Independent Communications Authority of South Africa (Icasa) chairperson Paris Mashile has a problem. Looming legislative changes and an exodus of top staff are threatening to push the troubled telecommunications and broadcast regulator into full-blown crisis.
At least six senior managers have resigned since January and three members of the seven-person council are due to step down in June.
The three councillors who are leaving are Nadia Bulbulia, Lumko Mtimde and Mamodupi Mohlala. Operationally most prominent in the current dash for the exits are:
Peter Hlapolosa, general manager of the crucial telecommunications unit;
Ntsiki Mbono, senior manager in telecommunications;
Jayshree Naidoo, general manager of the legal division;
Aynon Doyle, senior manager of broadcast policy;
Diane Ngoasheng, senior manager of public consultation; and
Lebo Marumule, who was in charge of procurement.
Two pieces of legislation, the Electronic Communications Bill (formerly known as the Convergence Bill) and the Icasa Amendment Bill are currently awaiting the signature of President Thabo Mbeki. Each will have major implications on a severely weakened organisation.
And there is widespread concern that if Mbeki does sign the Amendment Bill into law in its current form, it will face immediate constitutional challenge for vitiating Icasa’s independence.
To compound the capacity problem, proceedings against suspended CEO Jackie Manche have been dragging on for five months without conclusion. Sources at the regulator say a disciplinary hearing is scheduled for next week, after being repeatedly postponed. People sympathetic to Manche suggest the delay has been used to search for evidence that could shore up a case against her that was dubious from the outset.
The suspension came against the backdrop of deep political rifts between executive management and councillors over lines of accountability and the definition of functions.
Councillors have long been involved in management functions, in part because they believed that staff hired to do those jobs were underqualified.
Manche’s attempts to introduce clarity led to a number of clashes. Leaks to the media at the time of her suspension suggested that it was related to an improperly authorised contract to purchase vehicles and a row over who should take final responsibility for the disappearance of cash from an office safe. Formal disciplinary charges have not, however, been made public.
Meanwhile, chief financial officer Bridgette Mohlala, who resigned in October last year over the cash dispute, has not been permanently replaced. One acting finance chief survived just two months before it emerged that the contract had been improperly authorised.
Lisa Thornton, a communications lawyer who tracks the activities of Icasa closely, said: ”The list of problems is enormously long and some have been outstanding for long. Some have been dropped because of the passage of time. Others have been dropped because of intense industry pressure that Icasa has not been able to withstand.”
In an environment where expertise is in short supply, Icasa has tended to serve as a training ground for talent that is often poached by cash-flush industry giants such as MTN and Vodacom.
Thornton added: ”Icasa is 100% incapable of regulating pricing because it simply doesn’t have the knowledge or the staff. It is also supposed to police interconnect [the way various service providers like Telkom manage to provide access to their networks by rival companies], but is unable to do so.”
It is common cause that the Electronic Communications Bill, designed to dramatically liberalise the sector and increase competition, will require Icasa to stiffen its spine as industry incumbents prepare legal challenges or push for maximum advantage.
”It will inevitably open the door to those that can benefit from challenging it. Vodacom, Telkom, MTN, Cell-C, the second network operator, will hire lawyers to find loopholes and try to ensure that they benefit by keeping out competition.”
Thornton said Icasa will battle to face off the legal challenges because of its capacity problems.
Dene Smuts, the senior Democratic Alliance member on Parliament’s portfolio committee on communications, said the Electronic Communication’s Bill is an ”excellent” piece of legislation, but it will require a robust oversight to make it work.
”It is crucial that we find three strong regulators [to replace those who are leaving].”
Perhaps the most intense controversy surrounds how those three will be found.
Currently councillors are appointed like all members of Chapter 9 institutions after a vote of the National Assembly, which is ratified by the president.
The Icasa Amendment Bill, a compromise thrashed out in the portfolio committee, sets up a panel of experts to advise on the nominations. It was modified by the National Council of Provinces at the 11th hour, effectively handing power to hire and fire councillors to the Minister of Communications, currently Ivy Matsepe Casaburri.
The changes, Smuts said, are unconstitutional. And Thornton warned that if the Bill was enacted it would probably face immediate legal challenges, likely delaying the appointment of councillors at a crucial time.
”I am hopeful that the president will send the Bill back to the National Assembly,” Smuts said.
But the Presidency is not offering much hope to opponents of the Bill. ”It has gone through all the steps it needs to go through. It is at the final stage where it needs to be signed into law by the president. It is on course, and the voyage is about to begin,” said Mbeki’s spokesperson, Mukoni Ratshitanga. If there is a Constitutional Court challenge, ”that is a normal part of democracy”.
The Department of Communications had not commented at the time of going to press.
What Icasa’s Jubie Matlou said …
On the resignations:
”Any employer would be worried by this situation. But we do not see it as a crisis. We still have managers in place and come the convergence legislation, they will be able to handle all the relicensing.”
On changes in the council:
”We will be joined by five new councillors, two from the postal regulator, and three replacing current telecoms and broadcast councillors. When councillors leave at the end of June, there will be continuity because records exist of what has been done and what needs to be done, and managers are in place.”
On Jackie Manche’s suspension:
”You can’t rush in a disciplinary involving a CEO. If you rush, you crash. There have been some difficulties in coordinating the diary of her legal representative and the diary of the advocate chairing the process, but the first hearing is next week.”
On the general state of regulator: ”It is not a crisis. On the whole, we are coping. We need to put a new structure in place to meet the challenge of the legislation, and remunerate it properly to stem the tide of resignations.”