Although everyone agrees the telecoms regulator is not working, they cannot agree on the solution, writes Lloyd Gedye.
How to get the country's telecoms, broadcasting and postal regulator functioning efficiently is the subject of major debate, at the heart of which is the Independent Communications Authority of South Africa Amendment Bill.
This, the latest draft of legislation aimed at fixing Icasa, is now available for public comment.
Minister of Communications Dina Pule sees the Bill as an important step towards getting the regulator to operate more efficiently and be held accountable for its mandate.
But critics such as the Democratic Alliance and the SOS Coalition argue that the minister is removing Parliament's oversight role of the chapter nine institution and giving herself far too much power, jeopardising the regulator's independence. In fact, the coalition, which is a broad grouping of independent film and TV production organisations, civil society organisations and trade unions, has said the Bill is unconstitutional and should be withdrawn immediately.
However, some stakeholders familiar with telecoms and broadcasting law say the Bill is not all bad and its contents should not be rejected out of hand.
One legal expert said the response of the DA and the coalition was nothing more than hysterical and the issue about the centralisation of power by the minister was being used for scoring political point. "The Bill is all about getting Icasa to do its work better. Obviously we have to be careful, because there is a delicate balance with preserving the independence of the regulator," the expert said.
But Marian Shinn, the DA's spokesperson on communications, said the Bill should not proceed until the government's policy on information and communications technology (ICT) was reviewed, which the minister committed herself to doing earlier this year.
A weak regulator
But some stakeholders argue that the regulator is not functioning properly and it makes no sense to delay fixing the problems until the policy is reviewed.
"Sure, if Icasa was working fine, but the regulator clearly has problems that need to be addressed," an industry insider said.
The chairperson of the authority, Stephen Mncube, admitted as much at a recent press briefing. "We must swallow our pride and admit that we are indeed a weak regulator. But we have eaten a lot of hamburgers and are stronger now."
Although Mncube was trying to make light of the situation, the truth is that it's going to take a lot more than "hamburgers" to get Icasa working properly.
Stakeholders have been saying for years that the regulator is both underfunded and underresourced.
Considering that Icasa has to take on mega corporations such as Vodacom, Telkom, MTN, MultiChoice and e.tv, which have large legal and financial resources at their disposal to fight regulations that could hamper their ability to make large profits, it's clear to see that the authority is unlikely to succeed.
Not only does it need greater financial and legal muscle, it also needs economists and competition experts who can do the detailed and complex groundwork that forms the basis of any major regulations it wants to impose on the markets under its watch.
A former senior Icasa official said the biggest problem with the regulator was its structure.
The council, comprising nine councillors, was too big, which delayed decisions. He said it had to be streamlined to three. "The structure is inefficient."
He also said Icasa was seriously underfunded and its funding model had to be reappraised. For example, it should be allowed to keep a share of the billions of rands it collected in the form of spectrum and licence fees for the treasury, he said.
Siyabulela Qoza, Pule's spokesperson, said the funding model for the regulator would be reconsidered. "Icasa has to work much better. This Bill is all about encouraging accountability and transparency at Icasa."
The Bill includes measures such as assessing the performance of councillors.
The Mail & Guardian understands that the performance of some councillors is causing unhappiness in the government and the assessments are one way in which the problem can be addressed.
Although some critics believe that by holding councillors accountable the government will threaten Icasa's independence, other stakeholders argue that expecting the regulator not to be accountable to its political masters is naive and a principled but unrealistic expectation.
A senior executive of one of South Africa's telecoms companies said performance assessment was unworkable. "Practically, how would the department of communication do that? It's one thing to say that Icasa is weak, but if Icasa is weak the department is a shambles."
He also said that the idea to turn the complaints and compliance committee into a commission modelled on the Competition Commission was a bad idea.
"The committee is working effectively," he said, and the new plan would place increased financial strain on the already underfunded regulator.
Shinn said the centralisation of power that the Bill proposed was inappropriate and would cripple the institution.
Like the SOS Coalition, she argues that the fact that the Bill proposes that Parliament will no longer be responsible for interviewing candidates for councillor positions and preparing a short list for the minister will affect the regulator's independence. Shinn used the example of the recent appointment as a councillor of Reuben Mohlaloga, who will start work in January.
But after Parliament placed Mohlaloga on the short list and the minister subsequently appointed him, it has come to light that he had been arrested and charged with defrauding the Land Bank of R6-million. He was arrested and charged in October this year and released on bail.
Shinn has called on Pule to reverse the appointment.
Qoza said the minister did not know about the arrest and charges when he was appointed, but when she found out she met with Mohlaloga and asked him to step down.
Qoza said Pule was still waiting for Mohlaloga's decision.