In an exit report submitted to Parliament this week, an outgoing councillor for the Independent Communications Authority of South Africa (Icasa) described the regulator as void of leadership and operationally inefficient.
The document, circulated to members of the parliamentary communications committee and the telecommunications and postal services committee, laid bare a number of issues councillor Joseph Lebooa said he has observed during his four years at Icasa.
He urged the parliamentary committees to review a number of matters, including:
An alleged “fraudulent” decision by the regulator to allow Wireless Business Solutions (WBS) to continue operating on expired licences without due process;
An “illegal” moratorium on seizures and closures of unlicensed operations; and
The decision to execute the minister of communication’s “unconstitutional directive” to terminate his term of office prematurely, along with three other councillors.
In the exit report, Lebooa said he believed a leadership gap at Icasa stopped it from resolving professional and technical expertise matters, as well as structural issues, that were critical for its success.
In line with audit requirements, Lebooa said one of his responsibilities was to trace all licensees and collect monies owed to Icasa. A prominent case in this regard was that of WBS’s sister company, iBurst, which had been “defaulting and defrauding Icasa in the payment of its licence fees for many years” before Icasa inspectors took the matter into their own hands and shut down its operations, in accordance with the Icasa Act and the Electronic Communications Act.
‘A ploy to do wickedness’
The shutdown led to a court case in which WBS lost on all counts and was found to be operating illegally. Despite this, as the Mail & Guardian reported in October, Icasa went on to write off R75-million in fees and reinstated the company’s licences.
In the report, Lebooa said the seven recommendations that formed the basis for the restoration of the licences, which were approved by the Icasa council, were all flawed.
“I want to unequivocally state once more that this reinstatement action by Icasa is not just a misinterpretation of the court judgment, but a deliberate ploy to do wickedness and reinstate the operations of WBS, while ignoring the court judgment and robbing citizens … of millions of rands. This action by Icasa is strictly criminal in my opinion and deserves the most scrutiny by Parliament.”
Icasa spokesperson Paseka Maleka said the council did not permit WBS to continue operating on the expired or lapsed licences. “On the contrary, Icasa took the necessary steps to collect outstanding licence fees. However, the court interdicted Icasa from taking any further steps until judgment in the matter was delivered. WBS has since paid its licence fees.”
WBS chief executive Clinton Holroyd said “the licence fees have been paid at the prescribed regulated rates and the spectrum licences have been issued to WBS”.
Contravention of the Act
In February last year the Mail & Guardian reported how Lebooa had been hijacked, beaten and had his life and those of his family threatened. He claimed his assailants said the attack was to persuade him to drop his case against WBS, who denied any involvement.
In this week’s exit report, the councillor said he still feared for his and his family’s lives.
When inspectors seized equipment from WBS last year, the regulator placed a moratorium on all seizures and closures of illegal operators and their operations, which remains in effect.
“This resolution is against the Act and interferes with the legislative work and functions of the inspectors,” Lebooa’s report said. “I urge Parliament to reverse this illegal, misconceived and irresponsible moratorium immediately.”
Maleka, however, said: “Due to several court interdicts [including WBS and Amatole] against Icasa, the council imposed a moratorium on search and seizures to ensure a proper process that does not prejudice the licensee or end users. It is important to note that seizures are a mechanism of last resort, when all other processes have failed to ensure compliance. However, the moratorium did not deter inspectors from continuing with their respective duties as per [the] Icasa mandate.”
Council is illegally constituted
Lebooa’s exit report explained how Communications Minister Faith Muthambi dismissed him and three other Icasa councillors before the constitutional expiry of their terms. The councillors would have officially left in January or February next year, as the law allows for 45 additional days following the expiry of their terms, but Muthambi ordered they leave on October 31. In doing so, she violated the provision of the Icasa Act, the report said. Lebooa questioned the reasons behind this and urged Parliament to review this action.
The Democratic Alliance has previously said the minister’s action in this regard was unlawful. And DA spokesperson for communications Marian Shinn said the worry now was that the positions have not yet been filled, despite the fact that the council is required by law to consist of nine councillors. “As far as I’m concerned it’s illegally constituted at this stage,” Shinn said.
In response to questions, the spokesperson for the department of communications, Ayanda Hollow, said the council is fully constituted and insisted the councillors were never dismissed – it was the end of their term in office.