Lisa Thornton Consulting

On December 2 2014, the President published a proclamation re-assigning the administration of powers and functions of the ICASA Act and EC Act to the now separate Ministry of Communications and Ministry of Telecommunications and Postal Services.

This new attempt to unscramble the egg is a far better attempt than the original notice.  However, difficulties remain. 

ICASA Act

The MoC has the authority in terms of section 14A of the ICASA Act to approve the appointment of experts by ICASA (in certain circumstances).  There was no attempt to separate out the matters concerning matters of telecommunications, postal services and electronic transactions.

Section 15(1A) of the ICASA Act regarding ICASA's funding is now assigned to both the MoC and MoTaPS.  ICASA not only has to go through one ministry to get its funding, it now must go through two.  One can imagine that this might be good for ICASA, allowing ICASA more than one avenue to get adequately funded - or it might be disastrous, resulting in a system bogged down by lack of clarity, resulting in ICASA being completely unfunded or greatly underfunded.

EC Act

There is an attempt to separate out the provisions in the EC Act concerning broadcasting.  However, the separation is not complete, leaving some of the issues to the MoTaPS.

For example, section 4(5) regarding the making of regulations is now given to the MoC in respect of the Broadcasting Act and ICASA Act and MoTaPS in respect of the EC Act.  However, as we know, the EC Act concerns a lot of broadcasting issues.  A similar arises in respect of the reassignment of section 5(6) regarding policy directions in respect of iECNS licences.  A more nuanced re-assignment will be necessary.

In recognition that the EC Act concerns broadcasting issues, the administration of Chapter 9 of the EC Act regarding is now assigned to the MoC.  However, there are significant other provisions in the EC Act that concern broadcasting, for example the licensing provisions as well as those relating to rights of way and spectrum.  Again, a more nuanced re-assignment is necessary.

In conclusion, while this new proclamation is certainly a more nuanced assignment of legislative provisions, the inherent difficulty of giving responsibility over a converged ICT industry to two separate Ministers, remains.