1.1 T-Systems South Africa (Proprietary) Limited ("T-Systems") welcomes the opportunity to lodge its representations on the Independent Communications Authority of South Africa Amendment Bill ("ICASA Bill") being version [B32 - 2005] T-Systems wishes to record that it requires an opportunity to elaborate further on the issues raised in this submission should the Parliamentary Portfolio Committee on Communications elect to conduct oral hearings on the ICASA Bill.

1.2 T-Systems' subsidiary company, Infovan (Proprietary) Limited ("Infovan"), is a deemed value added network service ("VANS") licensee in terms of section 40(1)(b) of the Telecommunications Act 103 of 1996 ("Telecommunications Act") and this submission is thus made jointly by T-Systems and Infovan as both entities have a substantial interest in the composition, role and functions of the communications sector regulator.

1.3 The ICASA Bill seeks to amend the Independent Communications Authority of South Africa Act 13 of 2000 ("the ICASA Act") in order to make congruent the current powers and duties of the Independent Communications Authority of South Africa ("ICASA") with those that it would be required to yield as regulator of a converged communications environment under the Convergence Bill. In the result, powers currently derived by ICASA in terms of ancillary legislation (notably the Telecommunications Act 103 of 1996 ("the Telecommunications Act") and the Independent Broadcasting Authority Act 153 of 1993 ("the IBA Act") will be consolidated, and derived from, a single piece of legislation, the ICASA Bill.

1.4 At the outset it should be noted that the ICASA Bill is read and understood by T-Systems and Infovan in the context of the Convergence Bill. It is accordingly the case that where in the Convergence Bill reference is made to the establishment of a Complaints and Compliance Committee and a "watch dog" for the purposes of monitoring compliance with licence conditions and investigating complaints, provision for these functions should be made in the ICASA Bill.

1.5 The ambit of the ICASA Bill is far more wide reaching though than simply accommodating technology convergence. ICASA is to undergo a name change and its powers will be extended beyond the communication sub-sectors of telecommunications and broadcasting that ICASA has traditionally been concerned with. ICASA will now be required to regulate affairs governed by the Electronic Communications and Transactions Act 25 of 2002 ("the ECT Act") and the Postal Services Act 124 of 1998 ("the Postal Act").

1.6 We propose to raise concerns both general and specific in nature and at various points in the submission may make suggestions as to the re-drafting of certain provisions of the ICASA Bill so as to accommodate our concerns and we would be grateful if you would consider these suggestions.

2 the change to icasa's name

2.1 Section 2(b) of the ICASA Bill proposes to change the name of ICASA from "the Independent Communications Authority of South Africa" to "the Electronic Communications Authority of South Africa."

2.2 We submit that this change of name is inappropriate. In paragraph 3.1 (and following) of this submission, we deal with the fact that ICASA is now to take over the regulatory functions of certain existing regulators under other pieces of legislation. Thus, the regulation of postal services will for the first time fall within the purview of ICASA. Postal services are certainly a sub-sector of the communications sector, but postal services are not a form of electronic communication. We accordingly submit that ICASA's name is best left as it is, since it would be misleading to suggest that only electronic communications fall within ICASA's jurisdiction.

2.3 In addition, ICASA has built a reputation for itself within the communications sector and a change of name will doubtless cause confusion with those who have not read the ICASA Bill as to whether or not the newly named entity is different in identity to the ICASA, the public has come to know.

2.4 Lastly on this point, changes of name such as the one proposed inevitably bring with them massive costs implications. We have illustrated that a change of name is inappropriate and needless and it seems a rather unnecessary exercise given that the current name does not carry any sort of negative connotation. In the circumstances, it is our view that the costs associated with the name change could be better utilised for the benefit of resourcing ICASA in other meaningful ways.

3 additional powers conferred on the authority

3.1 Section 4(1)(a) of the ICASA Bill, confers upon ICASA the powers and duties conferred and imposed on it by the ICASA Act, the Convergence Bill, the Broadcasting Act 4 of 1999 ("Broadcasting Act"), the Postal Services Act and the ECT Act and any other law.

3.2 The postal communications sub-sector is already regulated by the Directorate for Postal Regulation (established in terms of section 3(1) the Postal Services Act). The Directorate for Postal Regulation is also referred to as the Postal Regulator.

3.3 The Postal Regulator is a division of the Department of Communications ("Department") and falls under its control. The Postal Regulator reports to the Minister of Communications ("Minister"), through the Director-General ("DG") of the Department. This frame of reporting is established in section 3(2) of the Postal Services Act. In terms of section 4 of the Postal Services Act, the Postal Regulator consists of a chairperson, appointed by the Minister and two officers of the Department designated by the Minister.

3.4 The general functions of the Postal Regulator are set forth in section 8 of the Postal Services Act, but predominantly they relate to enforcing compliance with the rules of conduct for the rendering of reserved and unreserved Postal Services. It falls within the purview of the Postal Regulator then to, inter alia -

3.4.1 enforce the provision of the Postal Services Act generally;

3.4.2 monitor compliance with licences issued to provide reserved postal services under the Postal Services Act;

3.4.3 promote the interests of users of postal services;

3.4.4 expand postal services;

3.4.5 create and promote a universally accessible postal service for all South Africans; and

3.4.6 regulate the issuing of postal stamps.

3.5 If in future ICASA is tasked with the functions and duties of the Postal Regulator, this will, it is respectfully submitted, necessitate an amendment to the Postal Services Act. This submission is premised on the fact that ICASA cannot merely derive authority to regulate the postal sector from the ICASA Bill without any reference to the piece of legislation that primarily creates regulation of that communications sub sector. It is obviously desirable that there be no conflict between pieces of legislation of equal standing and thus the Postal Services Act must be amended, prior to promulgation of the ICASA Bill as an act of Parliament, to confer powers of regulation in respect of the postal sub-sector on ICASA, and not upon the Postal Regulator as currently envisaged.

3.6 The ECT Act creates the primary regulatory framework in respect of electronic communications and transactions, and confers administration duties upon several different State agencies. In general terms though, the Minister is tasked with this and other high level functions such as -

3.6.1 the development and implementation of a national e-strategy;

3.6.2 the formulation of an electronic transactions policy for the Republic;

3.6.3 the establishment of electronic communications centres for SMMEs;

3.6.4 the regulation of critical databases;

3.6.5 the creation of accreditation regulations under Chapter VI of the ECT Act.

3.7 The DG of the Department also plays the role of the Accreditation Authority for authentication services and products. In addition, the DG is tasked with -

3.7.1 performing certain administrative functions in respect of cryptography services and products and critical databases;

3.7.2 appointing and administering the body of cyber inspectors in terms of Chapter XII of the ECT Act.

3.8 The administration and regulation of Internet domain names falls under the auspices, in Chapter X of the ECT Act, of the Domain Name Authority, a juristic person which has been established for this purpose.

3.9 ICASA will find itself in a similar position in respect of the ECT Act as it does in respect of the Postal Services Act. Once again, the ECT Act will have to be amended to confer the requisite powers upon ICASA, in order for it to be able to legitimately exercise them.

3.10 Naturally, it is also desirable that it be made explicitly clear if one or more of the current responsibilities of the DG will remain with the DG, rather than being transferred to ICASA.

4 functions of the authority

4.1 Absent an amendment to the ECT Act and Postal Services Act as contemplated in paragraph 2 above, section 4(1 )(a) of the ICASA Bill will be ultra vires the powers conferred on ICASA until such time as the primary Acts have been amended to expressly confer the requisite powers on ICASA, while divesting the current holders of those powers of them.

4.2 It is notable that sections 4(3)(a) to (i) do not include the power for ICASA to launch inquiries in respect of any matter that falls within the ambit of its jurisdiction. A power of this nature existed under sections 27 and 28 of the Telecommunications Act and the IBA Act respectively and is also referred to in section 3(2)(a) of the Convergence Bill. Similar provisions must be included in section 4(3) of the ICASA Bill in order to ensure that ICASA is properly endowed with this authority.

4.3 Section 4(3)(e) of the ICASA Bill merely records that ICASA is entitled to grant, renew and amend licences. The ICASA Bill does not empower ICASA to suspend or cancel licences, nor to regulate the disposition or transfer of licences. These rights should be included in section 4(3)(e) of the ICASA Bill. Once again, rights germane to an existing regulator under another piece of primary legislation, such as the right of the Postal Regulator to suspend or cancel a licence to provide reserved postal services, should be specifically catered for in the ICASA Bill.

4.4 The delegation of ICASA's powers and functions is dealt with in section

4(4) of the ICASA Bill wherein it is provided that the Council may in writing delegate any function of ICASA under the ICASA Act or the underlying statutes to -

4.4.1 a Councillor;

4.4.2 a committee of the Council or;

4.4.3 to the chief executive officer.

4.5 It is submitted that the current wording of the ICASA Bill in this respect is too wide and should be narrowed in some respects. In particular, the power to make regulations in terms of the underlying statutes should not be subject to any form of delegation as this is a function best kept by ICASA itself. It is further submitted that the ICASA Bill should be amended to reflect that to the extent that any powers are delegated by the Council, that delegation is subject to variation (in the form of amendment, or cancellation).

5 register of licences

5.1 ICASA is enjoined to establish and maintain a register of licences granted and amended in terms of the ICASA Bill and the other relevant pieces of legislation. We submit that the purview of the register could usefully be extended to refer also to licences that have been renewed, transferred, suspended or revoked.

5.2 We submit further that ICASA should also be required to keep a register of all equipment type approvals and other similar certifications, as well as a register of all formal documents which licence holders are required to maintain and submit to ICASA on an annual basis for example, ownership and control reports and supporting documentation.

5.3 Establishing a list of approved equipment types will benefit consumers in that it will prove an easily accessible source of reference for several purposes but in particular for the purpose of determining whether equipment falls within an approved category and this will also facilitate transparency in respect of the level of compliance by licensees with their licence terms and conditions.

6 inquiries by the authority

6.1 Section 4B of the ICASA Bill laudably provides for inquiries to be conducted by ICASA. IGASA, in its current form has undertaken several inquiries which have ultimately benefited competition and consumers within the sector. Two well publicised examples are the inquiries in terms of section 27 of the Telecommunications Act into Telkom's practices in respect of ADSL services and a second inquiry into mobile pricing policy. Thus the importance and benefits of this function are instantly highlighted.

6.2 In order to ensure that ICASA's existing powers in this respect (under the Telecommunications Act and the IBA Act) are properly transferred to the ICASA Bill, section 4B should be amended to specifically authorise ICASA to undertake inquiries on the performance of its functions under the Act as well as on issues of consumer welfare. The Convergence Bill specifically provides for investigation in respect of consumer complaints (at section 60(6)). If ICASA is to champion the cause of consumer welfare in the communications sector, it must be properly armed to do so, and this must, of necessity entail the ability to make new regulations in respect of and keep pace with technological changes as and when they may constitute a harm to consumer welfare.

7 conduct of inquiries

7.1 Section 4C (1) of the ICASA Bill, unhelpfully we submit, states that the person charged with presiding over an inquiry must determine the procedure for such inquiry. It would be far preferable if it were legislated that the same procedure be followed for all inquiries and for the procedure to be set forth in the ICASA Bill. It seems imponderable that the ICASA Bill does not at least provide for -

7.1.1 the manner in which inquiries will be conducted and the procedural rules to be followed;

7.1.2 the stipulation of time periods for the making of written submissions (including answers and replies, if applicable);

7.1.3 the basis on which access will be granted to documents held by or filed with ICASA (taking into account the provisions of the Promotion of Access to Information Act (Act 2 of 2000)); and

7.1.4 ancillary procedural rules, such as the basis on which any written submission may be amended.

7.2 Certain considerable and far reaching powers have also been conferred on ICASA in terms of section 4C (2) of the ICASA Bill for the purposes of conducting inquiries. In this respect, ICASA is permitted to -

7.2.1 require any person to furnish it with such particulars and information as may be reasonably necessary;

7.2.2 require any person to appear before it upon receipt of written notice duly served by an authorised person or the sheriff;

7.2.3 make a statement to ICASA;

7.2.4 provide ICASA with any document or object in the possession, custody or control of such person; and

7.2.5 question any person in connection with any matter; and

7.2.6 in certain circumstances, determine that an inquiry be held in camera and bar access to the inquiry by any member of the public or class thereof.

7.3 It is submitted that the provisions of section 4C are unreasonably disproportionate and overly broad where inquiries are undertaken by ICASA in terms of sections 4B (1)(a) and (b) of the ICASA Bill (i.e. for the purposes of making regulations or guidelines or for the purposes of determining whether ICASA is achieving the objects of the Act or the underlying statutes). These far reaching powers will only serve to stifle and defeat the main objective of such inquiries, which, we submit is to encourage public input and commentary.

7.4 Historically, industry participants and members of the public have always fully contributed and participated of their own volition in the inquiries conducted by ICASA under the Telecommunications Act and IBA Act. Taking this into account, it seems that there is no need for legislation to make such participation compulsory. While these provisions may seem innocuous in the context of freely participating parties, they may well serve to damage the goodwill and spirit of collaboration which has existed in the past between ICASA, the public and the affected private sectors.

7.5 Our comments above should not be construed however to be an indication that these far reaching powers are entirely inappropriate. Certainly where an inquiry is concerned with contraventions of the underlying statutes, licence condition contraventions, complaints or other allegations concerning iniquity or dishonesty, such far reaching powers are to be welcomed, but the ICASA Bill should be amended to make it clear that these provisions apply only in limited circumstances.

7.6 It is also submitted that the provisions of section 4C (5) which enable ICASA to hold in camera inquiries is contrary to the requirement that ICASA, as an administrative body, performs its functions in an open and transparent manner.

8 confidential information

8.1 The provisions relating to confidentiality (section 4D (4) of the ICASA Bill) which enjoin ICASA to keep and treat certain types of information confidential are noticeably deficient in certain respects. Ir particular, the information to be kept confidential should be extended to include -

8.1.1 information pertaining to a person's business activities

8.1.2 intellectual property,

8.1.3 strategic objectives;

8.1.4 and market positioning and;

8.1.5 commercial agreements where an undertaking of confidentiality is owed to a third party.

8.2 It is submitted further that the confidentiality provisions must be amended in the manner contemplated above in order for the provisions of section 4D(4) not to constitute a potential violation of Constitutional rights to privacy, as enshrined in the Constitution (section 14.)

9 constitution of and appointment of councillors to council

9.1 The ICASA Bill proposes substantial amendment to the procedure for appointing the Council of ICASA. The current provisions allow for the appointment of the Council by the President, on recommendation by the National Assembly. It is now proposed that the appointment of the chairperson and Council of ICASA WI be undertaken by an independent and impartial selection panel appointed by the Minister.

9.2 Our principal objection to this proposed change of methodology lies in the fact that this may give rise to a danger that the independence of ICASA, which as you know is a constitutional imperative in terms of section 192 of the Constitution, may be compromised. It seems far more likely that the current appointment procedure will ensure impartiality, if only because a selection panel appointed by a single person will almost inevitably not be truly impartial, given the origin of their appointment. The panel may, even at a non-deliberate level, be inclined to please the person that appointed them, rather than remaining truly impartial.

9.3 At the very least, the appointment procedure should allow for a list of names of suitably qualified persons to be submitted to the Minister who can then make the appointments frorn the names on the list. Submissions for the list of names and motivations for appointments should be able to be made by any interested person.

10 performance management system

We are in favour of the implementation of a performance management system to monitor the effectiveness of the functioning of the ICASA Councillors and Chairperson. We would only add that these useful provisions would be enhanced by the inclusion of wording in the ICASA Bill that the results of any performance management assessment should be made available to the public, on application. Naturally, this submission is made in furtherance of the ideal that public bodies must be accountable and transparent.

11 terms of office

In terms of the proposed amendment to section 7(3) of the IIQASA Act, only a Councillor will be entitled to resign from office upon at least 3 (three) months written notice. There seems to be no reason why provision in this respect should not also be made for the resignation of the Chairperson and the ICASA Bill must be amended to this extent.

12 removal from office

The ICASA Bill proposes to delete sections 8(2) and (3) of the ICASA Act. Section 8(2) of the ICASA Act details the manner in which a Councillor is to be removed from office after having contravened any of the provisions of section 8(1). Section 8(3) empowers the President to suspend a Councillor where steps have been taken to remove a Councillor in terms of section 8(2). It does not appear as though these functions are catered for by alternate sections in the ICASA Bill. Nor is there a section which deals with the suspension of the Chairperson or of Councillors pending their removal from office. It is submitted the ICASA Bill must be amended to cater for these important requirements. Once again, this will aid the accountability and transparency features of ICASA.

13 appointment of experts

13.1 Section 14A (3) of the ICASA Bill allows ICASA to retain experts, on written agreement "setting out the expert's terms and conditions of employment". It seems apparent though that the vast majority, if not all of these experts would be retained on a project' or 'limited duration basis and would probably seek to retain a measure of independence as experts. As such, it seems probable that these experts would be appointed as independent contractors rather than employees. Section 14A (3) of the ICASA Bill should be amended by the deletion of the word "employment" and the replacement of the same with 'appointment".

13.2 ICASA should also be required to ensure that where it appoints experts that the functions and duties of such experts are pre-defined and that appropriate service levels are imposed on such experts. The ICASA Bill should, at the very least, be amended to allow for the imposition of service levels in the written agreement, in appropriate circumstances.

14 confidentiality

Section 14C of the ICASA Bill imposes an obligation on all Councillors or other persons employed by ICASA not to disclose confidential information which they have knowledge of by virtue of their employment with ICASA. These provisions should be expanded to include the Chairperson as well as any expert, agent, or other third party retained by ICASA Absent such an extension, these provisions could prove to be entirely ineffectual.

15 establishment of complaints and compliance committee

15.1 Private sector support for ICASA would doubtless be increased if provision were made for the appointment of at least two suitably qualified independent persons from the communications industry to the Complaints and Compliance Committee over and above those persons detailed in section 17A (2) of the ICASA Bill. Consideration should perhaps also be given to the appointment of both permanent and temporary members of the Complaints and Compliance Committee as this will allow flexibility in ensuring that there is always a properly constituted Committee to carry out the envisaged function.

15.2 Section 17A (4) sets forth the grounds upon which a person will be qualified to be a member of the Complaints and Compliance Committee. A person will not qualify if that person is -

15.2.1 an office bearer or an employee of any party, movement or organisation of a party-political nature or;

15.2.2 is an un-rehabilitated insolvent or is mentally ill.

15.3 It is submitted that the grounds for disqualification in section 17A (4) of the ICASA Bill are limited in application and should be widened to include all of the disqualification grounds detailed in section 6(1)(a) to (I) of the ICASA Act. There seems no logical reason to not maintain the same grounds of qualification or disqualification.

16 functions of complaints and compliance committee

In keeping in line with the prescribed functions of other regulatory bodies, we submit that it would enhance the effectiveness of the Complaints and Compliance Committee if Section 17B of the ICASA Bill were amended to provide for defined periods in which complaints will be investigated and recommendations made to ICASA, following the investigation of complaints. This will ensure that the interests of consumers and other complainants are not harmed by any undue delays. We respectfully suggest that a period of 60 (sixty) days from the date of receipt of the matter or complaint, would be ample time in which to complete an investigation and make a recommendation to IQASA.

17 procedure of complaints and compliance committee

17.1 The provisions of section 17C (1)(a) of the ICASA Bill seem somewhat restrictive, in terms of the time period permitted for persons to lodge a complaint in respect of alleged non-compliance with licence conditions or statutory imperatives. Intuitively, it seems that the 60 (sixty) day period established in section 17C (1)(a) may not be sufficiently long for a complainant to adequately, and properly prepare a statement of complaint. We submit that it may be assumed that aggrieved parties would seek to lodge their complaints as soon as they were able in any event, as this is the quickest mechanism to relief from the offending conduct, and thus there would be no harm in extending the period to 90 (ninety) days.

17.2 Section 17C is limited in its application to matters concerning breach of licence conditions or of statutory imperatives. We submit that it is well worth incorporating provisions similar to those of section 100 of the Telecommunications Act. This will allow the Committee to also investigate consumer complaints. This is essential given that consumers may not have knowledge of licence conditions or of statutory provisions and this should not operate to hinder consumers from being able to lodge complaints with ICASA as the appropriate body.

17.3 The lack in Section 17C of clearly defined rules for the conduct of proceedings before the Complaints and Compliance Committee is conspicuous. It is not desirable to have a Committee of this nature being free to entirely determine its own manner of functioning as this may lead a large number of decisions of the Committee being subject to review. We submit that a set of rules, detailing at least the following should be implemented -

17.3.1 the procedure and format for lodging complaints;

17.3.2 applicable fees payable;

17.3.3 the basis on which access will be granted to documents held by or filed with ICASA, taking into account the provisions of the Promotion of Access to Information Act;

17.3.4 the maximum time period which will be allowed for the answering of any complaint lodged;

17.3.5 the format that an answer to a complaint must comply with;

17.3.6 the time periods for replying to any answer;

17.3.7 the format in which any reply is to be given; and

17.3.8 the basis upon which any complaint documents may be amended and the procedure to be followed in this respect.

17.4 Section 17C should also make provision for proceedings of the Committee to be adjourned at the request of the complainant and the infringing party in order to allow the parties to discuss settlement proposals, if both believe in good faith that the matter is capable of settlement.

17.5 The section should also provide that settlement agreements may be ratified by the Committee and then made an order of the High Court, on application by any party and also that orders of the Committee may on application be made an order of the High Court.

17.6 Instead of 17C (5) empowering ICASA to formulate procedures for the hearing of urgent complaints and non-compliance matters, the section should rather detail what those procedures are, as it is desirable to have certainty and an easy point of reference in this respect. Forms and notice periods to urgent interim-relief applications and other matters capable of being heard on an urgent basis should be specified. It should also be recorded in 17C (5) that: the right to bring urgent applications in terms of the ICASA Act will not oust the rights of any party to institute action for similar relief in the High Court.

18 decision by authority

Section 17E conspicuously omits to empower the Complaints and Compliance Committee with an armoury of sanctions that it may impose following a finding of non-compliance. Absent such provisions, the Committee (and ICASA by extension) would surely battle to fulfil its enforcement function.

19 inspectors

19.1 Section 17F of the ICASA Bill, empowers ICASA to appoint suitably qualified persons to an inspectorate. The inspectorate is charged with -

19.1.1 investigating non-compliance;

19.1.2 investigating and evaluating breaches by a licensee of any agreement entered into between a licensee and its subscribers;

19.1.3 investigating and evaluating any failure to provide broadcasting communication services in accordance with a licence, the ICASA Bill or the underlying statutes.

19.2 Section 17F should be extended to allow the inspectorate to investigate a failure to provide communication services in accordance with the terms of any licence, the ICASA Bill or the underlying statutes.

19.3 In addition, the powers conferred on the inspectors under section 17F should not be confined to the investigation of licensees only but should also be extended to the illegal or unlicensed provision of broadcasting services, communications services, postal services and electronic transactions services.

20 general

20.1 The Convergence Bill refers to various sections in the ICASA Bill and it may be necessary to ensure that the cross-references contained in the Convergence Bill are aligned with the provisions of the ICASA Bill. In particular, we highlight the following -

20.1.1 the establishment of a Complaints and Compliance Committee in terms of section 17H of the ICASA Act;

20.1.2 the establishment of an investigation unit in terms of section 17G of the ICASA Act;4

20.1.3 section 3(2)(a) of the Convergence Bill which provides for the undertaking of an inquiry in terms of section 17F of the ICASA Act on any matter within the jurisdiction of ICASA and the submission of reports to the Minister in respect of such matter;

20.1.3 the amendment by ICASA of an individual licence in accordance with an order under section 17M of the ICASA Act following a finding and recommendation by the Complaints and Compliance Committee;

20.1.4 the making of regulations on the transfer of individual licences or the change of ownership on individual licences after conducting an inquiry in terms of section 17F of the ICASA Act;

20.1.5 the suspension or cancellation of an individual licence in accordance with an order issued by ICASA in terms of section 17M of the ICASA Act

20.1.6 the resolution of interconnection and facilities leasing disputes in accordance with sections 40 and 45 of the Convergence Bill;

20.1.7 the undertaking of an inquiry in respect of the list of communications facilities to be prescribed by ICASA in terms of section 42(3) of the Convergence Bill;

20.1.8 the production of broadcast recordings and program scripts or transcripts to the Complaints and Compliance Committee;

20.1.9 the adjudication of complaints concerning alleged breaches of the Code of Advertising Practice by broadcasting service licensees who are not members of the Advertising Standards Authority of South Africa in accordance with sections 17H to 17N of the ICASA Act;

20.1.10 the adjudication of consumer complaints submitted to the investigation unit in accordance with the provisions of section 17G of the ICASA Act in terms of section 60 of the Convergence Bill.

21. general drafting comments

21.1 Chapter I - Introductory Provisions

21.1.1 Definitions

21.1.1.1 A definition of the "Convergence Act" has been provided for in section 1 of the ICASA Bill. This proposed definition defines the Convergence Act as "an Act of Parliament providing for convergence in the broadcasting, broadcasting signal distribution and telecommunication sectors". It would be preferable for the correct Act and year number to be referred to in the definition section so that there can be no cause for confusion as to the identity of the piece of legislation concerned. Understandably it may only be possible it implement this change once the Convergence Bill has been promulgated. It also appears that the Convergence Act is to have its name changed to the Electronic Communications Act. If this is the case, then the correct name of the Act must be included in the definition section of the ICASA Bill.

21.1.1.2 The definition of "former authorities" in section 1(v) of the ICASA Act should be deleted.

21.1.1.3 The definition of "President" in section 1 (xii) of the ICASA Act must be deleted as all references to the President in the ICASA Act have been removed in the ICASA Bill.

21.1.1.4 The definition of "Telecommunications Act" in section 1(xiv) of the ICASA Act must be deleted.

21.2 Chapter II - Electronic Communications Authority of South Africa

21.2.1 Section 4 - Functions of Authority and Chairoerson

21.2.1.1 It is noted that the heading to section 4 has been amended to include a reference to the "chairperson" and now reads "Functions of Authority and chairperson". It is submitted that it is not necessary to refer to the chairperson in the heading to section 4 of the ICASA Bill as any reference to ICASA is deemed to include a reference to the chairperson. Thus, the title of section 4 should merely refer to the "Functions of Authority". If this amendment is not made to section 4 of the ICASA Bill, then it will be necessary to ensure that a reference is made to the "chairperson" wherever ICASA is referred to in section 4, failing which, the words 'Authority" could be interpreted to exclude the "chairperson".

21.2.1.2 Section 4(1)(a) of the ICASA Bill is to be amended to read as follows -"

4(1) The Authority -

(a) must exercise the powers and perform the duties conferred and imposed upon them by the underlying statutes and by any other law in terms of which ,powers and/or duties are

21.2.1.3 A new sub-section to section 4(3) to be numbered (j') is to be inserted to read as follows -

"4(3)6) may undertake an inquiry on any matter within the jurisdiction of the Authority or as required in terms of the underlying statutes, including without limitation an inquiry into the achievement of the objects of the underlying statutes and the exercise and the performance by the Authority of its powers, functions and duties in terms of the underlying statutes. Where the Authority undertakes an inquiry in terms of this sub-section it shall furnish the Minister with a report in respect of such inquiry."

21.2.1.4 Section 4(3)(e) of the ICASA Bill is to be amended to read as follows -"must grant, renew, amend and where applicable, suspend or revoke licences."

21.2.1.5 Section 4 is to be amended by the insertion of a new sub-section after section 4(4) to be numbered 4(4A). This section is. to read as follows -"

4(4A) (i) Any delegation or authorisation under subsection (4) may be made subject to such conditions and restrictions as the Council may determine, and may at any time be amended or revoked by the Council

(ii) The Council shall not be divested 0f any power or function or relieved of any duty which it may have delegated under sub-section (4) and may amend or rescind any decision made in terms of such a delegation.

(iii) The power to make regulations shall not be delegated under sub-sebsction(4)."

21.2.2 Section 4A - Register of licences

21.2.2.1 Section 4A(1) must be amended to read as follows -"The Authority must keep a register in which it must record all licences granted. amended, transfererred renewed suspended or revoked in terms of this Act and the underlying statutes. The Authority shall also keep a register of all approvals and certificates issued by it in terms of this Act and the underlying statutes as well as a register of all documents which licensees are required to maintain and submit to the Authority on an annual basis in terms of this Act or the underlying legislation."

21.2.2.2 Section 4B(1) is to be amended by the inclusion of a new subsection (e) to read as follows -"4B(1)(e) The performance of its functions in terms of this Act or the underlying statutes."

21.2.2.3 Section 4B (1) is to be amended by the inclusion of a new subsection (f) to read as follows -"4B(1)(f) Any consumer complaint submitted to the Investigation Unit in terms of section 60(6) of the Convergence Act"

21.2.3 Section 4D - Confidential Information

21.2.3.1 Section 4D (4)(a) is to be amended to read as follows -"Intellectual property and trade secrets of such person."

21.2.3.2 Section 4D (4)(b) is to be amended to read as follows -"financial, business commercial, scientific, market, or technical information, other than trade secrets and intellectual property, the disclosure of which is likely to cause harm to the commercial or financial interest of such person.

21.2.3.3 Section 4D (5) is to be amended to read as follows -"A determination of confidentiality may not be made in respect of a document or information that is in the public domain or subsequently becomes lawfully part of the public domain or is required to be disclosed by operation of law, regulation or a court order."

21.2A Section 5 - Constitution of and appointment of councillors to Council

21.24.1 The heading to section 5 should be amended to include a reference to the chairperson and should be amended to read as follows -

"Constitution of and appointment of councillors and chairperson to Council"

21.2.4.2 Section 5(1A)(a) is to be amended to read as follows -"at least 60 days prior to the last date of service of a councillor or chairperson invite the public to nominate candidates for appointment to the Council...."

21.2.4.3 Section 5(1A)(b) is to be amended to read as follows -"submit to the Minister a list of names of suitable candidates for the appointment of councillor or chairperson (as the case may be) consisting of ...."

21.2.4.4 Section 5(1A)(c) is to be amended to read as follows -"recommend to the Minister, from the list contemplated in

paragraph (b), persons who would be most suited to serve on the Council as councillors or chairperson (as the case may be) and provide reasons for such recommendation."

21.2.4.5 Section 5(1 C) is to be amended to read as follows -"If the Minister is satisfied with the recommendations made in terms of sub-section 5(IA)(c). the Minister shall appoint the chairperson and councillors so recommended. If the Minister is not satisfied with the persons recommended by the panel...."

21.1.5 Section 7 - Terms of office

A new sub-section 7(4) is to be included to read as follows -

"The chairperson may at any time, upon at least six months written notice tender to the Minister resign from office."

21.1.6 Section 14A - Appointment of experts

Section 14A (3) is to be amended to read as follows -

"The Authority and an expert must enter into a written agreement setting out the expert's terms and conditions of appointment. including any performance metrics applicable to such expert's appointment"

22 conclusion

T-Systems and Infovan would like to thank the Parliamentary Portfolio Committee on Communications for giving them this opportunity to express their views on the ICASA Bill and looks forward to participating in any hearings held by the Parliamentary Portfolio Committee on Communications in respect of the finalisation of the ICASA Bill.