Electronic Communications Amendment Bill & Independent Communications Authority of South Africa Amendment Bill: deliberations

Meeting report

Overview of submissions on the ICASA Amendment Bill
Mr Themba Phiri, Deputy Director General: Policy, Department of Communications, told the Committee that the objectives for amending the Bills were, inter alia, to promote transparency of decision making at ICASA; to ensure a foundation for better working relations between the Minister of Communications and ICASA; to align the Electronic Communications Act with the B-BBEE Act of 2003; to refine provisions on licensing; to improve the turnaround times for consultations; to ensure improvement in sections on competition matters; to clear regulatory bottlenecks; to ensure improvements on the e-rate for the promotion of Information and Communication Technologies (ICT) in schools; and to enable the Minister to obtain information necessary for policy making.

Mr Phiri took the Select Committee through various issues raised and the Department’s responses to the issues. Of special importance was an issue around ownership and control of licences as licensing was an integral part of the ICASA mandate.

Presentation on the Independent Communications Authority of South Africa Amendment Bill
Mr Colin Mashile, DOC Chief Director: Broadcasting stated that the purpose of the Bill was to amend the Independent Communications Authority of South Africa Act of 2000, to insert new, amend existing and repeal obsolete definitions. The Bill aimed to provide further clarity on the powers and duties of the Authority, and had to introduce mechanisms to ensure accountability of the Authority, including that of councillors and committees. The Bill had to confirm the use of electronic communications networks and services for the purpose of electronic transactions.

Mr Mashile took the Select Committee through the amendments. He laid emphasis on the importance of licensing as a core function of ICASA and increased fines for offences of contravening the Act, and a tightening of the provisions relating to the quorum at meetings of the Council.

Presentation on the Electronic Communications Amendment Bill
Mr Alf Wiltz, DOC Director: Legal Services stated the purpose of the Bill to be the amendment of the Electronic Communications Act of 2005. The amendments sought to insert, amend or delete certain definitions; to align the Act with B-BBEE legislation; to refine provisions relating to licensing; to make further provision towards ensuring effective competitions among persons licensed under the Act; to remove regulatory bottlenecks; to require the Minister of Communications to establish a council to advise the Minister on broadband policy and implementation; to provide for a discounted rate of internet services at schools and health establishments; to authorise the Minister to require submission of information; to provide for the fiduciary duties of the Universal Service and Access Agency of South Africa, and to provide for conditions of appointment of the Chief Executive Officer of the Board.

Discussion
Mr M Jacobs (ANC, Free State) asked about the consultation and whether there could be encroaching on the powers of the other House. The Constitution granted the power to deal with matters. In the matter of the SABC board, the National Assembly usually approved the Board. Similarly, the National Assembly had recently approved the McBride appointment.

Mr Phiri replied that the powers of the two Houses of Parliament could be clarified by State law advisers.

Mr Herman Smuts, Principal State Law Adviser, replied that section 55 of the Constitution vested oversight power in the National Assembly. Nothing prevented Parliament from not only including the National Assembly. The phrase “National Assembly” could be changed to “Parliament” to prevent any ambiguity.

Mr Monwabesi Nguqu, Senior State Law Adviser added that other sections indeed referred to “Parliament”. ICASA was not the only broadcasting agency. The Bill extended the scope of ICASA, hence there also had to be a report to other Houses. Sections which did not refer to “Parliament” would be retained for the moment.

Mr Jacobs referred to page 8, line 20 of the Bill. He asked whether the staff referred to there would be temporary or additional.

Mr Mashile replied that councillors would be appointed. Sometimes experts from the outside were needed to assist staff.

Mr Phiri added that there was a mandatory council to establish the staff component. The structure could be expanded and given powers.

Mr Jacobs said an outside person might not be able to adequately understand the challenges and the requirements.

Mr Wiltz added that there were five councillors plus a Chairperson. Three councillors plus a Chairperson would constitute a quorum.

Mr Jacobs remarked that the current statement relating to the structure was not clear.

Mr Wiltz replied that ordinary legal phrasing had been used and would be understood by Councillors. It was drafted by State Law Advisers.

Mr Smuts added that it was the type of expression used in many laws and legal texts. Those words had been in the Act since 2000.

The Chairperson remarked that the Select Committee represented rural people. The Committee Members had to be assisted so that they could in turn assist the people who they represented.

Mr Smuts replied that new wording could be suggested, regarding the minimum requirement for a meeting.

Mr Jacobs referred to the Annual Plan mentioned on page 9. He asked if it would go hand in hand with a finance plan.

Mr Wiltz replied that the budget would reflect the Annual Plan.

Mr Jacobs asked if the penalties mentioned on page 8 could encroach on the independence of magistrates.

Mr Nguqu replied that the Constitution allowed the setting of a maximum fine. A minimum fine would have interfered with the jurisdiction of the courts, as it would have imposed an obligation. A maximum fine did not do that. Maximum fines had been increased because the value of money had depreciated.

Mr Jacobs asked if a rapid rise in inflation rates could cause Parliament to be called back to change the fines to be market-related again.

Mr Nguqu replied that it had been taken into account. With the evolution of the industry it had become easy for some players to budget for low fines. The court could not exceed the maximum, but it could come down.

Mr Jacobs again asked if adjustment could become necessary in a short space of time. He asked if it could be put under policy to avoid the Bill having to come back to Parliament.

Mr Wiltz replied that the alternative was to leave it to policy and the Minister of Communications. However, it was criminal offences that were being dealt with and as such was a serious matter that had to be considered by Parliament. It could not be delegated.

Mr Smuts added that it was indeed possible that Parliament would have to come back every year, but it would be best if it could remain valid for at least two years.

Mr Mashile agreed that the spirit of the section suggested that it was better to have that kind of law, than to make it a policy matter. It was not to be dealt with via policy. It had to be part of legislation.

Mr H Groenewald (DA, North West) asked if chapter 4 could undermine the independence of ICASA.

Mr Mashile replied that the independence of ICASA was protected, but policy directives from the Minister had to be considered. The Minister could issue policy directives for ICASA to see. It would be published in the public domain, and it would be asked if it was legal and Constitutional. Drafts were not to be made against section 192 of the Constitution. There was not going to be any dilution of ICASA powers.

Mr Nguqu added that the Minister had to make policy in the Act. Policy making was the prerogative of the executive authority.

Mr Groenewald said that he was worried that the Minister could override the executive. He asked how the executive was to be protected. If Cabinet made a decision, ICASA had no power.

Mr Phiri added that there was no major change. ICASA had to act within the spirit of the law and within the ambit of the policy environment. The independence of ICASA was related to licensing and collecting. The section referred to was not in conflict with independence. Ministerial directives were not a devil in disguise. ICASA would be able to decide how to move on an issue. The Minister would consult ICASA, who would make inputs, and it would be discussed with the Department. ICASA could also use public consultation. It would be wrong to say that there was an obligation to implement Ministerial directives.

Mr Groenewald asked where public hearings would fit into the process. He asked if it would only be after the Minister had made announcements.

Mr Phiri replied that the minister would take public inputs into account. It would be issued to ICASA and go on public consultation before promulgation.

Mr D Feldman (COPE, Gauteng) asked who signed cheques at ICASA.

Mr Phiri replied that there was a balance between staff, the CFO and the executive council. Those bodies had the authority to sign cheques. There had been temporary restructuring at ICASA. It was important to note that there were risks related to finance accountability.

Mr Jacobs said that the pinpointing of “another member of staff” to sign cheques, was problematic.

Mr Phiri replied that ICASA was governed by the Public Finances Management Act (PFMA). The Act empowered the Chief Financial Officer to assist the Accounting Officer in turn. The CFO was not always in office. There were CFO functions spelled out in the PFMA, but when there was a gap, the Accounting Officer was actually in charge.

Mr Jacobs reiterated that he was not happy with the phrase “another member”.

Mr Nguqu replied that there were instances where powers were delegated. The Chief Executive Officer (CEO) was empowered to delegate. Bigger cheques were signed by more senior officials. The section in the Bill took that into account.

The Chairperson remarked that the wording had to be taken up as homework.

The meeting was adjourned.