Law so vague it makes no sense
When a law is sufficiently vague and no reasonable person can make head or tail of what it means or what its implications are, that law fails to live up to the legality standard contained in section 1(c) of the constitution, which provides that South Africa is founded upon the supremacy of the constitution and rule of law.
The Electronic Communications Amendment Bill, in its current form, is rife with confusion, vagueness and ambiguity and may well be completely void for its lack of clarity. Government must fix these problems and ensure its legal drafters gain an understanding and appreciation for the rule of law.
The bill, in its essence, amounts to a complete centralisation of law – and decisionmaking power in matters related to information and communication technologies (ICT) in the hands of executive officials – usually the minister of telecommunications or the Independent Communications Authority (Icasa) – when this power is properly reserved for parliament.
The bill does this, not only explicitly, by vesting unlimited powers in the hands of an official or entity, but also implicitly, by framing provisions so vague that they can only be given meaning by executive diktat.
For example, the bill defines “high-demand spectrum” as spectrum for which demand exceeds supply, or spectrum that is fully assigned.
This definition is fair enough, but it adds a tail: “. . . as determined by the minister . . . by notice in the Gazette, after consultation with [Icasa]”.
The minister is thus empowered to decide if demand exceeds supply or if spectrum has been fully assigned. But if demand exceeds the supply, market forces will bear this out, and if the spectrum is fully assigned it is immediately obvious. There is no need for the minister to get involved.