(a) whether the new procedure for the appointment of councillors of the Independent Communications Authority of South Africa (hereinafter referred to as "ICASA") will pass constitutional muster; and

(b) whether ICASA would be the independent body envisaged by the Constitution of the Republic of South Africa, 1996 ("the Constitution") if the proposed amendments are effected.

CHAPTER NINE OF THE CONSTITUTION

2 The starting point for an evaluation of ICASA must be the Constitution.

3 Section 192 of the Constitution provides:

"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."

4 ICASA is one of the institutions envisaged by Chapter nine of the Constitution (see section 192). The institutions listed in and envisaged by Chapter nine are state institutions supporting constitutional democracy. These seven Chapter nine institutions are the Public Protector, the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General, the Electoral Commission and an independent authority to regulate broadcasting.

5 Section 181 of the Constitution lists the institutions that strengthen constitutional democracy. It further provides that the institutions listed enjoy the highest level of independence, free from interference by any person or organ of state and accountable only to the National Assembly ICASA is not listed in Section 181(1).

6 Section 193 provides for the appointment of persons as the Public Protector and as a member of any commission. Subsection (4) reads that the President must appoint the Public Protector, the Auditor General and the members of the South African Human Rights Commission, the Commission for Gender Equality and the Electoral Commission. The appointment of members to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and members of ICASA is not dictated². It would appear that the members of the latter institutions need not, in terms of section 193, be appointed by the President.

7 We are of the opinion that ICASA does not enjoy the same status the institutions listed in section 181 do. In our view the Constitution does permit a different Chapter nine institution as those mentioned in section 181 to be established. We interpret the Legislature's intention as setting out to ensure the creation of an independent broadcasting regulator but not to dictate all its functions, nor to dictate the appointment procedure to be adhered to when appointing its members and most importantly, not to dictate the level of independence it would enjoy. By not providing for the functions of or the appointment and removal of the members of ICASA we submit that the Legislature is left to provide for them in the national legislation envisaged by section 192 and within the policy framework determined by the Executive.

THE MEANING OF"INDEPENDENCE"

8 "Independence" is not defined in legislation.

9 In South African National Defence Union and Another v Minister of Defence and others³ the court quoted the European Court when considering the concept of independence in a judgment delivered in June 1984. The European Court held:

"In determining whether a body can be considered to be independent - notably of the executive and of the parties to the case - the court has regard to the manner of the appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence."

10 The same factors were regarded as relevant to a determination of independence by our Constitutional Court in the first Certification Judgment⁵. The Court said:

"Factors that may be relevant to independence and impartiality, depending on the nature of the institution concerned, include provisions governing appointment, tenure and removal as well as those concerning institutional independence. Against the background of the nature of the particular institution, these factors must, when considered together, ensure independence and impartiality."

11.1 In the Canadian matter of Valente the court considered independence at length. The issue in the matter was whether a provincial judge sitting as the Provincial Court was an independent tribunal within the meaning of section 11 (d) of the Canadian Charter of Rights and Freedoms. B

11.2 The court expounded that the test to be applied was the one for reasonable apprehension of bias, adapted to the requirement of independence. The Court held:

" [the] apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... The question that now has to be determined is whether a reasonable person, who was informed of the relevant statutory provisions, their historical background and the traditions surrounding them, after viewing the matter realistically and practically would conclude that a provincial court judge sitting as Judge Sharpe was to hear the appeal in this case was a tribunal which could make an independent and impartial adjudication."

The court further held that the test for independence should include the requirement that the tribunal must be perceived to be independent and impartial. It must be a perception of whether the tribunal enjoys the essential objective conditions of judicial independence and not a perception of how the tribunal will in fact act.

12 From the above one is able to conclude that when considering independence the following factors have to be considered, namely

(a) The manner of appointment;

(b) security of tenure and removal;

(c) institutional independence and the existence of guarantees against outside pressures.

13 However, in Financial Services Board and Another v Pepkor Pension Fund and Another,¹⁰ the Court quoted with approval the warning that "it is inappropriate to define strict formal conditions as the constitutional requirement for an independent tribunal". It was said that "mechanisms that are suitable and necessary to achieve the independence of the Superior Courts, for example, may be highly inappropriate in the context of a different tribunal".

14 The appointment of members of ICASA is not prescribed by the Constitution.

15 Section 91(2) of the Constitution provides:

"The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them."

16 The Independent Communications Authority of South Africa Act, 2000 (Act No.13 of

2000) (the "principal Act") provides for the appointment of Councillors to the Authority. Section 5 provides that the President must appoint the councillors according to the principles of public participation, transparency and openness and publication of a shortlist of candidates. An exact procedure for the appointment is not dictated by the principal Act, only that the National Assembly has to recommend the councillors.

17 The ICASA Amendment Bill proposes a new detailed appointment procedure in Clause 8. The process involves the Minister appointing an independent and impartial panel of experts to call for nominations of suitable persons, to submit a shortlist to the Minister and to recommend and motivate to the Minister the most suitable candidate. The Minister mav reject the recommendations by the panel but only when such recommended person is not "committed to fairness, freedom of expression, openness and accountability or does not possess suitable qualifications etc.¹'

18 We are of the opinion that Clause 8 of the Bill would pass constitutional muster for the following reasons:

(i) ICASA does not enjoy the same status as the other Chapter nine institutions

(ii) the appointment of the Councillors is not dictated by the Constitution; and

(iii) the Constitution provides that the President may assign any power or function to a Minister.

(b) Security of tenure and removal

19 The Court in Valente names and explains the essential features of judicial independence I.e. security of tenure, financial security and institutional independence. In respect of security of tenure the Court held that the essence of security of tenure is tenure, whether until the age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner. The Court said that it may be desirable that a judge should be removable from office only on an address of the legislature but held that it was not reasonable to require it as essential to security of tenure as this process is more difficult in practice because of the cumbersome arid publicly visible nature of the process.

20 The principal Act provides in section 7(5) that a councillor may be reappointed in terms of section 5 for one additional term.

21 Section 7(5) is not being amended. This means that the councillors may serve a maximum of two terms. The Bill does, however, differentiate between the Chairperson of the Council and the other councillors. Clause 11(a) of the Bill provides that the Chairperson of the Council may also be reappointed but the clause does not fix the maximum number of terms that he or she may serve.

22 Section 8(2) and (3) caters for the removal of councillors. Both these subsections are being deleted in the Bill.

23 We are of the opinipn that the councillors do enjoy security of tenure because they are free from interference by the Minister in an arbitrary manner. Each time a Councillor is reappointed it means that a member of the public nominated him, the panel (which need not be the same panel each time) has recommended, with reasons, why he or she should be reappointed. The President and members of the National Assembly are no longer involved in the removal of a councillor.

(c) Institutional independence and the existence of guarantees against outside pressures

24 The Canadian court referred to institutional independence in respect of matters of administration bearing directly on the exercise of its judicial function. The court drew a distinction between independent adjudication [where the role of the court entails the assignment of judges, determining sittings of the court and determining the court lists] and independent administration [administration within reasonable management constraints]. The Court held that "the heads of the judiciary have to work closely with the representatives of the Executive unless the judiciary is given full responsibility for judicial administration.¹³

25 In our view ICASA is institutionally independent. Clause 6 provides for the functions of the Authority. These include making recommendations to the Minister on matters of policy, developing licence conditions, and granting, renewing and amending licences. It is envisaged that Government sets the policy for the industry as a whole thereby providing only the parameters within which ICASA has to function. Clause 7 provides that ICASA may conduct inquiries on any matter falling within the am bit of its functions. The Complaints and Compliance Committee is established by the Authority in Clause 20. It is the function of this Committee to investigate, hear and make a finding on any matter referred to it by the Authority and all complaints and allegations of non-compliance received by it. When the Complaints and Compliance Committee has carried out its functions the matter is referred to the Authority for a decision in terms of Clause 17E. In this way the power and independence of ICASA remains intact and its discretion is not fettered in any way.

Other factors

26 Both South African and Canadian Courts have held that there are other factors that impact on independence.

27 In New National Party of South Africa V Government of the Republic of South Africa and Others, Langa DP held that financial independence and administrative independence are two factors relevant to the independence of the Electoral Commission. In respect of that Commission the Court said:

"[Financial independence] implies the ability to have access to funds reasonably required to enable the Commission to discharge the functions it is obliged to perform under the Constitution and the Electoral Commission Act. This does not mean that it can set its own budget.

Parliament does that. What it does mean, however, is that Parliament must consider what is reasonably required by the Commission and deal with requests for funding rationally, in the light of other national interests. It is for Parliament, and not the Executive arm of Government, to provide for funding reasonably sufficient to enable the Commission to carry out its constitutional mandate.

The Commission must, accordingly, be afforded an adequate opportunity to defend its budgetary requirements before Parliament or its relevant committees. .. [Administrative independence] implies that there will be control over those matters directly connected with the functions which the Commission has to perform under the Constitution and the Act. The Executive must provide the assistance that the Commission requires 'to ensure (its) independence, impartiality, dignity and effectiveness'. The Department cannot tell the Commission how to conduct registration, whom to employ, and so on; but if the Commission asks the government for assistance to provide personnel to take part in the registration process, government must provide such assistance if it is able to do so. If not, the Commission must be put in funds to enable it to do what is necessary."

28 The Court in Valente held that financial independence is an essential feature of judicial independence rather than an important factor that may be considered. The Court said that applied to judges it means security of remuneration and security of pension.

The Court said:

"The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence... Although it may be theoretically preferable that judicial salaries be fixed by the legislature rather than the executive government and should be made a charge on the Consolidated Revenue Fund rather than requiring annual appropriation, I do not think that either of these features should be regarded as essential to the financial security that may reasonably be perceived as sufficient for independence under s.1 1(d) of the Charter."¹⁵

29 In Valente the Court expounded what the court held as desirable supports for judicial independence. Budget independence speaks to independence in budgeting and in expenditure of an approved budget and includes the appointment and supervision of the supporting staff. The Court held:

"Budget independence ... means simply that the budget should not be part of any departmental budget but should be separately presented and dealt with. I do not, of course, preclude its presentation by a responsible Minister, but he should do this as a conduit, and yet as one able to support the budget after its preparation under the direction of the Chief Justice...".

30 Regardless of whether financial independence is an essential feature of independence or a factor to consider. In relation to ICASA, it is our view that it is a standard that must be met. The Authority is financed by moneys appropriated by Parliament in terms of section 15 of the principal Act. This remains unchanged. In our view the Minister is in fact the conduit referred to in the Valente matter. Clause 17 now allows a mechanism by which ICASA may receive additional funding.

32 In respect of security of remuneration and pension in relation to the councillors of ICASA we are of the opinion that section 10 caters for this security. It provides that issues of remuneration and benefits are determined by the Minister in consultation with the Minister of Finance, subject to applicable legislation. We interpret this to mean that the Minister may not arbitrarily determine remuneration and benefits as the consultation that has to take place provides the checks and balances for the exercise of this function.

33 It is our opinion that ICASA is administratively independent. Section 14 of the principal Act provides that the Council must establish its own administration. ICASA is empowered in terms of this legislation to appoint its own staff and the Bill proposes that ICASA be empowered to appoint foreign experts in Clause 16. The expenditure of ICASA is not provided for at all in the principal Act or in the Amendment Bill.

Conclusion

34 In our view one has to determine independence holistically. Many factors work together to render ICASA independent.

35 It is our opinion that the ICASA Amendment Bill will pass Constitutional muster as ICASA is independent for the following reasons:

(a) The standards and requirements set by the Constitution are met;

(b) notwithstanding the fact that ICASA is borne by Chapter nine of the Constitution, the manner of appointment and removal of councillors and the functions of the institution are not dictated by Chapter nine. Section 192 envisages legislation that would provide for these. Therefore, the independent broadcasting authority need not be held to the same requirements as the institutions listed in section 181(1);

(c) Section 91(2) of the Constitution provides that the President may assign any power or function to a Minister. Thus the President may assign the power to appoint ICASA's councillors to the Minister of Communications; and

(d) ICASA does in fact enjoy institutional, financial and administrative independence, free from outside pressures.

36 In conclusion, we believe that a reasonable person who is informed of the relevant statutory provisions and their historical background would conclude that ICASA is an institution capable of performing its functions independently.