94 No. 37261 GOVERNMENT GAZETTE, 24 JANUARY 2014 other developments that may not have been anticipated in the original legislation. As the convergence of technologies gather pace, the ability of both the Minister and ICASA to take appropriate action timeously will become important. Before the Minister issues the directive, he or she must first consult the Authority, notify the public of the intentions to issue a directive, and solicit public comment. After this, the policy directive is issued to ICASA, which must consider it. Yet the statutes governing ICASA require it to again publish draft regulations based on the directive for public input. The consultation required is lengthy and repetitive, effectively preventing timeous and effective decisions. An amended law could allow for a quicker process if the public consultation processes were combined, and the draft regulations were published at the same time as the initial policy directive. In some cases the outcomes of a policy directive or even of legislative clauses have yielded results that are contrary to the policy aims. This raises the question of whether ICASA should not be required to consult the Minister prior to finalizing the regulations. This would enable the Minister to confirm that the regulations are in line with policy objectives that the directive originally sought to address. Such a consultative process becomes more important, taking into consideration that there is no room for government participation in the consultation processes of the Authority. 12.3.2 Constitutional Independence of ICASA Despite the Constitutional requirement for an independent regulatory authority, which is reflected in the founding legislation, discussions about the meaning of independence have arisen depending on decisions made and activities undertaken by the regulator or government. There have been many Constitutional reviews and judgements in South Africa concerning the conditions under which constitutional independence can be exercised and therefore how it is guaranteed. In its first review, considering the provisions for the independence of the Public Service Commission, the Reserve Bank, the Auditor General and Public Protector, the Constitutional Court observed that independence must be considered "against the background of the nature of the particular institution" taking into consideration its particular powers and functions. The Court ruled though that factors relevant to independence related to provisions for appointment, tenure, and removal from office as well as institutional independence. These judgements suggest that constitutional independence relates to such factors as financial independence, institutional independence and administrative independence with respect to matters directly related to the institution's mandate, appointment procedures for its officers and their security of tenure. The current provisions that established ICASA were crafted to meet these constitutional independence tests. The changing technological environment and market uncertainty has thrown into focus the roles and responsibilities of various players, as well as the definition of independence. The 2005 Canadian Review of the Telecommunications Policy Report considered the question of independence from the policy perspective in a similar manner to the persistent question about the relationship between policy and regulation in South Africa. This Review Panel concluded that the independent regulator was bound by legislated policy and that "statute is the formal expression of a legislative policy, therefore before a statute can be drafted, the policy sought to be implemented by it must be determined." The Review discussion document indicated that even different regulators could be required to regulate some activities that now fall in the ambit of ICASA in the South African environment. "Around the world today, it is generally accepted that the best approach to allocating governance and operating functions within the telecommunications sector is as follows: 90 This gazette is also available free online at www.gpwonline.co.za