Weekend Post (South Africa)

Law so vague it makes no sense

- Martin van Staden Legal researcher at the Free Market Foundation

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.

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