Issued by SATRA
Johannesburg - Wednesday, 28 June 2000
I have endeavoured at all cost to execute my duties both as Chairperson and Councillor of the Authority, with utmost integrity and deep commitment to put my professional expertise to the benefit of the Council and the telecommunications industry. I remain therefore unwavering that this objective should not be lost in my conduct of the affairs of the Council.
There is currently a plethora of media reports and inquiries directed at me since I informed the Council of the Authority that I was now part of the deliberations and adjudication process in respect of the Third Cellular License.
In a letter on 22 June 2000 to the President and copied to the Minister of Communications, I informed the President the following facts:
1. In the media, Advocate Mojanku Gumbi has denied through Mr Parks Mankahlana that I was pressured to withdraw from the adjudication process in February 2000.
2. The Minister of Communications, Dr Ivy Matsepe-Casaburri has publicly stated I have no conflict of interest.
3. The Council of the Authority has belatedly published in the Star Business Report of 14 June 2000 a signed advertisement in which the Minister's sentiments were expressed about the absence of a conflict of interest in respect of me, and the Council expressed no disagreement with the Minister's statement. Indeed the Remaining Council has, in informing the South African public of this fact, highlighted the Minister's statement in bold in the advertisement.
4. Consequently the question is why am I not carrying out the duty for which I was appointed under the Telecommunications Act. In the absence of any reasonable answer I have informed the Council that I shall carry out my duty to which I was appointed in terms of Section 9 of the Telecommunications Act.
5. So, I informed the President accordingly. Understanding the law, I did not ask for his permission.
6. The matter of conflicting interests on the Council is addressed very well in the Telecommunications Act in its Section 15.
Here is the full text of Section (15): Disclosure of conflicting interests
15. (1) A councillor shall not vote at, attend or in any other manner participate in the proceedings at any meeting or hearing of the Council if-
(a) in relation to an application relating to a licence, he or she or his or her family member or partner is a director, member or business partner of or has an interest in the business of the applicant or of any person who made representations in relation to the application; or
(b) in relation to any matter before the Council, he or she has any interest which may preclude him or her from performing his or her functions as a councillor in a fair, unbiased and proper manner.
(2) If at any stage during the course of any proceedings before the Council there is reason to believe that a councillor has any interest contemplated in subsection (1)-
(a) that councillor shall forthwith and fully disclose the nature of his or her interest and leave the meeting or hearing in question so as to enable the remaining councillors to discuss the matter and determine whether that councillor is to be precluded from participating in such proceedings by reason of a conflict of interest; and
(b) such disclosure and the decision taken by the remaining councillors regarding such determination, shall be recorded in the minutes of the proceedings in question.
(Bold by me)
7. Section 15 has to be read, and understood, together with Section 5 of the Act. This is the section that establishes the Authority as a juristic person. In section 5(3) the relevant law says as follows:
5. (3) The Authority shall be independent and impartial in the performance of its functions.
8. I wish to state that it is not in my nature to seek to depart from the provisions of the Telecommunications Act. Neither do I believe the President would wish to depart from the law. Only the Remaining Council can veto my re-entry into the process, and they can only do so in terms of Sections 5(3) and 15. On the basis of the advertisement, the basis for the denial of my re-entry does not exist, in my humble view. The Remaining Council membership was duly appointed by the President to make such decisions independently as quoted above. It is not a good idea to drag the President into issues and the exercise of powers that, for him, do not derive from the law. To-date I have not received a response from the Remaining Council on my memorandum to them informing them that I am now part of the deliberations on the 3rd license. I do expect that when they schedule the next meeting on the 3rd cell I will be duly invited.
It is my hope that they will soon exercise their minds on the issue.
9. It is important to note that on 19 February 2000 when I bowed to the external pressure to withdraw, I specifically reminded the Remaining Council, on the record, that I expect them to deliberate on the issue and find me in contravention, or not in contravention, of Section 15 of the Act. This is their duty that the law does not provide to be bypassed or ignored. In terms of Section 15, however, I have not yet received their decision, which decision has to be addressed to me. My re-entry memorandum to the Remaining Council should therefore elicit the formal result of their deliberations addressed to me.
10. The matter is clearly in the domain of the Council only, as clearly underscored by the law quoted above in Sections 5(3) and 15(2). The media reports that anyone else other than the Council of the Authority has a role to play in terms of conflict of interests on the Council of the Authority, in terms of my participation thereon, runs completely counter to the law. As Councillors or Ministers who have to implement the Act, it does behoove us to know what the law says.
11. I believe the President would want to have the provisions of the law to take their course and effect, as he has admirably done throughout the life of the Authority. For this I am very thankful. In the above situation, the Remaining Councillors in a signed advertisement have stated their case, presumably from the recorded minutes of the proceedings in question as required by the law. So, we should all let the Council do its work, in the public interest.
Issued by the Office of the Chairperson - SATRA
Contact Person:
Kotli Molise
Tel. 011 321 8284
Cell. 082 824 7078