at war department of communications

The battle lines have been drawn at the Department of Communications (DOC), as the minister, retired general Siphiwe Nyanda, and his now ex-director-general (DG), Mamodupi Mohlala, prepare to go to war.

Amid allegations of infighting, mistrust and abuse of power, Nyanda and Mohlala have launched themselves onto a public battlefield and the situation is steadily progressing from bad to worse.

When reports first surfaced of a strained relationship between the minister and Mohlala, the department quickly released a statement denying the allegations. At the time, the DOC noted that Mohlala was on sick leave and strongly denied any tension between the two.

Then, only a week later, the minister announced the immediate dismissal of the DG, saying the trust between him and Mohlala had broken down "irretrievably".

But Mohlala is not going down without a fight and has already begun legal proceedings against her dismissal. Her driving argument is one that accuses the minister of interfering in the procurement process and ordering her to suspend certain tenders.

Now, the former head of the SA National Defence Force will hone in on his military experience as he gears up to go to war with Mohlala.

Who will be left standing remains to be seen, but what is guaranteed is that the telecoms industry will bear the brunt of this fight.

COMMAND AND CONQUER

Nyanda`s militant attitude extends beyond the latest controversy at the department, as it appears that throughout his tenure the minister has been on a command and conquer path.

In November last year, Nyanda had to withdraw his directive to ICASA on interconnection rates, as it is the regulator`s prerogative to set these levels. The general`s commando complex has also been criticised by Mohlala, who accused the minister of often overstepping his mark on issues that fell in her jurisdiction.

Then in April, the DOC instigated a review of SA`s decision to implement the European DVB standard, introducing a Brazilian adaptation of the Japanese ISDB standard as a possible alternative. The decision to begin the review so late in the migration process has left the broadcasters frustrated and angry, since many are champing at the bit to get digital TV rolling in SA.

ITWeb then revealed that the department may be pushing hard to get the Brazilian standard adopted in the Southern African Development Community region, and it has claimed local trials on the European standard have been fraught with difficulties. This move by the minister has instigated rumours of corrupt and underhanded dealings.

Now, most recently, ICASA cancelled its spectrum auction to apply for spectrum in the 2.6GHz and 3.5GHz band, not because of letters of concern from the industry, but allegedly because the DOC wants the spectrum, which may indicate Nyanda`s intention to conquer industry as well.

The minister, however, is not only on the attack, he is also having to defend himself against investigations by the public protector over alleged breach of the Executive Members Ethics Code related to his alleged receiving of benefits from an irregular tender from Transnet.

The public defender is also investigating complaints that allege that Nyanda fired Mohlala following her refusal to approve tenders to companies linked to him. However, Nyanda`s spokesperson Tiyani Rikhotso says proper process was followed with regard to her dismissal.

"The letter of termination of her contract was delivered to her on Friday, 23 July 2010. As to when the decision was taken, that`s immaterial. The minister`s decision followed thorough consultation of the applicable laws and regulations that govern public service and employees of government," he says.

However, Rikhotso did not explicitly say if Cabinet had approved Mohlala`s dismissal, as directors-general are appointed and removed by government`s highest decision-making body.

Nyanda will not only have to fight the public protector on this issue, but he will also have to prepare for attack from Mohlala herself who is locked and loaded for battle.

Mohlala has retaliated to her surprise axing with an urgent application with the Labour Court to have her dismissal overturned on grounds of legality and unfairness, that she be allowed to resume her duties immediately, and that the minister had no authority to dismiss her.

Accusations

Further to that, the ex-DG has made bold accusations that Nyanda had instructed her to suspend a range of tenders, including those for the development of remuneration guidelines of non-executive directors of SA Post Office, Sentech, SABC and ICASA; the appointment of service providers to investigate suspected fraud from the forgery of official signatures with regards to the staged NEPAD meeting from 4 to 7 May; appointment of a service provider to advise the department on Telkom`s BEE status; and others.

Nyanda issued a statement on 15 July denying that he was involved in the issuing or adjudication of tenders.

Mohlala claims in her affidavit that in terms of the Public Finance Management Act, it was she, as director-general and the department`s accounting officer, who had the authority and responsibility in relation to procurement processes.

Attached to Mohlala`s affidavit is a letter sent to her by Nyanda saying the Auditor General had advised all ministers to provide oversight on financial matters.

"It is on this basis that you were instructed to suspend the tenders issued only until I had spoken to you about them. It was not an instruction to permanently suspend any tender process and/or delay any such processes for an unreasonable time, and I deny that any such conduct in any way constitutes any form of unfair labour practice," Nyanda states in that letter.

Mohlala also contends that the minister had no authority to take a unilateral decision to dismiss her. She states that President Jacob Zuma" rel=tag>Jacob Zuma made her appointment as director-general, together with his Cabinet, and furthermore, since the minister is the complainant against her, he is biased in this regard.

"The Minister has not claimed to have been delegated any authority by the President or the Cabinet to take such a decision. Even if he were to make such a claim, such a delegation would be unlawful, and in any event the Minister was precluded from taking such a decision because of his direct interest in the matter," she states in her affidavit.

CASUALTY OF WAR

While Mohlala and Nyanda battle it out, industry insiders are concerned that issues relating to regulatory objectives will lie in limbo until the dust settles.

"The pall of graft, corruption, and political interference is making the running of the DOC almost impossible. The DOC appears to be dominated by the current minister, and the moves to limit the powers of ICASA are also sending all the wrong messages to the market," argues WWW Strategy MD Steven Ambrose.

"I feel the instability will continue, until such time a new level of clarity and accountability is instilled in the DOC and in fact on government in general. The mere allegations of corruption and mismanagement are enough to effectively derail any attempt at delivery," he continues.

Ambrose is of the view that the current instability and resignation of key people at the DOC, and the resultant fighting in the courts, will result in very little effective implementation of the mandate given to the DOC.

Of specific concern to the industry is the outcome of decisions relation to interconnection regulations and the spectrum auction.

Frost & Sullivan ICT industry analyst Spiwe Chireka says: "The DOC was the key driver for the initiative of interconnection issues, and given the highly sensitive nature of this issue, it is key that they stay behind it all the way.

"One can only hope that the persons involved in the interconnection debate are not touched by the current debacle as this would delay the process, which the market cannot afford right now," she adds.

But Ambrose believes the situation has not yet reached breaking point. "Fortunately, the industry has what it needs to continue on the current path, which will result in fairly explosive growth in the short to medium term up to 2015," he offers.

"The current growth will need intervention in the form of spectrum allocation, and other regulation from ICASA, and it appears that unless the DOC gets its act together fairly quickly, this regulation, which has proved to take far longer than anticipated, for various reasons, will effectively put a cap on further growth and development in the industry," notes Ambrose.

While many remain concerned about the situation at the DOC and the resultant effect on industry, some remain indifferent, as this is what industry has come to expect from the embattled department.

PEACEFUL INDIFFERENCE

The relationship breakdown between the minister and the DG is not the first sign of instability to come out of the DOC, leaving some indifferent about the latest controversy.

Ant Brooks, GM of the Internet Service Providers` Association (ISPA), argues this just adds to the view that the communications sector in SA has a long history of erratic regulation, unclear policy direction and a distinct lack of clear leadership from government.

"While there have certainly been some improvements in this regard over the last year or so, the current situation seems indicative that there are still some very serious problems, which need to be urgently addressed," he notes.

Brooks says concern over whether the DOC`s instability will influence regulatory objectives must be viewed in the context of whether there has really been any recent regulatory objectives set by the DOC that would be negatively impacted.

"To pick just one example, last year the DOC announced it would undertake a comprehensive audit of frequency spectrum, and even issued a tender for consultants to do this work. The initial report on this was to have been released at the end of March 2010.

"To date, despite several letters from ISPA asking for feedback on the status of this audit, there has been a deafening silence from the DOC. Given that availability of spectrum is one of the most pressing concerns for the communications industry, this lack of progress (or even feedback on progress) is highly problematic," he argues.

"Perhaps if the DOC had been more effective at meeting its own goals over the last year, there would be more reason for concern regarding the leadership problems. Unfortunately, given the DOC`s relatively poor track record thus far, a cynical view is that it is hard to imagine the situation getting much worse," concludes Brooks.