Interviews of Candidates for ICASA Council

COMMUNICATIONS PORTFOLIO COMMITTEE
29 August 2006
INTERVIEWS OF CANDIDATES FOR ICASA COUNCIL

Acting Chairpersons: Mr R Oliphant (ANC); Mr R Pieterse (ANC) (between 10am and 1pm)

Documents handed out:
ICASA Exit Report Summary (not discussed): Part1 & Part2

SUMMARY
The Committee continued with the interviews for ICASA Council vacancies and interviewed Ms M Mohlala, Prof J van Rooyen, Mr A Nkomo, Mr L Ncetezo, Ms M Socikwa, Ms L Cassie, Ms N Gila, Ms D Love and Ms M Matlala. The Acting Chairperson stated that Mr M Lekgoro had withdrawn, and that the Committee would continue to interview before drawing a further list of eight names for submission to the Minister, who would name the final five to be appointed to the ICASA Council.

[The interviews held on Monday 28 August were not minuted by PMG as notice of these did not appear in the Parliamentary Papers.  Attempts are being made to obtain a transcript.]

MINUTES
Interview: Ms M Mohlala
The Acting Chairperson asked Ms Mohlala if she was subject to any of the disqualifications in the Act and to tell the Committee a little more about herself.

Ms Mohlala stated that she did not believe that she was subject to any of the disqualifications. She was not in full-time employment, having been employed as an ICASA Councillor up to 14 August 2006, and did not hold any commercial interest in the sector.

Ms Mohlala summarised that she was an attorney by training. She had been involved in the formulation of the Electronic Communications Act (ECA). She had experience as a litigator and as a regulator in the sector. She had been at the heart of licensing broadband. One of its significant achievements was the way in which technology could contribute towards development. She named its achievements in the rural areas, schools and access to people with disabilities as most satisfactory. She was also involved in the licensing of under serviced areas, which included giving opportunities to women.

Adv P Swart (DA) asked for comment on the ICASA Council decision to approach the National Intelligence Agency (NIA) and how they could be of service to ICASA.

Ms Mohlala replied that ICASA dealt with confidential information that had serious implications in respect of business operations. The exit reports were confidential. Council believed it important that the confidence of the sector in the confidentiality of information be maintained. Hence it believed that the NIA should be involved, and that they were likely to have better confidentiality, and be more cost-effective, than a third party agency.

Adv Swart asked for comment on the statement in the exit reports that the ICASA Council had very little understanding of good governance and its mandate. He asked what she would do, if appointed, to move matters forward and assist ICASA with its mandate.

Ms Mohlala replied that the exit reports were prepared and finalised after she had left. However, ICASA and its Council could not be considered in the same context as the conventional Board structure, dealing with strategy only. The Councillors acted full-time and was accountable for all outputs. In time and with a proper understanding of Council and staffing the roles could be clearly defined.

Adv Swart asked that Ms Mohlala explain the problems with the Under Serviced Area Licences (USALs) and what she would suggest to assist them.

Ms Mohlala replied that they were indeed struggling, but it must be borne in mind that the licences were granted in areas where other operators did not consider it profitable, that they were only two years old, that they were run by small enterprises or previously disadvantaged individuals. She maintained that the concept was good, but they should be given sufficient time to prove themselves viable. If she were to be re-appointed, she would want to fast track and finalise this process, and try to source funding.

Mr R Pietas (ANC) noted the outflow of skilled and senior personnel from ICASA. He asked what steps Ms Mohlala would take to retain skills.

Ms Mohlala replied that many losses of staff could be attributed to uncertainty about the future of ICASA and the sector. Many skilled staff at senior management level were still available to implement decisions. She believed that once there was more certainty on the Council that would operate for the next four years, and on the CEO position, staff would be ready to move forward.

Ms D Smuts (DA) asked if any other confidential documents had been leaked, or whether the approach to the NIA was based solely on the exit reports that were leaked.

Ms Mohlala replied that as far as ICASA knew, no other information had been leaked, but it was concerned to contain the possibility that they could be. This was a decision of the full ICASA Council.

Ms Smuts enquired about Ms Mohlala’s interests in the firm Mohlala Attorneys Inc, particularly in light of the complaint that she had signed and lodged Court process.

Ms Mohlala confirmed that she was the Managing Director of the firm from 1998 to 2002. She was still a Director. This firm employed fifteen staff and she did not believe that it was reasonable that it should close. She had always and still did undertake that the firm would not undertake any work in the sector and thus did not believe there could be a conflict of interest. In relation to the complaint, the case involved an NGO that encouraged greater participation of black IT professionals. IT was not, at that time, within the sphere regulated by ICASA.

Ms Smuts asked Ms Mohlala to comment upon another complaint concerning a senior manager who had allegedly resigned from ICASA because she had failed to obtain co-operation from Ms Mohlala, and believed she was actually hindered in the performance of her duties concerning a road show.

Ms Mohlala responded that the senior manager had been with ICASA for nine years and she had worked successfully with her on six projects. She had regarded their relationship as cordial and professional. She had not been given the opportunity to respond to the allegations in the exit report, but briefly the project had been concurrent with the licensing of the USAL licences, and Ms Mohlala was simply unable to attend the meetings set up, and deal properly with the project as she was not physically in office. She had taken a decision that the USAL licences must take priority. The manager had been informed throughout, but had chosen, for reasons unknown, not to use the route of asking the Council to appoint another Councillor to run the process.

Ms S Vos (IFP) asked for comment upon the relationship between the Department and ICASA and the apparent attempts to undermine the independence of ICASA.

Ms Mohlala stated that ICASA was an independent entity and must be protected at all times. Public interest was paramount. Therefore she would act always to ensure the independence of ICASA, in the public interest, was protected. ICASA Councillors would always be nominated by the sector but the candidates must be considered on their capabilities and the value that they could bring to ICASA.

Mr K Khumalo (ANC) noted that Ms Mohlala had been nominated by Cell C and WBS and asked if she had ever been approached by the Minister or Department of Communications (DoC) requesting that she apply.

Ms Mohlala confirmed that she had not been approached by the Minister or Director General of DoC. She believed there was no conflict of interest and that her previous decisions bore testimony to her objectivity and independence. The nomination arose from her ability to perform the tasks.

Mr Khumalo asked if the funding to the USALs was considered sufficient.

Ms Mohlala believed that an asymmetrical intercommunications regime was essential. The funding was not sufficient. A capital injection was needed and perhaps this could be done by way of a loan.

Mr Khumalo asked for comment on the 1800 spectrum and 3G licences.

Ms Mohlala believed this had increased the interest in the telecommunications sector. There was a growing market for the service. The internet connectivity to schools was a positive and beneficial spin off.

Interview: Professor J van Rooyen
Prof van Rooyen confirmed that he was not subject to any of the disqualifications in the Act.

The Acting Chairperson then requested Prof van Rooyen to give the Committee an indication of his background.

Prof van Rooyen stated that he was born and raised in the rural areas of Natal. He had attended the University of Pretoria and was asked to apply for a post as lecturer. He lectured there for many years in media law and delict. He was a member, Deputy Chairperson and Chair of the Publications Appeal Board. He named some of the significant achievements in unbanning during his tenureship. He had also served as member or Chairperson of the Press Council. the Banking Appeal Board, and other task groups. He had been asked to set up the Broadcasting Complaints Commission. He had joined the Pretoria Bar in Pretoria. He had several Acting appointments as a judge. He, however, missed the opportunity to be involved at the cutting edge of transformation and would not like to return to practice as an advocate at this stage. He had felt privileged to be part of transformation in the broadcasting sector.

Mr M Mohlalonga (ANC) asked Prof van Rooyen to comment upon the proposed amendments to the Film and Publication Act.

Prof van Rooyen gave some background to the Film and Publication Act. He commented that the proposals were simply not practicable. He found it “odd” that the exemptions for licensed broadcasters had been removed. He thought that the legislation should have come to this Portfolio Committee [rather than that of Home Affairs].

Mr Mohlalonga asked what were the greatest challenges facing ICASA and how he believed his background could be useful in addressing those challenges.

Prof van Rooyen replied that he had many years of expertise gained in broadcasting. Although he had no expertise in technology he had held two international broadcasting conferences in South Africa and had built up a wide range of contacts in the field in Africa and Europe. He was able to make input on regulations and the new ECA contained a host of regulatory issues. He had experience in drafting legislation, including the Film and Publication Act, the constitution of the Broadcasting Complaints Commission of South Africa (BCCSA) and had given input on the Codes of ICASA. He also had experience in competition law and delict. He had acted in the Labour Court and had dealt with more than 700 appeals, as well as acted in over 3 000 tribunals. He had practical and academic experience. Finally he was totally committed to constitutional values and had a great affinity for the broadcasting and media industry.

Ms M Morutoa (ANC) asked what Prof van Rooyen would recommend to minimise harm to women and children.

Prof van Rooyen stated that he had been extensively involved in drafting definitions of child pornography. He considered it completely unacceptable. Although the Code of ICASA allowed for explicit material to be broadcast under an age restriction, no broadcaster had in fact shown anything approaching some of the material shown elsewhere. He suggested that it might be useful to have an open discussion on issues, on an education programme, late at night. He welcomed the fact that one of the radio stations had aired comments from a paedophile that had alerted the public to issues. He suggested that it was necessary to keep a watch over explicit information.

Ms Smuts asked to what extent there would still be a need for codes of conduct for broadcasting and whether Prof van Rooyen would participate in the process. She also asked how licences for broadcasting should in future be approved.

Prof van Rooyen replied that the scarcity principle had been dropped in America but still applied in Germany, and the arguments in favour of regulation were weighted to the protection of children. Even child pornography could be included in freedom of expression. He believed there was room for a Code because the airwaves belonged to the people, whereas the media did not. He believed parliament should have the right to intervene in airwaves. On the question of why there should not be censorship, he stated that there was always the practical consideration that broadcasters would need to apply for licences again. The Code, in his view, would continue for many years. The FCC in America still had a Code and so did Germany. He believed that responsibility attached to the use of free airwaves. In connection with outside broadcasters, he suggested that greater consideration be given to the use of The Card to manage content. In addition he suggested that more attention should be paid to costs of decoding, which should be available through one decoder.

Mr K Khumalo noted that convergence would shortly occur. He pointed out that foreign ownership was dealt with in ECA, and this was around 20% in the ICT industry. He asked how Prof van Rooyen would view the opportunities for direct investment.

Prof van Rooyen stated that in so far as protection was concerned, it was necessary to ensure that subscription did not rob the poor of the right to information and diversity of views. Subscription was not a bad thing but ICASA would have to look carefully at it. DSTV subscriptions were too high.

Mr Khumalo noted that currently the SABC TV channels were using Channel 65, the 800Mb spectrum. They had indicated that they were unwilling to share the spectrum. If the Minister were to intervene, would Prof van Rooyen regard that as political interference or merely a step to break the impasse. He enquired whether Prof van Rooyen could suggest ways to ensure that ICASA Councillors were not bound by any political considerations or influences.

Prof van Rooyen noted that the ICASA Act did not limit the Minister in so far as making national policy was concerned, although it did state that no policy could intervene in ICASA’s power to grant licences. Therefore the independence of ICASA was confirmed. He would suggested that in respect of Channel 65 there needed to be further negotiation and discussion. ICASA could play an important role. The Minister could give ideas, within the powers to consider national and direct policy, on protection of previously disadvantaged individuals. The Regulations the Minister could make related to big issues of universal access. It would be necessary to give consideration to the implications of 2010.
 
Mr Khumalo asked what ICASA should do to restore the dignity, responsibility and independence of the Regulator in the same sense as Chapter 9 Institutions.

Prof van Rooyen believed that dignity was gained through one's own actions. He had not been following the media reports on ICASA. No matter what protection was given by the law, if a body acted in a despotic way it would lose respect and its good name.

Ms Vos asked whether Prof van Rooyen thought that the complaints procedure for the telecommunications and broadcasting sectors was adequate

Prof van Rooyen replied that it had taken some time for the Broadcasting Complaints Commission to be properly used but the access was improving. The problem was that it could only act on complaints by the public and often these complaints were not made. The new Act did provide for inspectors.

Ms Vos enquired how Prof van Rooyen viewed ICASA and the debate whether it fell within the Chapter 9 context.

Prof van Rooyen replied that Section 192 of the Constitution said nothing about telecommunications, and so the Minister had more powers in this area. But broadcasting was more important, and was indeed covered, despite the fact that the two areas would shortly merge. The ordinary view of what constituted broadcasting would probably prevail and those would have sufficient protection.

Interview :Mr A Nkomo
Mr Nkomo confirmed, in answer to a question from the Acting Chairperson, that he was not subject to any disqualifications in terms of the Act.

The Acting Chairperson asked Mr Nkomo to introduce himself to the Committee and give a background.

Mr Nkomo stated that he had become politically active at the age of fourteen. He had studied political science and economics at Fort Hare University but had been excluded for political activities. He studied psychology and political science at University of Natal. He studied political economics at Reading University. He studied Italian economic construction since World War II and Italian government and politics at the University of Rome. He was a Fullbright Fellow in America, at the Maxwell Institute. He lectured and held positions as Head of Department. He worked for the United Nations for 18 and a half years, specialising in the Arab-Israeli and Palestine matters. He was first invited to the United Nations while still studying to write a paper on the effects of Bantu education. He outlined his work in bringing South Africa to democracy. He was invited by the late Alfred Mzo to assist in formulating new foreign policy. He acted as ambassador to Argentina, with responsibility for Uruguay and Paraguay. He was currently acting as Mentor in the Department of Foreign Affairs to upcoming diplomats. He had a consultancy contract with the Department of Communications assisting the unit on international affairs to prepare staff for international interaction in a fast moving environment. He had spent much time working with youth and women’s issues. He had raised money for 36 scholarships for study at MEDUNSA.

Mr V Gore (ID) asked what Mr Nkomo’s interest was in the communications environment. He also asked if Mr Nkomo had knowledge of the challenges facing that sector in Argentina.

Mr Nkomo replied that his late niece had written her Master’s dissertation on communications in Argentina.
He would regard communications as the method of improving delivery of knowledge and information to all people. Communications helped to develop an understanding of the democratic process. He commented that in Sicily in 1962 use was made of TeleScola, to teach both adults and children by radio and television. Communications could reach people who were outside the traditional frameworks. He would regard it as vital to improving democracy. Convergence would make information more widely accessible at a cheaper rate.

Mr M Kwolwane (ANC) asked where Mr Nkomo would see his role lying in the converged telecommunications and broadcasting services in ICASA. He asked him to comment upon the perceived “interference” of the Minister in ICASA matters and asked how he would ensure that Councillors remained independent.

Mr Nkomo pointed out that ICASA funding was received from Government, and it was held responsible for answering to Government. South Africa had an entity or authority that it had elected to govern, and that had decided to have a ministerial system. All must try to co operate within that system. He pointed out that although one might speak of sovereign states such as South Africa, the fact that it participated in the United Nations already removed a degree of sovereignty. The only truly independent authority was God. He believed therefore that a mechanism must be designed in which all role players could interact. Any structure must have checks and balances. If he was chosen as a Councillor he would use all integrity, within the framework, well knowing that he must also be accountable. He had heard the allegations of interference at Ministerial level. He believed the question must be asked what responsibility had been given to the Minister, and what responsibility did she have to the Executive and the Legislature. In a democratic process, things would evolve. He would have no problem with the authority of Parliament and therefore would expect ICASA to identify challenges and bring solutions, knowing this was done in the context of the regulatory process.

Adv Swart asked what role Mr Nkomo thought he could play and where his skills would be best suited.

Mr Nkomo replied that he had sound academic training, comprehensive managerial skills, good analytical skills, was a quick learner and was amenable. He did not believe that a manager need necessarily know the intricacies of the hardware provided he could understand its applications, which he did understand. He believed the addition of postal services was exciting as it was widespread and could do much to include rural areas that had been left out in the past.

Ms Vos asked Mr Nkomo to clarify his economics studies and asked if he could apply the economic training to undertake political and economic analysis in market structures.

Mr Nkomo explained that he had studied under four different academic systems but that he could indeed apply that training.

Mr Pieterse noted that if Mr Nkomo were appointed he could not continue the consultancy work.

Mr Nkomo clarified that this was a one-year contract only, of which ten months had already run. He confirmed that this contract would not be a bar to appointment. 

Interview: Mr L Ncetezo
The Acting Chairperson asked Mr Ncetezo to confirm that no disqualifications applied to him, as set out in the Act, and asked him to introduce himself to the Committee.

Mr Ncetezo confirmed that he was not subject to any disqualifications. He indicated that he had an electrical engineering background, holding a Masters degree in electrical engineering. He had worked for Anglo American as an engineer in training and also worked in what was then Transkei Electrical Supply Corporation (TESCo) for four years. He had joined Eskom in 1995 at the time of its merger with TESCo. He had experience as a business development manager, ensuring that good use was made of the Eskom PTN. He was a head of divisional telecommunications and tasked with seeking business opportunities in Africa. He was exposed to the regulatory regime of Zambia, Mozambique and other African countries. In 2000 he had joined the Regulator (the precursor to ICASA) as one of the first Councillors. He had then joined WBS for two years but had recently, at end July 2006, left them as he wished to pursue wider interests as he had found the niche market too narrow. His resignation coincided with the advertisement of the ICASA positions.

Mr Pieterse added that he had been involved with Mr Ncetezo in the sense that he had been asked to identify some of the schools which WBS had connected, free of charge for one year, as part of a project.

Mr Mohlalonga asked Mr Ncetezo to confirm the mention in his CV that he was acting as a consultant to the communications industry.

Mr Ncetezo stated that he had intended to start up a consultancy after leaving WBS. Although he had briefly commenced setting up the business he had no engagement with the industry in fact to date.

Mr Mohlalonga asked how Mr Ncetezo saw the challenges facing ICASA, and how he could bring his past experience to bear on matters if he were to be appointed.  He asked how Mr Ncetezo would evaluate his past time as a Councillor and what he believed were his particular strengths.

Mr Ncetezo replied that he had joined the Independent Broadcasting Authority (IBA) / South African Telecommunications Regulatory Authority (SATRA) at a time when it was in complete disarray. The Council had basically to start from scratch, employing staff and senior management, and ensuring that the machinery was up and running. He believed that this was done successfully and the CEO was about to take appointment when he had left. In so far as his personal contribution was concerned, he had been very active in regulations such as interconnectivity and facilities leasing, which still stood. He and his colleagues were called upon to intervene in battles between operators and mediate, although he did not believe that this was properly a function of the Council. The experience he had received as an operator stood him in good stead. In his experience with the school connectivity project, he had been exposed to problems at grassroots. He was happy to see that the Universal Service Fund (USF) could be used to ensure that schools did get access.

Adv Swart asked for Mr Ncetezo’s views on the problems with the USALs, and an indication of how he would propose assisting them if appointed.

Mr Ncetezo responded that there had been problems under the old legislation, which were pointed out when the process was started. Mr Ncetezo had been worried that there was no exclusivity in these areas and no protection. Now, under the new ECA the USALs stood a better chance but there remained a problem with finance. The rollout of a network was capital-intensive. Some had piggybacked on other existing networks, which ran contrary to what had been intended. He believed that thought had to be given to making the whole process viable, as people already stood to lose unless financed properly.

Ms Vos stated that there were currently many negative perceptions on the corporate governance of ICASA. She asked whether Mr Ncetezo had a view, and what he believed needed to be done to allow consumers to get the benefits of ICASA’s work. She asked if he had any innovative ideas on how to turn it around.

Mr Ncetezo stated that he had no knowledge of the problem save what he had seen in media reports. However, the fact that several senior managers had left was problematic. This was an area that obviously needed to be looked at. He had already been through a similar situation when joining IBA. However, he believed that the addition of five new Council members would have a positive impact because they, not being part of the previous process, would dilute some of the problems and have a fresh take on what needed to be done. ECA placed huge obligations on the Regulator and he truly believed that there would be no time for squabbles if the work was to be properly done. He was hopeful and optimistic that ICASA would find a way forward.

Ms Smuts asked if Mr Ncetezo had looked at the section of the legislation dealing with economic regulation, and how he regarded it.

Mr Ncetezo commented that he liked the extension of the reasonable requirements provisions so that the question of cost could be considered. He also commented favourably upon the fact that there were not to be exclusivity clauses.

Ms Smuts asked whether the tools to do something on price control to deal with the dominant incumbent were able to be used efficiently.

Mr Ncetezo stated that the Act would improve upon competition. He believed that ICASA had made positive moves and that the recent Telkom extension of services, at no extra cost, had been in response to moves made by the Regulator. Competition would bring the costs down and once it was possible to deal with bandwidth issues the costs could reduce substantially. He believed that under serviced areas were just as much in need of broadband as urban areas and that it should be included in “basic services”.

Ms Smuts asked Mr Ncetezo’s views on the move to turn ECTel into an infrastructure company and what he thought would be the effect on the policy of managed liberalization, and what role ICASA could play.

Mr Ncetezo replied that it was not desirable to have duplication of infrastructure. When IT was put together Eskom and Transtel were to be involved; now the same effect would be achieved without duplication.

Mr Kwolwane asked for comments on the new performance management system now incorporated in the new legislation, and the involvement of the Minister, in particular whether he thought it would compromise the independence of ICASA.

Mr Ncetezo saw this as a formalisation of what already existed, because ICASA had always had bilaterial dealings with the Minister, who would comment, in particular upon regulations that needed to be promulgated. ICASA had to communicate with the Minister. The Minister was always obliged to consult when making legislation. Councillors should, in his view, accept that they were tasked with certain things, and that their activities too were subject to review. The Minister was probably the appropriate person since she was closest to ICASA.

Afternoon session:
The Committee continued with the interviews for ICASA Council vacancies and interviewed Ms L Cassie, Dr M Socikwa, Ms N Gila, Ms D Love, and Ms N Matlala. The Acting Chairperson stated that Mr M Lekgoro had withdrawn, and that the Committee would continue to interview before drawing a further list of eight names for submission to the Minister, who would name the final five to be appointed to the ICASA Council.

MINUTES
Interview with Ms Lee-Ann Cassie
The Chairperson asked Ms Cassie to tell the Committee about herself. He indicated that the disqualification rules provided that a person who had been appointed as a Councillor could not hold two jobs at the same time. He asked her to declare any interest that she had in the communications sector, particularly those that might lead to a conflict of interest.

Ms Cassie expressed her gratitude to the Committee for the opportunity to be interviewed. She said that she had no interest to declare and that she had applied her mind to section 6 of the ICASA Act prior to accepting the nomination..

Ms Cassie had obtained an LLB degree from the University of Zululand. She did her Articles with the Legal Aid Board but received an offer to participate in an internship in the Department of Communications (DoC) in her fourth week with the Legal Aid Board. The internship aimed to address the acute shortage of skills, particularly in the legal field of communications. It focused on electronic communications, broadcasting, postal and telecommunications policy. The internship lasted for a year and accustomed her to the different fields in the communications sector. Subsequent to the internship, she was deployed within the broadcasting business unit in DoC and worked on issues pertaining to broadcasting policies, which had included projects around the roles and obligations of the public broadcaster and transformation of the advertising and marketing industry.

Ms Cassie had also worked as an assistant legal advisor for the South African Broadcasting Corporation (SABC). This position had exposed her to the commercial legal environment with the broadcaster. She negotiated contracts on behalf on the SABC. The job was very commercial in nature and not in line with her training at the Department of Communications. She then moved from the SABC to ICASA where she currently held the position of Manager: Telecommunications Enforcement (current position). She was also acting as a Senior Manager: Licensing Enforcement. He roles centred around enforcing applicable legislation for licensees and non-licensees within the sector. She had also done various licensing activities, particularly licence amendments.

Ms Cassie said that she had carefully considered her nomination for the position. She had looked at the organisational structure of ICASA, its objectives and where it had to go. ICASA was moving in phases. She outlined the steps leading to the formation of  ICASA. ICASA would now have to deal with postal activities and new roles had been spelt out in the ICASA Act and other legislation. She had thought about what the Council would need in order to move forward and implement all activities envisaged by applicable legislation. She was of the view that she could contribute much to the growth of the organisation. ICASA should bear in mind that procedures were key in this transitional phase. People who knew and had worked in ICASA were better placed to take the process forward. ICASA was facing numerous challenges and this was one of the reasons why she had accepted the nomination.

Ms D Smuts (DA) noted that Ms M Mohlala was present at the meeting. She asked if it was fair to Ms Cassie that a former Councillor who had also been nominated for the positions was sitting in the room where people were being interviewed.

The Chairperson said that a similar situation had arisen the previous day and nobody had objected. This was an open public process. He wondered if it necessary to deviate from this procedure. He asked if Ms Smuts foresaw any kind of problem in having Ms Mohlala in the room.

Ms Smuts said that Ms Mohlala was a sitting Councillor until a few days ago, and was a candidate for the new posts. She believed it was difficult for Ms Cassie be confident and free to express her views about some of the problems within ICASA in front of someone who was and might be reappointed as a Councillor. She did not believe that this was desirable. 

Mr KM Khumalo (ANC) asked the Chairperson to rule Ms Smuts out of order. Everybody should be allowed to take part in the process. This situation had happened before. There was nothing in the law that prohibited anybody from listening to the proceedings. He wondered what type of questions Ms Smuts wanted to raise that Ms Cassie might not be free and confident to answer in front of Ms Mohlala.

Ms Smuts said that the problem was that Ms Cassie was an employee at ICASA.

Ms S Vos (IFP) added that Ms Mohlala was the direct supervisor of Ms Cassie.

Mr M Mohlaloga (ANC) said that it was not necessary to excuse the candidate. Ms Mohlala was not employed at the moment and there was no problem with her being present in the meeting.

The Chairperson said that Ms Smuts had raised something that the Committee should have considered at an earlier stage. All candidates were equals in the race, and nobody shoud be seen as attending in her capacity as staff member of ICASA.

The Chairperson apologised to Ms Cassie for the inconvenience and opened the floor for questions.

Mr Khumalo asked who had nominated Ms Cassie for the position, and whether she was likely to be influenced by that person if appointed. He asked her what she saw as the challenges and problems at ICASA. He referred to the E-rate programme, which had not yet been rolled out to schools despite promises. He referred to municipalities that operated the 2.4 Gigahertz (GHz), who had been ruled against by ICASA.  He asked if there was a way in which such operators could be accommodated.

Ms Cassie replied that she had been nominated by Mr Shaka Sisulu, an Executive at Itec Telecommunications. Itec Telecommunications was in possession of a value added network service (VANS) licence. She said that she would be bound by the provisions of the ICASA Act and the Codes of Conduct prescribing how Councillors had to operate. ICASA should operate without bias or prejudice. There were processes underpinning the manner in which it had to operate. She did not see any potential conflict should she be appointed to the position.

She said that ICASA was going through a transition period in that as from 19 July 2006 it had different roles to play in terms of its new legislation. It would have to align itself in accordance with the provisions of the ICASA Act and underlying applicable legislation. It would have to take into account the Electronic Communications Act (ECA), Postal Services Act and the Broadcasting Act of 1999. It would be required to regulate postal services in addition to its current roles. There were various roles as envisaged by the different legislation and many challenges. There was a need for a new structure for regulating, licensing and enforcement. ICASA was grappling with these challenges at the moment by investigating a proper framework. The challenges could be dealt with by following proper procedures. ICASA operated in a very litigious environment where operators usually threatened to take legal action even before any decisions had been made. It was important to ensure that everything was procedurally correct in carrying out the organisation's mandate. There was a need for a very strong regulator. The structural design of the organisation distinguished between Council on the one hand and management and staff on the other hand. Council should be equipped with the correct understanding of its roles and experiences for it to go forward in addressing the challenges.

With regard to the E-rate programme, she said that the programme should be looked at in terms of the Telecommunications Act and the ECA. The Minister had determined that E-rate was to be applicable as from 18 January 2005. Anybody who supplied services to a public school or a further education and training institution had to provide the services at a 50% discount. The issue was dealt with by Parliament when amendments were made to the ECA. One of the challenges in implementing the programme was that in providing the service to a school, the components of the service must be considered. Internet Service Providers (ISPs) had to get their facilities for the provisioning of the service from Telkom. Although the laws had changed to allow ISPs to get the facilities from other operators, the reality was that other operators were unable to provide the facilities to VANS at a rate that enabled them to effect the 50% discount to schools. The ECA provided that persons who would provide services to public schools or to further education and training institutions should get the facilities from operators at a 50% discount. The new provisions of the ECA would make the E-rate more applicable or easily applicable. ICASA had held meetings with DoC and indicated that people who were not providing services to schools at a 50% discount should be reported. Schools might have to be given some rebates if they had not been given the 50% discount.

On the issue of municipalities, she said that this issue was also brought before Parliament. In terms of the Telecommunications Act, there were three operators involved: Private Telecommunications Network (PTN) licensees, VANS licensees and Telkom. The provisions relating to PTNs provided that a person was not obliged to get facilities from Telkom if a PTN was on a single piece of land or contiguous pieces of land owned by the same person. The Ministerial Determination allowed PTNs to sell or lease spare capacity and this changed the way PTNs and VANS operated. Telkom had alleged that what municipalities were doing was illegal. ICASA believed that was that a municipality was an organ of State and the ownership of public roads vested in the State. The land on which the municipality operated was seen as contiguous and owned by the same person. This freed municipalities from getting the facilities from Telkom. Municipalities could get a technology provider (VANS operator) to provide any of the services it wanted. The 2.4 GHz fell within the ISM band and there were specific regulations relating to it. People could approach ICASA and apply for licenses the minute they fell outside the requirements for operating freely within that band.

The ECA provided for different categories of services and networks service rights. A municipality could fall under an exempt category if it was shown that it was confined to the operation of its business. ICASA might have to determine if the network fell under an individual electronic communications network licence or class service license if the network was rolled out in a specific manner. This determination would have to be made taking into account the specific requirements of a particular application.

Mr S Kholwane (ANC) asked for Ms Cassie’s comment on the speculations raised about problems at ICASA. He also indicated that the ICASA Amendment Act sought to give power to the Chairperson, and asked Ms Cassie's attitude towards that. Some people had argued that this was undesirable because Councillors worked as a collective. The Act had also introduced the issue of performance management systems, and he asked if she saw these positively, especially given that the Minister would be involved in the process. Finally he asked if she thought the involvement of the Minister would compromise the integrity of ICASA

Ms Cassie replied that not all the media reports had been accurate. Many issues reported in the media emanated from some of the people who were leaving ICASA and many of them were not entirely correct. With regard to the powers given to the Chairperson, she said that persons were given responsibility for purposes of accountability and it was not necessarily a bad measure to ensure performance at the highest level.  She commented that ICASA should perform in terms of its new mandate and one of the contributors to improved performance would be performance management. On involvement by the Minister, she replied that the ICASA Act, Broadcasting Act, Postal Services Act and the Public Finance Management Act guided the operations of ICASA. There were processes that underpinned the manner in which it had to operate and the processes were based on open and democratic principles. The apportionment of roles and duties would not necessarily compromise the position of ICASA.

Ms Smuts said that the old situation with the PTNs and the arguments about contiguity had fallen away under the ECA. Municipalities and other PTNs were given the right to set up their own networks. She asked whether the process of making regulations had already commenced. She referred to the Ministerial Determinations of September 2004. She presumed that ICASA had done a lot of work on the VANS self-provisioning regulations and wondered if Ms Cassie had largely written them. The Minister had then ruled that these regulations were not what she had in mind, which had caused some consternation in the industry. She asked Ms Cassie what she would have done under the circumstances and whether she felt she would be able to stand up for the interpretation that she had given.

Ms Cassie replied that the ECA required ICASA to undertake a licence conversion process once the licence terms and conditions had been established. The Act provided that existing licences would remain until ICASA had converted them to the applicable category in terms of the new regime. ICASA would indicate the framework that would be used going forward. It had been inundated with calls from the public on the license issue. ICASA had replied in accordance with the provisions of the legislation. It was in the process of establishing a framework.  It envisaged a conversion process as well as the establishment of new terms and conditions under which people would operate. Until that time, people would have to operate in terms of their old licences. ICASA did not have the power to licence new holders until it had come up with the terms and conditions. Any licences issued before the establishment of the terms and conditions would be invalid because they would not have been issued in terms of legislation.

The Ministerial Determinations in relation to VANS had indicated that from 1 February 2005 VANS would no longer be obliged to obtain the facilities from Telkom. This had raised important questions whether this meant that VANS could self provide or whether they must go to persons who were entitled to give them such service. The Determination was written in a manner that said VANS might have greater provision of choice with regard to a particular service. ICASA held public hearings and proposed how the new VANS regulatory framework would work. Different interpretations were received from the public. There was another provision in the Telecommunications Act that dealt with local access telecommunication services. Local access telecommunication service was the network of a particular operator and the customer using the network. They would be providing the connection between the network of the VANS and the customer if they were to self-provide.

Ms Cassie noted that there were different views even within ICASA itself. Regulations were,  in terms of the Telecommunications Act, subject to the approval of the Minister. The ambiguity surrounding the greater choice with regard to procuring facilities was then clarified. The regulations were written clearly stating that VANS had created choice in relation to where they could obtain the facility in question. The meant that VANS were not able to self-provide and had to go to another network facilities operator to provide them with the facility.

Ms Smuts referred to the issue of the 822-830 megahertz, and asked for Ms Cassie’s view on Code Division Multiple Access (CDMA) versus broadcasting rights issue. Negative reports had been given on CDMA but the Second Network Operator (SNO) seemed to want it. She asked for Ms Cassie's views on the issue.

Ms Cassie replied that ICASA had conducted an inquiry to establish if channels 65 and 66 (822 - 830 MHz) could be used for non-broadcasting purposes. The process had recently been revived specifically in relation to the use of this frequency band for CDMA technology. ICASA was currently investigating its feasibility.

Ms Smuts noted that Ms Cassie had a star performance rating. She asked who had given the rating. She also asked whether Ms Cassie could comment on the treatment of two other staff members. She considered that the current Chairperson’s treatment of them had been unfair since the investigating officer had exonerated them.

Ms Cassie said that there was a performance-rating system installed in 2004/05. Staff should rate themselves on the different projects that they had undertaken. The ratings were taken to Senior Management who would then take them to the Chief Executive Officer (CEO), who would then take the ratings to Council for approval. In regard to the staff, Ms Cassie  said that she was not very close to the issue and could not remember the specifics. A procedure was followed that determined the outcome and she respected the outcome. 

Mr R Pieterse (ANC) focused on the E-rate programme and said that there were schools that had been exempted from paying schools fees. He wondered if it was not important to look at other ways of connecting the schools, since many could not even afford the 50% discount.

Ms Cassie replied that ICASA had held meetings with the Department of Education. The Department had indicated that there were schools that could not pay even the 50%. One could look to subsidies from the Universal Service Agency of South Africa (USASA) in order to address this problem. Provision was made in the Telecommunications Act and the ECA for  USASA to make contributions towards initiatives in relation to universal service and access to schools.

Mr Pieterse asked how Ms Cassie would recommend that ICASA could retain its staff and put a stop to the alleged exodus of staff.

Ms Cassie commented that staff members were usually not comfortable whenever there was some change. ICASA had been facing a number of challenges in light of the new legislation. There were various reasons for people leaving, including whether there were proper procedures for performance management and succession planning. Operators were able to offer better remuneration to skilled professionals. It was important for the Council to give more clarity with regard to changes affecting the organisation. It was also important to re-introduce performance management system because the current one had been suspended.

Ms Vos commented that ICASA in was disarray. The Council had resolved to urgently appoint a human resource consulting firm to address challenges. It had been alleged that there was no understanding of corporate governance in the Council. She asked how Ms Cassie would address these problems because it was not a simple case of bringing in human resources people.

Ms Cassie replied that concerns around lack of understanding of the Council's mandate and lack of corporate governance were some of the most important issues for Council to deal with. Corporate governance and the mandate were related to the functioning of ICASA. ICASA was a creature of statute and its role had been redefined as from July 2006. It was now a regulator of broadcasting, telecommunications and postal services, and therefore must look at how to structure itself in light of the new roles and needs. She agreed that the appointment of human resources consultants would, by itself, not necessarily solve the problem.

Mr Mohlalonga asked the candidate to comment upon  how she understood the independence of ICASA. He also asked if she had ever observed any kind of Ministerial interference. He also asked for a comment on immediate steps that should be taken in relation to the cost of telecommunications.

Ms Cassie replied that ICASA was a statutory body and different legislation applied to it. It was an independent and inter-dependent organisation. This meant that it could not function alone in coming up with decisions and the legislation stated how it should do so.  Any decisions must consider the interests of the public. The issue was not only about Ministerial interference but also commercial interference. Legislation underpinned an open and transparent process. ICASA would be acting ultra vires should it flout the provision of the legislation and any decision or action taken would not be of force. She said that most of the processes in which she had been involved had followed the law strictly. There was an outcry that the cost of telecommunication was high. There were very limited provisions under the old regimes in relation to what ICASA could do. The provision of services and infrastructure would be expanded under the ECA. The costs could not only be addressed at a service level. One should also look at the infrastructure and competition provisions. Much could be done to bring down the costs.

Ms M Morutoa (ANC) how far the rollout of the Under Serviced Area Licences (USALs) had proceeded. She asked if the ECA had an impact on their business case. She also asked if the ECA had empowered women economically.

Ms Cassie replied that there were 28 areas that had been identified as under-serviced areas where licences were to be awarded. ICASA had awarded seven licences and was in the process of awarding 14 more. The licensees would only be given the licences once they had been converted in terms of the new framework. USALs had been experiencing challenges since their inception. The ECA might have a positive impact on them.  The issue of women’s empowerment should be looked at in a broader context taking into account other government initiatives, including broad-based black economic empowerment. ICASA had to give due regard to empowerment issues when awarding licenses. It had not yet reached its goals and a lot had to be done in this regard.

Interview with Dr M Socikwa
The Chairperson asked the candidate to tell the Committee about herself. He referred to the disqualification rules, and he asked her also to confirm whether any disqualifications applied, and to declare any interest that she had in the ICT sector, particularly those that might lead to a conflict of interest.

Ms Smuts added that candidates were required to disclose commercial interest of their family members, business partners or associates, but the Chairperson stated that this could be raised as one of the questions. 

Dr Socikwa said that she had been teaching telecommunication regulatory and policy issues for the past ten years. She believed that she could bring an inter-disciplinary approach to the Council. Her contribution would be unique in that she would be able to advise at regulatory and policy levels. Given the ECA, it was clear that there would be would be extensive interaction with policy and regulation-makers. She would approach the regulatory environment in an inter-disciplinary manner. Internationally, regulation was dominated by a legal approach and a pitfall was to underestimate the socio-economic implications of decisions. It was critical to make decisions from a multi-disciplinary level. She said that she had acquired extensive leadership skills. She was the Acting Chairperson in her Department and had sat as an Executive Director at the University, and served in the Economics Cabinet cluster as an expert analyst. This had enabled her to give strategic leadership in various issues. She would bring forward extensive studies that she had done on competition issues.
She was a Managing Director of a company that monitored policy and had so far been involved in areas outside the ICT sector. It had done policy monitoring in tourism for the Gauteng Tourism Board. Her sister was an advisor to the Second Network Operator (SNO). She was not certain if this impacted on her directly in any way.

Mr Kholwane asked what Dr Socikwa saw as the challenges facing ICASA and how she could address them so that ICASA functioned in an acceptable manner.

Dr Socikwa replied that she could not comment on the accuracy of the media stories since she was not within ICASA. Her comment was based on her understanding of the legislation. The ECA and the ICASA Amendment Act had provided the regulator with added enforcement and monitoring powers to regulate the sector. The greatest challenge was for ICASA to be able to implement the regulatory framework as set out in legislation. It was important to utilise the powers transferred to ICASA to focus on bringing stability to the market. Any organisation that was in a transitional era was bound to have an exit of staff. People who had matured in their old position might be enticed to new positions. It was usually when people did not have adequate resources or capacity that problems usually began.

Ms Morutoa asked how Dr Socikwa saw the role of USASA under the new dispensation. She also asked for an opinion on how effective USASA had been so far and how the challenges it was facing could be addressed.

Dr Socikwa replied that in 2001 the Minister had called a group of experts to analyse the problems of what was then USA. She had been one of the experts. It was clear that the USA did not have sufficient capacity at the time. She did not know if that had been addressed but the experts had made recommendations. The Agency's mandate was ambiguous and it struggled for a while. There had also been some criticisms on the USALs. The current framework was not adequately understood and might need revisions. There were indications that the USALs were not sustainable. One could not blame the USA for that. The way forward was to review the USALs and see what mechanisms could be put in place to support them. The USALS were a good initiatives and the problem was perhaps at the implementation and not at the institutional level.  Dr Socikwa added that USASA leadership had also had some problems and there was a need to review its institutional framework. It was necessary to enquire further into their problems and find ways of addressing them. The current legislative framework placed emphasis on small business development and the USALs should be supported to fulfil this aspect of their mandate. There was also a greater emphasis on the fact that the convergence era had not ensured a wider distribution of Internet services, despite the stipulation in the ECA to subsidise schools.

Ms Smuts said that the Committee should not proceed with the interview until the issue of commercial interests had been established. She asked if the candidate's sister was an advisor on a permanent basis.

Dr Socikwa replied that her sister was the advisor to Mr Carl Socikwa. She was not involved in the SNO matters.

Ms Smuts believed that there was a problem in the relationship between the candidate and Mr Carl Socikwa if he was still involved in the SNO. The law clearly stated financial or commercial interest of family members would be one of the grounds for disqualification. The candidate was placed in a position of conflict of interest.

The Chairperson said that the law provided that a person could be nominated but would have to ensure that the conflict no longer existed at the time when an appointment was to be made.

Dr Socikwa replied that she did not interact with her sister on a level that would enable her to know her job description and what was happening in the SNO. She had not even been requested to conduct research on any issue because this would have raised a conflict of interest. Mr C Socikwa was responsible for the restructuring and was not responsible for the SNO at the moment. He was in the past responsible for the packaging on the SNO.

Ms Vos was well aware of the candidate's expertise and understanding of the industry. She referred to a recent newspaper report that the DoC should be disbanded. She asked for comment, and also asked how Dr Socikwa would turn the prevailing market conditions around.

Dr Socikwa disagreed with the view that the Department should be scrapped. She indicated that she had advised operators in Somalia, where there was not even an efficient government. Their strongest disputes revolved around inter-connection and the fact that they were de facto a liberalised market. They needed a point of centre where they would agree to proper inter-connection principles, procedures and costing. They had decided to set up a de facto regulator and wanted their own specialists to be part of the regulator. Dr Socikwa stated that one could not simply scrap institutions set up democratically. USASA should not be dismissed without understanding the complexities that impacted on their work. It would be useful to review the problems and address them. The Act did not give that responsibility to the regulator but to the Ministry. The work of USASA was critical to the work of the regulator in that the regulator had to monitor equitable service throughout the country at fair price.

Adv P Swart (DA) said that the law did not prohibit anyone from participating in the interviews. It was not the Committee's duty to ask the candidate's family members if they were involved in certain activities. It was the candidate's duty to ascertain if she was subject to disqualification. The candidate should provide specific answers as to whether there was conflict or not.

The Chairperson said that Adv Swart was out of order. The Committee had not published the disqualification procedure. It was within the Committee’s rights to recall a candidate for a further interview if it thought that she should be appointed.

Ms Smuts was impressed with the candidate's CV but the issue of commercial interests remained unresolved. She asked for the candidate's views on the licensing of the SNO and summarised what had happened. In the end the Minister had awarded two licensees each 12%. Ms Smuts believed that the area of licensing was one sacrosanct area in which the Minister should not interfere. Most unusually, it was legislated in the telecommunication law that Eskom and Transtel would have to get of 30% of the second SNO, which had triggered the serial licensing process, and eight years later Transtel had indicated that it was not interested in the 30% share. She asked for Dr Socikwa’s views on the matter

Dr Socikwa replied that it was not unusual for a government official to get involved in a licensing process. She referred to regulatory developments in the UK, France, Germany and the USA. Government officials became involved the minute a licensing issue began to bear political significance. The SNO had political significance in the sense that it was a second operator emerging within a monopolised environment. She could not comment on how it was managed because she did not have the details. She had only seen newspaper reports and the sensation around it. If she was sitting in a court of law, she would ask the presiding officer for more information before she could deal with the issue.

Mr Khumalo said that there had been years of degradation and discrimination against Africans in the country that denied them an opportunity to participate in various activities. He asked if the market conditions or the ministerial polices or determination should govern the awarding of licenses. There was a perception that the market dictated that more licenses should be issued quickly, no matter that millions of people did not have access to radio or telecommunication. Four million deaf people could not hear radios, and six million people were blind. He asked what could be done to accommodate such people.

Dr Socikwa replied that regulation emerged following frustrations with market failures. The unequal distribution of communication and broadcasting infrastructure indicated market failures. People who were proponents for the setting up of regulatory institutions were the operators and not only consumers. Attempts were made to curtail regulations but if was clear that there were excessive market failures. She did not see the regulator's role shrinking before a liberalised market. The regulator was becoming more important in order to address market failures, including discrimination.

She added that she had attended a conference where disabled societies had argued that their needs were not adequately addressed. She did not know if there was a special subscription level for the disabled or any other distinction made. All operators were required to address a diverse audience. She was not sure if South Africa was at a stage where it could have interactive television to the extent that was in France or Germany.

Mr Pieterse said that many rural areas had no cell phone signals. People would come to town to buy a handset, and would discover, on returning to the rural area,  that it did not work in their area. The seller who would refuse to issue a refund, and there was nothing on the packet to indicate that it might not work in certain areas. It seemed that there was no protection from either the regulator or operator.

Dr Socikwa replied that she was very excited by the establishment of the Consumer Complaints Committee which could address this – and worse issues. An international academic had once said that the South African consumers were complacent. There was no provision made in previous legislation for such issues. She hoped that the new legislation would address them. The license was the regulator's most powerful tool and the new legislation empowered the regulator to revoke or withdraw a license if certain conditions were not met.

Mr V Gore (ID) said that South Africa was not getting enough universal service access. The call charges were very expensive and the country was slipping down the ranking. He asked how the rollout of communication services could be increased, and whether the intervention model or alternatively a complete liberalisation model could be used.

Dr Socikwa replied that there was an attempt to delineate the roles of the regulator against those of the Minister. This was positive because it suggested a clearer understanding of the roles of the two institutions. The legislation clearly provided that the regulator was independent and therefore this was no longer a matter for debate. No institution should be autonomous in that it accounted to no one. The regulator remained accountable to Parliament. One had to understand the political and socio-economic context within which the models were presented.

She said that telecentres were presented as a desperate measure to address the dissemination of infrastructure at a rapid level. Rural areas had complained that they did not have basic access. The continuous roll out of telecentres became a model for the rest of the continent. Telecentres had complained that they did not have security and that their equipment would be stolen as soon as it was installed. Competition alone was not a panacea to all problems unless it was managed by institutions that addressed issues of market failures. Any operator would seek to address profit and shareholder interests at the expense of everything else. This would emerge in an unmanaged liberalised environment. There was an attempt to deregulate and now there was re-regulation. Some government activity in the sector was very critical. It was important to have a wide dissemination of services in the interest of the public. Liberalisation alone could not address public interest.

Interview Ms NB Gila
The Chairperson asked Ms Gila to tell the Committee about herself. He indicated that the disqualification rules provided that a person who had been appointed as a Councillor could not hold two jobs at the same time. He asked her to declare any interest that she had in the communications sector, particularly those that might lead to a conflict of interest.

Ms Gila said that she came from a very strong academic background. She was shocked to learn that the position of a councillor was a full-time job. She believed that she had a duty, as a South African, to take part in the process of making ICASA a strong regulator. She was currently employed at the SABC in a management/leadership position that had exposed her to different broadcasting and communications issues. She declared that she had not commercial interests in the ICT sector and that none of her family members had interests in the sector.

Mr Mohlaloga noted that Ms Gila was employed as a Senior General Manager at the SABC. He assumed that she would be prepared to take a salary cut if she was appointed as a councillor. He asked if she would consider resigning from the SABC if she was appointed as a councillor. He also asked for the candidate's understanding of the SABC's mandate in the context of its license conditions. He also asked for a comment of the issue of television licences under the convention environment. Was there still a case for television licenses to be paid?

Ms Gila wondered if the member expected her to respond on the issue whether she would consider resigning and if it was just a mere comment. She said that she was taking the interview process very seriously. She would have to deal with issue of resigning only when it was necessary to do so. She had also not applied her mind to the issue of salaries. It was not only a question of money but also about serving the nation. Being part of ICASA would contribute to her professional career. There was an element of patriotism in being a member of the Council. It was sometimes important to make decisions that were not informed by money. She felt that being a member of the Council would be taking a lessor job whilst being on a sabbatical.

She was unsure as to what informed the payment of television licenses. The SABC owed it to the viewers to broadcast programmes and content that was relevant and empowering to the citizens. The public should pay their license fees as required by the law. The SABC owed to them to ensure that there was platform to allow for an exchange of views from the public, especially on what they wanted to see on television. She was aware that all that was shown on television was researched and that there was an assumption on what people would like to see.

Ms Vos noted that the candidate was driven by a sense of patriotism. It would be sense of patriotism tot accept a lower salary package. She asked for how long the candidate had been employed by the SABC. She also asked if the candidate felt that she had sufficiently been able to assist in the growth and development of the Department in such a way that she could be happy to leave. She was concerned that the candidate had been nominated to be part of an organisation which she appeared not to know much about. The acceptance letter referred to her ambition to make ICASA a service provider of choice. She asked the candidate to explain this.

Ms Gila replied that she had been with the SABC since 3 January 2006. She was not sure what the Member meant when she said that she had acceptable a nomination whilst she was clueless about ICASA.

The Chairperson said that the word "clueless" was not used even though it might have been implied.

Ms Gila said that she had taken interest in the workings and roles of ICASA. She had read a lot of issues about ICASA. ICASA provided services to the public by making sure that broadcasters complied with the law. IT was a watchdog that protected the interests of the public. She wanted to be part of the process of demystifying some of the media statements that had been made about ICASA recently.

Mr Kholwane asked for the candidate's understanding of ICASA's role and her views on the challenges facing ICASA in terms of its functioning and not media reports. He asked how she would address the challenges if given the role.

Ms Gila replied that ICASA's key role was see to it that licensees complied with their licence conditions and laws. It provided a platform for dispute resolution. Ordinary South African needed more information on what ICASA did. There was a tender for the sixth licence in the telecommunication industry. There had been talks about licensing rules and non-compliance on the part of those who wanted the license. ICASA should explain how the licensing process worked. This was a big challenge and education could help people understand how they could take advantage of the service that it provided. Only a privileged few understood the roles of the organisation.

Mr Swart said that being appointed to the Council would not be like a sabbatical and taking a lesser job. It was a very demanding job especially now that there were new things being added to the mandate of the organisation. It was true that the candidate had very limited experience at the SABC but she had vast experience in the academic field. He asked what the candidate would bring to the Council. The USALs had been experiencing some problems. He asked how she would solve them in order to get the USALs going. Would the ECA be good for their survival or cause further problems?

Ms Gila replied that she could help fill the education gap that she had identified in the organisation. She said that she had not read much about USALs and did not want to gamble about some knowledge that she did not have.

Ms Morotua said that there were not many empowerment deals going on in the industry. The very same people were getting involved black economic empowerment. She asked for a view on progress that had been made in relation to black economic and women empowerment in the industry. She asked what the candidate would do to ensure that women also benefited from the licensees. .

Ms Gila replied that the whole issue of black economic empowerment was an imperative for every South African business. The role of women in taking advantage of role had been over emphasised. Black economic empowerment opportunities should be made available for everyone. Women should be afforded same opportunity to compete. She would not call for preferential treatment for women. One should not take deals to their laps but encourage them to work hard and exploit the opportunities.

Interview with Ms D Love
The Chairperson asked Ms Love to tell the Committee about herself. He indicated that the disqualification rules provided that a person who had been appointed as a Councillor could not hold two jobs at the same time. He asked her to declare any interest that she had in the communications sector, particularly those that might lead to a conflict of interest.

Ms D Love said that she was been a post-graduate Politics student at the University of the Witwatersrand. Her thesis was on how ICASA compared to an idealised model regulator according to international practices. She held some shares in Telkom, so that she could stand up in Annual General Meetings and address questions to the Board of Telkom. She would have no problems with giving up her shares if appointed to the Council. Ms Love had been persuaded to take part in the process by people from the My ADSL community, who felt that it was important to have a consumer activist on the Council, as consumers were currently not represented.

Ms Love admitted that she did not have a lot of experience in the industry. However, she had an exceptional passion for what was happening in the sector at the moment. She felt she had sufficient knowledge to serve as a councillor. She had done very little in the industry in the past two years, apart from trying to find out why there was a tele-density that was pretty much the same as it was ten years ago. There had been growth problems and the country could do more. Many people had commented that she did not stand a chance of being appointed as a councillor because she was seen as an extremist. She herself did not believe that she was extreme in her views. She was not one who would call for the downfall of Telkom; her extreme dislike and hatred was directed towards what was happening and not to Telkom itself. She admitted that she had attacked Telkom online because she believed that it was significantly responsible for not sticking to the affordability aspect of its social obligations. She understood that there were economic realities and that Telkom was part of the SA society. It was sometimes very hard to negotiate with Telkom and one often had to attack them before they would listen and respond to complaints.

Ms Swart said that Ms Love was an activist and her youth was not a problem. She would be limited in terms of her activism once she had joined the Council. She would be part of a team that would have to work under a certain legislative framework. He asked how she would adapt to the new environment without losing her activism.

Ms Love replied that the question was how best to direct knowledge and passion for something. The only channel available to her up to now was activism. She understood that the way she presented herself as an activist would be completely inappropriate for ICASA. Her activism was sparked by a passion to do something and she needed a platform through which she could channel her energy into something more appropriate.

The Chairperson said that the real question was how her activism would benefit ICASA or what she would contribute to ICASA.

Ms Love replied that she had a very interesting perspective of the ICASA situation because of her background. She had a degree in communications and was now doing a Masters in Politics. She would bring ample energy to the Council and had a political perspective that was often under estimated when looking at people within the sector. Politics was about being involved with people, knowing their viewpoints, and understanding that everybody had a different interest in the sector. Everybody would always want people to go their way. People were always fighting for control. One had to take all the viewpoints into account.

Ms Smuts asked the candidate to give her views on how she would use the economic regulatory tools that the Committee had written into the ECA to deal with one key basic element that underlined all the problems in the telecommunication sector. Councillors would have to do proper economic analysis to define the markets and declare an operator as having significant market power. Obviously Telkom was one such player. It would be possible to impose a number of conditions, all the way to price controls, once an operator had been declared as having a significant market power. The law already provided what should be done and all that was needed were skilled and committed regulators to use those tools. She asked the candidate to give the Committee the early findings of her thesis.

Ms Love replied that one of the critical factors in the sector was the issue of held power in the sector. It was generally seen in other countries that the regulator should be strong and independent. Some countries had certain amount of power vested with the Minister. South Africa had mismatched various principles of democracy and tried to make the distribution of power between the Minister, the Department, Parliament and ICASA fit together. The Minister had been vested with significant power under the Telecommunications Act, while ICASA had minimal powers and acted as an administrative body for the Minister's policy directives. This did not fit within the principles of democracy when there was a Minister who had all the power and the regulator was limited to being an administrative body. The two bodies had to be independent. Parliament had not been involved as much as it should have been. There was a need for a strong and independent regulator that was ultimately accountable to Parliament. She said that she had in the past blamed the Minister and called for her resignation. It seemed that the Minister had been over burdened with having to make the final decisions on a whole range of issues and had not been able to rely on ICASA due the independence requirement. The Minister had to make all the decisions and the Department did not have capacity because the powers been given to ICASA. She said that the issue of the democratic structure applied in the country had come up and again in her research. It was inappropriate for the country. The distribution of powers and the issue of who did the administrative work should be combined in one body.

Ms Vos asked for the candidate's view on current legislation in relation to the ability of consumers to lay their complaints.

Ms Love replied that capacity was a problem for ICASA. The new laws placed a lot of powers back into the hands of ICASA. ICASA should write appropriate regulations that would give the laws effect. There should be a penalty system for the consumer system to work properly. The consumer section of ICASA was in desperate need of people who were passionate about consumer issues, as she was. She indicated that she had lodged complaints but ICASA took a long time to respond to her, and it had only done so after she had threatened legal action. In the past the imperative was to expand the numbers and the only way to do this was to protect Telkom monopoly. She fully supported managed liberalisation. The success of the SNO was critical. There was no way that prices would drop down in the way some consumers had expected.

The Chairperson thanked the candidate for attending the interview. He encouraged her to continue with her activism.

Interview with Ms M Matlala
The Chairperson asked Ms Matlala to tell the Committee about herself. He indicated that the disqualification rules provided that a person who had been appointed as a Councillor could not hold two jobs at the same time. He asked her to declare any interest that she had in the communications sector, particularly those that might lead to a conflict of interest.

Ms Matlala said that she studied information sciences at the University of the North. Her first contact with the ICT sector took place at the University during her first year of studies. She was assigned to work at a research institution at the university that was dealing with issues around information science and society. The institution worked in partnership with the Centre for the Development of Information and Telecommunications Policy (CDITP). She had worked for the CDITP as a researcher and focused on telecommunications issues. She later received a scholarship to study telecommunications technology in Australia. She worked for the Department of Communication in Australia for a year, in their enterprise business unit and looked at issues around licenses and spectrum management. She was now employed at the South African Department of Communications in the Telecommunication Policy Unit.

Ms Matlala was appointed as an Assistant Director in the Emergency Communication Policy Development Unit, and was then promoted to Manager: Shareholder Management. She mainly focused on Telkom, ICASA and USASA. Her responsibility included shareholder management, shareholder compact, budget and strategy development within these entities. She was now employed as a Senior Manager: Telecommunications and dealt with telecommunication licensing and policy amendments. She also dealt with regulations made in terms of legislation. She reminded the Committee that the Telecommunications Act provided that regulations should be sent to the Minister for approval. Neither she nor her family members had any commercial interests in the sector.

Discussion
Ms Smuts said that Ms Matlala had been at the centre of a long and ongoing difference of opinion between Parliament and the Department around the ICASA Amendment Bill, specifically the clauses that dealt with the appointment of Councillors. She asked what the candidate’s position now was. When discussing the ICASA Amendment Bill, both the ANC and DA members of the Committee were very clear that they did not wish any amendments that affected the independence of the Committee in any way. However, the State Law Advisors under the leadership of the Department redrafted some provisions in a way that did not reflect what the Committee had asked for. At the time she had pointed out that the Department could not run the regulator and Parliament was there to write the law. Ms Smuts then indicated that when the Bill was taken to the National Council of Provinces (NCOP), it appeared, from Minutes of the Parliamentary Monitoring Group (PMG), that Ms Matlala had represented the Department and led the discussions. The President had sent back the Bill to the National Assembly, with the main issue of contention throughout being the independence of the regulator and the role of the Minister in making appointments. Ms Matlala had also represented the Department of Communications when the issue of the independence of the regulator came before the Joint Constitutional Review Committee, when she had argued against recasting section 192 of the Constitution to read ‘an independent regulator regulating electronic communications’. The Joint Constitutional Review Committee had commented that it seemed that Ms Matlala did not address this issue. The Department was to make another presentation, and the Director General of the Department then made tht presentation. The Joint Constitutional Review Committee had eventually recommended that section 192 should be changed in order to strengthen the independence of the regulator.

Ms Smuts pointed out that the Portfolio Committee had studied the Constitutional Court rulings many times and they clearly stated that independence meant independence from Government. The Court, Joint Constitutional Review Committee and the Portfolio Committee on Communications thus agreed that the independence of the regulator should not be touched. The candidate was presumably not here as an employee of the Department. She asked Ms Matlala to fully explain her position on the relationship between ICASA and the Department. 

Ms Matlala was not sure if Mr Smuts was asking a question or making a statement. She said that she had not applied to be a Councillor. She was nominated and she not aware of any restrictions that were related to her job description or involvement in issues relating to ICASA. She would not have accepted the nomination had she been made aware of the contradiction between being employed in the Department and standing as a candidate for the Council. She said that she loved her job and respected authority. She was neither the Director General nor the Minister in the Department. She had a job description and a mandate to discharge. She said that she would never come to Parliament to represent her own opinion. The same would apply if she to was to be appointed as a Councillor. She would act purely in the interests of and in accordance with ICASA.

With regard to the relationship between the Department and ICASA, she said that she was not sure as to what the question intended to achieve. She preferred to focus on the manner in which she personally related to ICASA, and commented that she was very comfortable with ICASA officials with whom she had been involved.

The Chairperson said that the question was about the relationship between the Department and ICASA and not the candidate's relationship with ICASA.

Ms Matlala replied that she was just an official in the Department and related to ICASA on a personal level only. She did not sit in bilateral discussions between the Department and the regulator. She was only invited to meetings where she was required to clarify certain issues.

Ms Vos said that the candidate had indicated that she respected authority and did not compromise on her tasks. She asked if this meant that the candidate was following orders when she vigorously championed the course of the Department in wanting to cut back on the powers and independence of ICASA and the role of Parliament. The candidate would not be an employee if she was appointed as a Councillor. She asked how the candidate would see her job as a Councillor in relation to being able to exercise her own authority in terms of the Constitution. She was worried that the candidate was prepared to go against the Constitution in relation to the independence of the regulator. She asked if the candidate would do what ICASA wanted her to do irrespective of the fact that she would be required to exercise her own mind. Councillors were expected to make their own decisions.

Ms Matlala reiterated that she respected authority and did not compromise in her tasks. She would do the same if she was to be appointed as a Councillor. She would implement anything that the Council wanted her to implement. The independence of ICASA had much to do with its capability and effectiveness in implementing what it had developed. She had no problem with the independence of the regulator.

The Chairperson asked if there was any conflict between the love for her job and her respect for authority on the one hand and the independence of the regulator on the other.

Ms Matlala replied that she would apply the same principles in any other organisation.

Mr Swart noted that the candidate stated she would do what ICASA wanted her to do. He wondered if the candidate was saying that other Councillors would tell her what to do. She had indicated that independence was related to efficiency in performing matters. The candidate knew the problems of ICASA very well and understood the need for convergence. The Constitution clearly provided for the independence of the regulator. He asked if she believed that the independence of ICASA could be preserved given all the problems that the country was facing at the moment. He asked if she thought there was a need for more management systems in order to move forward?

Ms Matlala replied that she did not have a problem with the independence of ICASA as provided in the Constitution. She had merely stated her opinion on how independence should be defined. ICASA was capable of the development of regulations and the implementation of policies. There was no reason why the independence should be removed from the Constitution. However, it did not follow that the independence should be specifically provided in legislation before the regulator could function effectively. There were many effective organisations that did not even have legislation governing them. The most important thing was to have structures that would strengthen the independence. With regard to following orders, she replied that the Council took decisions for ICASA. She would be following the Council’s orders in executing any tasks given to her.

Mr Kholwane assumed that following authority meant following the provisions of the ICASA Act. He asked what she saw as the key challenges facing the regulator and how she would address them if she was appointed as a Councillor.

Ms Matlala replied that she would not be able to articulate all the problems because she did not currently work for the regulator. She had observed the inability to retain skills as one of the challenges. This was also a problem that the national government was facing. There was also the issue of identifying the relevant skills that the organisation needed in order to be able to implement properly. She could not understand how ICASA could not pay its employees well because it was not a government department.

Ms Smuts said that the candidate had earlier articulated the view that Council would take the decisions and that she would faithfully execute them. This created a real problem because the Committee was looking for people who could form their own opinions. Each Councillor would take a large amount of responsibilities and would be expected to conduct inquiries and make decisions that would be presented to the Council. The Committee should be confident that it was appointing people who could take charge.. She asked what the candidate would do if the Minister was to take a different view from ICASA on a certain matter.

Ms Matlala replied that she had never worked at ICASA. This was one reason why she had not gone into details on the operations of the organisation. Every Councillor should be confident to preside over any Committee without requiring advice from anyone. On the issue of the Minister having a different from ICASA, she said that she would be obliged to implement the views of the Council. She would not take any view herself as the Council had to decide on the matter.

The Chairperson said that the question was more about the candidate's personal response to the situation wherein the Minister had a different view from ICASA.

Ms Matlala replied that her response to the situation would form part of ICASA's decision.

The meeting was adjourned.