PROPOSED REDRAFT OF CHAPTER X of the ECT BILL
DOMAIN NAME AUTHORITY AND ADMINISTRATION
Recognition or establishment of the Domain Name Authority and matters ancillary thereto
Recognition or establishment of the Domain Name Authority
60. TheMinister shall, simultaneously with the passing of this Act and by notice in the Gaze recognise the existing Domain Name Authority, Namespace ZA, a company duly established in terrns of Section 21(1) of the Companies Act, alternatively announce that a new juristic person to be known as the .za Domain Name Authority is thereby established, for the purpose of continuing, alternatively assuming, responsibility for the .za TLD as from a date determined by the Minister by notice in the Gazelle.
61. The existing Domain Name Authority must be recognised, alternatively a new Domain Name Authority incorporated, through an open and broad consultative process with the general South African Internet community and any other interested parties and shall thereafter continue to operate in an open democratic and transparent manner.
62. The Domain Name Authority shall be the trustee of the .za TLD for both the South African and the global Internet communities, and shall have a duty to serve these communities.
Incorporation of Authority
63. (1) If the Minister elects to establish a new entity to be the Domain Name Administrator, the Minister must take all steps necessary for the incorporation of the Authority as a company contemplated in section 21(1) of the Companies Act, 1973 (Act
uâ___ No.61 of 1973), within 12 months of the date of commencement of this Act,.
(2) The Minister and the members of Namespace ZA at that date will be the initial members of the Domain Name Authority upon its incorporation
Authority's memorandum and articles of association
64. (1) The memorandum of association and articles of association of the Domain Name Authority must be consistent with this Chapter and with the provisions of the Companies Act, 1973.
(2) The memorandum and articles of association of the Authority must, amongst others, provide for-
(a) the rues for the convening and conducting of meetings of the Board, including the quorum required for and the minutes to be kept of those meetings; (b) the manner in which decisions are to be made;
(c) the establishment of any division of the Authority to perform specialized functions; (d) the establishment and functioning of committees, including a management committee; (e) the co-opting by the Board or a committee of any person to assist the Authority or committee in the consideration of any particular matter;
(') the preparation by the Board of an annual business plan in terms of which the activities of the Authority are planned annually;
(g) the banking and investment of funds by the Board; (h) the determination through arbitration of any dispute concerning the interpretation of the memorandum and articles of association of the Authority;
(i) the criteria for the recognition of a body or groups of bodies as representative of the various sectors set out in 68(1 )(b); and
C') the delegation of powers and assignment of duties to directors, committees and employees: Provided that the Board may-
(i) not be divested of any power or duty by virtue of the delegation or assignment; and
(ii) vary or set aside any decision made under any delegation or in terms of any assignment.
65 The Articles of Association of the Domain Name Authority shall, in addition, provide for -
a) The procedures and criteria for the creation, deletion and/or delegation of second-level domains.
b) Appeal mechanisms for decisions made in accordance with (a) above.
c) Procedures, policy and operational requirements for the running and management of the ZA Name Servers.
d) The funding model for the Domain Name Authority, including the remuneration (if any) of directors.
e) The obligation of members of the board of the Domain Name Authority to carry out the responsibilities of administering the .za TLD, in an equitable, just, honest, and competent manner.
f) The appointment of directors in accordance with Section 68.
g) The provisions in accordance with Sections 66 and 69.
66. The Domain Name Authority may not amend its Memorandum and
Articles of Association without the consent of the Minister, which consent shall
not be unreasonably withheld, in addition to fulfilling the requirements of the
Companies Act, 1973.
Membership 67. Membership of the Domain Name Authority shall be granted, upon application in a manner and form to be prescribed, to any applicant who is a citizen or permanent resident of the Republic, or registered, incorporated or otherwise carrying on business or having a commercial interest in the Republic. Such membership shall be granted -
(a) free of charge (or at a nominal fee to cover administrative costs only and as prescribed from time to time) to anyone that is a Registrant, Registrar or Registry in the .za domain name space; and
(b) on payment of a nominal fee to cover administrative costs only and as prescribed from Ume to time, to any interested party.
Board of directors of Authority
68. (1) The Domain Name Authority shall be managed and controlled by a Board of Directors consisting of no fewer than fourteen, and no more than sixteen persons. Such directors shall be divided into two categories
(a) Elected directors, being directors elected by the members; and
(b) Six Appointed directors appointed by the President on the recommendation of the National Assembly
from nominations by each of the following stakeholder groups -
(i) the Internet user Community;
(ii) the Registrar Community;
(iii) the Business community;
(iv) Academic institutions and institutions of higher learning;
(v) Government and the public service sector; and (vi) the disabled.
(c) Appointments to the board in terms of (b) shall be made according to the following principles, namely-
(i) participation by the public (through the above stakeholder groups) in the nomination process:
(ii) transparency and openness;
(iii) the publication of a shortlist of candidates for appointment, with due regard to subsection (3);
(d) persons appointed as directors must be persons who-
(i) are committed to fairness, freedom of expression, openness and accountability on the part of those entrusted with the governance of a public service; and
(ii) when viewed collectively-
are representative of a broad cross section of the population of the Republic; and
() possess suitable qualifications,
expertise and experience in the fields of, amongst others, domain naming, Internet policy, engineering, technology, economics, business practice and finance or any other related expertise or qualifications.
(2) With regard to (1 )(b) above, stakeholder groups will be represented by a body or bodies objectively recognised by the Domain Name Authority as being duly representative. Initially, the bodies will be the South African Chapter of the Internet Society in respect of (i); the Internet Service Providers Association in respect of (ii); the South African Chamber of Commerce in respect of (iii); the The Tertiary Information Network (Tenet) in respect of (iv); the State Information Technology Association in respect of (v) and the??? in respect of (vi).
(3) The Domain Name Authority shall investigate and may revise the recognised bodies listed in (2) on the request of a member of the Domain Name Authority or the Board of the Domain Name Authority or the Minister, in accordance with the provisions of its Articles of Association.
In order to procure the nominations for the election of directors referred to in (1 )(a), the Domain Name Authority must, by notice in the Gazelle and in two newspapers which have general circulation throughout the Republic, invite all interested parties to nominate persons to stand for election by the Domain Name Authority's members. (b) ((5) In order to procure the nominations of stakeholders as contemplated in (1)(b), the Minister must, by notice in the Gazelle and in two newspapers, which have general circulation throughout the Republic, invite the listed stakeholders to nominate one person to serve as a director and one
person to serve as an alternate director. The Minister and the board of the Domain Name Authority may nominate additional persons if there are insufficient nominations lodged by a particular stakeholder within the period specified in the notice.
(6) Directors must be persons who are committed to fairness, openness and accountability and to the objects of this Chapter.
The Articles of Association of the Domain Name (7) (a) Authority shall determine-
(i) the tenure of the directors of the Board; and
(ii) the circumstances under and manner in which a directorship is
(iii) the procedures for the replacement of such directors.
Removal of the board of the Domain Name Authority 69. (1). Subject to 69(2) and in instances where the board fails to comply with the Articles and Memorandum of Association of the Domain Name Authority, or fails to comply with the requirements of this Chapter, the Minister may, by proclamation in the Gazette, call for the election of a new board (on such notice as the Minister may determine to be reasonable in the circumstances). The term of office of the then existing directors of the Domain Name Authority will terminate with effect from the date of such election.
(2). Prior to calling for the election of a new board of directors in terms of (1), the Minister shall give the board of the Domain Name Authority written notice, clearly identifying the alleged default or failure and requiring that it be addressed and rectified within sixty days. Only in the event of the board failing to rectify such alleged default or failure shall the Minister be entitled to call for the election of a new board of directors.
(3) In calling for the election of a new board of directors of the Domain Name Authority, the Minister shall follow the procedure set out in Section 68. Existing Sub-Domains 70. (1) Upon its appointment, the Domain Name Authority shall research the status of all existing second level domains and shall prepare a report in respect thereof within six months of such appointment.
(2) The Domain Name Authority shall publish such report for public comment and once the period for comment has expired shall consult with the Minister and the Registrars and Registries of such existing second level domains in respect of the report.
(3)Following such consultation, the Domain Name Authority shall make such policy as it reasonably determines in respect of existing second level domains in the .za TLD, having respect for and regard to the interests and/or vested rights of parties that were actively involved in the management and administration of the .za domain name space at the date of its appointment. In addition, the Domain Name Administrator shall have regard to the maintenance of stability of the .za domain name space and shall consider the rights and interests of domain name registrants and Internet users in the .za domain name space.
71. As soon as is practicable after the end of each financial year, the Domain Name Authority must compile and make publicly available a report on its activities and financial affairs during the previous financial year.
Policy and Cultural Issues 72. The Minister may, in consultation with the Domain Name Authority and by way of the Gazelle, from time to time issue policy guidelines with regards to cultural and ethnical issues in the .za TLD.
73. The Domain Name Authority shall keep informed of developments in the international domain name system and take due cognisance thereof.
Recommendations to Minister
74. Without detracting from the Domain Name Authority's sovereignty in terms of this Chapter, the Domain Name Authority may, and must when so requested by the Minister, make recommendations to the Minister in relation to policy on any matter relating to the .za domain name space.
Rules and Guidelines
75. The Domain Name Authority shall be entitled, in consultation with relevant interested parties, to make such rules and guidelines as are reasonably necessary regarding the stable operation of the .za TLD and the .za domain name space. In particular, such rules and guidelines shall specify the technical and operational requirements regarding the issues provided for in Section 65(a), (b) and (c).
Alternative dispute resolution 76. (1) The Minister, in consultation with the Ministers for Justice
and Trade and Industry may, subject to (2), make regulations for an
alternative mechanism for the resolution of "bad faith" domain registration disputes in respect of the .za domain name space.
(2) The regulations must be made to resolve "bad faith" domain name registrations in the za domain name space, with due regard to existing international precedent and in consultation with the Domain Name Authority, the Internet community, the intellectual property community and other interested parties.
(3) The regulations may prescribe- (a) dispute resolution procedures in the event of a dispute relating to a "bad faith" domain name registration; (b) the appointment, role and function of dispute resolution adjudicators; (c) the procedure and rules which must be followed in adjudicating disputes;
(d) the manner, costs of and time within which a decision must be made; (e) the implementation of decisions made in terms of the dispute resolution procedure;
(I) the limitation of liability of registrars and registries for implementing a decision;(g) the enforcement and publication of decisions;
a. the manner in which registrants are bound to such dispute resolution mechanism;
b. the establishment of precedent; and
c. whether such mechanism is pre-emptory and excludes the court process (and thus the possibility of appeals) or not.