The Independent Communications Authority of South Africa (Icasa) squandered hundreds of thousands of rands pursuing disciplinary charges against CEO Jackie Manche — in defiance of advice from its own lawyer.
A legal opinion drawn up for the regulator by advocate V Soni, which has come into the Mail & Guardian‘s possession, makes it clear that Icasa was advised as far back as last July to accept Manche’s settlement offer. This would have seen her resign in exchange for the dropping of disciplinary charges and the payment of three months’ salary.
However, Icasa persisted with the disciplinary process until last December — when it finally dropped charges, accepted Manche’s resignation and paid her out.
Asked to consider Manche’s offer, Soni advised the authority to resolve the matter before the disciplinary hearing set for August 7 last year.
‘The choices facing Icasa appear quite stark. Either it pays her salary for three months now, or pays a great deal more later,†Soni wrote. ‘As an organ of state, Icasa must ensure that it does not incur ‘fruitless and wasteful’ expenditure.â€
Manche was suspended on full pay for 10 months, which she told the M&G had cost the regulator R700 000. However, this does not take account of Icasa’s additional legal costs.
The regulator is calling for more financial and human resources to help it implement the Electronic Communications Act. It also claimed last year that the mass exodus of its senior staff stemmed from its inability to offer private sector salaries.
Meanwhile, Manche has threatened to sue for damages unless Icasa chairperson Paris Mashile publicly apologises for his comments in a recent Sunday Times interview about her and the disciplinary process.
In the interview, Mashile claimed the matter had been handed over to police. Manche insists the charges against her related to administration, and had no criminal implications.
Manche also claims that Mashile has broken Icasa’s undertaking that a press statement after it accepted her resignation would be the only communication on the issue.
She also disputes the suggestion that she resigned when charges were raised against her and that her lawyer, Ruth Edmonds, continuously stalled the disciplinary process.
Advocate Soni’s opinion makes it clear that Icasa was primarily responsible for the delays. He even suggests that the charges against Manche might fall away if her lawyer argued that the delays had been procedurally unfair.
‘It will be rather difficult task for Icasa to establish that its departure from the time frames were due to ‘appropriate circumstances’,†Soni writes. ‘Icasa has not yet put any tenable justification for such non-compliance.â€
Manche was initially suspended for 30 days on November 24 2005 pending an investigation into alleged misconduct. This was extended to February 24 last year, when a disciplinary hearing was scheduled. However, Icasa’s council requested an adjournment on the day to add new charges.
The hearing was again postponed on March 3 at Icasa’s request so that it could change its lawyers, and again on April 18 after Icasa informed Manche’s lawyers — on the evening of April 17 — that it was amending the charges.
The regulator eventually supplied Manche with detailed charges relating to alleged procurement irregularities, violations of the Public Finance Management Act and failing to safeguard cash.
In September last year, after Manche lodged a CCMA case, Icasa did an about-face, admitting that she not been suspended since February and allowing her to return to work.
Edmonds said she had pointed this out to Icasa several months before, but that the regulator had disputed it. ‘The ludicrousness of their position is that they allowed her to be absent without leave and paid her,†Edmonds said.
The disciplinary process was not completed when Icasa accepted Manche’s settlement proposal in December.
Icasa spokesperson Jubie Matlou confirmed that the Icasa council had received a letter from Manche’s lawyer requesting a public apology, but could not comment on it until the authority had communicated with Manche.