Media Development and Diversity Agency Bill: deliberations

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE

Media Development and Diversity Agency Bill [B2-2002]
Proposed amendments
Print Media SA on Selection Criteria for print media projects (see Appendix 1)

SUMMARY
The Proposed Amendments to Media Development and Diversity Agency Bill were discussed, and the following decisions were reached on the clause-by-clause analysis:
- Clauses 2, 5, 8-10 and 14: agreed to;
- Clauses 7, 11 and 13: generally agreed to, but minor alterations were proposed;
- Clause 1: formulations of definitions were further refined;
- Clause 3: the restrictive effect of Subclause (b)(vii) on ICASA was discussed;
- Clause 4: the proposed Option 4 was provisionally accepted;
- Clause 6: whether the 1993 or 1996 Constitution applies to Clause 6(1)(e); and
: the inclusion of public servants on the board.

MINUTES
The motion of desirability for the Media Development and Diversity Agency Bill was passed by the Committee and the Chair informed members that the discussions on the Bill would now enter the formal stage of the deliberation process. The document entitled "Proposed Amendments to Media Development and Diversity Agency Bill" had been compiled by Mr Theo Hercules and Mr Sivhaga Netshitombani, the State Law Advisors (SLA) and formed the basis of this discussion.

Clause 1 : Definitions
Amendment 1
The Chair noted that members agreed, but called for the phrase ", including groups specified in section 17" to be deleted from that definition.

Amendment 2
Mr Hercules informed members that this amendment is aimed at replacing "enterprise" with "project" in line 12 of page 2 of the Bill, the deletion of "marginalised" in the same line, the omission of "community or the" in line 13 and the substitution of "enterprise" with "projects" in line 13.

Ms M Smuts (DP) inquired whether the definition does not conflict with the corresponding provision in the Broadcast Act, as the latter merely states that such surplus can be reinvested in the community.

The Chair suggested that line 13 should read "reinvested in the community or the media project", so that this concern may be resolved. Furthermore, line 11 on page 2 of the Bill should read "means any media [project]", because stating it in the singular means that single projects are not excluded from the ambit of this definition. The same should be done with "projects" in line 13.

Mr Hercules agreed.

Amendment 3
This amendment was agreed to.

Amendment 4
Ms Smuts suggested that this reformulation does not cure the problem with the original provision, as the phrase "when viewed collectively" should be included. The law advisers were requested to formulate a phrase accommodating these sentiments.

The Chair agreed, and called for this matter to be "parked" for later discussion.

Amendment 5
This amendment was agreed to.

Amendment 6
Mr S Abram (UDM) inquired whether it is meant that only the Roman numeral "(ix)" be deleted, or the entire definition itself.

The Chair replied that it refers to the deletion of the entire definition, but called for the SLA to expressly provide that lines 1-3 on page 3 are to be deleted.

Mr Netshitombani agreed, and suggested something to the effect of "from line 1 to omit the definition of media industry".

Clause 2 : Establishment of Agency
Amendments 1-6
These amendments were agreed to.

Clause 3 : Objective of Agency
Amendment 1
Mr Abram requested clarity on the precise definition of the phrase "historically diminished" in the proposed Subclause (b)(i) on page 3 of the Amendments.

The Chair informed him that this phrase is derived from the Constitution itself.

Mr Abram accepted thus use of this term, stated that he is not in favour of the phrase "working in the field" in the proposed Subclause (b)(vii) on the same page.

The Chair stated that an alternative formulation would be devised.

Ms Smuts contended that the use of "liaise" in Subclause (b)(vii) is inadequate here because the Independent Communication Authority of South Africa (ICASA) has been given express jurisdiction by the Constitution to regulate the media industry. Simply providing for the Media Development and Diversity Agency (the Agency) to "liaise" with relevant bodies such as ICASA would not give full effect to the Constitutional directive. This could be remedied by inserting the phrase "consistent with Section 192 of the Constitution" after "and for that purpose to" at the beginning of Subclause (b).

Indeed, it is the role of ICASA to ensure a diversity of views consistent with South African society. Also, a reference to "in the community and small commercial media sector" should also be inserted before "throughout the country" at the end of page 2 of the Amendments. It is also suggested that "these" be inserted before "media" in Subclause (b)(i), and that the phrase "within the media industry" in Subclause (b)(ii) be replaced with "within the sector of the media". This narrow definition of "media" should be implemented throughout this clause because it is not the role of the Agency to govern the entire media industry, as the very purpose of the Bill is to direct the Agency to addressing the interests of small communities and small sectors of the media industry. This regulation of the media in general is the jurisdiction of ICASA alone.

Furthermore, the phrase "South African media industry" in lines 27 and 28 on page 3 of the Bill should be replaced with "community and small commercial media sector".

Mr Abram questioned whether this last proposal should be effected as it is the very purpose of this Bill to promote the interests of small commercial media, it does not therefore seem necessary to expressly include this in the provision.

The Chair stated that the proposals raised by Ms Smuts would be discussed further at a later date.

Clause 4 : Constitution of Board
Amendment 1
Mr Abram asked whether the title should not read "Constitution of the Board".

Mr Netshitombani informed him that it is standard legislative drafting practice not to include "the" in section titles.

The Chair noted that this amendment is agreed to by members.

Amendments 2 and 3
Mr Abram inquired as to the reason for having "at least 7 and not more than 9 board members".

The Chair informed him that this would allow for a quorum to be held, so that the board could still lawfully convene should one of the members resign, for example.

Mr A M Maziya (ANC) stated that the ANC favours option 4 on page 9 of the Amendments as it allows the President to appoint 3 members "from whatever origin", and also affords the President "some space' to decide on these 3 members as the other 6 may already convene at board meetings. Furthermore, this option expressly excludes the Government Communication and Information Service (GCIS) from the list of bodies or institutions from which the President may appoint 3 members.

Ms Smuts inquired whether this meant that the ANC also recommends the consequent removal of Clause 6(h) on page 4 of the Bill.

The Chair replied that the precise legal definition and opinion of the SLA on the terms "public servant" and "office for profit" has to be identified before the discussion continues.

Mr JJ Dowry (NNP) stated that "option 4 looks good", but the proposed Clause 4(1) on page 9 of the Amendments cannot merely provide that the board consists of 9 members, with 6 appointed by the general public and 3 by the President.

Mr R D Pieterse (ANC) suggested that the idea behind option 4 is for the board "to be up and running as soon as possible" without unduly restricting the President's choice in making the 3 appointments, and thus allowing him time to apply his mind to the process.

Mr Maziya added that this enables the first meeting of the board to be co-ordinated by the Minister of Communications (the Minister), and in that meeting the chairperson can be elected. Furthermore, a process has to instituted whereby the donors of the agency may be identified and a list handed over to the President. This process of including them is "much smoother" than requiring the board to engage in discussions with them, as they are a vital part of this process.

The Chair requested the SLA to devise formulations that would best capture the intention of Clauses 4(1) and (2) on page 9 of the Amendments.

Mr Pieterse stated that this provision should not state "at least six" members, but should rather expressly provide for the appointment of 9 members exactly. The reason is that the Clause 4(1) on page 9 of the Amendments could be interpreted to mean that a board may consists of 6 members only.

The Chair contended that the first appointment has to have the full complement of 9 members, otherwise no board may be convened. Furthermore, there has to be a way for the memorandum of understanding "to kick in" before the full board is constituted.

Mr Maziya suggested that the problem here is the wording of Clause 4(1) on page 9 of the Amendments, and it should rather by amended to read "The Board shall consist of 9 members", and the following provision/s could spell out the precise manner in which these are appointed.

The Chair replied that this does not cure the problem, as there could still very well be a delay in the 3 appointments made by the President. A possible solution could be found if the provision were phrased to the effect of "The Board shall consist of 6 members, with 3 other members are to be appointed by the President". This would allow at least 6 members to be appointed immediately so that the board may convene.

Mr Joe Mjwara, Senior General Manager from the Department of Communications (the Department), suggested that this formulation meant that only 6 members would be appointed tot he board, and the status of the remaining 3 is uncertain. The position with regard to a quorum then has to be clarified.

The Chair replied that the clause should provide "The Board shall consist of a maximum of 9 members" and 6 members would then be forwarded.

Ms Smuts preferred the original formulation on page 3 of the Bill that allows the sectors to nominate independent representatives to the board.

Mr T Trew, from GCIS, suggested that the SLA "should figure this out" and provide a "simple formulation". The provision could state that the board consists of 9 members, except the first 6 who are constituted until the President elects the remaining 3.

Ms Smuts disapproved of this formulation because it does not seem to regard the Agency as an independent body.

Mr Dowry inquired as to whether the provision could not simply state that 3 members are to be appointed by the President at the same time as the other 6 appointments are made, as this would allow the entire complement of 9 board members to be convened at the same time.

The Chair preferred option 4, and requested the SLA to formulate a provision based on Mr Trew's sentiments.

Clause 5 : Nomination and appointment of members

This amendment is agreed to.

Clause 6 : DisqualificationThe Chair requested clarity on the specific Constitution referred to here.

Mr Netshitombani informed the Chair that amendment 3 on page 1 of the Amendments states that the 1996 Constitution applies to this Bill, and the intention of this amendment is to include the 1993 Constitution in Clause 6 of the Bill. The pivotal question here is whether the 1993 or 1996 Constitution should serve as the cut-off date for crimes committed under Clause 6, and in this regard it was felt that the appropriate date would be that on which South Africa first became a democracy viz. 27 April 1993.

The Chair stated that the difficulty here lies in recognising a Constitution that no longer exists.

Mr Netshitombani replied that the issue here is whether a person convicted during the period beginning 27 April 1993 and ending 4 February 1997 of a crime listed in Clause 6 of the Bill would be suitable to serve on the board. It is not certain which date should be used as the cut-off point for these crimes.

Ms Smuts informed members that the disqualification clause in the ICASA Act refers to the 1993 Constitution, which supports the SLA's assertion that the 1993 Constitution be used here. The Independent Broadcasting Act makes no mention of either Constitution.

The Chair suggested that "there can be no harm" in referring to the 1993 Constitution.

Amendment 2
The Chair requested clarity on the distinction between a "public servant" and "the holder of any other remunerated position under the State", as contained in Clause 6(h) on page 4 of the Bill.

Mr Netshitombani replied that the intention here is to exclude only those persons appointed in terms of the Public Service Act, which does not exclude teachers or professors.

Ms Smuts agreed.

Amendment 3
Mr Trew inquired whether the exclusion of public servants by this provision is necessary.

Mr Netshitombani replied that some Acts do expressly exclude public servants.

Mr Pieterse inquired whether there are Acts in which these have been included.

Mr Netshitombani replied that there are several of these Acts and informed members that he himself is a member of the board of the Department of Agriculture, but is also a public servant, and does not receive remuneration.

Ms Smuts contended that this Bill does not, however, deal with agricultural issues, but with free speech under Section 16 of the Constitution. Public servants should thus be excluded from the board as the very purpose of the board is to ensure an independent Agency, and to grant them membership would directly violate Clause 2(4) on page 3 of the Bill.

The Chair asked GCIS for the reason to include public servants on the board.

Mr Trew responded that the intention is that these would ensure government engagement in the promotion of policies and interests in the operations of the Agency. It is hoped that they would being their specialised knowledge and resources acquired from other initiatives they have engaged in, and apply these to the functioning of the Agency. The initial intention was to provide for a choice in appointments here, but public servants could also bring with them a very definite advantage to the Agency.

The Chair stated that Clause 6(1)(h) on page 4 of the Amendments states that these are "nominated", which effectively means these are not nominations of GCIS personnel, but rather merely nominations by GCIS. This does "make things easier", but the crucial issue regarding the membership of public servants remains unresolved.

Mr Maziya had no objections to the inclusion of public servants on the board, as they are not in any case receiving any remuneration. Indeed, several boards have public servants as members.

Mr Abram agreed with Mr Maziya, and added that public servants who are also board members only receive subsistence and travelling allowances here.

Mr Dowry suggested that the phrase ", except a member nominated in terms of section 5(1)(a)(i)" on page 4 of the Bill should be deleted.

The Chair disagreed, and informed Mr Dowry that Clause 4(4) provides adequate protection in this regard. The Parliamentary Law Advisor, Ms Maggie Tsulesane, is requested to clarify this matter.

Ms Tsulesane informed members that Clause 6(1)(h) aims to avoid the payment of double remuneration to public servants who are already paid by the state, and also seeks to avoid conflict of interest situations. Public servants have been allowed to serve as members on such boards only insofar as such service is compatible with their duties as public servants. If this is not the case, they would be disqualified.

The Chair stated that this matter would be finalised at a later stage.

Amendment 4
The Chair questioned whether this amendment is necessary.

Mr Pieterse stated that Clause 6(1)(h) deals with disqualification and Clause 6(2) does not deal with removal from office, and therefore this amendment should be included as the new Clause 6(1)(i).

The Chair agreed, and called for the new Clause 5 to be entitled "Disqualification" and the new Clause 6 will deal with "Removal". The SLA are instructed to ensure the amendments are made clear to the government printers.

Mr Netshitombani stated the current Clause 6(2) on page 4 of the Bill would now become the new Clause 6 entitled "Removal from office".

Clause 7 : Term of office of members

These amendments were agreed to.

Amendment 4
Mr Abram inquired as to the criteria for the incompetence referred to in Clause 6(2)(e) on page 5 of the Bill.

Ms Smuts inquired whether the use of the phrase "he or she is found to be" would cure Mr Abrams' concern.

The Chair approved of Ms Smuts' formulation, as it accords with Clauses 6(2)(f) and (g) that also refer to "found guilty".

Amendment 5
This amendment was agreed to.

Clause 8 : Remuneration of Board members

The Chair noted that this amendment is agreed to, but it has to be entitled a new clause.

Amendment 2
The Chair noted that this amendment is agreed to, but requested the SLA to rework this clause to include the reference to the 3 members appointed by the President. The final version of this provision depends on which option is chosen under Clause 4.

Clause 7 : Term of office of members
Amendment 1
The Chair requested the SLA to provide clarity here.

Mr Netshitombani informed the Chair that this concern is solved by the introduction of the lot system, as suggested during the previous session.

Dr Devan Pillay, Policy Director of GCIS, stated that if option 4 is selected, only the 6 members chosen by the general public, under Clause 7(2) on page 5 of the Bill, would be affected by the lot system, not the chairperson him-/herself.

The Chair called for this amendment to be rejected.

Amendment 2
The Chair suggested that this amendment confuses the true intention of Clause 7(2), and recommended that a separate provision be inserted stating that "the Chairperson must hold office for a period of 5 years".

Amendment 3
This amendment is agreed to.

Clause 8 : Remuneration of Board members
Amendment 1
Mr Netshitombani suggested that the original version on page 5 of the Bill be retained.

Mr Maziya inquired whether the board meeting fees could be used to remunerate members, as this would be problematic.

The Chair agreed with Mr Netshitombani.

Clause 9 : Meetings of Board

These amendments were agreed to.

Clause 10 : Conflicting interests

The Chair noted that these were agreed to, but any reference to "meeting" in this clause has to be altered to "meetings".

Clause 11 : Staff
Amendment 1
This amendment was rejected, and Clause 11(1) has to include a reference to Clause 4(3)(b) of the Bill.

Amendment 2
This amendment was rejected.

Clause 13 : General functions of Board

These amendments were agreed to.

Amendment 3
This amendment was agreed to, and called for a comma to be inserted after "Agency" in line 19.

Amendments 4 and 5
These amendments were agreed to.

Clause 14 : Finances of Agency
Amendment 1
Mr Maziya stated that it is not normal procedure for the report to be submitted to Parliament without it first being viewed by this committee.

The Chair assured him that this committee would convene a meeting to consider the report, and noted that this amendment was agreed to.

There were no further questions or comments and the Chair adjourned the meeting.

Appendix 1:
Print Media suggestions about selection criteria:
1. SELECTION CRITERIA

Print media projects seeking support from the MDDA should fulfil a combination of the following criteria:

1.1 Come from historically disadvantaged communities

1.2 Potential to become viable or self-sustaining over a period of time

1.3 Make a contribution to the development of media diversity in South Africa, i.e.

either in terms of ownership and control and also content

1.4 Stand alone and not be linked to any of the established media houses

1.5 Either be start-ups or existing projects

1.6 Either be newspapers, magazines or newsletters

1.7 Either be an entrepreneurial or non-profit project.