existence within the system. He explained that a Councillor could, after being reviewed and scoring a certain level of competence, be awarded a performance bonus. There was no mechanism that informed the decision to grant performance bonuses in the first place. If the Committee felt strongly against it, the Committee could influence the decision to have the performance bonuses abolished. However, be that as it may, the cash bonus system was a mechanism to encourage and reward good performance.

The Chairperson said the issue of cash bonuses already being in the system and implemented was news to him.

Ms W Newhoudt-Druchen (ANC) asked why there was no specific provision that the annual report be brought before parliament for deliberation. The provision simply stated that the report would be “available” instead of saying that it must be brought for examination by the Committee.

Ms M Magazi (ANC) said she was also worried about the role of two Committee members in the evaluation panel list of members. The concerns raised by Ms de Lille were very valid. She would rather see external people from stakeholder sectors in those places on the panel. She said that Parliament really needed to receive a report from the panel, so it could be analysed.

Mr Phiri said the idea of external stakeholder representatives forming a part of the evaluation panel sounded appealing. The concerns about a potential conflict of interest were indeed valid and something on which Parliament needed to take a decision.

The Chairperson added he too would like to see people drawn from a wide spectrum of society to serve as independent evaluators in the panel. Such people could include unions or academics, to mention but two.

Ms de Lille said she agreed fully with Adv de Lange about the issue of cash bonuses. The decision to give cash bonus was a bad idea that needed to be strongly opposed.

Ms de Lille said the measures taken for poor performance were too lenient and did nothing more than embrace poor performance. She said that instead there had to be some provision giving the power to take punitive measures, as part and parcel of other measures. The power granted to Parliament, at a later stage, to invoke Section 8(1) may well be too little too late to help the situation.

Mr Phiri said that a reading of Section 6 of the ICASA Act showed a clear mandate that the purpose of the model was to monitor and enhance performance. Based on that reasoning, the decision not to lean too much on punitive measures was taken. If, however, the Committee felt strongly about the idea of imposing stronger punitive measures, such a view could be considered.

Ms de Lille further said there needed to be clarity on the provision that seemed to suggest that the Committee was an appointing authority of the Chairperson and the Councillors. The provision must make it plain that the appointing person was the Minister of Communications, not the Committee. The Committee could only make recommendations to the Minister, who made the subsequent appointment. That had not been captured precisely in the framework provisions.

The Chairperson said it had been established that the current framework envisaged a normal employer / employee relationship to determine whether a person was a high performer or a low performer. It was also clear, on the other hand, that the legislation envisaged something else which was not captured in the framework model presented - namely the independent entity appointed by the Minister through a recommendation which involved a public parliamentary process. The Councillors, once they were appointed, needed to do their work independently and without any influence, even from the Minister. Parliament could only exercise oversight over the entity as a whole. The intention of the Act was how to assess the performance of each individual serving in the entity. For example, it would take into consideration whether a person was independent, did not have a conflict of interest, had not been involved in any irregular conduct and other factors.

The Committee was therefore of the view that the framework as presented had a number of problems, and did not adequately address the intention of the legislature. It would be best if the Department were to look again at the framework and overhaul it completely, in order to factor in some of the concerns and recommendations raised.

Mr N Van den Berg (DA) said the whole process as presented was too complicated. He agreed with all other Members who had made suggestions for a review of the document in its entirety. There were other phrases in the document which were also vague and needed to be corrected.

The Chairperson asked the Department to give an indication to when it would be able to streamline the framework to bring it in line with the intention of the legislature.

Mr Phiri said three weeks would be enough for the Department to reconsider and present another model which addressed the Committee’s concerns.

Disqualification of Councillors: Parliamentary Legal Services opinion
Advocate Zorina Adhikarie, Legal Advisor, Legal Services Unit, Parliament, told the Committee that she had now had time to consider the legal ramifications of an appointment of a person who was by statute disqualified from appointment as a Councillor to ICASA, but was nevertheless appointed. She had considered the relevant provisions of the ICASA Act, particularly Section 6, and a number of High Court and Constitutional Court judgments concerning an act by a public official which was ultra vires (beyond the powers given to that official). She was of the opinion that the decision taken to appoint had been ultra vires and therefore invalid, because the Councillor had been disqualified in terms of Section 6. She suggested that the matter be referred back to the Minister, who had the ultimate authority for appointment of councillors. There was no legal remedy in law to cure or ratify an invalid decision that was made.

Discussion
Advocate de Lange said whilst he did not want to seem in disagreement with the opinion, he still thought that more clarity was needed. Many of the cases which were quoted by Advocate Adhikarie did not address the issue of appointment directly and there was a chance that their application to the facts of the matter with which the Committee was faced with could be limited.

Mr De Lange said the issue of who exactly was the appointing authority was not as cut and dried as Advocate Adhikarie had suggested. Whilst she had stated that the appointing authority was the Minister, there was a possibility, if the legislation was studied more closely, that a different conclusion could be reached and the National Assembly, not the Minister, could be interpreted as being responsible for the appointment. Perhaps it would have been best for the Committee if it sought a second outside legal opinion, which would assist in clarifying some of the disputed points.

Ms de Lille also said she was not completely satisfied with the opinion and she too would welcome a second external opinion. The role of the Portfolio Committee in the appointment process needed to be clarified, because the wording of the Act was either bad or confusing.

The Chairperson said his understanding was in line with Adv Adhikarie’s suggestions on appointment. He said that this seemed to be supported by Section 6(2) of the ICASA Act.

Adv de Lange cautioned that the Chairperson might be wrong in his understanding of the relevant provisions dealing with the role of different parties in the process of appointing the Councillors. There was a difference between decision-making powers and executive action powers. The role of the Minister in the appointment seemed to be an executive action, which was completely different from authority to appoint. The fact that the Minister had no powers under the Act to refuse to appoint, once the National Assembly (NA) had approved the names, suggested that perhaps the authority vested with the National Assembly. Whatever the true outcome of the interpretation was, he agreed that the drafting of the legislation was very clumsy.

Mr P Dexter (COPE) said his reading suggested that the intention of the legislation was to allow the National Assembly to have the final say, and the Minister effectively had to endorse this. Mr de Lange was correct that the drafting was clumsy. It seemed that the intention was that the NA would be the appointing authority.

Mr Van den Berg asked what would be the implications of improper appointment to a range of matters such as decisions made and salaries that were paid to the individual for a period of six months.

Mr de Lange said the question of decisions that were taken with the influence of the disqualified Councillor posed potential problems. This was a matter that also should be clarified in the second legal opinion, or perhaps even the Courts should be asked to pronounce on this once and for all. A possibility existed that some decisions that were opposed by certain individuals could be challenged by them on the basis of participation by the disqualified councillor. The issue of salaries paid was easier to confront, because if it were to be proven that the salaries were received in good faith and for a service which was purportedly provided, there would be no easy way to recovering that money. The Committee could, however, approach SCOPA for ratification of the amounts paid.

The Chairperson concluded that a second independent legal opinion would be sought, which should specifically address: firstly, who was the correct appointing authority; secondly, whether or not the individual was appointed legally or correctly; and thirdly, the consequences of an illegal appointment

Interviews for ICASA Chairperson and Councillors: shortlist
The Committee approved the 14 shortlisted names of candidates (see attached document for details) who should be interviewed with a view to appointment as ICASA Councillors. The interviews would take place on 12 May 2010.

The meeting was adjourned.