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Muthambi 'acted illegally'

Bonnie Tubbs
By Bonnie Tubbs, ITWeb telecoms editor.
Johannesburg, 15 Oct 2014
DOC minister Faith Muthambi's letter urging councillors to leave prematurely goes against the law, say experts.
DOC minister Faith Muthambi's letter urging councillors to leave prematurely goes against the law, say experts.

Government communications minister Faith Muthambi has acted unlawfully in "dismissing" four of the Independent Communications Authority of SA's (ICASA's) outgoing councillors - a move that throws another spanner in the works for crucial ICT projects that have already been delayed.

Yesterday it came to light, via an insider who did not wish to be named, that Muthambi had issued letters to Joseph Lebooa, William Currie, William Stucke and Miki Ndhlovu, instructing them to leave at the end of the month in which their terms expire. This is despite the ICASA Act clearly stating there is an obligatory 45-day extension term, unless a councillor's successor is already in place.

With the Department of Communications yet to respond to ITWeb's request for clarification and comment, it is unclear at this stage why Muthambi issued the letters - particularly considering the parliamentary process of appointing replacements is still up in the air.

Industry experts suggest this could be a case of the relatively new minister having misunderstood the Act - or that there could be an ulterior agenda at play.

Illegal letter

In the letter, according to the insider, the minister expresses her "sincere gratitude" for the four councillors' years of service at ICASA. She goes on to quote section 7(4) of the Act, as amended, about the 45 day extension: "...pending the finalisation of the selection/appointment process for their successors" and adds that, because the councillor's contract has ended, "I wish to inform you that the above section will not apply".

She then says the councillors are "free to vacate [their] office" by the last working day of either October or November - depending on when their term expires - and that they will be paid until the end of the applicable month. No reasons were given.

Democratic Alliance shadow minister of telecoms and postal services Marian Shinn says Muthambi "may well have misinterpreted section 7(4) and be open to legal challenge should any of the four choose to go that route".

Electronic communications law consultant Justine Limpitlaw says, whatever the reason for Muthambi's letter may be, there is no doubt that she acted illegally. "There is no one who can tell [the councillors] to leave. This is neither a ministerial nor an ICASA council decision. The ICASA Act makes it very clear that councillors are obligated to stay on for a maximum of 45 days or until their replacement starts their term. There is no loophole."

Limpitlaw points out Muthambi is a new minister and she may have been incorrectly advised as to what her legal authority is. "The only party that can change the councillors' obligation to stay is Parliament itself. We only recently had amendments to this very section of the Act. She is plain and simply acting unlawfully."

It is unclear at this stage why DOC minister Faith Muthambi issued the letters.
It is unclear at this stage why DOC minister Faith Muthambi issued the letters.

She says, in her view, the councillors should ignore the letter, which is not legally sound, and carry on performing their work. "To operate with five instead of nine councillors - as the Act also requires - undermines ICASA's ability to act on its mandate."

Nail in the coffin

Independent telecoms researcher Samantha Perry says asking four out of nine councillors to leave before Parliament has instituted measures to replace them, is clearly a problem. "Especially in light of the issues they are working on, the extreme urgency of spectrum allocation and digital migration. The fact that the Department of Communications (DOC) stepped in is worrying to say the least and speaks to either the minister not understanding what ICASA is doing - or there is a larger agenda at play."

Dominic Cull, owner of Ellipsis Regulatory Solutions, says the ICASA Act is clear that councillors' terms are extended for 45 days. "And why wouldn't we want to honour that? For the minister to make a decision like this, with no handover [to the outgoing councillors' successors] is another nail in ICASA's coffin."

ICASA spokesperson Paseka Maleka says the regulator is not in a position to comment on the issue at the moment and suggests queries around it are fielded to the DOC.

Shinn says removing former communications minister Yunus Carrim from his post was a "cruel" move. "For a brief nine months, the sector was given a glimmer of hope that insight, integrity and urgency had at last been brought to the sector. This was shattered in May when the department was split and the turf war between the ministers and the departments introduced inertia and an opaque environment."

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