1Introduction
1. The SACF welcomes the opportunity to submit comments on the Draft
Amendment Regulations Governing Aspects of the Procedures of the
Complaints and Compliance Committee of ICASA and thanks ICASA for the
extension to the submission deadline.
2. The SACF further welcomes the publication of the accompanying explanatory
memorandum as it provides context for the amendments helping stakeholders
provide meaningful comment.
3. The SACF would like to place on record its interest to participate in all future
processes in relation to amending these regulations.
General Comments
4. The SACF welcomes the review and amendment of the regulations which seeks
to provide clarity promoting efficiency and efficacy.
5. The review process ought to also make it explicit that complaints referred to
the CCC are limited to allegations of or non-compliance with relevant
legislation, regulations and licence terms and conditions. Alternate
mechanisms can be setup to hear other complaints. Strengthening this clarity
will in our view address the concerns raised in respect of fruitless and wasteful
expenditure and resources.
6. The purpose of the CCC is set out clearly in Section 17 of the ICASA and in the
2010 regulations. it has not been amended in the 2021 regulations.
7. The SACF is of the view that the purpose ought to amend the regulations as
well to reflect the complaints which are limited to those related to noncompliance as referred to the CCC, i.e., complaints may only relate to noncompliance.
SACF Comments on the Draft Amendment Regulations Governing Aspects of the procedures of
the Complaints and Compliance Committee of the Independent Communications Authority of
South Africa, 2021
2
Rejection of a Complaint
8. Regulation 3(2) of the 2010 provides for the rejection of the complaint on the
grounds that “insufficient attempts were made to settle the complaint”. It is not
clear what constitutes insufficient grounds. In the interests of transparency,
clarity and for a more efficient process, the SACF suggests that it would be
useful to prescribe the elements that would constitute sufficient grounds to
settle before being referred to the CCC.
Definitions
9. We welcome the attempts to provide clarity on the definitions and the
alignment to the ECA and ICASA Act. However, in instances where the
definition is the same as that of the ICASA or Electronic Communications Act it
may not be necessary to repeat the definition in the regulation. Perhaps
ICASAought to adopt the approach where it only includes definitions not
contained in the ECA or the ICASA Act or in instances where it deviates. For
example, days in these regulations was defined as calendar days which is a
deviation from the definition in the ECA.
10. The amendment aligns the definition in the regulation with that of the ECA and
is no longer relevant. The SACF supports the alignment of the definition of days.
Withdrawals and Settlements
11. It is our understanding that the ICASA Act limits the jurisdiction to hearing
matters and allegations of non-compliance either referred to it by ICASA,
licensees or other parties.
12. The mandate of the CCC is further limited to making recommendations to the
Council of ICASA which will either accept or amend a recommendation that
will result in a finding and sanction if applicable.
13. Should the parties to a complaint of non-compliance decide to withdraw a
complaint, it is our view that ICASA’s jurisdiction over the matter will cease.
14. Therefore, we are of the view that a settlement agreement, would fall outside
of the jurisdiction of the CCC as the complaint would no longer exist.
SACF Comments on the Draft Amendment Regulations Governing Aspects of the procedures of
the Complaints and Compliance Committee of the Independent Communications Authority of
South Africa, 2021
3
Application to call a Witness, Expert or Interpreter
15. While we understand the need for parties to a complaint to make an
application for an interpreter, we are of the view that this rationale does not
equally apply to the parties calling a witness or expert.
16. It is standard practice at hearings to allow the parties to call experts and / or
witnesses as may be required to assist in the articulation of a matter. Therefore,
the rationale behind this proposed amendment is unclear and difficult to
understand. It will in our view not contribute to enhancing the process as the
amendment regulations seeks to do. Instead, it will simply add an unnecessary
step to the process and increase the administrative steps with no real benefit
to the process or outcome.
17. However, for the sake of transparency and fairness the parties could be
required to submit a list of witnesses and experts that will form part of the
proceedings.
Urgency
18. The 2010 regulations deem all Election complaints as urgent but does not set
out the grounds or characteristics of an urgent complaint.
19. In the spirit of enhancing the efficacy and efficiency of the regulations, it
would be useful to include the considerations that would deem a matter as
urgent.
Clarification of Process
20. The SACF welcomes the clarification of the process and it being documented
as this is likely to make the process more efficient.
Place and Quorum
21. We note the deletion of the sections that provide for the election of an acting
Chairperson due to the unavailability of the Chairperson has been deleted.
While we understand that these are clearly linked to the definition of quorum.
22. We understand that methodology for setting up a hearing includes
ascertaining the availability of the Chairperson and other applicable and
essential members of the CCC.
SACF Comments on the Draft Amendment Regulations Governing Aspects of the procedures of
the Complaints and Compliance Committee of the Independent Communications Authority of
South Africa, 2021
4
23. It does however not consider instances where the Chairperson may be
unavailable for protracted periods. As the amendment seeks to clarify
applicable processes and rules for the operation of the CCC, for the sake of
transparency, we would urge ICASA to include the process and applicable
circumstance for appointing a temporary or interim Chairperson.
24. Accordingly, we would urge ICASA to retain 7(3) of the 2010 Regulations as it
already provides for the scenario envisaged above.