ICASA Councillors Selection Procedures and other ICASA Matters: discussion

COMMUNICATIONS PORTFOLIO COMMITTEE
18 August 2006
ICASA COUNCILLORS SELECTION PROCEDURES AND OTHER ICASA MATTERS: DISCUSSION

Acting Chairperson: Mr G Oliphant (ANC)

Documents handed out:
Draft Committee Programme for the Third Term 2006
Copy of advertisement calling for nominations for Independent Communications Authority of South Africa (ICASA) Council vacancies
Relevant sections of ICASA Amendment Act dealing with appointment of Councillors
Suggested shortlist drawn up by Ms S Vos (IFP)
Cv’s: ICASA Nominations

SUMMARY
The Acting Chairperson tabled the Committee programme for the third term. The Independent Communications Authority of South Africa Councillor interviews were scheduled between 25 and 29 August. It was intended to finalise the process by 5 September.

The Chairperson confirmed that he had contacted the Authority as requested to clarify when the staff exit reports would be available, and to seek comment on their decision to approach the National Intelligence Agency about information leaks apparently emanating from departing staff. He read out their response. No further discussion was held on the points raised as the Committee needed to deal with other business.

The selection process for Authority Councillors was discussed. With regard to the disqualification criteria, it was agreed that those who had not submitted their CVs timeously, and had also not provided written acceptance of the nomination; and those who had been “self-nominated” were disqualified. Section 6 of the ICASA Act, dealing with disqualification was debated at length. It was finally agreed that the disqualifications referred to would not prevent nomination or shortlisting, but would need to be rectified prior to making the appointment.

The Committee agreed that experts should not be invited at this stage to assist the Committee with this selection process, for a number of logistical reasons, but that the use of experts would be raised and debated separately at a future date.

It was agreed that the Acting Chairperson would compile a document that indicated which nominees were disqualified, which had been supported by various Members, and which had received insufficient support. This document would assist the Committee to agree on the shortlist at its meeting on 23 August. If possible, interviews would commence on 25 August.

MINUTES
Apologies, tabling of opinion, tabling of Committee programme
The Acting Chairperson noted the apologies received.

The Acting Chairperson reported that he had obtained an opinion from the Parliamentary Legal Advisor on the procedure to be followed in selecting the new Independent Communications Authority of South Africa (ICASA) Councillors. This opinion had confirmed the views of the Committee.

The Acting Chairperson tabled the draft Committee Programme for the third quarter. He indicated that the interviews would hopefully begin on Friday, 25 August, and both 28 and 29 August had been set aside for interviews as well. The Committee would decide when it drew up the shortlist whether it should conduct interviews in Johannesburg. He also confirmed that there had been some administrative problems over the past few weeks, but that the Committee secretariat was short-staffed and the problems would be dealt with.

The programme was confirmed.

ICASA matters
The Acting Chairperson confirmed that he had approached ICASA for confirmation when the exit reports of departing staff would be available. He read out the response, which noted that consultants had been appointed and that the reports were due to be submitted to ICASA on 22 August, and would reach the Portfolio Committee by 25 August.

The Acting Chairperson reported that he had also requested ICASA to comment on the report that they had taken a decision to approach the National Intelligence Agency (NIA) in respect of leaks of information, allegedly from departing staff. He read the response, which was to the effect that the ICASA Council was concerned to protect the confidential and commercially sensitive information. The security advisors of the NIA were, as part of their responsibility, available to assist institutions in drawing up security and risk plans, and to assist in setting up systems that would provide the necessary protection for documents to comply with an effective information security system. The decision had been taken to ensure that commercially sensitive information did not fall into the hands of rival network operators or competitors.

Adv P Swart (DA) stated that he had posed a question to the Minister of Intelligence about this matter. He requested to be furnished with a copy of the ICASA response. Every Department should comply with minimum Information Security Standards, and this letter would assist him in his quest to have such standards applied.

The Acting Chairperson replied that he would consider Adv Swart’s request. He had told the media that the matter was still under consideration. He felt that the time was perhaps not appropriate as he wished to focus on the real issue of the selection process.

Ms D Smuts (DA) argued that the letter, having been read out, was clearly in the public domain and could not be withheld. She also requested a copy.

The Acting Chairperson did not consider the matter to have been finalised as yet.

Mr K Khumalo (ANC) felt this matter should not even have been raised; he believed they should discuss it with ICASA when calling it to a meeting. He requested that there be no further discussion on this point.

The Acting Chairperson stressed that he was not refusing the request, but felt it was inappropriately raised at this point. He urged the Committee to move on to other issues and to discuss the selection process.

Consideration of nominations for the ICASA Council
a) Principles relating to nominations and disqualifications
The Acting Chairperson firstly raised the question of disqualification for appointment, which had been briefly discussed on 15 August. He reported that some CVs were still outstanding. Some nominees had apparently tried to e-mail their CVs but had reported problems in doing so. Only two of the CVs had subsequently been received, but neither of those candidates had signed acceptance letters as required in the advertisement and Section 6 of the ICASA Act.

Adv Swart stated that the advertisement had clearly set out the criteria for nominations and applications. If the CVs had arrived late through no fault of the candidates, but due to problems with the parliamentary system, then he felt that they should perhaps be considered. However, in the light of the fact that they were late, and also did not comply with all other criteria he believed those candidates should be disqualified. The letter of acceptance was crucial. There were other candidates who had not been nominated by another person or institution. He felt that they too were disqualified. Some candidates’ applications had not included ID numbers. He was not sure whether that could be regarded as a fatal flaw in the process. Although the advertisement had referred specifically to this information, it was easy enough to obtain the details and a copy of the ID document in order to carry out the necessary reference checks.

Ms Smuts referred to some names that had appeared in the first batch of nominations, but had not been supported by official nomination and acceptance letters. She reported that she had been inundated with e-mails from various individuals voicing support for certain candidates. She had not opened these e-mails as she considered the approaches inappropriate. One of the nominees, Debbie Love, had then clarified that in fact she did not wish to be nominated to the Council, but would like to participate in the process by serving on the panel of experts who could assist the Committee. On that morning the Committee had however received her CV. However good the candidates were, she did not believe they could be considered as the requirements had not been met.

Ms Smuts also pointed out that there were a number of other disqualifications mentioned in the Act, including disqualification of public servants or holders of any State remunerated post, Members of Parliament, office bearers or employees of any political party, and those having a financial interest in the sector. A number of nominees fell within those disqualified categories.

Mr Khumalo understood Adv Swart’s position save that he queried whether the submission by the nominees of their CVs to their nominating organisation would not constitute sufficient acceptance of the nomination. He agreed that those who had submitted CVs late, as well as the “self-nominations” must be disqualified. However, he differed from Ms Smuts in his interpretation of the disqualification provisions. He believed that no person could be precluded from participating in the nomination process. On appointment the person must ensure that he or she no longer fell within the disqualified categories.

Mr R Pieterse (ANC) agreed that a person could not nominate himself or herself. He agreed with Mr Khumalo’s interpretation, referring to the rider in Section 6(2), which was to the effect that a person subject to a disqualification may be nominated but could only be appointed if, at the time of appointment, he or she was no longer within the disqualified categories. He felt that the Committee should not be too strict even on those who had perhaps submitted CVs late, as he believed they should be given the benefit of the doubt. The Committee should not seek to disqualify, particularly since appropriately qualified candidates were not easy to find.

The Acting Chairperson clarified that the advertisement had addressed the nomination question by saying “Institutions or individuals are hereby invited to nominate”. He advised Mr Khumalo that the advertisement also made specific reference to a “signed acceptance” being submitted, not merely tacit acceptance. He reminded Mr Pieterse that the two CVs which were submitted late in fact also fell short on the signed acceptance requirement. He agreed with Mr Khumalo that even candidates who were subject to a disqualification at the time of nomination were entitled to be nominated, shortlisted and interviewed. If they wished to accept an appointment they would clearly have to resign from disqualifying posts.

Adv Swart commented on the point raised by Mr Pieterse that the Committee should not seek to disqualify potential candidates. He pointed out that the nature of the work as Councillors required a high degree of precision and accuracy. A failure to comply with the list of requirements for appointment was not a good indicator of compliance if appointed.

Ms Smuts queried why the provisions in Section 6 were framed in this way. She believed that the legislation intended to exclude by disqualification precisely because people working in those positions would not be sufficiently independent of government. She was disturbed to see many nominations closely connected with the Department of Communications. Many of those named had been instrumental in the past in trying to remove independence from ICASA and she considered it “outrageous” that they should now be nominated. She believed the wording of Section 6(2) was intended to cater for situations where ideal candidates were found in other government departments or institutions separate from Communications. She believed that there could be no “transference” of Departmental staff to ICASA.

Mr Pieterse indicated that he sympathised with some views expressed by Ms Smuts. The independence of ICASA could of course be challenged in other ways. However, he wondered if there was any point in discussing matters of principle now, or whether the shortlist should not first be drawn up. Ideally the Committee should interview every nominee as CVs were sometimes a poor indicator of the real talent.

Mr Khumalo commented that the whole process had become politically charged but organisations and individuals could nominate anyone. He pointed out that previous Members of Parliament had moved to the posts of Public Protector, Director of Public Prosecutions and other posts, and that the resignation from a public post would have to take place before appointment.

The Acting Chairperson noted, for the record, that there were no nominations from the Department of Communications, although some people who had worked for that Department might appear on the list. He pointed out that already it was possible to delete self-nominations, and those who had not provided signed acceptance. An attempt would be made to settle on as many shortlisted candidates as possible but the Committee may have to vote on some.

b) Use of experts to assist the Committee
Ms Smuts proposed that the Committee avail itself of the provision that allowed it to appoint experts to assist the Committee in the selection process. She believed this would raise the profile and status of the process. There were five categories of experts who could be invited, and she would like to suggest some names.

Mr Khumalo agreed that while it would be useful at a later stage to appoint experts, the ANC Members did not agree that it was appropriate now. He pointed out that it was a fairly cumbersome process, involving issuing invitations through advertisement, and there was simply no time now in view of the need to make appointments swiftly. Certainly in future he would not be averse to this suggestion.

Ms Smuts felt that this was a pity because she would suggest some excellent people. She was doing so not as a DA proposal, but as a general proposal.

Mr Pieterse reminded the Committee of the history of this provision, which had been a compromise as many people had believed the process was being taken out of Parliamentary hands. He believed that the Committee, which needed to identify its own weaknesses and areas where it needed to seek assistance must discuss the matter at a later stage.

The Acting Chairperson agreed that appointment of experts at this stage was neither logistically possible nor desirable. It was clear that experts were needed for other matters, and he agreed that the Committee needed to consider the matter in greater detail. There was a whole procedure for the invitation. In addition, the Committee did not really have the budget to cover their appointment now.

c) Suggested shortlists
The Acting Chairperson stated that he had received some suggested shortlistings, including lists from the DA, Dr P Mulder (FF) and Ms S Vos (IFP), (the latter two having given their apologies as they were unable to attend the meeting). He proposed that he and the Committee Secretariat should compare the lists and prepare a schedule indicating which names had been suggested by the different Members for the shortlist, which of the names were disqualified, and which had received no or insufficient support. He would circulate this list so that the Committee could take a final decision on Wednesday, 23 August.

Adv Swart supported this suggestion but asked if it was possible already to find a few names that were generally supported, so that those people could be notified that they would be interviewed on 25 August.

Mr Pieterse felt that there should be one process. If the schedule could be circulated before 23 August, the Committee could agree on the names early on that morning and still have time to notify candidates.

Mr Khumalo believed that 25 August was too soon to start interviewing.

The Acting Chairperson stated that the schedule would be available shortly, and that the Committee would consider it and agree on a shortlist on 23 August. If any candidates were available to be interviewed on Friday, 25 August the Committee would proceed with some interviews on that day.

The meeting adjourned.