1. Portfolio Committee on Communications 06 August 2013
ICASA Amendment Bill
Presentation to the
Portfolio Committee on Communications August 2013
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2. Table of contents Background to amendments Process Objective
Summary of key amendments 2
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3. Background to amendments
Over time, it has been observed that the current operations of the Authority require certain improvements.
The challenges are located within the ambit of operations, accountability and effectiveness of the Authority.
These challenges emanate from institutional design; legislative design; policy constraints; regulatory failure and lack of institutionalised framework for monitoring performance at the Authority.
These challenges result in:
Policy implementation role played by ICASA needs to be strengthened, particularly in relation to discharging its mandate ito Chapter 10 of the ECA
Lack of visibility of policy goals within regulation
Adjudicative role played by the CCC needs to be more effective
General engagement with stakeholders needs improvement
Policy processes and decision-making are slow (time taken to reach an outcome and the quality of that outcome) 3
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4. Background to amendments
The policy imperatives underpinning these amendments are:
Need to conform the ICASA Act and the Authority to the requirements of the Public Finance Management Act of 1999
The need for ICASA to regulate the sector in the public’s interest aligned to broader policy objectives of government
Improved governance – policy coordination between the Authority and Ministry of Communications
Clarification on certain aspects of the Authority
Some institutional improvements are required to strengthen the Authority
Greater accountability and transparency 4
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5. ICASA Amendment Bill: Process
The ICASA Amendment Bill published in Government Gazette in December
Period of consultation extended by another two weeks due to written requests by some stakeholders.
More than 30 written submissions received.
Re-iterative process undertaken internally to analyse each submission.
Government consultation- Infrastructure Development Cluster , the Competition Commission and Department of Finance.
Cabinet approval in May 2013.
Introduction to Parliament in July 2013. 5
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6. Objective of the Amendment Bill
The amendments are made so as to:
Insert new, amend existing and repeal obsolete definitions
Provide further clarity on the powers and duties of the Authority
Introduce mechanisms to ensure the accountability of committees and the Authority and the Councillors
Confirm the use of electronic communications networks and services for the purpose of the electronic transactions
Provide matters connected therewith 6
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7. Amendments of Introductory Provisions
Amendment of section 1 of the Act 13 of 2000
New definitions are included. Some definitions are revised and others deleted.
Reference to the Competition Act and the Competition Commission
Concurrent jurisdiction agreement
Constitution of the Republic of South Africa
Days defined as working days
Electronic Communications Act
Electronic transactions & Electronic Transactions Act
Licence exemption and licensee assigned same meaning as in the ECA
Policy directions meaning aligned to the provisions in the ECA and Postal
Services Act 7
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8. Amendments of Introductory Provisions
Amendment of section 3 of the Act 13 of 2000
New subsection inserted to make it clear that any person who is aggrieved by the action, decision or finding of ICASA must seek redress in a court of law. These will include decisions taken in consequence of recommendations by the Complaints and Compliance Committee (CCC). 8
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9. Amendments of Section 4: Functions of Authority and Chairperson
Amendment of section 4 of the Act 13 of 2000
In the main, additional functions bestowed on the Authority is that it may make recommendations to the Minister on matters dealt with or be de dealt with in the Electronic Transactions Act
The ECA provides for limited sanctions in certain respects but there is no specific power that enables ICASA to determine penalties or sanctions. This power is now introduced in the Amendment Bill
Although currently separate legislation exists for the regulation of the postal services sector, it is more appropriate in the context of a multi-functional regulatory authority to bring all the functions of ICASA in relation to this sector in the same section.
ICASA is now also directed to conclude a concurrent jurisdiction agreement with other institutions. These must be reviewed every 3 years. 9
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10. Amendments of Section 4: Functions of Authority and Chairperson
Amendment of section 4 of the Act 13 of 2000
In terms of the powers of delegation of the Council, no one Councillor or Committee of ICASA can make a decision about licensing. 10
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11. Amendments of Section 4B & 4C: Inquiries by Authority, Conduct of inquiries
Amendment of sections 4B & 4C of the Act 13 of 2000
The time-periods for conducting inquiries have been shortened to accommodate concerns that such processes must render results more quickly.
The period indicated may be extended in situations wherein the inquiry is of a complex nature or substantial research is required.
The days are defined as business days. 11
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12. Amendments of Section 5: Constitution of and appointment of councillors to Council
Amendment of section 5 of the Act 13 of 2000
The experience and expertise of persons to be appointed as councillors is extended to include expertise in the areas of information technology as well as content in any form and consumer protection 12
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13. Amendments of Section 6A: Performance Management System
Amendment of section 6A of the Act 13 of 2000
Amendment reinforces the collective decision-making of the Council.
In practice, it is more appropriate to measure the performance of the Council rather than an individual councillor .
Performance of the Council to be reviewed at least once a year. 13
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14. Amendments of Section 7: Terms of Office
Amendment of section 7 of the Act 13 of 2000
Chairperson can now be appointed for one additional term of office of five years .
Chairperson will remain in office even when his or term has expired for a period of up to 45 days only.
A councillor may be re-appointed at the end of his or her term in office for one additional term of four years.
Councillors are required to serve full-time unless they are involved with academic pursuits or occupy office as members of public interests bodies or organisations. These must be disclosed in the Register and comply with the Code of Ethics to be introduced. 14
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15. Amendments of Section 11: Meetings of Council
Amendment of section 11 of the Act 13 of 2000
Council meetings to be held at least once a month.
Chairperson can appoint an acting chairperson who is also a councillor in his or her absence.
The CEO must be invited to attend meetings of the Council but he or she does not have the right to vote at the meeting. 15
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16. Amendments of Section 11A: Minutes of meetings
Amendment of section 11A of the Act 13 of 2000
In addition to minutes of the Council being circulated to all councillors following such a meeting, these must be published and made available on the Authority’s website and library within 14 days of the date on which these minutes where confirmed and signed.
Any decision regarding a licensing or regulatory matter by the Council must be published and made available.
Confidential information will NOT be included in the publication, as determined by the Council in terms of section 4D. 16
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17. Amendments of Section 11B: Code of Ethics
Insertion of new section 11B of the Act 13 of 2000
Introduce Code of Ethics to improve governance and accountability. This echoes the kinds of principles that Chapter 9 Institutions are expected to uphold.
A Register for the declaration of gifts, benefits and gratuity received or derived by concillor must be made available to all councillors.
These Register will form part of reporting to the National Assembly and will be open to inspection by the public. 17
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18. Amendments of Section 12: Conflicting interests
Amendment of section 12 of the Act 13 of 2000
The amount of a fine for failing to disclose an interest on a matter serving before the Council meeting is increased from R to R1 million. 18
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19. Amendments of Section 14 & 14A: Staff & Appointment of experts
Amendment of sections 14 & 14A of the Act 13 of 2000
The amendments in these sections are aimed at tightening the provisions relating to the staff and administration of ICASA.
ICASA can appoint experts from outside the country without first seeking permission from the Minister.
Staff must carry out the day to day operations of the Authority as directed by the CEO in accordance with the Annual Plan 19
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20. Amendments of Section 14B: Transfer of staff
Amendment of section 14B of the Act 13 of 2000
This section is repealed . 20
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21. Amendments of Section 14C: Confidentiality
Amendment of section 14C of the Act 13 of 2000
This clause confirms that information presented to ICASA must be kept confidential unless it has to be disclosed in terms of section 12. 21
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22. Amendments of Section 15A: Financing of and accounting by Authority
Amendment of section 15A of the Act 13 of 2000
In line with the adopted Performance Management System for the Chairperson and other councillors of ICASA, the Authority must prepare an Annual Plan for the year. This will enable more accurate forecasting and funding requirements of ICASA. 22
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23. Amendments of Section 16: Annual Report
Amendment of section 16 of the Act 13 of 2000
The principal Act is aligned more closely with the requirements of the PFMA in that the CEO is the Accounting Officer of ICASA and therefore is responsible for, inter alia, producing financial statements and presenting these to Parliament.
In line with reporting requirements of other Chapter 9 Institutions, the CEO must present same documents to the Minister. 23
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24. Amendments of Section 17: Standing and Special Committees
Amendment of section 17 of the Act 13 of 2000
This amendment is made so as to clarify the interworking of the committees of ICASA and ICASA itself. 24
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25. Amendments of Section 17A: Establishment of Complaints and Compliance Committee
Amendment of section 17A of the Act 13 of 2000
Members of the CCC are appointed on a fixed-term office of three years, renewable for one additional term only.
These amendments outline further the committee’s obligations and responsibilities so as to improve outcomes and process within the CCC. 25
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26. Amendments of Section 17C: Procedure of Complaints and Compliance Committee
Amendment of section 17C of the Act 13 of 2000
The amendment clarifies that persons who are not licensees but who are in breach of the Act or the underlying statutes must be able to bring a complaint or a dispute to the CCC.
Additionally, licensees must be able to bring complaints about other persons. 26
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27. Amendments of Section 17F: Inspectors
Amendment of section 17F of the Act 13 of 2000
These amendments strengthen the relationship between Council and inspectors appointed to investigate complaints and other matters on behalf of ICASA. 27
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28. Amendments of Section 17G: Power of inspector to enter, search and seize
Amendment of section 17G of the Act 13 of 2000
The amendments underscore that in addition to producing a licence, other documents may also be required, including type approval certificates.
The transparency and administrative fairness is bolstered by the new insertion which requires inspectors to produce documents that they used in support of their applications to magistrates for warrants. 28
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29. Amendments of Section 17H: Offences and Penalties
Amendment of section 17H of the Act 13 of 2000
Given that the value of money has increased since the Act was first promulgated, penalties and fines have been significantly increased.
This seeks to disincentivise those licensees and other persons who may wish to operate outside the ambit of the sector legislation. 29
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30. Chapter IV (Transitional Provisions) & Chapter V (General)
This chapter is repealed as it is no longer applicable due to the passage of time.
Following repeal of section 14D of the principal Act, a new insertion 23A is made to refer more accurately and completely to the State Liability Act.
Section 24 of the principal Act is substituted in order to clarify the fact that the provisions of the Act takes precedence over any other law, except the Constitution, relating to the regulation of broadcasting, electronic communications and postal services.
The Preamble to the principal Act is amended to reflect the amendments proposed in this Amendment Bill.
Clause 31 seeks to amend the Contents of Act after the Preamble of the principal Act consequent to the insertions of the new sections to and the repeal of existing sections from the principal Act.
Clause 32 provides for the short title and coming into operation of the Act once it is assented to, signed and promulgated into an Act of Parliament by the Presiden. 30
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31. THANK YOU mameetse@doc.gov.za 31
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