ISPA takes the proposed change of name, from the Independent Communications Authority of South Africa, to the Electronic Communications Authority of South Africa (inappropriate, considering that the Postal Service is also to be governed by the Regulator), as indicative of the DoC’s acknowledgement of the inherent extreme nature of the proposed amendment.

ISPA is deeply concerned about the significant potential for harm that a change of the proposed nature may incur, and urges the DoC to reconsider its legislative proposal following further extensive consultation with all market participants, and the public at large, on this single issue.

The comments below are based on ISPA’s Regulatory Committee’s online discussions.

Under this heading, ISPA lists issues proposed in the draft ICASA Amendment Bill which in its opinion deserve further attention.

Due to an inordinate brevity in the window of opportunity for comment, ISPA will at this time list the issues it perceives to be requiring attention. Time constraints acknowledged, this list is to be considered complete neither in number nor in completeness in comment.

ISPA reserves the right to comment in more detail on issues pertaining to the DoC’s proposed ICASA Amendment Bill at a later stage, should it be required.

2.1. AD Section 7 (new sections 4A; 4B; 4C; etc)

Any stipulation that any information (list of Licencees; ICASA Notices) must be 'open to inspection during office hours' should ideally require that the same information be published on ICASA's website (but that the register remains the authoritative document, in the event of any conflict)

A period of 6 months (after conclusion of a hearing) for ICASA to deliver a finding is overly lengthy (new section 4C(6))

2.2. AD Section 8(a) (substitution of new section 5(1))

Erosion of the Authority’s independence, discussed under 3 below

2.3. AD Section 8(d) (substitution by new section 5(3)(b)(ii))

It is suggested that the term "electronic communications" itself should be defined for purposes of this Bill

2.4. AD Section 10 (new section 6A)

There is a question as to whether this performance management system, under control of Minister, further erodes independence of Authority

2.5. AD Section 13 (amendment of section 9)

Impedes Parliamentary oversight over Authority

2.6. AD Section 15(b) (substitution by new section 14(1))

It is unclear why the CEO must, instead of being under the ICASA Council's CONTROL, be under the Council's SUPERVISION

2.7. AD Section 16 (new section 14A)

The approval of the Minister for the appointment by ICASA of a foreign expert, for the simple reason that the expert is not a South African citizen, or not resident in South Africa, is unduly cumbersome

2.8. AD Section 17 (new section 15(1A))

Question of constitutionality of provision by-passing Public Finance Management Act, removes Parliamentary control over finances

2.9. AD Sections 19 (new sections 17G and 17H)

Concern in the empowering of ‘Inspectors’ with powers of entry, search and seizure, who must act in accordance with 'warrants' issued by magistrates or judges

2.10. AD Sections 19 (new section 17A))

Question of effect of removal of standing/ special committees

This section contains comment focused specifically on issues relating to the proposed changes in the appointment process for ICASA Counsellors.

ISPA is concerned to hear of this alleged unsavoury practice, and urges the Deputy Minister to raise this issue at Parliament for the earliest possible investigation and resolution.

If this dire allegation is true, it follows that the other institutions whose officers are appointed by Parliament suffer the same potential malaise.

ISPA has full confidence that Parliament, following due course, will take the necessary action to stamp out existing fraudulent practices, and will prevent future encumbrance to its duty of impartiality.

In the few days following gazetting of the ICASA Amendment Bill, widespread reaction has condemned the proposed changes variously as unconstitutional, in breach of good corporate governance principles, and as inviting nepotism.

These charges are not without credibility. Despite the statement by the State Law Advisers and the Department of Communications in Clause 5 in the Memorandum on the Objects of the ICASA Amendment Bill (bolstered by statements by Deputy Minister Padayachie to ITWeb in the above article), there is a prima facie case supporting Chapter 9 Constitutional protection of ICASA’s independence.

The status of ICASA independence is not just a matter of national significance, the international ramifications, should the proposed change be implemented, are considerable. In the performance of their duties, the DoC and ICASA regulate the ever-conflating domestic broadcasting and telecommunications sectors.

Given the fact that the proposed changes will see Government (sole shareholder in the national broadcaster, significant shareholder in Telkom, the SNO, and Vodacom) assume effective indirect control of the regulator, this will solidify existing negative perceptions by foreign trading partners that the South African communications sector is uncompetitive, and subject to widespread policy and regulatory uncertainty.

The current international perception that South Africa has an independent (if not entirely autonomous) regulator will be dealt a severe blow should the proposed changes be implemented, and any claim to independence thereby extinguished.

The doctrine of the separation of powers underpinning the South African democracy is intended to ensure that the potential for abuse of power, which flows from the concentration of power, is avoided.

The proposal by the DoC in its ICASA Amendment Bill as discussed in 3 above is one that ISPA believes will be entirely to the detriment of the domestic communications sector, even in the event that the potential for abuse is not realised.

In his speech referred to above, Mr Blois states:

It is suggested by ISPA that, should the proposed changes be implemented, all hope of an appearance of transparency will be forfeited, and with it the opportunity for South Africa to use the mostly beneficial and developing principles recommended in terms of the Convergence Bill, and this ICASA Amendment Bill.

Yours sincerely

The ISPA Regulatory Committee

Tel: +27 11 314 7751

www.ispa.org.za