MEMORANDUM [CONFIDENTIAL]
TO: Mr M K Lekgoro, MP, Chairperson of the Portfolio Committee on Communications

1.Your request for a legal opinion on the constitutionality of provisions of the Independent Communications Authority of South Africa Amendment Bill [B 32 - 2005] (the Bill) in regard to the appointment of councillors (clause 8) refers.

Summary

2. My opinion can be summarised as follows:

· The appointment procedure for councillors of ICASA can determine whether ICASA is independent as required by section 192;

· Whether an appointment procedure falls short of ensuring independence depends on the nature of the institution

· Since there is a substantial difference between ICASA and state institutions supporting constitutional democracy, a difference between the appointment procedure for councillors of ICASA and members of institutions supporting democracy is not in itself inconsistent with section 192;

· Although the Bill gives a discretion to the Minister in relation to the appointment of councillors, this in itself is not sufficient to conclude that the amended appointment procedure is inconsistent with section 192 or section 33 of the Constitution.

· The President has a discretion when appointing judges to the Constitutional Court, certain members to the Financial and Fiscal Commission and the Board of Directors of the South African Reserve Bank, all of which are required by the Constitution to be independent.

· The Bill removes neither the eligibility criteria relating to persons to be appointed as councillors, nor the objective criteria relating to removal from office.

· In my view clause 8 of the Bill is consistent with the Constitution.

Provisions and amendments

3. Clause 8 of the Bill aims to substitute the procedure for appointment of councillors provided for in section 5 of the Independent Broadcasting Authority of South Africa Act, 2000 (the Act). Section 5 provides that councillors are appointed by the President on recommendation of the National Assembly, according to the principles of public participation in the nomination process; transparency and openness; and the publication of a shortlist of candidates for appointment, with due regard to further requirements provided for in the Act.

In practice this provision has been interpreted to mean that the Assembly must recommend only as many candidates as there are vacancies. In other words the President does not have any discretion in regard to the appointment of the councillors. This procedure is substantially similar to the appointment procedure provided for in section 193 for state institutions supporting constitutional democracy, although section 193 does not apply to Independent Communications Authority of South Africa (ICASA).

4. In terms of the Bill, whenever it is necessary to appoint a councillor, the Minister of Communications must first appoint an independent and impartial panel consisting of five persons who have an understanding of the issues relating to postal and communication sectors. The panel must invite nominations from the public. The panel must submit to the Minister a list of suitable candidates consisting of at least one and a half times more persons than the number of councillors to be appointed. In the final instance the Minister has the discretion to refuse to make any appointments and may request the panel to review its recommendations.

5. Section 192 of the Constitution provides that national legislation must establish an independent authority to regulate broadcasting in the public interest and to ensure fairness and a diversity of views broadly representing South African society. The object of the Act is to give effect to the requirement in section 192 by establishing an independent authority, ICASA, to regulate broadcasting as required by the Constitution (see section 2(a) of the Act). Furthermore, although the Bill adds to this section, the Act will remain the legislation to give effect to section 192 of the Constitution even if the Bill is passed in its present form and despite the fact that ICASA performs additional functions to those prescribed in section 192. The crisp issue is thus whether the amendment to the appointment procedure for councillors of ICASA is consistent with section 192. Furthermore, the discretion of the Minister in the appointment procedure needs to withstand constitutional muster.

Section 192

6. As far as I am aware, no court has had the opportunity to comment on the meaning and ambit of section 192 of the Constitution. However, the Constitutional Court has dealt with other issues relating to regulatory independence. In the First Certification Judgment (Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC)) the Court held that provisions governing appointment are relevant to an enquiry regarding independence of an institution (para [160]). However, whether the specific appointment procedure is appropriate to ensure institutional independence depends on the nature of the institution concerned. The Court held further that if national legislation were to include provisions concerning appointment which compromised the independence of the institution, then such provisions could be challenged in terms of the Constitution.

7. In Van Rooyen V The State [2002 (5) SA 246 (CC)], a matter about the constitutionality of the Magistrates' Act, 1993, with specific reference to the independence of magistrates, the Constitutional Court held that the exercise of any power vested in a functionary by law was capable of abuse. Although such abuse was subject to constitutional control by the courts, the possibility of abuse has no bearing on the constitutionality of the law concerned and the remedy lay not in invalidating the empowering provision (para [37]). The Court held further that the fact that the Executive had a strong influence in the appointment of the members of the Magistrates Commission did not mean that magistrates' courts lacked institutional independence (para [71]). The perception that is relevant for such purposes is one based on a balanced view of all the material information (para [34]).

8. In my opinion the functions of ICASA differ considerably from state institutions supporting constitutional democracy listed in section 181 of the Constitution. The fundamental difference is that whereas such institutions supporting democracy must promote certain objectives, audit state accounts or manage elections and report to the National Assembly; ICASA administers legislation and report to the Minister of Communications (section 4 of the Act, read with section 13 of the Independent Broadcasting Authority Act, 1993).

9. In my view there is thus a fundamental difference in the nature of ICASA compared to the state institutions supporting constitutional democracy. It follows that to amend the appointment procedure relating to ICASA so that it differs from those prescribed for such institutions supporting democracy in section 193 of the Constitution is not in itself inconsistent with the constitutional requirement of independence.

Constitutionality of the Minister's discretion

10.A further issue relates to the discretion given to the Minister in the appointment procedure. The general rule in this regard is that Parliament should provide guidance for the proper exercise of a wide discretion conferred upon a functionary by legislation (Janse van Rensburg NO V Minister of Trade and Industry 2001 (1) SA 29 (CC) at para [25]). The reason for this rule is that section 7(2) of the Constitution requires that the state, which includes Parliament, must respect, protect, promote and fulfil the rights in the Bill of Rights. Furthermore, the exercise of a discretion usually affects the right to administrative action that is lawful, reasonable and procedurally fair (section 33). The question is thus whether the Bill provides sufficient guidance in regard to the exercise of the Minister's discretion in clause 8.

11 In my opinion the discretion of the Minister to appoint candidates from the shortlist compiled by the selection panel does not constitute administrative action within the meaning of section 33 of the Constitution. Be that as it may, section 5(3) of the Act, which is not substantially amended by the Bill, provides, in my opinion, sufficient guidelines to the Minister in exercising her discretion to appoint persons to ICASA.

12. Furthermore, I am of the opinion that the discretion given to the Minister on its own is not sufficient to conclude that ICASA is not independent and that the amendment to section 5 of the Act is inconsistent with section 192. A similar discretion is given to the President in appointing judges to the Constitutional Court (section 174(4) of the Constitution), certain members of the Financial and Fiscal Commission (section 221 of the Constitution) as well as some of the directors, including the Governor, of the South African Reserve Bank (section 4 of the South African Reserve Bank Act, 1989). The Constitution requires that all of these are independent (sections 165 220 and 224).

Conclusion

13.Specifically, I am of the view that the independence of ICASA is not compromised due to the fact that the amendment to section 5 requires the selection panel to be independent and impartial. Furthermore, section 6 of the Act, which provides amongst others that office-bearers or employees of political parties are not eligible to be councillors, is not substantially amended. Lastly, although the Bill removes the role of the Assembly and the President in the removal process of councillors, the Bill does not substantially amend the objective criteria relating to their removal from office.

14.1 am of the view that the effect of the Bill, insofar as it amends the appointment procedure as well as consequential amendments to the provisions pertaining to removal from office, constitutes a dimming of the constitutional value of openness. However, this fact does not affect the constitutionality of the Bill as the relevant information that will be removed from the public domain in terms of the Bill, is accessible through the provisions of the Promotion to Access to Information Act, 2000.

15. It follows that clause 8 of the Bill is not inconsistent with either sections 33 or 192 of the Constitution.

Ad S Jenkins

Date. 27 September 2005

From: Mr M K Lekgoro, MP, Chairperson of the Portfolio Committee on Communications

Subject: Provide a legal opinion on the constitutionality of provisions of the Independent Communications Authority of South Africa Bill [B 32 - 2005] in regard to the appointment of councillors (clause 8).

Urgency: Next committee meeting is during the week of 10 - 14 October. Please provide opinion a week before the next meeting.