Chairperson, Deputy President, Ministers and Deputy Ministers who are here, my colleagues, Members of Parliament, and everyone also who might be here, this is the report on the Independent Communications Authority of South Africa Amendment Bill, as agreed upon by the committee, on whose behalf I will present the report. Various parties are then going to make declarations.
The Independent Communications Authority of South Africa Act is being amended for the second time now. The first time it was amended was in 2006 when it was integrating due to the convergence of technology and postal services with the work of the regulator. More importantly, the strategic focus at this time was to recognise the technological and other services that related to developments in the field of broadcasting and telecommunications, as convergence was moving at a very fast pace.
Despite the fact that the Department of Communications has engaged in the overhaul of the information and communications technology policy review - the mandate of the 53rd ANC National Conference in Mangaung was that we should review our policies - this Bill focuses only on technical amendments around the operation and functioning of the regulator.
Due to the fact that an ICT policy review is currently under way, we have agreed to defer some of the matters to the Policy Review Panel. Amongst those issues there is the creation and operation of the Spectrum Management Agency, as indicated in the context of the Amendment Bill that was published for public comment in July 2012. We have also deferred the working and structure of the Complaints and Compliance Commission of Icasa. We have also deferred the provision that addressed the ownership, control, structure, duties and powers of the Icasa council to the policy review processes.
In regards to section 1, all that this Bill does is to realign the definitions with regard to the new status quo according to ICT. The Bill seeks to ensure in section 4 that there is harmony on matters of electronic transactions, whilst it seeks to ensure in sections 17(a) to (e) that where need be, the regulator can have a concurrent jurisdiction agreement with other government or state entities.
The Bill also deals with power relations between the Minister and the regulator. As we all know, their relations were previously not clearly defined in the legislation. It further deals with the issue of international experts where the regulator needs to be advised in regard to handling certain regulations. Those are the major areas on which we focused and which are important in order to streamline and outline the work of the regulator whilst we wait for the overhauling of the policy in the ICT sector itself.
I must indicate that dealing with this Bill has not been an easy road. I must bow to the ANC members in the committee who managed, on their own and without the opposition parties, to hold public hearings and to listen to those people who wanted to make submissions. I was not surprised at all the hiccups before I could introduce this Bill. Other members of the committee tried by every means possible to prevent the Bill from going through, because it is far-reaching in regard to ensuring that the regulator focuses on what it is supposed to do - particularly on ensuring that, amongst other things, lower costs in communicating become a reality in this country.
I wish to thank all the members of the committee, including the opposition, the ruling party, the staff, the State Law Advisor, the legal services, and everyone who supported us through this process. Indeed, it was not an easy process, as I have indicated. However, we managed to execute and finalise our task as was expected. I also thank the former Minister, Dina Pule, the current Minister, Yunus Carrim, the Deputy Minister and the Director- General of the Department of Communications, as well as the officials who supported us during the processing of this Bill.
Therefore, I would like to put this Bill before the House and request that it be adopted. Thank you very much.
There was no debate.
Order! Are there any objections to the Bill being read a second time? [Interjections.] There are objections.
The DA would like to make a declaration.
Declarations have been called for.
Declarations of vote:
Hon colleagues, the legislation before this House today was, in the main, positively received by most of the ICT industry stakeholders who commented on the draft. This supportive frame of mind was an expression of relief that the department had seen sense and radically revised the original Bill that was published last November.
Those proposals, which were clearly drafted to emasculate Icasa's authority over regulatory development, caused uproar in the sector. The department has wisely referred most of these issues to the ICT policy review process which should produce a Green Paper for public discussion by year end. However, the desire by government to undermine Icasa's constitutional independence is not on the back burner.
The memorandum of objectives of the Bill went to great lengths to state that the amendments would not limit Icasa's independence. They said that the importance of an independent and impartial regulator for communications could be overstated. Yet, any time a clause in this Bill was criticised for giving the Minister too much authority over issues in Icasa's domain, the ANC members of the committee vociferously asserted that Icasa was not a Chapter 9 institution and that the Minister should be the person calling the shots.
Our Chapter 9 institutions, established to protect our democracy and inhibit the abuse of executive power, are increasingly being subjected to executive creep that makes them susceptible to political pressure. It is part of this government's strategy to capture institutions of state through a small ruling clique entrenching their own power and enriching themselves.
Protecting Icasa's Chapter 9 status will be the major battle in the sector during the next Parliament. Part of the ICT policy review process is to clarify Icasa's constitutional independence. This will hopefully lead to legislation that will unequivocally entrench the Chapter 9 independence of Icasa, in order to protect it from political, business and sectoral pressures, so that it can be a financially independent regulator serving the best interests of all South Africans.
The executive creep that is usurping Icasa's constitutionally protected independence can be summed up in section 4(h)(3A), which provides says that Icasa, in exercising its powers and performing its duties, must consider policy made and policy directions issued by the Minister in terms of this Act. On this fact alone we object to this Independent Communications Authority of South Africa Amendment Bill. It seeks to broaden the scope of policy directions that can be issued to Icasa by the Minister.
The DA is of the view that this clause, inserted from the Electronic Communications Act, strikes at the independence of Icasa as set out in section 192 of the Constitution. We cannot allow the erosion of the independence of our Chapter 9 institutions to happen by stealth. Thank you. [Applause.]
Chairperson, first of all, at the outset we should say that participation in the process was consistently to try to adjust the legislation to what we could live with, because of the status of Icasa. Icasa is, actually the successor in law of the Independent Broadcasting Authority which is a Chapter 9 institution. It has swallowed all the functions of the Independent Broadcasting Authority. Even the Minister in the Presidency, hon Manuel, confirmed, however, that there was an oversight during the process of compiling the Icasa law in 2000, that it was not recognised at that stage, and that it was actually possibly an infringement of the Constitution. That matter has not been corrected in law up to now. I listened to what the hon Shinn said about what we have before us today. The reason why we are not objecting to the Bill, but cautioning the House, is the fact that it says Icasa must consider the policy made by the Minister. In terms of our Constitution, the executive is the policy-making body in government. We are the legislative authority. We must clearly see that policy and law find each other. However, we in Cope cannot ignore executive creep. Therefore, we are extremely mindful of and very cautious about the fact that the executive cannot interfere in the performance and the administration of the independent regulator. They are protected in terms of section 192 of the Constitution.
Clearly, the Act deals mostly with administrative matters - the Amendment Bill before us. However, we also caution that you cannot turn an ineffective regulator into an effective body by trying to legislate in further detail exactly who must submit what report when. That role is determined by the people that are appointed to the council of Icasa. However, we find that, mostly, the individuals who are appointed to that body are part of a political deployment of the ruling alliance. That is why that body is not functioning effectively. Secondly, Icasa has been before our committee on various occasions indicating that the staff employed do not have skills and capacity. That is why Icasa is failing.
So, by and large, the Bill before us is really completely unnecessary. It is not going to turn an ineffective body into an effective body. You cannot legislate to make an institution effective. Thank you. [Time expired.]
Hon Chairperson, I proudly rise on behalf of the movement of the people, the ever so gallant ANC. Our predecessors and proud leaders of this more than a century old movement, when passing the baton to us, said, "Comrades, libambeni lingashoni." ["Comrades, don't let the sun go down on it."]
Today I rise to support the chairperson of the portfolio committee in his presentation of the Independent Communications Authority of South Africa Amendment Bill in this House. It is our conviction and we take courage from the fact that the spear will never and shall never fall.
You will recall that on the occasion of the Minister of Communications' 2013 budget speech on 21 May 2013, the former Minister, Dina Pule, indicated, in relation to the legislative programme in the course of the year 2013, that the department would be introducing four legislative amendments. One of them is the Independent Communications Authority of South Africa Amendment Bill.
Let me remind the House that on that Budget Vote it was not as if there were never any naysayers or those that did not believe that the ANC would deliver on their promise. The first movement and party to secure the freedom of this country and the independence of its state support institutions is, and remains, the ANC. All these existing institutions are there because the ANC believed that they had a major role in democracy. Therefore, we in the ANC fail to understand how we can create such institutions and later on compromise their independence.
The ANC-led government established the Independent Communications Authority of South Africa as an independent regulatory body of the South African government, functioning under the Department of Communications. Our position has not changed in this regard. We encourage Icasa to continue respecting the Constitution and the law, to perform its duties and take decisions in an impartial manner without fear, favour and prejudice, and without brooking any political or commercial interference. That's what we originally supported and did with this Bill.
In conclusion, the ANC will never shy away from its responsibility to govern, as we are always ready to govern this country. The ANC supports the enactment of this Bill with all the amendments, as agreed to by the committee. Thank you. [Applause.]
Hon members, before I put the question, I have a brief ruling to make. I hope it will respond satisfactorily to the points of order put by the hon Kalyan and the hon Kilian.
Committee reports on Bills are, as a matter of practice, not formally considered in the House, when they do not contain specific recommendations that go beyond the amendments already included in the Bill and require consideration of additional issues. That has been standard practice for many years and is also the reason why the report was not put on the Order Paper for consideration, but only in the Announcements, Tablings and Committee Reports for the information of members of the House.
Therefore, the Order before the House is in order. The practice itself can be reviewed if necessary. Thank you.
Chairperson, can I address you on the matter? [Interjections.]
Hon member, I have made a ruling. Can we proceed? Just sit down.
Bill read a second time (Democratic Alliance dissenting).
Chairperson, can you please record the objection of Cope to the process followed.