Compliance and complaints – ICASA and CCC

Provided by Kerron Edmunson Inc

By Kerron Edmunson

Topics Dispute Resolution | Media, Communications & Entertainment Law

08 Jul 2020

The role of committees in the ICASA Act

Complaints concerning anything within the jurisdiction of the Independent Communications Authority of South Africa (ICASA) may be made to ICASA (called “the Authority”) in the ICASA Act, 2000, (the Act) by any person including a licensee. Complaints are to be dealt with by ICASA (through the managers of different units) or referred to a committee within ICASA. This committee is called the Complaints and Compliance Committee or “CCC” and it has special but limited powers and duties in terms of section 17 of the ICASA Act, 2000.

Sections 4 and 17 of the ICASA Act describe the powers of ICASA in relation to standing and special committees, and it is clear that a committee performs only those functions as may be delegated or assigned to it, and it must carry out those obligations that are imposed on it; it does not self-regulate other than in relation to its internal processes. The same section requires that the committee report on its activities (in general) to the ICASA Council if and when required or on the completion of its task.

Section 4(4) expressly permits the Council to delegate any of ICASA’s powers, functions or duties to a committee subject to conditions and with the express exclusions set out in this section and in section 17. However, it also provides that “notwithstanding” the appointment of a committee with delegated powers, “the Council must exercise general control over the exercise of the powers and performance of the duties of the Authority in terms of this Act”.

Other committees can be established by ICASA although typically these committees are formed from ICASA staff and one or more Councilors, for example a committee was created to deal with the revision of the number portability regulations, and prior to that, the call termination inquiry. The CCC is not made up of ICASA employees although it must include one of the ICASA Council members in any panel for a hearing.

Can a committee be independent?

There is case law that supports the contention that the CCC and even its chairperson, are no more than a ‘business unit’ within ICASA, specifically, “The second, the third and the fourth respondents are the internal structures or business units of the first respondent (they are referred herein collectively as “the Respondents”)”, flowing from the judgement of Democratic Alliance v Independent Communications Authority of South Africa and Others (03462/2015) [2016] ZAGPJHC 238 (9 September 2016) in which the chairperson of ICASA is the second respondent, the CCC is the third and its chairperson is the fourth respondent.

Although this case did not need to nor did it deal with the standing of the CCC in terms of the ICASA Act and in some paragraphs the judgement referred to it as a ‘tribunal’ interchangeably with Respondent it is clear that the three respondents were seen as the same entity.

The CCC is given the more specific powers set out in sections 17B, C and D, read with sections 17E(2) and (3) of the ICASA Act. Its duty is always to report to ICASA and it may, in addition, make recommendations to ICASA provided that when it does so, it must submit its finding and a record of its proceedings to ICASA for a decision to be taken by ICASA. Section 3 of the ICASA Act provides that it “acts through the Council” being the body appointed in terms of section 5 of the same Act.

ICASA’s website describes the CCC as “independent” and a “tribunal”. No such wording exists in the ICASA Act or the Electronic Communications Act (“ECA”). As ICASA is a creature of statute, a committee of ICASA can have no greater standing than ICASA, and is not, simply because it is a committee, accorded the same status as a tribunal.

ICASA makes it clear on its website that a recommendation of the CCC will, if approved by ICASA, be binding on the parties concerned and may only be reviewed in court proceedings. This is because it is ICASA that is the “administrator” as this term is defined in the Promotion of Administrative Justice Act, 2000 (PAJA). It is obvious therefore, that if a recommendation of the CCC is not approved by ICASA or when it is approved by the Council, the CCC is functus officio in relation to that matter. If a decision of the CCC (passed to ICASA by way of recommendation) is finally approved by the Council of ICASA, it will be the decision of ICASA that falls to be reviewed under PAJA.

Whether or not a recommendation by the CCC (flowing from a CCC decision) could itself be challenged under PAJA has not been decided specifically, but no doubt it could be. However, the fact that the record of proceedings (which in the ordinary meaning of this term would include all CCC minutes and decisions) must be available by ICASA to any person on request, both under PAJA and under the Act, confirms that the CCC is a ‘functionary’ of ICASA.

Is a committee a tribunal?

It has been argued that the Constitutional Court held in Islamic Unity Convention v Minister of Telecommunications [2007] ZACC 26; 2008 (3) SA 383 (CC) that the CCC is “an administrative tribunal performing an administrative function when investigating and adjudicating complaints” and that “there can be no question that the adjudication of a complaint constitutes administrative action as contemplated by the Promotion of Administrative Justice Act”.

This article does not intend to contradict the judgement of this court but to explain that this statement was not in fact made with direct application to the CCC only, but rather in relation to section 34 of the Constitution [1], and to note that the Constitution does not define “tribunal”. The finding that the CCC is an administrator for purposes of PAJA must be correct, but for the findings of the CCC to bite, they must have been made final by the ICASA Council or rejected by the Council, or the Council must have made its own decision for its own reasons, having considered the recommendations of the CCC.

The definition of ‘tribunal’ varies slightly depending on which source you rely on, but in general, a tribunal is considered to be a body (or person) with authority to investigate, determine, adjudicate or settle claims or disputes. The CCC can investigate, hear and make recommendations on complaints, but it cannot settle them or adjudicate them in the sense that it does not have the power to make a final decision. It does not, therefore, act as a “tribunal”.

Why is it important to make a distinction between a committee and a tribunal in the sense of a tribunal with the right to make and enforce decisions? It is important to understand that it is the regulatory authority, created by law, that is the final decision-maker in relation to complaints. Its internal committee may have certain features of a tribunal, but it is ultimately beholden, in this case, to the ICASA Council. It is for this Council to ensure that it makes a decision that is consistent with previous decisions, that is rational, fact-based and fair.

ICASA itself may refer a complaint or compliance issue to the CCC for a determination. This allows an investigation and hearing to take place at which ICASA may present its views to be considered by the committee in their deliberations. Ultimately however, as the responsibility for enforcement of the legislation lies with ICASA, it is ICASA that must make a final decision. In the same way as a committee can be created within a company to deal with certain matters, it cannot make decisions that are reserved to the board of the company.

Creating powers by regulation

For completeness, we need to consider that the CCC has additional powers that were created by the CCC regulations in 2010. The regulations permit the CCC to reject a complaint in specified circumstances, and also set out how the process should run in a pre-hearing. In a pre-hearing, the CCC may “attempt” to mediate a settlement between the parties but even in this case, the CCC must still recommend to ICASA that it direct a licensee comply with the settlement and the final decision in this regard still rests with ICASA.

However, the genesis for the regulations is apparently section 17C(5) of the ICASA Act which states that “…the Authority may prescribe [make regulations] procedures for the handling of urgent complaints and non-compliance matters”. The drafting of the section is not clear, but the intention appears to have been that ICASA would make regulations dealing with procedure in relation to complaints and compliance matters that are both urgent.

The CCC regulations are not in fact limited to the procedure for the handling of urgent matters by the CCC and deal with all manner of issues as well as urgency, which is addressed only in one sub-regulation.

Strangely, this irregularity does not appear to have been challenged, but ultimately the ICASA Act takes precedence over the regulations, so a final decision on any complaint or compliance matter remains within ICASA’s jurisdiction. The principle that an Act of Parliament cannot be interpreted on the basis of regulations made under it has been confirmed in the Constitutional Court.[2]

Decisions, recommendations and judgements

In a judgement of the CCC on 24 June 2016 in the matter of Media Monitoring Project, SOS and the Freedom of Expression Institute as complainants and the SABC as respondent, the CCC chairperson, Mr JCW van Rooyen, noted that, “Initially counsel for the SABC argued that the CCC does not have the authority to set aside the decision by the SABC. It is true that the CCC does not have the authority to order the SABC to withdraw the decision. The CCC is, however, mandated by the ICASA Act to investigate, and if appropriate hear, and make a finding on the merits of a complaint which is received by it. Since the SABC is a licensed broadcaster it falls within the jurisdiction of the CCC. That the CCC (and thus also Council of ICASA for purposes of an order as and if advised by the CCC) has jurisdiction over editorial decisions of the SABC has been confirmed by the High Court in Freedom of Expression Institute v Chairperson of the Complaints and Compliance Committee.

“The task of the CCC is to establish whether the SABC has overstepped its powers in the Broadcasting Act 1999 and/or its licenses. If the CCC finds that it has not overstepped its powers, the matter is closed and Council of ICASA is informed of its decision. Where the CCC finds that the SABC has overstepped its powers, it makes a finding on the merits against the SABC and then puts forward an appropriate order to the Council of ICASA within the terms of section 17D(3) and 17E(2) of the ICASA Act 2000. The Council then considers that order and, if it agrees with it, makes the order. Thereafter the Coordinator of the CCC will issue this judgment on the merits of the complaint plus the order, if applicable.”

The underlined part of this statement is somewhat contradictory. The CCC has, in this and other matters, determined that a matter need not proceed further but without referring this finding and recommendation to ICASA. Regulation 3 of the CCC regulations is headed “Rejection of complaint by CCC”. This regulation purports to give the CCC the power to dismiss or reject a complaint if it considers that it is frivolous or vexatious, or that insufficient attempts were made to settle the matter, or that the matter falls outside of its jurisdiction.

The strangely phrased regulation 3(4) of the CCC Regulations states “In so far as the exercise of its discretion in terms of this regulation is concerned, the coordinator provides the CCC with her or his advice as well as the result of the investigation by the inspector in terms of section 17F of the Act”. Section 17F of the ICASA Act states that an inspector must, when instructed to do so by the CASA Council, refer all non-compliance matters to the CCC for consideration, refer all complaints to the CCC, and even appear before the CCC when requested to do so.

The exercise of any discretion by a committee should always be limited and the scope of its powers clearly set out. ICASA’s regulations effectively undermine the requirements of the Act by affording the CCC discretion as to whether or not to accept a complaint or non-compliance matter, even where an inspector may have been instructed to refer a matter to the CCC by the ICASA Council.

In addition, the ICASA Act states in section 17B that the CCC must investigate and make a finding on all matters referred to it by ICASA, complaints received by it and allegations of non-compliance. Section 17D(1) provides that the CCC must make a finding and subsection (2) provides that the CCC must recommend to ICASA what action should be taken by it, if any, and it must then submit its findings and recommendations and a record of proceedings to ICASA for a decision to be taken by ICASA. Section 17E contains a similar direction, in that the CCC must submit its findings and recommendations and a record to ICASA for a decision.

Section 17B(b) of the Act does also state that the CCC “may” make a recommendation but the phrasing of this provision indicates that the “may” applies in relation to the making of a recommendation that should be necessary or incidental to the performance of the functions of ICASA in terms of the Act or underlying statutes, or achieving the objects of the Act or underlying statutes. In other words, the CCC “may” make any recommendation to ICASA that is aligned with ICASA’s functions and the objects of the ICASA Act, the Broadcasting Act and the ECA. As a result, even if the CCC considers that it has discretion, this is limited to the type of recommendation it may make within the ambit of the named laws and ICASA’s powers and duties under those laws.

This can be the only correct interpretation having regard to the provisions of section 17D(2). Regardless, and as acknowledged by the CCC chairperson in the case quoted here, it is clear that it is ICASA that must make a final decision.

Conclusion

On 1 November 2016, in a meeting before the Portfolio Committee on Communications, the then acting chairperson of ICASA, Mr Rubben Mohlaloga, confirmed that “[the CCC] is a committee of Council and not an Independent council. For that reason, although ultimately ICASA takes a decision the CCC makes recommendations to the Council”.

Therefore, despite having a clear mandate to investigate and hear and make recommendations in relation to any complaint brought by any person under the ECA or ICASA Act, the powers and duties of this and any other committee do not transform it into an independent tribunal, acting outside of any statute or regulatory framework, setting its own rules and making enforceable judgements.

Where the CCC is concerned, its ‘judgements’ are findings which become recommendations to ICASA which the Council considers in making its own decision, and can adopt or reject. ICASA does so in its capacity as administrator and in order to comply with the requirements of administrative justice. This is absolutely clear in the ICASA Act and subsequent judgements and pronouncements by the courts and by ICASA itself. Complaints and compliance are ultimately an ICASA responsibility.

[1] Section 34 of the Constitution reads, “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.

[2] Paragraph 95 of the judgement in Freedom of Expression Institute v Chair, Complaints and Compliance Committee and Others (2009/51933) [2011] ZAGPJHC 2 (24 January 2011), relying on Amalgamated Engineering Union of South Africa v Minister of Labour 1965(4) SA 94 (W) 96D; Moodley v Minister of Education 1989(3) SA 221 (A)