CONTROL THEORY
This flies in the face of a strongly worded warning by Mashile’s predecessor, Mandla Langa, that a provision in the Icasa Amendment Bill – which has yet to be circulated for public comment – could undermine the authority’s independence. Langa has described the offending clause as a "retrograde step" that will "create huge perceptions of a deficit of independence" (Technology & Communications July 8).
Mashile says he does not believe the clause would undermine Icasa’s independence. "What does the word independence’ mean? The [chief justice] of the constitutional court is appointed by the president. Does that remove independence from him? I don’t think it does," Mashile says.
The opposition DA has, however, condemned the clause. "It would be a step with direct constitutional implications because the independence of specifically the broadcast regulator is enshrined in chapter nine of the constitution," says DA MP Dene Smuts . "It is my understanding that the proposed change in the appointment procedure was removed from the bill. If it has now been put back, long battles and debates lie ahead."
During Langa’s term as chairman, relations between Icasa and communications minister Ivy Matsepe-Casaburri were not good. The initial stages of the licensing of the second network operator, in particular, led to enormous tensions.
These look set to dissipate with Mashile’s appointment. He describes his relationship with Matsepe-Casaburri as "placid" and says he will adopt a consultative approach with government.
"It is Icasa’s role to interpret policy but to consult as well in the event that there is misinterpretation," he says. "If the minister puts out a policy framework . . . it is important to consult to determine if we are interpreting [it] appropriately."
Mashile says "something fell between the cracks" earlier this year when Matsepe-Casaburri issued a clarification (which some lawyers say has no force in law) that contradicted Icasa’s interpretation of policy. Icasa had determined that value-added network services (Vans) providers, such as M-Web and Internet Solutions, could build their own infrastructure networks, a move that would have opened SA’s telecom industry dramatically to more competition. But Matsepe-Casaburri issued a statement, hours before policy changes were due to take effect, indicating that it was not government’s intention to allow Vans to self-provide telecom facilities.
The move was a blow to Icasa and to many in the industry who had hoped to tackle monopoly operator Telkom head-on. It also created the impression – justifiably or otherwise – that Icasa lacked the independence it needed to regulate the sector effectively.
Mashile says of the incident: "It is important we interpret [policy] appropriately. I’d like to establish a continuous link with the department of communications when it comes to policy so that when we regulate we can say that this is enabled by legislation and is understood in the broader policy framework.
"We should not lose sight of the fact that we have to meet the national objectives of the government of the day. That is why we have legislation and that is why we have policy."
Icasa can and must still act independently, but within this context, Mashile says. "Acting independently means you will consider all the facts objectively, do an analysis and correlation and come up with a decision on the basis of that . . . [and] you should be able to defend it when called upon to review it."
He suggests government and Icasa have the same broad goals, and because government was elected by the public to act as its representative, "[the regulations we set] should be in agreement with what government said we should do in the public interest."
But what if government does not agree with regulations drafted by Icasa? "We will try to convince them," Mashile says. "The law is there to enable [us]. We need to consult [with government]. The reference should be legislation.
"The question is to determine what policy formulation is and what regulation is. Regulation is sub legislation; it is the implementation of policy."
Mashile’s views of how to grow the sector are perhaps less contentious. He says competition is the best way to reduce telecom prices and ensure there is universal access to services. Unlike his predecessor, he believes the speed at which liberalisation has taken place has been "fair". Langa, on the other hand, said there should have been a "lessening of the hold on the reins".
The new chairman, who describes himself as a Scandinavian-style social democrat, won’t be drawn on whether he thinks a big-bang approach – where the market is opened fully to competition in a single stroke – would make sense for SA. Before drawing any conclusions in this regard, he says, a proper analysis should be done. "It could make sense, but let’s first look at the facts."
He says the immediate objective must be to introduce competition to monopolies, especially Telkom, to ensure there is greater choice in telecom services. To protect consumers, monopolies must also be more heavily regulated than companies that have competitors, he says.
Icasa’s biggest challenge is to ensure it regulates in the public interest – consumers must be the ultimate beneficiaries of whatever decisions are made, Mashile says.
In doing so, Icasa must ensure there is fair competition, it must create an environment in which innovation can take place, it must help create employment in the sector and it must help grow the "second economy".
Mashile’s management style is likely to differ markedly from Langa’s. He will draw strongly on his background in engineering – he has master’s degrees in both physics and electrical engineering. In line with control theory in engineering, he says he will manage by objectives.
Mashile says he is confident the rest of the Icasa council will support him. He says he will encourage robust debate, provided it is reasoned. "No argument must deteriorate into conflict," he says.
Conflict may be hard to avoid, though. There is already talk of discontent within the authority over his appointment, which came as a big surprise – even to Mashile. Councillors Lumko Mtimde and Nadia Bulbulia had been tipped as most likely to succeed Langa. "[My appointment] has caused shock waves," he says. "I just hope it doesn’t cause a tsunami."
His early decisions are already proving controversial. He has ordered the suspension of two senior staff, council adviser Sean Rankin and executive secretary Shameen Naidoo. Rankin and Naidoo used an Icasa letterhead to nominate former Icasa councillor Gerhard Petrick to the council seat left vacant by Langa (the relative unknown, Mthobeli Zokwe, eventually got the job).
The DA, which wanted Petrick to fill the council seat, has accused Mashile of acting vindictively in suspending the two staffers. Smuts describes the charge against the two suspended employees as "entirely unconvincing".
A source close to Icasa says it is not the first time prospective councillors have been nominated under official letterheads and that no action was taken when this happened previously.
Reproduced with the permission of the Financial Mail
Original article published in the July 15 2005 edition.
Original article: secure.financialmail.co.za/05/0715/technology/atech.htm
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