(English
text signed by the President.)
(Assented
to 1 May 2000.)
ACT
To provide for the establishment of the Independent Communications Authority of South Africa; to provide for the dissolution of the Independent Broadcasting Authority and the South African Telecommunications Regulatory Authority; to transfer the functions of the latter authorities to the Independent Communications Authority of South Africa; to amend the Independent Broadcasting Authority Act, 1993, the Telecommunications Act, 1996, and the Broadcasting Act, 1999; and to provide for matters connected therewith.
PREAMBLE
Recognising that technological and other developments in the fields
of
broadcasting and telecommunications are causing a rapid convergence of
these fields;
Acknowledging that the establishment of an independent body to
regulate broadcasting and telecommunications is required.
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-
CONTENTS OF ACT
INTRODUCTORY PROVISIONS
1. Definitions
2. Object of Act
CHAPTER II
INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA
3. Establishment of Independent
Communications Authority of South Africa
4. Functions of Authority
5. Constitution of and
appointment of councillors to Council
6. Disqualification
7. Terms of office
8. Removal from office
9. Vacancies
10. Remuneration
11. Meetings of Council
12. Conflicting interests
13. Validity of proceedings
14. Staff
15. Financing of and
accounting by Authority
16. Annual report
CHAPTER III
COMMITTEES
17. Standing and special committees
CHAPTER IV
TRANSITIONAL PROVISIONS
18. Dissolution of IBA and SATRA
and first meeting of Council
19. Transfer of staff
20. Passing of assets and
liabilities to Authority
21. Pending matters
22. Savings
GENERAL
23. Repeal and amendment of laws
24. Application of Act
25. Short title and commencement
Schedule 1
Schedule 2
Determination by lot for purposes of section 7(2)(b)
CHAPTER 1
INTRODUCTORY PROVISIONS
1. In this Act, unless the context indicates otherwise, any word or expression defined in the Broadcasting Act, the IBA Act or the Telecommunications Act has the meaning assigned to it in the Act in question and:
(i) "Authority" means the Independent Communications Authority of South Africa established by section 3;
(ii) "Broadcasting Act" means the Broadcasting Act, 1999 (Act No. 4 of 1999);
(iii) "Council" means the Council referred to in section 5;
(iv) "establishment date" means the date determined as such by the Minister by notice in the Gazette;
(v) "family member", in relation to any person, means his or her parent, child or spouse, and includes a person living with that person as if they were married to each other;
(vi) "former authorities" means the IBA, SATRA or both, as the case may be;
(vii) "IBA" means the Independent Broadcasting Authority established by section 3 of the IBA Act;
(viii) "IBA Act" means the Independent Broadcasting Act, 1993 (Act No. 153 of 1993);
(ix) "Minister" means the Minister of Communications;
(x) "National Revenue Fund" means the Fund referred to in section 213 of the Constitution;
(xi) "prescribe" means prescribe by regulation;
(xii) "President" means the President of the Republic;
(xiii) "SATRA" means the South African Telecommunications Regulatory Authority established by section 5 of the Telecommunications Act;
(xiv) "Telecommunications Act" means the Telecommunications Act, 1996 (Act No. 103 of 1996);
(xv) "This Act" includes any regulation made under the underlying statutes;
(xvi) "underlying statutes" means the Broadcasting Act, the IBA Act and Telecommunications Act.
2. The object of this Act is to establish an independent Authority which is to—
(a) regulate broadcasting in the public interest and to ensure fairness and a diversity of views broadly representing South African society, as required by section 192 of the Constitution;
(b) regulate telecommunications in the public interest; and
(c) achieve the obiects contemplated in the underlying statutes.
CHAPTER II
INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA
Establishment of Independent Communications Authority of South Africa
3. (1) There is hereby established a juristic person to be known as
the Independent Communications Authority of South Africa.
(2) The Authority acts through the Council
contemplated in section 5.
(3) The Authority is independent, and subject
only to the Constitution and the law, and must be impartial and must
perform its functions without fear, favour or prejudice.
(4) The Authority must function without any
political or commercial interference.
4.(1) The Authority—
(a) must perform the duties imposed upon the former authorities by or under the underlying statutes;
(b) may exercise the powers conferred upon the former authorities by or under the underlying statutes;
(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).
Constitution of and appointment of councillors to Council
5. (1) The Council consists of seven councillors appointed by the President on the recommendation of the National Assembly according to the following principles, namely—
(a) participation by the public in the nomination process;
(b) transparency and openness; and
(c) the publication of a shortlist of candidates for appointment, with due regard to subsection (3) and section 6.
(2)
(a) The President must appoint one of the councillors as chairperson of the Council.
(b) In the absence of the chairperson, the remaining councillors must from their number elect an acting chairperson, who, while he or she so acts, may perform all the functions of the chairperson.
(3) Persons appointed to the Council must be persons who—
(a) are committed to fairness, freedom of expression, openness and accountability on the part of those entrusted with the governance of a public service; and
(b) when viewed collectively—(i) are representative of a broad cross section of the population of the Republic; and
(ii) possess suitable qualifications, expertise and experience in the fields of, amongst others, broadcasting and telecommunications policy, engineering, technology, frequency band planning, law, marketing, journalism, entertainment, education, economics, business practice and finance or any other related expertise or qualifications.
(4) A councillor appointed under this section must, before he or she begins to perform his or her functions, take an oath or affirm that he or she—
(a) is committed to fairness, freedom of expression, openness and accountability; and
(b) will uphold and protect the Constitution and the laws of the Republic, including this Act and the underlying statutes.
6. (1) A person may not be appointed as a councillor if he or she—
(a) is not a citizen of the Republic;
(b) is not permanently resident in the Republic;
(c) is a public servant or the holder of any other remunerated position under the State;
(d) is a member of Parliament, any provincial legislature or any municipal council;
(e) is an office-bearer or employee of any party, movement or organisation of a party-political nature:
(f) or his or her family member has a direct or indirect financial interest in the telecommunications or broadcasting industry;
(g) or his or her business partner or associate holds an office in or with, or is employed by, any person or body, whether corporate or unincorporated, which has an interest contemplated in paragraph (f);
(h) is an unrehabilitated insolvent;
(i) has been declared by a court to be mentally ill or disordered;
(j) has at any time been convicted, whether in the Republic of elsewhere, of—
(i) theft, fraud, forgery or uttering a forged document, perjury, an offence in terms of the Corruption Act, 1992 (Act No. 94 of 1992), or any other offence involving dishonesty; or
(j) an offence under this Act or the underlying statutes;
(k) has been sentenced, after the commencement of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), to a period of imprisonment of not less than one year without the option of a fine; or
(l) has at any time been removed from an office of trust on account of misconduct.
(2) A person who is subject to a disqualification contemplated in subsection (1) (b) to (i) may be nominated for appointment as a councillor, but may only be appointed if at the time of such appointment he or she is no longer subject to that disqualification.
7. (1) The chairperson holds office for a period of five years as
from the date of his or her appointment.
(2)
(a) Subject to paragraph (b), the other councillors hold office tor a period of four years as from the date of their appointment.
(b) Such three of the other councillors appointed to the first Council constituted after this Act takes effect as are determined by lot in accordance with Schedule 2, must vacate their offices upon expiration of a period of two years as from the date of their appointment.
(3) A councillor may at any time, upon at least three months'
written notice tendered to the President,
resign from office.
(4) Despite subsections (1) and (2), the councillors remain in office
after expiry of their term of office until the commencement of the term
of office of their successors, but the extended term of office may not
exceed 45 days.
(5) A councillor may at the end of his or her term of office be
reappointed in terms of section
5 for one additional term.
(6) Every councillor serves in a full-time capacity to the exclusion of
any other remunerative employment, occupation or office which is likely
to—
(a) interfere with the exercise by any such councillor of his or her functions in terms of this Act or the underlying statutes; or
(b) create a conflict of interests between such employment, occupation or office and his or her office as councillor.
8. (1) Subject to subsection (2), a councillor may be removed from office on account of—
(a) misconduct;
(b) inability to perform the duties of his or her office efficiently;
(c) absence from three consecutive meetings of the Council without the permission of the Council, except on good cause shown;
(d) a contravention of section 7(6);
(e) failure to disclose an interest in terms of section 12(2)(a) or voting or attendance at, or participation in, proceedings of the Council while having an interest contemplated in section 12(1); or
(f) his or her becoming disqualified as contemplated in section 6(1).
(2) A councillor may be removed from office only on—
(a) a finding to that effect by the National Assembly; and
(b) the adoption by the National Assembly of a resolution calling for that councillor's removal from office.
(3) The President—
(a) may suspend a councillor from office at any time after the start of the proceedings of the National Assembly for the removal of that councillor;
(b) must remove a councillor from office upon adoption by the National Assembly of the resolution calling, for that councillor's removal.
9. (1) A vacancy in the Council occurs if a councillor—
(a) becomes subject to a disqualification referred to in section 6;
(b) tenders his or her resignation as contemplated in section 7(3) and the resignation takes effect;
(c) is removed from office in terms of section 8;
(d) dies; or
(e) becomes permanently incapable of doing his or her work.
(2)
(a) Where a vacancy has arisen as contemplated in subsection (1), the procedure contemplated in section 5 applies.
(b) Any councillor appointed under this subsection holds office for the rest of the period of the predecessor's term of office, unless the National Assembly directs that such councillor holds office for a longer period which may not exceed four years.
10. The chairperson and other councillors must be paid such remuneration and allowances and be entitled to such benefits as the Minister may determine with the concurrence of the Minister of Finance, subject to any applicable national legislation envisaged by section 219(5) of the Constitution.
11. (1)
(a) Meetings of the Council must be held at such times and places as the Council may determine.
(b) However, the first meeting must be held at such time and place as the chairperson determines.
(2)
(a) The chairperson may at any time convene a special meeting of the Council, which must be held at such time and place as the chairperson determines.
(b) If at toast two councillors request a special meeting in writing, the chairperson must convene such a meeting within seven days after receiving the request.
(c) If the chairperson fails to convene a special meeting within seven days after receiving the request, the councillors concerned may convene a special meeting.
(3) The quorum for any meeting of the Council
is a majority of the councillors in office at the time.
(4)
(a) Subject to subsection (3), a decision of the Council is taken by resolution agreed to by the majority of councillors at any meeting of the Council.
(b) In the event of an equality of votes regarding any matter the chairperson has a casting vote in addition to his or her deliberative vote.
12. (1) A councillor may not vote at, attend or in any other manner participate in, any meeting or hearing of the Council, nor be present at the place where the meeting is held, if—
(a) in relation to an application relating to a licence, he or she or his or her family member is a director, member or business partner or associate of or has an interest in the business of the applicant or of any person who made representations in relation to the application; or
(b) in relation to any matter before the Council, he or she has any interest which may preclude him or her from performing his or her functions as a councillor in a fair, unbiased and proper manner.
(2)
(a) If, during the course of any proceedings before the Council, there is reason to believe that a councillor has any interest contemplated in subsection (1), that councillor must immediately fully disclose the nature of his or her interest and leave the meeting or hearing in question so as to enable the remaining councillors to discuss the matter and determine whether or not that councillor should be allowed to participate in the proceedings.
(b) The disclosure, and the decision taken by the remaining councillors, must be recorded in the minutes of the proceedings in question.
(3) If any councillor fails to disclose any interest as required by
subsection (2) or, subject to that subsection, if he or she is present
at the place where a meeting of the Council is
held or in any manner participates in the proceedings of the Council, the relevant proceedings of the Council shall be null and void.
(4) A councillor is guilty of an offence and liable on conviction to a
fine not exceeding R250 000 or to imprisonment for a period not
exceeding five years, or to both such fine and imprisonment, if he or
she—
(a) contravenes subsection (1); or
(b) fails to disclose any interest or fails to leave the meeting or hearing as required by subsection (2).
13. Subject to section 12, a decision taken by the Council or an act performed under that decision is not invalid merely by reason of—
(a) any irregularity in the appointment of a councillor;
(b) a vacancy in the Council; or
(c) the fact that any person not entitled to sit as a councillor sat as such at the time when the decision was taken provided such decision was taken by a majority of the councillors present at the time and entitled so to sit, and those councillors at the time constituted a quorum.
14. (1) The Council must establish its own administration to assist the Authority in the performance of its functions and to this end the Council must appoint—
(a) a suitably qualified and experienced person as chief executive officer of the Council for the purpose of assisting the Authority, subject to the Council's direction and control, in the performance of all financial, administrative and clerical functions and work arising from the administration of this Act; and
(b) such other staff as the Council may deem necessary to assist the Authority with all such work as may arise through the performance of its functions.
(2) The Council must, in the appointment of its staff—
(a) provide for the advancement of persons disadvantaged by unfair discrimination, with the aim that its staff, when viewed collectively represents a broad cross-section of the population of the Republic;
(b) subject to paragraph (a), apply equal opportunity employment practices.
(3) The Authority may pay to the persons in its employ such remuneration and allowances and provide them with such pension and other employment benefits as are consistent with that paid in the public sector.
Financing of and accounting by Authority
15. (1) The Authority is financed from
money appropriated by Parliament.
(2) The chief executive officer contemplated in section
14(1)(a) is, in
accordance with section 36 of the Public Finance Management Act, 1999
(Act No. 1 of 1999), the accounting officer of the Authority
and charged with the responsibilities referred to in that Act which
include, amongst others, responsibilities regarding auditing, financial
control, budgetary control and reporting,
(3) All revenue received by the Authority in
a manner other than in accordance with subsection (1) must be paid into
the National Revenue Fund within
30 days after receipt of such revenue.
(4) Cheques drawn by the Authority must be
regarded to have been duly issued and signed on its behalf if issued
under the joint signatures of the accounting officer and another member
of the staff of the Authority designated by
the Council.
16. (1) The Council must—
(a) 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;
(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.
(3) The Minister must table a copy of the annual report in Parliament within 30 days after it has been received by him or her if Parliament is then sitting and, if Parliament is not in sitting, within 14 days after the next ensuing sitting of Parliament,
CHAPTER III
COMMITTEES
Standing and special committees
17. (1) The Council may establish standing
committees or special committees for such purposes as the Council may deem necessary with a view to
assisting it in the effective exercise and performance of its powers
and duties.
(2) Each committee established in terms of this section must consist
of—
(a) one or more councillors designated by the Council; and
(b) such additional members as the Council may determine.
(3) The additional members referred to in subsection (2)(b) must be persons who—
(a) are not subject to any disqualification contemplated in section 6(1)(d) to (i); and
(b) on account of their expertise, qualifications and experience are suited to serve on the relevant committee.
(4) The Council must appoint the chairperson
of each committee from the councillors designated in terms of
subsection (2)(a).
(5) A committee must perform such functions as may be delegated or
assigned to it.
(6) The meetings of a committee (including any special meetings) must
be convened by the chairperson, who determines the procedure at the
meeting.
(7) Section 11 is applicable, with
the necessary changes, as regards
the meetings of any committee.
(8) The members of any committee, including the Broadcasting Monitoring
and Complaints Committee referred to in section 21 of the IBA Act, who are not councillors or members of the
staff of the Authority must be paid such
remuneration and allowances as the Council
determines.
[Subsection
17(8) substituted by section 30 of Act 64 of 2002]
(9) For purposes of subsection (8), the Council may differentiate between different committees and different members thereof.
CHAPTER IV
TRANSITIONAL PROVISIONS
Dissolution of IBA and SATRA, and first meeting of Council
18. (1) The IBA and SATRA
are hereby dissolved with effect from the establishment
date.
(2)
(a) The councillors of the Council referred to in section 3 (2) of the IBA Act and the councillors of the Council referred to in section 6 of the Telecommunications Act remain in office until immediately before the commencement of the first meeting of the Council.
(b) if any councillor contemplated in paragraph (a) is not appointed in terms of section 5, the termination of that person's tenure of office must be dealt with in accordance with any terms and conditions relating to such termination in the agreement governing his or her appointment as councillor
(c) If the agreement does not contain any such terms and conditions, that person's position must be considered by the Minister in concurrence with the Minister of Finance in the light of all relevant circumstances, including—(i) the legitimate expectations of the councillor;
(ii) any financial constraints on expenditure by the Authority;
(iii) the prospect of further employment of that person.(d) If the councillor is not satisfied with any offer made by the Minister, the matter must be referred to arbitration in terms of the Arbitration Act, 1965 {Act No. 42 of 1965).
(3) The first meeting of the first Council constituted in terms of section 5 must be held within three months of the establishment date.
19. (1)
(a) Every person appointed under section 14 of the IBA Act, and every person appointed under or transferred in terms of section 17 of the Telecommunications Act, who is in the service of the IBA and SATRA immediately before the establishment date, is, as from that date, hereby transferred to the service of the Authority.
(b) Every person so transferred must be regarded as having been appointed in terms of section 14.
(2) The remuneration and other terms and conditions of service of any person transferred as contemplated in subsection (1) may not be less favourable than the remuneration, terms and conditions applicable to that person immediately before the establishment date and he or she remains entitled to ali rights, benefits and privileges to which he or she was entitled immediately before that date, including, where applicable—
(a) membership of a pension fund;
(b) membership of a medical aid scheme;
(c) employer contributions in connection with the memberships contemplated in paragraphs (a) and (b);
(d) accrued pensionable service;
(e) accrued leave benefits; and
(f) retirement at a specific age.
(3) Any person transferred to the service of the Authority as contemplated in subsection (1), who
immediately before such transfer was a member of a pension fund of any
former Authority, remains a member of that
pension fund upon such transfer despite any provision to the contrary
in any law or in the rules of that pension fund and the Authority must contribute to the pension fund in
respect of that person to the same extent as an employer is required in
terms of the laws and rules regulating that pension fund to contribute
in respect of an employee who is a member of that fund.
(4) For purposes of the Income Tax Act, 1962 (Act No. 58 of 1962), no
change of employer must be regarded as having taken place when a person
is transferred to the service of the Authority
as contemplated in subsection (1) and the position of those persons in
respect of the phasing-in of tax levied on benefits or advantages
derived by reason of employment or the holding of any office as
contemplated in Schedule 7 to the Income Tax Act, 1962, must be
regarded as remaining unchanged.
Passing of assets and liabilities to Authority
20. (1) All assets, rights, liabilities and obligations which,
immediately before the establishment date,
vest in the former authorities pass
to the Authority on that date.
(2) The registrar of deeds must make the necessary entries or
endorsements for the transfer of any property in terms of subsection
(1), and no transfer fee, office fee or other charge is payable in
respect of that entry or endorsement.
(3) All licences issued, rights granted and undertakings given by the former authorities by or under the underlying statutes must be regarded
to have been issued, granted or given by the Authority.
21. (1) Any application, proceedings or similar matter pending
before the former authorities at the
establishment date must be dealt with
by the Authority under the relevant
underlying statute.
(2) Any order, ruling or direction made or given by the former authorities immediately before
the establishment date must be
regarded as having been made or given by the Authority.
22. (1) Anything done before the commencement of this
Act under or in terms of a provision repealed or amended by this Act must be regarded, unless clearly
inappropriate, to have been done under or in terms of the corresponding
provision of this Act.
(2) Any reference to any of the former
authorities in any law must be regarded, unless clearly
inappropriate, to be a reference to the Authority.
(3) The Authority is the legal successor of
the former authorities.
GENERAL
23. The laws specified in the second column of Schedule 1 are hereby repealed or amended to the extent indicated in the third column thereof.
24. In the event of any conflict between the provisions of this Act and any other prior law relating to the regulation of broadcasting and telecommunications, the provisions of this Act prevail.
25. This Act is called the Independent Communications Authority of South Africa Act, 2000, and comes into operation on a date fixed by the President by proclamation in the Gazette, except section 18(2) which must be regarded as having come into operation on 30 March 2000.
LAWS AMENDED OR REPEALED
| No. and year of law | Short title | Extent of amendment or repeal |
| Act No. 153 of 1993 | Independent Broadcasting Act, 1993 |
1. The amendment of section 1 by the substitution for the definitions of "Authority", "chairperson", "Council" and "councillor" of the following definitions, respectively:
2. The amendment of section 2 by the insertion of the following paragraph after paragraph (g):
3. The repeal of section 3. |
| Act No. 103 of 1996 | Telecommunications Act, 1996 |
1. The amendment of section 1—
2. The amendment of section 5 by the deletion of subsections
(1),
(2) and (3). |
| Act No. 4 of 1999 | Broadcasting Act, 1999 |
1. The amendment of section 1 by the substitution for the definition of "Authority" of the following definition:
|
DETERMINATION BY LOT FOR PURPOSES OF SECTION 7(2)(b)