Telecommunications regulator the Independent Communications Authority of South Africa (ICASA) has instructed its lawyers to make an urgent application against the Department of Communications (DOC) over failure to release its funding.
The regulator held a media briefing this afternoon where acting chairperson Keabetswe Modimoeng said the authority's council notes with serious concern that the authority's first tranche payment has been unlawfully withheld by the DOC even though National Treasury has already released the budget allocation for the 2019/20 financial year as approved by Parliament.
ICASA's press briefing came after City Press on Sunday reported that a war had broken out between the regulator and communications minister Stella Ndabeni-Abrahams, who is being accused of meddling in the independent authority's work and withholding its funding by refusing to approve its annual perfomance plan (APP).
City Press says it obtained a copy of an explosive letter ICASA sent to the minister on Friday, threatening court action if her department did not pay the first of four tranches of its R450 million annual budget.
"The Independent Communications Authority of South Africa is established pursuant to the provisions of section 192 of the Constitution. In terms of section 181 (4) of the Constitution, no person or organ of state may interfere with Chapter 9 institutions, including ICASA," said Modimoeng.
He added that in terms of section 3 (3) of the ICASA Act, the authority is independent and subject only to the Constitution and the law, and must be impartial and must perform its function without fear, favour or prejudice.
Further, he noted, subsection 4 requires the authority to function without any political interference.
Section 15 (1) of the ICASA Act states that the authority is financed by money appropriated by Parliament.
"Tranches are transferred within the first month of each quarter; to date the authority has not received its allocation. The authority is of the view that the DOC is not empowered in law to withhold quarterly tranches to ICASA."
According to Modimoeng, the effect of withholding the payment to ICASA has dire consequences to the extent that the authority is unable to perform its mandate of regulating the sector in the public interest.
Further, he said, the authority is not in a position to meet its day-to-day operational costs, which is tantamount to an effective total shut down of the regulator.
He added that section 15A of the ICASA Act provides that "the 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 that describes the proposed activities of ICASA with indicative timeframes for the coming year".
"The authority would like to put it on record that the provisions of section 15A have already been satisfied in that council approved the annual performance plan. Therefore, it is not within the minister's powers to approve the APP," said Modimoeng.
"The authority advises that it has not received any undertaking from the Department of Communications on the release of ICASA's first tranche of the annual allocation of funds. The authority has accordingly instructed its attorneys to file an urgent application to compel the Department of Communications to release the funds on an expedited basis."
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