Vodacom thanks the Parliamentary Portfolio Committee on Communications for the opportunity to submit comments on the Independent Communications Authority of South Africa Amendment Bill, which was published in Government Gazette No 28050 on 20 September 2005. Vodacom will, if allowed, participate in the public hearing and requests the Committee to advise it of the date on which the hearings will happen as soon as practicable.

Vodacom's comments are primarily limited to sections 4, 4B, 4C and sections 17 and 17C, as well as section 21(2) of the current ICASA Act. The comments are directed towards eliminating ambiguity and uncertainty regarding ICASA's authority in terms of this Act and the underlying legislation and a few procedural matters pertaining to the mentioned sections.

2. Vodacom's Comments;

1 Ad section 4(3) (e)

As a body of statute with no original powers and only delegated powers, ICASA's powers and authority, i.e. to grant, renew and amend licenses have to be qualified in terms of the enabling and underlying legislation, which specifically deals with these powers.

• It is therefore recommended that section 4(3)(e) be extended to read as follows:

(e) must grant, renew and amend licenses in accordance with the underlying statutes

2.2. Ad section 4B and 4C - Inquiries by the Authority and Conduct of Enquiries

2.2.1 Ambiguity and uncertainty regarding purpose of an enquiry as well as the legal status of the findings of an enquiry

Sections 4B and 4C when read together are ambiguous and unclear specifically regarding the purpose for which an enquiry will be held. The same ambiguity and uncertainty prevails with

regard to the legal status of the findings of an enquiry.

Is a section 4B and 4C enquiry an enquiry which is held to enable ICASA to gather information which assist them to regulate the relevant markets, i.e. to embark on a regulation making process subsequent to the conducting of an enquiry, or will the findings of an enquiry have the same legal status as a regulation? Or is a 4B and 4C enquiry complaints and compliance hearing?

The adversarial nature of the procedure set out in section 4D advocates against an information gathering process and rather resemble a hearing or a court case. Section 4C(7) creates the impression that the findings of an enquiry will have the same status as a regulation or a finding of guilty in respect if a statutory violation or a breach of a licence term and condition, i.e.

"The findings contemplated in subsection (6) are enforceable and binding on all licenses and other stakeholders in the postal and communications sectors to the extent that such findings are applicable to their regulated activities. "

2.2.2 Subject matter of enquiries and compliance with the requirements of just administrative action:

Vodacom agrees that the Authority must be authorised to hold public enquiries for the purpose of improving the performance of its functions (as stated in the bill). Vodacom specifically agrees with the Authority's rights to hold public enquires into any matter with regard to.

(a) the achievement of the objects of the Act and the underlying statutes;

(b) regulation and guidelines made in terms of this Act or the underlying statutes;

Vodacom however disagrees that that matters of statutory and licence compliance could be the subject of a public enquiry. The Complaints and Compliance Committee has specifically been established to hear and make findings on all complaints and allegations of non-compliance with the Act or the underlying statutes.

It is also Vodacom's respectful view that a process whereby a complaints and compliance hearing is held through public consultation will not meet the requirements of fair administrative justice.

The envisaged process will effectively constitute a "trial by the media" or "prosecution by public opinion" and would violate a licensee's right to just administrative action.

terms of section 33(1) of the Constitution of the Republic of South Africa Act No. 108 of 1996 ("the Constitution") everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Furthermore, subsection 3 provides that national legislation must be enacted (i.e. Promotion of Administrative Justice Act No.3 of 2002 C'PAJA") to give effect to the right contained in subsection I and must impose a duty on the state to give effect to the said right.

In giving effect to the right guaranteed in terms of section 33 of the Constitution, section 3(2)(b) of PAJA requires an administrator taking administrative action to give any person whose rights or legitimate expectations may be materially and adversely affected thereby all of the following:

(a) adequate notice of the nature and purpose of the proposed administrative action:

(b) a reasonable opportunity to make representations:

(c) a clear statement of the administrative action;

(d) adequate notice of any right of review or internal appeal, where applicable; and

(e) adequate notice of the right to request reasons in terms of section 5.

ICASA constitutes an administrator as defined and a determination following a complaint fall within the ambit of "administrative action" and/or "decision" as defined. In adjudicating complaints, ICASA must comply with the provisions of PAJA and section 33 of the Constitution in discharging their statutory mandates under the Act. It is only in exceptional cases (i.e. where it is reasonable and justifiable in the circumstances taking into account certain specific factors) that an administrator is permitted to depart from the requirements of section 3(2)(b) of PAJA.

• Section 4B(c) and (d) be deleted as section 17(B) deals comprehensively with complaints and compliance hearings, i.e.:

• Section 4B(2) be extended to impose on ICASA an obligation not to only indicate the subject matter of an enquiry but to publish a discussion document, which has to explain the basis of and the reasons for the public enquiry. This is absolutely necessary in terms of the PAJA Act, specifically if the interpretation that the findings of an enquiry is binding and enforceable on specific persons.

Section 4B(2) The Authority must, in the Gazette, give notice of its intention to conduct an inquiry and such notice must indicate the subject matter of the inquiry, together with a discussion document, which shall set out the basis and the reasons for the inquiry. and invite interested persons to :-

(a).......................

• As stated above section 4C confuses an inquiry with a hearing. Section 4C(6) specifically uses the word "hearing." Sections 4C(2), (3), (4), (5) and (7) are not relevant to an inquiry. The mentioned sections pertain to hearings and should therefore be deleted in section 4C and transferred to section 17B to ensure compliance with the requirements of just administrative action as set out above.

Vodacom's proposed wording of Section 4C:

4C(1) Subject to this Act, the person presiding at an inquiry conducted in terms of section 4B must determine the procedure at such inquiry.

(2) The Authority may, subject to any law governing privilege, for the purpose of an inquiry-

(a) through the person presiding at such inquiry , by notice in writing in the prescribed form, require from any person such particulars and information as may be reasonably necessary;

(b) by notice in writing in the prescribed from under the hand of a councillor, addressed and delivered by an authorised person or a sheriff to any person, require such person to

(ii) make a statement; and

(iii) submit to it all the documents or objects in the possession or custody or under the control any such person which may be reasonably necessary; and

(3) The Authority may retain for a reasonable period for the purposes of this Act or the underlying statues any document or object submitted to it.

(b) appears before, makes a statement to and is questioned by the Authority as contemplated in subsection (2)

(5) The person presiding at an inquiry may, after hearing representations from any person present at and connected to the inquiry and having regard to (a) any reasonable apprehension of prejudice or harm to the person to be questioned;

(c) whether it is in the interest of the achievement of the objects of the inquiry, determine- that any part of the inquiry be hold behind closed doors and direct that the public or any class thereof may not be present

(6) The Authority must, within 180 days from the date of conclusion of the hearing-

(a) make a finding on the subject matter of the inquiry; and

(b) publish in the Gazette-

(i) a summary of its finding; and

(ii) the details of the place where and the time when the finding and the reasons for the finding can be obtained by the public.

(7) The finding contemplated in subsection (6) arc enforceable and binding on all licensees and other stakeholders in the postal and communications sectors the extent that such findings arc applicable to their regulated activities.

2.3 Ad Section 17 - Standing and Special Committees

It is not clear why sections 17(2) to 17(9) have been deleted. It is Vodacom's respectful view that the mentioned sections should be retained as it provides much needed clarity and certainty with regard to the constitution of a committee. Councillor representivity on a committee, decision making procedures etc.

• Vodacom propose the following wording to Sectionl7:

17. (1) The Council may establish standing committees or special committees for such purposes as the council may deem necessary with a view to assisting it in the effective exercise and performance of its powers and duties.

(a) one or more councillors designated by the Council; and (b) such additional members as the Council may determine.

(a) are not subject to any disqualification contemplated in section 6 (1) (d) to(1); and

(b) on account of their expertise, qualifications and experience are suited to serve on the relevant committee.

(4) The Council must appoint the chairperson of each committee from the councillors designated in terms of subsection (2) (a).

2.4 Ad section 17 A - Establishment of Complaints and Compliance Committee

It is not clear whether the members of the Committee are appointed from councillors, staff, external parties or a combination thereof. It is Vodacom's respectful view that this needs to be clarified.

2.5 Ad section 17C - Procedure of Complaints and Compliance Committee

To ensure compliance with the requirements of just administrative action, Vodacom is of the view that any complaint lodged with the Authority has to comply with the following requirements:

• it has to be in writing

• it has to state the date, time and place on which the licensee has breached its licence terms and conditions or the provisions of the underlying legislation

• it has to motivate why the specific action or failure of the licensee constitutes a breach of the licence terms and conditions or the provisions of the underlying legislation.

As mentioned above, sections 4C(2), (4) and (5) are appropriate for a hearing but not an inquiry. Section 17C(6) should therefore just incorporate the above provisions outright.

• In light of the above Vodacom's proposes the following amendment to the wording of section 17C(1)(a) and section 17C(6):

Section 17C(1)(a)

Section 17C(1)(a) - A person who has reason to believe that a licensee is guilty of any non- compliance with the terms and conditions of its licence or with this Act or the underlying statues may lodge a complaint in writing, stating the nature of the breach as well as the date, time and place on which the breach as occurred

Section 17C(6) should be deleted.

Sections '4C (2), (4) and (5) and 4D apply with the necessary changes required by the context to a hearing conducted by the Complaints and Compliance Committee.

Section 17C(6) should be replaced with the wording of section 4C (2) and (4) which Vodacom propose should be deleted in section 4C.

2.6 Ad the deletion of section 21(2) - Pending Matters

A number of decisions by the Post Master General and/or SATRA are still and will continue to be relevant to the new converged environment.

Section 21(2) deems any order, ruling or direction made by a former authority to have been made or given by ECASA and must remain,

• Vodacom therefore proposes the retention of section 21(2)

Section 21(2)- Any order, ruling or direction made or given by the former authorities immediately before the establishment date must be regarded as having been made by the Authority