The Free Market Foundation is in the process of commissioning senior counsel for a possible challenge to the department of telecommunications & postal services’ contentious Electronic Communications Amendment Bill.
The bill, which, if enacted, will introduce radical changes to the governance of South Africa’s ICT sector, has been widely criticised by industry stakeholders, including the Free Market Foundation, Vodacom, MTN, the GSM Association, Research ICT Africa and the Institute of Information Technology Professionals (IITPSA).
Speaking at an event on Tuesday, Free Market Foundation executive director Leon Louw again blasted the bill, saying it is vague and, if enacted, could be challenged on constitutional grounds. He said the foundation is considering taking the unusual step of filing court papers even before the law is enacted because of the damage he believes it could do the sector.
“In South African law, you can challenge a measure only once it’s become an act,” Louw said. “We want to argue maybe in this case that the implications of waiting are too serious.”
Though pending legislation has never been successfully interdicted — with the courts arguing that it doesn’t make sense as government could change its mind before draft legislation is gazetted — the foundation is so concerned about the amendment bill that it is considering seeking an interdict to stop government from passing the bill into law.
He said he expects a range of industry players to take the bill and/or the legislation on review unless substantive changes are made. He predicted that communications regulator Icasa could be one of those that takes the matter to the courts, even though it is an agency of government. Icasa has spoken out strongly against various aspects of the amendment bill.
“Certainly, some of the network operators, and others, will challenge it, so we might not need to,” Louw said.
Earlier this month, a spokesman for the telecoms ministry said the telecoms department — led by director-general Mabuse Nkuna — is actively redrafting the amendment bill, with the minister, Siyabonga Cwele, set to outline more details in a budget vote in parliament on 17 May.
Redrafting
Cwele’s spokesman, Siya Qoza, said that following a recent two-day workshop with industry stakeholders on the draft legislation, the department is “incorporating” feedback received into the bill, which will then be presented to cabinet before being submitted to parliament for further engagement with the industry.
Qoza did not say when the redrafted bill is likely to be presented to cabinet, or what changes are being made, but added that the plan is to table it in parliament during the current financial year, which ends on 31 March 2019.
Government has drawn heavy fire over the amendment bill, with Vodacom CEO Shameel Joosub describing it as the telecoms industry’s “mining charter” at the department’s workshop. Joosub was referring to the charter that has led to investor uncertainty and undermined investment in the mineral resources sector.
Vodacom and MTN — along with the Free Market Foundation, Research ICT Africa, the GSM Association and others — have skewered government’s plan to reserve the majority (if not all) so-called “high-demand” spectrum (used for mobile broadband) for a new wholesale open-access network (Woan) and for threatening to take away spectrum already assigned to the operators. Telkom and Cell C have said the Woan idea makes sense, with Telkom arguing it should get all unassigned mobile broadband spectrum.
Speaking at the same Free Market Foundation event with Louw on Tuesday, Adrian Schofield, programme consultant at the IITPSA — and a past president of the organisation — predicted that the amendment bill will not be enacted before the next election.
“Let’s not panic, because it might never see the light of day if the 2019 elections bring a further shift in political direction in this country. It already has become changed in some significant ways since it was put on the table and I can tell you it is being changed again as we proceed from here.”
Schofield said whatever changes are being made to the bill, there should be another consultation process with the industry before the draft legislation is tabled in front of MPs. — (c) 2018 NewsCentral Media
