[12 August 2016]
The court documents submitted by the Minister of Telecommunications and Postal Services in their case against ICASA regarding the Invitation to Apply, include a Memorandum of Understanding (MoU) between the Minister of Communications and the Minister of Telecommunications and Postal Services. This MoU outlines how the two ministries will work together.
MoU between Minister of Communications and Minister of Telecommunications and Postal Services
[21 February 2015]
The reason behind the split of the Department of Communications into two separate departments, Telecommunications and Postal Services (DTPS) and Communications (DoC), has finally been explained. Deputy Minister Stella Ndabeni-Abrahams provided this explanation during a progress report on the DoC’s establishment to the Portfolio Committee on Communications on February 17th, 2015, according to the Parliamentary Monitoring Group.
Ms Ndabeni Abrahams said DoC and DTPS were split because during elections citizens complained that government was not talking to us. After getting majority vote, the ANC had to respond to the needs of the citizens. During elections political parties were running like headless chickens trying to explain what the government has done. Some of the contributing factors to unemployment was that South African citizens do not know for example citizens were delayed at Home Affairs instead of telling the bureaucrats that you have to be productive as you were appointed by government.
The National Communication Strategy 2014-2019 presentation highlights the DoC’s role in establishing a new, unified identity.
It needs to influence South Africans to be proud South Africans and it has to improve the target from 66% to 75% of South Africans reflecting pride to be South Africans.
The Department of Communications (DoC) gave a presentation on their progress in setting up the new department. They said they’ve made significant headway and expect to be operational by April 1st, 2015. The transfer of staff and resources from the Department of Telecommunications and Postal Services (DTPS) to the DoC was approved in February 2015.
The DoC feels they now have a clear understanding of their responsibilities compared to the DTPS, as outlined in a government Proclamation 79 of 2014 made on 2 December 2014
Our analysis:
Interestingly, the presentations didn’t mention the Independent Communications Authority of South Africa (ICASA), except to say they report to the DoC. It’s unclear how ICASA fits into the National Communications Strategy for 2014-2019.
Basically, the new DoC seems focused on content, while ICASA has limited authority over content (mostly broadcast quotas). ICASA’s main role is to regulate communication networks. This is a key difference.
While some might exaggerate the importance of ICASA’s independence, having them report to a department aimed at government communication seems to fundamentally contradict the idea of independence.
There are currently several vacancies on ICASA’s council, with more opening up next year. This presents an opportunity to make significant changes to the organization.
[8 December 2014]
Due to the recent split of the Department of Communications on December 2nd, 2014, complex procedures will be required. For instance, the performance management system for ICASA councillors, which has languished for eight years despite its establishment, will now be subject to targets set by two separate ministers.
The following presents the proclamation with key sections highlighted for your reference.
| ICASA Act | Cabinet member to whom responsible function is transferred and extent of transfer | |
| s4(3)(a) |
(1) The Authority – (a) must exercise the powers and perform the duties conferred and imposed upon it by this Act, the underlying statutes and any other applicable law; (b) ………. (c) subject to section 231 of the Constitution, must act in a manner that is consistent with the obligations of the Republic under any applicable international agreement. (2) The Authority is subject to the Public Finance Management Act, 1999 (Act No. 1 of 1999). (3) Without derogating from the generality of subsections (1) and (2), the Authority- (a) may make recommendations to the Minister on policy matters and amendments to this Act and the underlying statutes which accord with the objects of this Act and the underlying statutes to promote development in the broadcasting, electronic transactions, postal and electronic communications sectors; |
|
| s4(3)(o) | …(o) may make recommendations to the Minister on matters dealt with or to be dealt with in the Electronic Transactions Act; | Minister of Telecommunications and Postal Services |
| s4(3A)(e)* | (3A) The Authority, in exercising its powers and performing its duties-(a) must consider policy made, and policy directions issued, by the Minister in terms of this Act, the underlying statutes and any other applicable law; and |
|
| ss6A(2)(a) & (b) | 6A. Performance management system (1) The Minister must, in consultation with the National Assembly, establish a performance management system to monitor and evaluate the performance of the chairperson, councillors and the Council, individually and collectively.(2) The performance management system must – (a) set appropriate key performance indicators as a yardstick for measuring performance, including, amongst others, the matters and the time periods set out in sections 4(3A), 4B(2)(a), (7), (8) and (9), 4C(6), 7(7), 11A(3) and (4), 11B, 12(2) and 16(1) and (2);
(b) set measurable performance targets; |
|
| s15(1A) | 15A. Annual planThe chief executive officer must, at least three months before the end of each financial year, prepare and submit to the Council for approval an annual plan which describes the proposed activities of the Authority with indicative timeframes for the coming year. |
|
| ss16(1) and (2) |
(1) The Council must – (a) in addition to the requirements in terms of paragraph (b), supply the Minister with such information and particulars as he or she may in writing require in connection with the activities of the Authority; and (b) as soon as may be reasonably practicable after the end of each financial year but in any event within three months of the end of the financial year, supply the Minister with a copy of – (i) the annual report of the Authority which must reflect in reasonable detail deliverables and those matters that were not dealt with in terms of the annual plan referred to in section 15A; (ii) the financial statements of the Authority referred to in section 40 (1) (e) of the Public Finance Management Act, 1999 (Act No. 1 of 1999); and (iii) the Auditor-General’s report on those statements (2) For purposes of this section, the annual report referred to in subsection (1) (b) (i) must include, amongst others – (a) information regarding licences granted, renewed, amended, transferred, suspended or revoked; and (b) such other information as the Minister may in writing require. |
The Minister of Communications and the Minister of Telecommunications and Postal Services: The administration of and powers and functions entrusted by the section referred to in Column 1. |
| ECA | Cabinet member to whom responsible function is transferred and extent of transfer | |
| s3 |
|
|
| s4(5) |
(5) The Authority must, not less than 30 days prior to making regulations, inform the Minister in writing of its intention and provide the Minister with a copy of the proposed regulations. |
|
| s5(6) |
(6) The Authority may only accept and consider applications for individual electronic communications network services licences in terms of a policy direction issued by the Minister in terms of section 3. |
|
| Chapter 9 | Chapter 9 – Broadcasting | The Minister of Communications: The administration of the Chapter referred to in Column 1. |
| s79B | 79B. Provision of information(1) Subject to the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), the Minister may, in writing, require the Authority or the Agency, or any other person to provide, within a reasonable time or on a regular basis, any data, information or documents to the Minister that are required for the purposes of the performance of the functions of the Minister.(2) A notice under subsection (1) may also indicate the manner in which the information must be furnished and, if required, how the information must be verified.(3) When information is requested by the Minister the relevant person may request the Minister to treat specific information as confidential, and for that purpose section 4D of the ICASA Act applies with the changes required by the context |
|
[16 November 2014]
A report by the National Micro Organisation of State Project (NMOS) on November 11, 2014, revealed significant hurdles in splitting the communications portfolio.
The report details attempts by the Telecommunications and Postal Services and Communications Ministers, facilitated by the Presidency, to divide legislative functions under the Electronic Communications Act. These efforts have stalled, with Telecommunications and Postal Services reportedly reluctant to relinquish control over certain sections. The Presidency may need to intervene again via a new proclamation to clarify responsibilities, but integrating broadcasting policy (under the ECA) with telecommunications policy (under the ICASA Act) remains unclear.
Compounding the issue, the Treasury hasn’t allocated funds for the new Department of Communications, forcing desperate budget reallocation for basic needs like vehicles.
The confusion and delays raise doubts about the project’s overall benefit. The Communications Minister’s announced review of broadcasting policy, despite ongoing ICT policy review efforts, further highlights potential conflicts. Denials of a “turf war” seem unconvincing.
[10 November 2014]
There’s been some movement, finally. After nearly half a year, we’ve successfully established separate online presences for the Department of Telecommunications and Postal Services (now at www.dtps.gov.za) and the Department of Communications (now at www.doc.gov.za).
The Department of Communications officially took control of the doc.gov.za domain on November 7th, 2014.
[23 August 2014]
Presentation by the Department of Public Service and Administration (DPSA)
A recent meeting of the communications committee revealed the creation of the National Micro Organisation of State Project (NMOS) in 2014. This program aims to assist new government departments established after the 2014 general election.
Department responsibilities clarified:
- The Department of Communications will manage the Government Communication and Information System (GCIS) and oversee entities like ICASA, SABC, Brand SA, MDDA, and FPB.
- The newly formed Department of Telecommunications and Postal Services will handle telecommunications and include entities like Broadband Infraco, South African Post Office, Telkom, NEMISA, SITA, USAASA, USAF, and Sentech.
Addressing potential conflicts:
The Department of Public Service and Administration (DPSA) acknowledged a 30-page document outlining potential overlaps between departments. NMOS is working to resolve these issues. An example is a planned Memorandum of Understanding between ICASA and the new departments to define their roles.
Key takeaways:
- The Broadband Infraco board agreed to transfer to the Department of Telecommunications and Postal Services.
- The State Law Advisor questioned ICASA’s position.
- Even committee members were unclear about the reasons behind the government’s departmental restructuring.
Future considerations:
- The committee chairperson expressed a desire to move ICASA away from its Chapter 9 Institution status, but further guidance is needed.
[18 July 2014]
The July 15th, 2014 proclamation clarifies some things, but creates new questions. The South African Constitution allows the President to redistribute administrative duties among cabinet members. A proclamation issued on July 15th, 2014, did just that for several key areas:
- The Department of Telecommunications and Postal Services (DTPS) will now oversee the Electronic Communications Act.
- The Department of Communications (DoC) will handle the Independent Communications Authority of South Africa Act (ICASA Act).
- The DoC also gains responsibility for the Film and Publications Act (and the Film and Publications Board). This moves these areas from the Department of Home Affairs.
- The Department of Public Service and Administration hands over control of the State Information Technology Agency Act (and the State Information Technology Agency) to the DTPS.
The table below highlights the most significant changes. (For a complete list, see the link provided earlier.)
| Legislation | Previous Cabinet Member | New Cabinet Member |
| Electronic Communications Act 36 of 2005 | Minister of Communications | Minister of Telecommunications and Postal Services |
| ICASA Act 13 of 2000 | Minister of Communications | Minister of Communications |
| Electronic Communications and Transactions Act 25 of 2002 | Minister of Communications | Minister of Telecommunications and Postal Services |
| Film and Publications Act 65 of 1996 | Minister of Home Affairs | Minister of Communications |
| Broadcasting Act 4 of 1999 | Minister of Communications | Minister of Communications |
| Sentech Act 63 of 1996 | Minister of Communications | Minister of Telecommunications and Postal Services |
| Postal Services Act 124 of 1998 | Minister of Communications | Minister of Telecommunications and Postal Services |
| Media Development and Diversity Agency Act 24 of 2002 | Minister in the Presidency responsible for Performance Monitoring and Evaluation | Minister of Communications |
| State Information Technology Agency Act 88 of 1998 | Minister for the Public Service and Administration | Minister of Telecommunications and Postal Services |
The government has announced changes to how it oversees communications. The Government Communication and Information System (GCIS) will now be under the control of the Minister of Communications, instead of the Minister in the Presidency responsible for Performance Monitoring and Evaluation.
Additionally, responsibility for Broadband Infraco SOC Ltd is being transferred from the Minister of Public Enterprises to the Minister of Telecommunications and Postal Services. This seems like a logical move.
However, there is still uncertainty about the future of the Independent Communications Authority of South Africa (ICASA). This lack of clarity is concerning.
[8 July 2014]
Reports emerged that on July 3, 2014, the President signed a proclamation. This proclamation essentially stated that the new Department of Communications was a revamped version of the Government Communications and Information Service (GCIS). It also made provisions for the creation of a separate Department of Telecommunications and Postal Services.
Proclamation New Government Departments 3 July 2014
[4 July 2014]
On July 1, 2014, during a presentation on its strategic and annual plans to a joint meeting of the Portfolio Committees for the Department of Communications (DoC) and the Department of Telecommunications and Postal Services (DoTPS), the DoC had noted the following under the heading “Reconfiguration of the Department.”
It must be acknowledged that the Department is in a process of transformation following the President’s announcement of the establishment of the Department of Telecommunications and Postal Services (DTPS).
Engagement in this regard, which are being led by the Presidency, are currently underway towards the signing of the Presidential Proclamation. Following the signing of the Proclamation, the DTPS will amend the Strategic Plan and APP accordingly to reflect such changes which would also deal with emerging priorities including e-Government.
The revised Strategic Plan and APP will then be tabled in Parliament and shared with the Portfolio Committee.
[27 June 2014]
On 24 June 2014 a statement was issued from the Presidencywhich singularly fails to dispel the confusion:
On the 25th of May 2014, President Jacob Zuma announced a new National Executive, which included a reconfiguration of certain government departments.The affected departments have been directed to study the legal and administrative implications of the policy announcements made by the President, as per procedure.The process will culminate in a proclamation that will, amongst others, establish the new departments, transfer the administration of certain legislation from one Minister to another or transfer certain functions, agencies or institutions from one Department to another.Once this process is concluded, the President will make the final pronouncement on the new government system.
[17 June 2014]
TechCentral reports a change of plans: the Independent Communications Authority of South Africa (ICASA) will answer to the newly formed Department of Telecommunications and Postal Services.
“Government has backtracked on plans to have communications regulator Icasa report to the newly created department of communications, which also houses the SABC, Brand South Africa and other entities, a highly placed source with knowledge of the development has told TechCentral.
Instead, Icasa will report to the department of telecommunications and postal services, for which former state security minister Siyabonga Cwele is the minister. It’s a move that’s likely to be widely welcomed in the telecoms industry. Analysts had expressed concern that Icasa, one of whose principal tasks is regulating the telecoms sector, had been shifted to another department.
Cwele’s spokesman, Siya Qoza, tells TechCentral: “The government is working on finalising the proclamation that will clarify the roles of all the entities that are affected by the reconfiguration of departments. We’ll communicate additional details at an appropriate moment.”
[1 June 2014]
In a May 25th statement outlining new Cabinet positions, the President, Jacob Zuma, created both a Ministry of Telecommunications and Postal Services and a separate Minister of Communications. This has raised some questions (to put it mildly) about how these two roles will function together.
The relevant excerpt from the President’s speech:
“We have established a Ministry of Telecommunications and Postal Services.
Our country has a fast growing telecommunications sector which in 2012 was estimated at being worth R180 billion. We also see a great developmental value in the Post Office given its role of delivering financial services to remote areas of our country.
This new department will ensure that the country derives more value out of the booming information communications and technology industry and the postal services sector.
…
We have established a new Communications Ministry, which will be responsible for overarching communication policy and strategy, information dissemination and publicity as well as the branding of the country abroad.
Improved communication and marketing will promote an informed citizenry and also assist the country to promote investments, economic growth and job creation.
This Ministry will be formed out of the following components;
• The Independent Communications Authority of South Africa
• The SA Broadcasting Corporation
• Government Communications and Information System (GCIS)
• Brand SA and
• The Media Development and Diversity Agency
Analysts generally believe that most functions previously handled by the Department of Communications (DoC) will now be handled by the Department of Telecommunications and Postal Services. This is supported by the inaugural speech of the new Minister of Telecommunications and Postal Services, which suggests that the department will assume the programs of the former DoC.
“For South Africa to maximise the benefits of broadband we need to develop the skills that will drive the roll-out of infrastructure and the development of relevant content for social, business and government use. To make sure that no-one is left out of this information society we need to eradicate illiteracy and make sure that broadband forms an integral part of service delivery by government. The department has been working with industry on a capacity development programme in schools and communities at large and we encourage further support from industry in this regard.”
“The Department launched the World Telecommunication and Information Society Day celebrations on 16 May, through a media briefing session. Our intention was to ensure that we do not only celebrate on a single day but we create public awareness around broadband.”
“As we proceed to implement SA Connect, the continued participation of industry is essential. Ongoing investment by the private sector in broadband infrastructure and continual modernisation and enhancement of efficiencies are required. In order to reduce cost and optimise resources, we wish to encourage infrastructure sharing amongst operators. The attainment of vision 2030 can only occur if we all work together.
I also wish to express my interest in engaging industry in a formal manner on a regular basis and I have instructed my department to facilitate this process.”
The biggest worry is the unclear relationship between ICASA under the new DoC. Implementing this structure might require significant changes to the Electronic Communications Act and the ICASA Act.
There’s a possibility that this is a step towards separating “broadcasting” from other areas ICASA regulates, like “telecommunications services” and “postal services.” This separation could aim to isolate the part of ICASA’s responsibility that’s unquestionably protected by the Constitution (Chapter 9).
Media:
Independence will fall victim to communications ministry
Yes, we have a failure of communications
“South Africa now will not make its commitment to meet the mid-2015 deadline to switch off analogue television. It will not allocate the spectrum needed to improve our poor broadband penetration. And a long overdue overhaul of legislation governing the sector will almost certainly be significantly delayed.
In short, we have a big problem.”
Fears of propaganda, fragmentation emerge as Communications Department divided
Siyabonga Cwele the new minister of Telecommunications and Postal Services
Who is Faith Muthambi, our new Minister of Communications?
Question marks over the JZ shuffle
“The splitting of the former communications ministry in two has caused almost as much confusion as there is horror over the disposal of its minister, Yunus Carrim, who is said to have done more for the sector in his nine months at the helm than has been achieved by any other minister in the past decade.
Stepping in to preside over the newly formed ministry of telecommunications and postal services is Siyabonga Cwele who, thanks to splashy headlines, is perhaps better known for his drug-trafficking former wife, Sheryl Cwele, than his role as state security minister and former minister of intelligence. He is known as one of the men behind the contentious Protection of State Information Bill, aka the secrecy Bill.
A major cause for concern is that the new telecommunications and postal services ministry will not include the Independent Communications Authority, which plays a key role in the telecommunications sector.
Instead, the regulator will be housed in the new communications ministry, which appears to have been set up to deal largely with government public relations and information. The split has also left stakeholders unsure of where ministry bodies set up under Carrim (such as the Broadband Advisory Council and the Cyber Security Advisory Council) will report to.
Cwele hasn’t dazzled onlookers with his performance in former roles and the telecommunications industry requires strong leadership at this crucial point in time.
Critical issues that will require his attention include finalising LTE (or 4G) and spectrum allocation policy, as well as progressing digital migration by settling a long-running argument about whether television set top boxes should be access controlled. The sector may face further delays as the new minister, with no expertise in the industry, gets to grips with the issues.”