The Minister of Communications intends to introduce the Independent Communications Authority of South Africa Amendment Bill, 2010 during the course of the 2010 Parliamentary Programme.
The proposed Bill is hereby published for comment.
or e-mail to: lerato@doc.gov.
Please note that comments received after the closing date may be disregarded.
Please contact Lerato Monareng at tel. (012) 4278217/8070 for any enquiries.
Bill published in Government Gazette No of.
GENERAL EXPLANATORY NOTE: Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments.
To amend the Independent Communications Authority of South Africa Act, 2000, so as to change the position of chief executive officer to chief operations officer; to clearly differentiate between the functions of the Council and the chief operations officer; to improve turn-around times; to establish a Tariff Advisory Council; to improve the functioning of the Complaints and Compliance Committee; and to provide for matters connected therewith.
Amendment of section 3 of Act 13 of 2000 1.
"(1A) The Authority is [deemed to be] the Regulator contemplated in the Postal Services Act.".
Amendment of section 4 of Act 13 of 2000 2.
must continue with the performance of its duties and functions despite the institution of legal proceedings against the Authority, until such time as a court order directs otherwise.
the chief executive officer appointed in terms of section 14.
U(f) The power to grant, renew, amend or transfer any individual licence may [only] not be delegated to a councillor or to a committee of the Council.
by the deletion for paragraph (g) of subsection (4).
perform any function assigned to him or her in terms of any law.
perform such other functions as the Minister may determine, subject to prior notification being given to the National Assembly.
Amendment of section 48 of Act 13 of 2000 3.
"(a) submit written representations [within 60 days from the date of publication] on or before a date specified in the notice, which date may not be earlier than 30 days from the date of publication of the notice; and".
Amendment of section 4C of Act 13 of 2000 4.
the details of the place where and the time when the finding and the reasons for the finding can be obtained by the public.
Amendment of section 5 of Act 13 of 2000 5.
"(d) The Minister must when appointing the chairperson and councillors, assign to the chairperson and each of the councillors respectively, primary responsibility for licensing, monitoring and compliance, markets and competition, technology engineering, economic regulation, postal matters and any other relevant field."
"(ii) possess suitable qualifications, expertise and experience in the fields of, amongst others, broadcasting, electronic communications and postal policy or operations, public policy development, electronic engineering, law, [marketing, journalism, entertainment, education,] information technology, electronic content, consumer protection, economics, finance or any other relevant expertise or qualifications.".
Amendment of section 6A of Act 13 of 2000 6.
set a procedure to measure and review performance at least [once] twice a year.
Assembly for that purpose. which panel must be chaired by the Minister or his or her delegate.
"(5) The panel contemplated in subsection (4) must, after an evaluation of the chairperson or other councillor, submit a report to the National Assembly for consideration and decision."
"(6)The Minister must ensure that the decisions of the National Assembly contemplated in subsection (5) are implemented.".
Amendment of section 14 of Act 13 of 2000 7.
"14. Chief Operations Officer and Staff.
the chief operations officer must appoint such staff as the Council may deem necessary to assist the Authority and the chief [executive] operations officer, as the case may be, with all such work as may arise through the performance of its functions.
subject to paragraph (a), apply equal opportunity employment practices.
Amendment of section 15 of Act 13 of 2000 8.
Section 15 of the principal Act is hereby amended by the deletion of subsection (2).
Insertion of section 168 in Act 13 of 2000 9.
168. Tariff Advisory Council.-(1) The Authority must establish a Tariff Advisory Council to advise the Authority on rates in respect of electronic communications network services, electronic communications services, broadcasting services and postal services.
The terms and conditions of allowances, composition and meetings applicable to the Tariff Advisory Council by virtue of its appointment in terms of subsection (1) must be as determined by the Authority in concurrence with the Minister.
matters of policy relevant to communications costs arising out of or in connection with the application of the provisions of the Electronic Communications Act and the Postal Services Act, 1999(Act 124 of 1998).
perform research and act as a forum for discussion by stakeholders of ways to reduce communications costs.
Amendment of section 17A of Act 13 of 2000 10.
by the substitution for subsection (1) of the following subsection: "(1) The Authority must establish a Complaints and Compliance Committee which consists of not more than seven members nominated by the Minister in consultation with the National Assembly and appointed by the Authority, [one] two of whom must be fa councillor] councillors."
preside at hearings of the Complaints and Compliance Committee.
Amendment of section 178 of Act 13 of 2000 11.
"(i) all matters referred to it by the [Authority] Council;".
Amendment of section 17C of Act 13 of 2000 12.
Committee within 60 days of becoming aware of the alleged non-compliance.
Committee for consideration.
"(4) The Complaints and Compliance Committee may hold a pre-hearing conference for the purpose of the mediation of a complaint or giving direction to the parties regarding the procedure to be followed at a hearing and other relevant matters determined by the Complaints and Compliance Committee."
"(5) NotWithstanding this section, the Authority may prescribe procedures for the handling by the Complaints and Compliance Committee of urgent complaints and noncompliance matters.".
Amendment of section 17D of Act 13 of 2000 13.
"(1) The Complaints and Compliance Committee must commence the hearing contemplated in section 178 within 45 days from the date the complaint is lodged as contemplated in section 17C and make a finding within [90 days from the date of conclusion of a hearing contemplated in section 17B] 60 days from the date the complaint is lodged."
by the deletion of subsections (2) and (3).
Substitution of section 17E of Act 13 of 2000 14.
17E. [Decision by Authority] Orders.
the steps taken by the licensee to ensure that similar complaints will not be lodged in the future.
prohibit the licensee from providing the licensed service for [such] £!
direct the licensee to comply with any settlement.
[(3) The Complaints and Compliance Committee must submit its finding and recommendations contemplated in subsections (1) and (2) and a record of its proceedings to the Authority for a decision regarding the action to be taken by the Authority within 60 days.
The [Authority] Complaints and Compliance Committee must make a decision permitted by this Act or the underlying statutes and provide persons affected by such decision with written reasons therefore.
Any finding by the Complaints and Complaints Committee as contemplated in section 170 or order issued as contemplated in this section, shall be a deemed a finding or order of the Authority.
Amendment of section 17H of Act 13 of 2000 15.
"(f) fails to comply with [a decision] an order made by the [Authority] Complaints and Compliance Committee in terms of section 17E; or".
Substitution of word "chief executive officer", in the English text in Act 13 of 2000 16.
The English text of the principal Act is hereby amended by the substitution for the word "chief executive officer", wherever it occurs, of the word "chief operations officer".
The chief executive officer which is in office at the time of the promulgation of this Act, if any, shall be deemed to be the chief operations officer appointed in terms of section 14 of the principal Act for the remainder of his or her original period of office.
BACKGROUND AND OBJECTS The main purpose of the Bill is to amend the Independent Communications Authority of South Africa Act, 2000 (the Act), so as to change the position of Chief Executive Officer to Chief Operations Officer and to clearly differentiate between the functions of the Council and the Chief Operations Officer. The turn-around times of some of the responsibilities of the Authority are improved. A Tariff Advisory Council is created. The functioning of the Complaints and Compliance Committee is revised to improve the turnaround times for resolution of complaints and its effectiveness.
2.1 Amendment of section 3 of Act 13 of 2000 Clause 1 removes the deeming provision in section 3(1A) that deems ICASA as the Postal Regulator as it is now generally well known.
Clause 2 adds a ne'# subsection (1A) to ensure that ICASA continues 'vvith the performance of functions despite legal challenges. Subsections 4(3)(c) and (d) of the Act are amended to correct terminology -'assign' and not 'manage' the radio frequency spectrum, and add an obligation to monitor compliance with licence conditions. A new subsection 4(3)(0) is added to oblige ICASA to implement policy and policy directions.
Licensing powers may not be delegated.
It further seeks to add more functions in respect of Chairperson in subsection 5(5) i.e.
Perform other functions determined by the Minister, following notification given to the National Assembly.
2.3 Amendment of section 4B of Act 13 of 2000 The purpose of clause 3 is to reduce unreasonably long consultation periods during inquiries, to improve turn-around times and thereby strengthening the Regulator.
2.4 Amendment of section 4C of Act 13 of 2000 Clause 4 seeks to reduce the time within which ICASA must make a finding on the subject matter of an inquiry from 180 days to 90 days of the conclusion of the inquiry.
2.5 Amendment of section 5 of Act 13 of 2000 The purpose of clause 5 is to assign specific areas of responsibility to specific Councillors. It also removes less important qualification criteria in respect of the appointment of Councillors and adds more relevant fields such as consumer protection.
2.6 Amendment of section 6A of Act 13 of 2000 Clause 6 seeks to improve the performance management system applicable to the Council by further clarifying the responsibilities of the National Assembly and the Minister respectively.
2.7 Amendment of section 14 of Act 13 of 2000 Clause 7 seeks to amend the Chief Executive Officer position to that of a Chief Operations Officer. It further clarifies the role of the COO compared with Council. It states that the Council determines the staff establishment and appoints the COO. It further clarifies that the COO implements decisions of the Council and performs assigned and delegated functions and duties.
2.8 Amendment of section 15 of Act 13 of 2000 Clause 8 seeks to delete subsection 15(2) that determines that the Chief Executive Officer is the accounting officer of ICASA.
2.9 Insertion of section 168 in Act 13 of 2000 Clause 9 seeks to introduce a Tariff Advisory Council to advise ICASA and the Minister on tariffs and related matters.
2.11 Substitution of word "chief executive officer", in the English text in Act 13 of 2000 Clause 16 seeks to substitute the word "Chief Executive Officer" with "Chief Operations Officer" wherever it appears in the Act.
Transitional provision The transitional provision in clause 17 is necessary to ensure the transition from Chief Executive Officer to Chief Operations Officer.
Cost of changing the appointment of the chairperson of the Complaints and Compliance Committee to a full-time appointment and appointment of a Tariff Advisory Council.
The State Law Advisers and the Department of Communications are of the opinion that the Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution, since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.
The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.