This Bill has the net effect of diminishing the acclaimed and proven status of ICASA and it should therefore be revised in regard to its provisions around the envisaged name of the Regulator and the proposed powers of the Minister, and its silence on the resourcing issue.

The self-stated objects of the Bill are "the need for strengthening the Authority to make it capable of responding to the changing communications landscape, particularly in view of a more converged and competitive environment." One would expect from this statement that the Bill would specify a mechanism to ensure adequate resourcing of the Regulator – a long-standing appeal from almost every quarter. It is well known that the Regulator struggles to retain high level expertise because its top staff who continuously poached by industry which can pay higher salaries, and further that its pace and quality of operation (eg. In the field of research) is affected by the insufficient human resources more broadly. It is most unfortunate that this whole issue is ignored by the Bill.

Recommendation:

A series of clauses should be added that describe an annual mechanism whereby the needs and costs of resourcing the Regulator can be properly assessed, and whereby finances can be accessed accordingly. The principle that the licencing fees should be pegged at a level to at least accommodate such costs is well-worth investigating. It would be entirely wrong for the fiscus to use licensing income as a milk-cow, and on the other hand, it would be poor economics if the licence fees were set at a level so low that continuous state top-up was required. The most rational way to set licence fees is in relation to the costs they are supposed to cover – i.e. the running of the licensing body. Any further monies required by the State on the grounds of licencees using scarce public frequencies or having a protected status (monopoly or near monopoly), should be extracted by a different mechanism than the licence fee – for example, as a percentage of turnover. The way the USA is funded needs to be looked at here.

There is no evident reason for dropping the word "Independent" in the name of the regulator, unless of course, there is an intention to change the status of the body - which would clearly be unconstitutional. The symbolic value of the "Independent" name is very high in terms of the Regulator’s international standing, and indeed South Africa as a whole. The extensive negative publicity around dropping this word should be considered, as should be the costs of re-branding and re-printing letterheads, etc.

Recommendation:

The name should remain the Independent Communications Authority of South Africa.

The objects of the Bill say that there is provision for a new, faster and more focused procedure for the appointment of the chairperson and other councillors of the Authority. To this end, it proposes to phase out parliament’s role, and substitute the Minister in its place. However, it is not at all clear why this process should be "faster", and it is ambiguous what is meant by "more focused".

It appears that to give power directly to the Minister to appoint the Council would be to create an unhealthy centralisation of power, and to reduce the Regulator’s independent status. The Minister’s role as regards the regulator should continue to be at the broad policy level. Interpretation and implementation of such policy ought not to be done by people directly chosen by the Minister. This situation would undermine the careful balancing of powers that has been built up over the 10 years of South African democracy, and mean the Executive branch of government could intervene in an area that the founding fathers (and mothers) of our democracy saw fit to write into the constitution as needing to be independent.

Recommendation:

The current situation, with Parliament’s involvement, should remain. The area of regulation and licensing is a very sensitive one, and the power over the Regulator to do this job, should not be delegated to the Executive.

The Bill says the Minister must establish a performance management system

to monitor and evaluate the performance of the chairperson and other

councillors. This is not the kind of thing that one normally finds in legislation. In addition, it is problematic in that it gives the Minister unwarranted powers over the Regulator. In addition, performance indicators for Regulation are something I cannot easily contemplate developing. It is also unclear what the purpose is – whether the Councillors are now to be given bonuses, or the sack, depending on certain targets?

At any event, the general efficiency and effectiveness of the Regulator is something that Parliament, not the Minister, should define and assess. Once again, the Minister’s role vis-à-vis the Regulator should be at the policy level, not operational.

As indicated above, there should be a legislated mechanism to deal with the resourcing of the Regulator such as an annual investigation and budget presentation to Parliament. This kind of system would assist Parliament in establishing whether the Regulator is giving value for money, and hold the Chair or any councillor accountable accordingly.

Recommendation:

The performance management clauses should be dropped.