Two legal opinions presented to Parliament's communications committee state William Stucke's appointment as an Independent Communications Authority of SA (ICASA) councillor was illegal.
This is because he had not disposed of his business interests before taking up the position.
Stucke was one of two preferred candidates short-listed by the Parliamentary Portfolio Committee on Communications, in August 2009, to fill one vacancy at the telecommunications and broadcasting regulator. Communications minister Siphiwe Nyanda selected Stucke as his preferred choice, which Parliament then endorsed.
During the interview process, Stucke disclosed that he owned shares in a small Internet service provider called Qpop and indicated he would need six months to dispose of them. However, Stucke's appointment appeared in the Government Gazette, saying it was effective from 1 November 2009 and he assumed his role in the middle of that month.
In April, ICASA chairman Paris Mashile sent a letter to communications committee chairman Ismail Vadi stating that, while Stucke had not disposed of his interests, he could not take part in any licence hearings at the regulator.
The communications committee resolved to obtain two legal opinions - one from the parliamentary legal advisor and a second, independent opinion, from Michael Doonan, a senior council.
Both opinions state Stucke's appointment was without force or effect, because he was still subject to the disqualification when the minister appointed him. Doonan states the minister had to follow the ICASA Amendment Act and that Stucke, under the circumstances, was not required to take the prescribed oath to uphold the Constitution.
Doonan and the parliamentary legal advisor agree that Stucke had not himself breached the law, as he had disclosed his interests and stated he was in the process of disposing of them.
“What I want to know is what happens now when a person, through no fault of his own, is appointed to the position and the implications of any decisions that this person may be involved in,” asked Ismail Vadi, chairman of the communications committee.
Doonan said any decision made by Stucke would remain valid until an investigation by Parliament makes a finding. He also pointed out that it doesn't mean any blame can be apportioned to Stucke for taking up a position that he thought was valid.
Doonan's view is that the remedy for the situation would be for Parliament to conduct an investigation, as allowed for in the ICASA Amendment Act.
However, Vadi and some of the other MPs felt that, since the committee was part of the process of appointment, it should be taken to a court of law.
The committee concluded it would send a letter to Nyanda, with the legal opinions attached, for him to decide on further action.
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