Broadcast Amendment Bill: hearings

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Communications and Digital Technologies

20 September 2002
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Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE


20 September 2002
BROADCAST AMENDMENT BILL: HEARINGS

Chairperson: Mr N Kekana (ANC)

Relevant documents
 

Broadcast Amendment Bill [B34-2002]
Orbicom Submission
Telkom Submission
NAB Submission
SANEF Submission (Appendix 1)
Versfeld & Nkosi Submission (Appendix 2)
NCRF Submission (document awaited)
Sentech Submission
Multichoice/ M-net Submission
Executive Summary of Multichoice submission

Additional written submissions not presented at hearings:
Mills & Groenewald Prokereurs
Teljoy Group

SUMMARY
Multichoice, Orbicom, Sentech and Telkom presented submissions in the morning session. They welcomed the intention of the Broadcasting Amendment Bill but disagreed with the practical implementation procedures that the Bill proposed and gave alternative suggestions.

The presentation by Versfeld & Nkosi raised concerns with the deletion of the proposed Section 6(2) because its deletion would remove the right to freedom of expression, and the proposed Section 6(4) creates uncertainties and is not in line with international best practice.

During the discussion on the National Community Radio Forum presentation Members requested clarity on the proposed formalised partnership understanding between the SABC and community radio, because this could be problematic.

The South African National Editors Forum presentation called for the Bill to establish an enabling legislative framework that would allow the public broadcaster to fulfil its mandate and also ensure adherence to Section 16 of the Constitution. The proposed Section 32A of the Bill is supported because it aims to empower the poor and marginilised by creating access to information. The proposed Section 10 adequately provides for journalistic independence because it allows for the gathering and dissemination of information. The proposed Section 6(5) strips the SABC of its powers and its independence from government.

The discussion on this presentation raised concern with whether the Bill addresses the problem with a decrease in readers due to the increase in electronic media, what the Bill can do to ensure the SABC delivers on its mandate, how SANEF interprets governmental interference in the operations of the SABC and whether the Bill can be seen as a precursor to further inroads being made into press freedom. Clarity was requested regarding the precise meaning of "national interest" and its bearing on the role of the Minister of Communications, as the elected head, in implementing policy. It was also questioned whether a Code of Conduct for broadcasters should be formalised into law.

The presentation by the National Association of Broadcasters raised concern with certain definitions, and suggested that the proposed Section 4 creates uncertainty with regard to the status of currently unlicensed broadcasters. The proposed Section 5(2) provides for different classes of broadcasting licenses, and it was suggested that those classes that have not yet been employed by ICASA should be removed. The proposed Sections 6, 11, 12 and 15 impact negatively on the entire broadcasting landscape with far-reaching effects, and the deletion of the proposed Section 6(2) would undermine the independence of the SABC. The NAB is of the view that the proposed Section 6(4) is unconstitutional.

MINUTES
Multichoice and M-net
The Chief Executive Officer of Multichoice Africa, Mr Letele, indicated that even though they had concerns about the Bill, they welcomed its intentions. He then gave floor to their legal representative, Ms Armstrong (Director: Cheadle Thompson and Haysom).

Ms Armstrong focused on some definitions in the Bill and proposed how they could be reworded or deleted to avoid ambiguity and irrelevance. For example, she specifically focused on the definition of "National sporting events" and "National events". She added that ICASA was investigation into this issue and that a redefinition would undermine ICASA's work.

The Director of M-net Regulatory Affairs, Mr. Kwesi Mtengenya proceeded with the presentation by focusing on local content. He made the following observations: firstly, he said the provision of local content should be deleted from the Bill because it was already provided for in Section 53 of the IBA Act. Secondly, there was no need for Section 30(8) of the Bill because it was in conflict with Section 53 of the IBA Act. Thirdly, he said that the new subsection on local content lacks the flexibility and sophistication of S53 of the IBA Act. Finally, he observed that Section 8(a) and (b) fail to make appropriate distinction between "subscription broadcasting service" and "free-to-air service" and that the section be deleted.

Ms Mack, the Group Executive Policy and Regulatory Affairs proceeded with the presentation on S49 and S50 dealing with application of control limitations. She proposed that the subsection be deleted because the Bill suggested that authority had to make recommendations which needed the Minister's endorsement. She reckoned that such provisions deny the role for the legislature and possibly constitutional scrutiny. She added that the new sections also limited freedom of. She felt that S34(4) did not give adequate protection to those who are providing the service legally. She also noted that there were no time limits for the process of applications. Finally she observed that the definition of "this Act" is also crucial because as it stands it is uncertain which Act is being referred to.

Orbicom
Orbicom's (Pty) Ltd presentation also focused on some definitions in the Bill and proposed some deletion and modification or re-wording thereof. It also emphasised that broadcasting licensing should be more flexible than the Bill proposed. The presentation was made by Mr Kilowan.

Sentech
Mr. Lindenque made a presentation on behalf of Sentech. He advocated the use of digital terrestrial networks (DTN) and indicated that such technology was a global trend. He also described their experience with DTN and the advantages of using DTN. Regarding the Bill, Sentech also proposed some redefinitions. It also reckoned that some of the amendments should be made with cognisance of the Independent Broadcasting Authority Act.

Telkom
Ms Raffinet made a presentation on behalf of Telkom. Telkom only focused on technical aspects of the Bill. They only proposed some redefinitions and additions to the Bills.

Discussion
Ms Smuts (DP) commended Multichoice and M-net for their clear presentation. She agreed with the points that they had made and reckoned that " the Bill loses the plot" because it put more burdens on broadcasters.

Mr. Pieterse (ANC) also commended Multichoice and M-net for their presentation. He observed that the was an unbalanced use of South Africa's official languages, especially sign language and asked Multichoice and M-net for their comment. The response was that Multichoice and M-net were aware of such limitations and that it would take a very long time to redress the issue.

The Chairperson commented that it were true that the population of deaf people were estimated at four million, then he could not understand why paid TV could not advantage of this market. Ms Smuts (DP) interjected and said that it was the duty of the public broadcaster to cater for deaf people. Mr. Letele agreed and added that pay TV was very expensive. Ms Mack added that in a multi-channel environment, they could not edit any foreign programmes and that though it would be possible to ask the foreign channel to make the adjustments it would cost too much. She reckoned it was more cost effective for a public broadcaster to provide such a service. She then added that M-net have tried to increase local content and bring multi-ligualism in a single programme.

Ms Vos (IFP) reckoned that a large proportion of the deaf population was poor and could not afford pay TV. The Chairperson agreed, but argued that at least half of that population would find the means to pay for the service if a channel was exclusively catering to their needs.

The Chairperson observed that there was a racial imbalance in M-net's programmes and asked why there were programmes which would make Africans proud of themselves. Ms Mack responded that it is for commercial reasons that such a channel has not been developed. However, she reckoned that such programmes would come as the market forces demanded them.

Mr. Gore (DP) wanted to know the estimate cost of digitally compatible television set. Sentech had no idea of the cost but promised to make an inquiry into that.

Ms Smuts (DP) wanted to know if digitalisation would be free or conditional to the consumers. Sentech explained that digital networks were a global trend and that both free and conditional television were moving into that direction. He also added that consumers would have to bear the cost of upgrading their television sets or buy new ones. He then explained that DTN was no more expensive than analogue transmitters, and that analogue transmitters were not using frequency efficiently which would make it difficulty to implement the provisions of the Bill.

Ms Mtsweni (ANC) asked Sentech to explain the capacity of DTN in comparison with the analogue one. Sentech explained that with digital network more than one television station could be transmitted using a single frequency channel.

Mr Abrahams wanted to know the opinion of Sentech regarding the use of sign language. Sentech acknowledge that there was a need for catering for people with hearing impairments but that it was an issue that would be looked into.

Versfeld & Nkosi Submission
Mr Matthews Suping, IT Law Manager: Versfeld & Nkosi, stated that Versfeld & Nkosi agrees generally with the objects of the Bill, and then outlined concerns with some of the specific clauses of the Bill. The proposed Section 4 does not seem to promote technological neutrality and creates the impression that licenses have been issued by ICASA that do not meet the licensing requirements. The proposed deletion of Section 6(2) would take away the media's right to freedom of expression, and should thus be retained. Furthermore, the proposed Section 6(4) allows the Minister of Communications (the Minister) to exercise her sole discretion in approving the SABC Board's policies (the Board), and this provision thus creates uncertainties and does not comply with international best practice standards.

The proposed Section 7 is welcomed as it will instill certainty with regard to the manner in which the Corporation will operate. The manner in which the funding of the Corporation is dealt with in the proposed Sections 10 and 11 of the Bill should be regarded as a positive move, and stipulates what is expected of the commercial broadcasting service prior to conversion.

Versfeld & Nkosi also has general concerns with the Bill which do not necessarily have a negative consequence, and these include the apparent usurpation of the powers of ICASA by the Department of Communications (the Department), and attempts made to licensing independent pay television and satellite broadcasters. The proposed Section 32A entrenches the introduction of two regional television services, but can be construed as a measure to enable the Department to "come to the aid" of ICASA with regards to fulfilling its mandate and the licensing of community broadcasting services.

Discussion
The Chair stated that Versfeld & Nkosi used very interesting words during its presentation and suggested that "the Corporation must only function in the best interests of the Republic and its citizens", and these words should be used in the Bill itself. This means essentially the public interest. Since 1994 "public interest" has been referred to ass those views that are fashionable but that are very thin on principle and deals more with what has to be heard by people "out there". Although "public interest" is used here no measure has yet been identified with which to gauge this notion, and it the only current measure is via a referendum or election.

This Committee has argued that should a referendum be used with regard to the property clause in the Constitution then the majority of South Africans would contend that this amounts to tampering with their rights. Yet it seems that the definition of "national interest" is to be found in the Constitution itself. Should strict adherence to the phrase "in the best interests of the Republic" be required, this would not seem to accommodate journalists.

National Community Radio Forum Submission
Mr Console Tieane, from the National Community Radio Forum (NCRF), presented the submission.

Discussion
Ms M Smuts (DP) contended that the NCRF, in its presentation, asked for a formalised partnership understanding between the SABC and community radio, but this does put matters into "tremendous danger". The Bill does, to quite an extraordinary degree, put the control of the public broadcaster in the hands of the Minister not only with regard to the SABC's editorial policy alone, and would this partnership with the SABC then be at all viable? The Department is still trying to establish a partnership with community radio and, with regard to this background, it is surprising that the NCRF has proposed this partnership.

Mr J Durandt (NNP) requested the NCRF to explain the nature of its relationship with the SABC, especially in view of the statement made during its presentation that it uses the SABC studios for its broadcasting. The NCRF is thus requested to clarify this aspect with regard to its expenditure and income, and whether it sees the SABC as a "big brother".

Mr Tieane replied to these questions by stating that, in accordance with political theory, it is the nature of a liberal democracy such as South Africa's that there are certain imperfections, and just because there is a degree of imperfection does not mean that the model definitely has to be suspended. Mr Tieane stated that he does not wish to add to the many presenters that have voiced their disapproval with the Bill in contending that the majority of the issues have not been clarified in the Bill itself, and there might even be a need to correct these by removing provisions from the Bill. Perhaps those provisions that seek to tamper with the independence of the public broadcaster should be revised.

With regard to the regional television services themselves, many submissions have referred to the lack of clarity in these provisions, and this matter has to be debated so that agreement may be reached on the real nature of the matter and the relevant policies aimed at governing its operation. On the basis of this agreement certain principles may then be fixed which would then make it possible to arrive at a workable model for regional television services, in order to address this lacuna in general.

As far as the partnership is concerned, political debate is important to establish a broad policy principle which represents what ideally wants to be achieved, and in most cases this would be followed by a feasibility study to identify the logistical and technical issues necessary to enable the proper implementation of that policy ideal. It is important to do this because, having cleared the problems, it would then be possible to interpret development within the Charter because this will then provide the template within which to measure such development.

South African National Editors Forum Submission
Mr Mathatha Tsedu, Chairperson of the South African National Editors Forum (SANEF), conducted the presentation (see document below) and stated that the Bill is based on, amongst others, the following principles: freedom of information and the ability to receive this information in one's own language; that information is empowering and useful and must be reliable; the State has to create an enabling legislative framework that allows the public broadcaster to fulfill its mandate and that Section 16 of the Constitution of is vital in allowing South Africa to communicate with herself and the world in a "free and fair manner".

With regard to the manner in which the Bill ensures access to information SANEF supports the proposed Section 32A to the extent that it aims to empower the poor and the marginilised through access to information, and these two services should have clear Charters which should be reflected in the Bill. If Government's vision is that these should become commercial entities, with private and public investor participation, then they should be licensed from scratch as Private broadcasters. However, if the rationale is to promote commercially-marginalised languages, then it should strongly be considered if these channels ought not to be located as part of the PBS section in the existing public broadcaster, namely the SABC. The Bill should clarify this, particularly as this has a bearing on the kind of broadcast license and licensing process that ICASA is responsible for. The business model for both these services has to be costed and the funding and revenue flows have to be spelt out by the State.

As far as Journalistic Independence is concerned, the proposed Section 10 adequately creates the necessary environment which allows for the gathering and dissemination of news by the national broadcaster, and such "editorial autonomy" has to be ensured in the Bill. The use of the word "responsible" in the proposed Section 6(5) refers to the universally accepted ethics of journalism and which are part of the "democratic significance of media freedom". Thus external interests cannot be allowed to encroach upon these decisions, as journalists would not be able to exercise responsibility under such impingement. Various oversight mechanisms have been established to ensure such responsibility.

Furthermore, the proposed Section 6(5) subverts the authority of the Board and its powers by vesting them with the Minister instead and this essentially strips the SABC of its "independence from Government", which contravenes the provisions of the Broadcast Act of 1999 the principal Act). The inclusion of the phrases "harm the country" and "national interest" in the proposed Section 6(3) creates difficulties, and should thus be removed from the Bill.

Discussion
Mr R Pieterse (ANC) stated that this Bill does focus on broadcasting and there has been a drop in the number of readers in South Africa due to an over-concentration of electronic media, because the same focus has not been placed on reading. The concern here has always been that all the SABC is not catering for all the official languages as it is supposed to, and when it rolls-out facilities for these languages many are still not accommodated, especially those who are still disadvantaged and sign language.

Mr Tsedu responded that he agreed with the assertion made by Mr Pieterse and stated that this is a huge problem for newspapers in particular, and there is a constant struggle waged by the general society to facilitate the exposure of more official languages, and this struggle would probably continue even after the Bill is processed.

Mr Suping replied that Mr Pieterse's concern does not really reflect the reality of the situation, because when accessing the Internet or other electronic forms of media one almost always has to read the publication. Therefore, just because people do not go to their public library in as many numbers as before, does not necessarily mean people are not reading.

Ms N Mtsweni (ANC) stated that the SABC has failed to deliver on its mandate and perhaps an alternative method should be devised. Mention was made of international standards in this regard, as a possible method to cover the South African context, because the SABC has failed to deliver on its mandate regarding languages and local content. What does SANEF propose should be done here so that this Bill can provide the necessary support?

Ms M Magazi (ANC) directed a general question regarding the independence of the SABC to SANEF by stating that every presenter that has addressed this Committee during these public hearings has suggested that either the State or the Minister is interfering in SABC operations, and SANEF is thus asked to explain how it interprets this interference by government and the Minister. Ms Magazi contended that she is of the opinion that the Bill is actually trying to monitor or give guidance to the broadcast industry in order to ensure that it does not operate in a loose manner. In fact, no less than two to three hours after the September 11 attacks in the United States President Bush appeared on national television to rally support from the nation, and his statement was captured verbatim in the American newspapers the next morning. This is not to say that South Africa should follow suit because the independence of the media is respected, but the question here is how the press can use its independence when thinking of national interest.

Mr Tsedu replied that the full Bush statement was published all over the word, and contended that the definition of governmental or Ministerial interference would include any act by either the government or the Minister that is not in line with the law. The Constitution lays down the parameters within which the press has to operate, and if its members contravene these parameters they will be "out of step".

This is linked to the question posed by Ms Mtsweni regarding the public broadcaster's failure to deliver and the public representatives cannot just sit back here, but instead need an understanding of why the SABC cannot meet its present demands. Furthermore, the SABC carries its public mandate as though it were funded here by public funding, and this is not true because 80% of the SABC funding is derived from its commercial activities. It is thus, for all intents and purposes, a commercial broadcaster, yet it is expected to deliver on its public mandate. Thus this dichotomy has to be understood, and essentially provides that should SABC channels one and two be public channels then their commercial funding has to be reduced so that they can then deliver on their local and public mandates.

Ms S Vos (IFP) stated that she agreed with practically "every word" of the SANEF presentation. This Committee seems to share the view that the majority of the Members of Parliament reflect the views of the majority of the voters in the community, and they are therefore entitled to make laws on behalf of those voters, and the role of the Minister is then to implement policy. How then can this be reconciled with the definition of "national interest" and the effect of the Bill with regard to reflecting the will of the majority as opposed to the public interest in this regard.

Prof Guy Berger, from SANEF, replied to the questions posed by Ms Vos and Ms Mtsweni by stating that the United States media seemed to have lost perspective after the September 11 attacks as the world media was inundated with the United States view on the matter. SANEF contends that it is critical that national interest not give a general perspective of events but rather creates debate, which would in turn define "national interest", because this is not a defined concept nor is it a scientific notion. It is related to "the best interests of the people" as it is aimed at bringing out different views, and can be used as a tool by the Department in various spaces or forums. This was one of the major problems with the Apartheid regime because it sought to use it as a tool, but it must also be respected as a space a forum in its own right, and can now be used to ensure that those languages that have been marginilised now have greater access to broadcast media.

Ms Smuts stated that the Code of Conduct for Broadcasters was contained in the Schedule to the old Independent Broadcasting Act, but in the case of Islamic Unity Convention v Independent Broadcasting Authority and othersthe Constitutional Court held portions of that Code to be unconstitutional, as far as it affects relations between sections of the public. It was thus ordered that that Code, which is a pre-constitutional piece of legislation, has to be brought in line with the right to free speech. During its presentation COSATU contended, and Ms Smuts agrees, that that Code should be formalised as law. This is a difficult issue because, constitutionally, ICASA must regulate the Code. Does SANEF share the views of COSATU on this matter that the Constitution is the law of the land? This matter is especially important with regard to the proposed Sections 6 and 11 of the Bill which provides that the Minister may approve a new Code of Conduct for the SABC, which is aimed at ensuring equality between languages etc.

Mr Tsedu responded that SANEF believes that ICASA is an institution created by the Constitution to regulate this specific matter, and it alone should have this responsibility.

Mr Durandt stated that, in her statement delivered on Monday, the Minister referred to "national interest" which is a sensitive thing, and she quite often mentioned that government wants to communicate with the public. What is to be regarded as the accurate view here, because it appears that far too often media reports focus on the negative aspects or non-delivery rather than also crediting the positive work done by government.

Mr Henry Jeffreys, from SANEF, replied that this is only fair because if one pensioner does die while waiting in line to receive his/her cheque, as is the example used by Mr Durandt, this would be one pensioner too many. This is then the legitimate task of the media to highlight these shortcomings. It is an unwritten rule that good news does not sell and the achievements and success are also broadcast, but the reality of the matter is that the public is concerned about what does go wrong and they "do not lose sleep over what goes well".

Furthermore, it has to be clear that government itself has to take responsibility for the manner in which it communicates with the public, and here is has to use its vast resources. It would be untrue to suggested that government does not communicate with the general public because one only has to look at the newspapers and listen to the radio to find that "government is all over the place". Efforts now have to be made to assist government to set up its own communication system.

Mr S Abram (UDM) asked SANEF to explain whether it believes the Bill could be a precursor to further inroads into press freedom, even though it only deals with the broadcast sector. Was Mr Tsedu an "SABC operative" before his current "reincarnation", and perhaps some of the statements he has made during the presentation are due to the fact that he feels the Board has become a law unto itself and is not properly accountable to those it is supposed to serve. The SABC also informed this Committee earlier this week that it would not be able to deliver on its mandate and Ms Jane Duncan, from the Freedom of Expression Institute, suggested that the SABC hold quarterly sessions with interest groups to evaluate its performance. Could SANEF express its views on this?

Mr Tsedu responded that SANEF does not believe this to be the case.

Prof Berger added that if one views media as a tool then such erosion could take place, but it should instead be seen as a space that plays a critical role on democracy. The power exercised by the media has to go with responsibility.

Mr Jeffreys added that in the interests of wider society have to be accommodated here, and perhaps something to the effect of "in the interests of the State", which would deal with government departments, or "in the interests of society" to deal with Section 9 of the Constitution and ICASA should be introduced here. One therefore has to be careful here before allowing this provision to be expanded to allow political interference.

The Chair stated that the debate regarding the split between national and public interest is unfortunate especially with regard to the public interest, because ICASA has been mandated to act "in the public interest". Therefore ICASA has to be guided by the government that is in power and which has been elected by the people in that society or community, and if those people tell that government that it has failed to deliver after its five year office, then those people have the power to vote out that government and put another government in power. This is the essence of democracy. Thus the government cannot continually fail to deliver, as suggested by Ms Mtsweni, and there is therefore a need to find ways of defining these parameters and relationships so that it is not left to chance.

The 1976 Broadcast Act made no provision for any sort of relationship between government and the SABC, except that it did stipulate that the President would appoint the Board, and the SABC was then subjected to all kinds of parameters and was the State broadcaster. This Bill aims at establishing an open and transparent broadcaster, and its relationship with government has to be clearly spelt out in this law so that it is not left open.

National Association of Broadcasters Submission
Mr Randall Abrahams, Chairperson of the National Association of Broadcasters (NAB), provided a brief introduction to the views of the NAB on the Bill (see document above), and handed the presentation over to Ms Justine White, Director: Edward Nathan & Friedland, to deal with the specific areas of concern raised by the NAB.

Ms White outlined the problematic definitions contained in Section 1 of the principal Act, and contended that the proposed Section 3 of the principal Act makes it difficult for the industry to know which provisions are required to be complied with. The concern created by the proposed Section 3(2) of the principal Act is that it provides that only the Minister is ultimately responsible for developing policy in this regard, whereas this function should properly lie with ICASA and Parliament itself in terms of Section 192 of the Constitution. The proposed Section 4 creates uncertainty regarding the status of currently unlicensed broadcasters, and the NAB submits that these operators should be allowed to continue their operations until such time as ICASA decides their status.

The proposed Section 5(2) creates various categories of broadcasting licenses, and the NAB submits that these classes have not been systematically determined. It is thus proposed that those classes which have not yet been used by ICASA should be removed from the Bill, and a flexible and responsive licensing regime has to be established.

The proposed Section 6, 11, 12 and 15 of the Bill relate specifically to the SABC, and it is submitted that these will impact negatively on the "entire broadcasting landscape of the country with far-reaching effects not only for the public broadcaster but for all broadcasters and all broadcast audiences". The proposed deletion of Section 6(2) will undermine the independence and very function of the SABC, as it contravenes the right to freedom of expression granted by Section 16 of the Constitution. This cannot be allowed. Furthermore, the proposed Section 6(4) requires the Minister's approval of the SABC reporting policies and, especially in view of South Africa's "dreadful history of state interference in the affairs of the SABC", this cannot be allowed. The NAB thus submits that "it is imperative for the entire broadcasting environment that the public broadcaster does not become simply a government broadcaster", and it is submitted that the proposed Section 6(4) of the Bill is unconstitutional.

The proposed insertion of Section 32A, while its aims and objectives are laudable, does create concerns with the difficult economic climate that broadcasters currently find themselves in, for example. That provision should be amended to include the role of ICASA as the licensing body, as this would then accord with Section 192 of the Constitution.

Certain amendments were also proposed to the Schedule to the principal Act, including a provision enabling ICASA to prescribe appropriate license renewal forms so that it may have all the information it requires.

The Chair thanked the presenters for their input. There were no further questions or comments and the meeting was adjourned.

Appendix 1
SOUTH AFRICAN NATIONAL EDITORS FORUM (SANEF)
SUBMISSION TO THE PORTFOLIO COMMITTEE ON COMMUNICATIONS ON THE BROADCASTING AMENDMENT BILL 2002. FRIDAY. 20 SEPTEMBER
2002. PARLIAMENT. CAPE TOWN.


1. INTRODUCTION
SANEF is a forum bringing together many of South Africa's leaders in media (print, broadcast, internet) and trainers. Details of the association are available on the website http://www.sanef.org.za. Since its inception in 1996, SANEF has stood for media freedom and transformation.

The position of the SANEF on the Bill is premised on a number of principles. These are:

1.1. Information is power, and those who have it have power and those that do not, don't have any power.

1.2. From this flows the tact that all the people of this country, in their myriad of cultures and languages, have to have an ability to receive and impart information and views in their own languages through all the mediums available through the national broadcaster.

1.3. For the information to be empowering and useful, it must be reliable. Embodied in this is the need therefore for journalists to provide news and current affairs that are as unfettered by political and commercial interests as are humanly possible. The public needs to have confidence in the impartiality of the news they receive.

1.4. The state must create an enabling legislative environment that allows for the public broadcaster to fulfill its functions. This particularly entails funding, but should never extend to any implied, overt or covert role in the determination of the credibility of the news items that are broadcast.

1.5. Section 16 of the Constitution is the embodiment of all the protections that are needed to guarantee that South Africa is able to converse with herself and with the world in a free and fair manner. Whatever steps might be needed from time to time to improve this national discourse, must adhere fully to this section of the Constitution. It should in no way dilute its effectiveness.

2. ACCESS TO INFORMATION
2.1 The amendment Bill proposes two new regional public service television stations to assist in meeting the needs of marginalised language groups.

2.2. Sanef supports this proposal to the extend that the intention is to meet this need for the empowerment of the poor and the marginalised through access to information.

2.3. History shows that the nature of the mandate intended for public serviceoriented programming very seldom enjoy advertising support.

2.4. Sanef believes that these two envisaged services should have clear charters, which include editorial independence. The Bill should reflect this.

2.5. At present, the status of the two envisaged channels is somewhat ambiguous, and they do not fit into either Public, Private or Community licensing categories.

2.6. If Government's vision is that these should become commercial entities, with private and public investor participation, then they should be licensed from scratch as Private broadcasters.

2.7. However, if the rationale is to promote commercially-marginalised languages, then it should strongly be considered if these channels ought not to be located as part of the PBS section in the existing public broadcaster, namely the SABC. The Bill should clarify this, particularly as this has a bearing on the kind of broadcast license and licensing process that ICASA is responsible for.

2.8. The plans for these marginalised language services need to have a clear business model.

2.9. Sanef recommends that it should be spelt out by government as to whether they will carry advertising and thereby cross subsidise loss-making parts of their programming (e.g. Bop - if it becomes one of the channels - already does take ads).

2.10 What is also needed - if these are to be public channels - is Government's vision of what percentage of revenue should come from Government and from licenses, or (if the channels are located within SABC) what percentage should come from the CPBS channels as a cross-subsidy. This vision should be spelt out in the Bill.

2.11. The business model for PBS and the CPBS in the existing public service broadcaster (i.e. SABC as it stands) must be costed. At present, the Bill calls on SABC to produce such costs. However, what also needs to be indicated by Government (and reflected in the Bill) is whether there will be financial commitment by the State to fund particular programming on the SABC's PBS channels in the event that the CPBS profits do not cover the full costs.

2.12. If the SABO has to plan on the assumption that this is not possible, it is likely that the resulting public service vision will be watered down to match revenues from CPBS. For example, there could well be fewer educational, children's, documentary and dramatic productions, as well as less news, in favour of cheaper forms of programming (e.g. game shows), if the sole funding is to come from the CPBS.
2.13. The SABC should know what is required for PBS and whether government will in principle make good where there is "market failure".

2.14. Failure to do the above, will render the noble intentions for the envisaged new services hopelessly ineffective.

2.15. There is, in this respect, a critical need for the country to decide whether access to information to empower the very poor in society should not be as high a priority as providing them with housing and other similar basic needs.

2.16. Whilst the State must provide the enabling environment and financial support to ensure the success of these ventures, mechanisms similar to those related to the MDDA, must be instituted to protect the public broadcasting institutions from undue political and commercial influence.

3. JOURNALISTIC INDEPENDENCE
Section 10 (d) of the principal Act reads as follows: "provide significant news and public affairs programming which needs the highest standards of journalism, as well as fair and unbiased coverage, impartiality, balance and independence from Government, commercial and other interests."

3.1. This is an adequate legislative guideline to create the necessary environment in which the gathering and dissemination of news by the national broadcaster should occur.

3.2. The SABC currently has an editorial policy that guides the gathering, packaging and dissemination of news through all its platforms. This is a policy that was formulated post 1994. It was distilled from the world's best practice on editorial policy including that of the Australian Broadcasting Corporation, the BBC and the Canadian Broadcasting Corporation.

3.3. One of the key elements of this policy is the ring fencing of the news division in particular from interference by even the management of the SABC.

3.4. Decisions of the editorial department of the SABC rest with the news and current affairs division and are governed by universally accepted and practiced journalistic ethics.

3.5. This is line with the universally accepted practice in the print media where the editorial decision-making of editors is regarded as sacrosanct. Like any policy anywhere, the SABC's policy is a living document that undergoes constant review. Such a review is in fact currently underway internally at the SABC

3.6. It should also be noted that constitutionally broadcast licenses are issued with certain conditions by ICASA, and this body, not the Minister, is the appropriate ultimate centre when deciding conditionalities. Even here, such conditionalities should continue to reflect acceptance of the principle of editorial autonomy.
3.7. The Bill (Section 6 substitution, paragraph 5), calls for "accurate, fair and responsible journalism." Sanef supports responsible journalism, but adds immediately that the definition of what constitutes "responsible" must rest in the hands of the profession itself.

3.8. For journalists, "responsible" refers to universally accepted ethics of journalism, evolved over time and as part of the democratic significance of media freedom.

3.9. Journalistic ethics are based on public service, and they call continuously for independent news judgement to be exercised on the part of working journalists.

3.10. It is undesirable, and impractical, for external interests to impinge. Media workers cannot exercise responsibility if they do not have authority over their decisions.

3.11. Any concerns that there is a dereliction of duty and responsibility should be addressed through the various oversight mechanisms existing in free media societies for this purpose. This includes mechanisms for journalistic peer review.

3.12. Sanef also draws attention to the fact that the SABC exists in a competitive information market, and if its editorial independence is even seen to be compromised, audiences could go elsewhere and the Corporation's role and its financial well-being could be weakened.

3.13. This point addresses the phrase in the proposed amendment (Section 6, paragraph 5), that journalists should "act in the best interests of the Corporation". It is Sanef's firm view that journalists (unlike advertising staff, for example) should act in the best interests of the public in the first instance, and not of a particular institution per se. It is, however, Sanef's strong view that the SABC's corporate interests are also best served by editorial independence of its journalists.

3.14. Against this background those amendments in the Bill which will provide the Minister with the right of approval of editorial policy in the SABC is of great concern.

3.15. The Board of the SABC is mandated by legislation to govern the affairs and operations of the Corporation in its entirety. The amendments subvert the authority of the Board and usurp its powers seeking to invest this in the Minister. This must be seen for what is, namely, robbing the SABC of its "independence from Government" as required by the principal Act.

3.16. Sanef further believes that the Minister's notion of "journalism that harms the country" is, in the first instance, a matter handled by the Constitution and the law, and it is not one of government approval of codes of conduct for the SABC.

3.17.The mention of "harm" raises a controversy about what constitutes this effect, and how is it proved. For example, some would even argue that the Broadcast Amendment Bill itself could harm the image of South Africa as a country that has an independent public broadcaster. But how is this established and measured? The rationale is not one that is profitably pursued.
3.18. Sanef furthermore cautions against the wording in the substitution of Section 6 (Paragraph 3) that "The Board must ensure accurate, accountable and fair reporting by the Corporation in order to advance the national and public interest of the Republic".

3.19. Accountability of journalists should be spelt out to be accountability to professional ethics (as opposed to anything else). In addition, the phrase of "national interest" is open to the same difficulties as "harm the country", and should be dropped.

3.20. In short, there is no need for the Minister of this Government or any future government to abrogate to themselves the kind of powers that this amendment seeks.

4. CONCLUSION
The intentions of the Bill to help the SABC to meet the language mandate and to expand access to information to the poor and marginalised of our society through the Corporation, are laudable.

We believe this can be done without compromising or replacing the letter and spirit of Sections 6 and 10 of the principal Act.

We thank the Committee for the opportunity to make this submission in the hope that it is useful to your deliberations and the critically important decisions you have to make on this matter.

Appendix 2
Versfelds Nkosi Inc
ORAL PRESENTATION MADE TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON COMMUNICATIONS IN RESPECT OF THE BROADCASTING AMENDMENT BILL

20TH SEPTEMBER 2002

INTRODUCTION
Versfelds Nkosi Inc. (VNI) is a law firm that has identified Information, Communications and Technology as one avenue that requires a lot of contribution from the legal industry for it to grow. It is on this basis that we took the initiative to contribute to this process by making these oral submissions.

Due to Committee's time constraints at these public hearings, our oral presentation will not be a repetition of our written submission but only an emphasis of those points that we have identified as crucial. We have elected to refrain from commenting on those aspects that specifically affect the SABC's autonomy or editorial independence as we feel these have been more than adequately addressed, and also because we have been informed that the suggested deletion of Section 6(2) will not be effected. VNI is available to respond to questions that may result from the oral submissions as well as the written submission.

CONSULTATION PROCESS

VNI would like to point out from the onset that the general observation has been that a Bill once drafted and brought before a Parliamentary Portfolio Committee is rarely altered in terms of the proposed amendments that are normally contained in the written submissions and presented as oral submissions during the public hearings.

We do not wish to take anything away from the Committee by the above statement except to highlight the fact that the consultation process with regards to the current Amendment Bill was internal, governmental department process, bar for the SABC, being the National Broadcaster, as well as the Authority, ICASA.

It would have been ideal, infact proper, for the process to have included all industry players. This would have allowed for the introduction of diverse views thus allowing for the drafters to identify these from the onset. It would have also allowed for a transparent process from the beginning which would have worked to the advantage of all concerned, government and industry, as harmony can only be attained where the Department adopts a "process friendly approach" which would allow for both to together shape the process.

COMMENTS ON SPECIFIC SECTIONS OF THE BILL

Section 4 (1)
The section is restrictive with regards to technology applicable, i.e. satellite or terrestrial transmitters

It is clear that technologies such as "cable" are excluded

Section 6 (b)
The section is unclear in its current form.

We suggest that it be reworded to commence as follows; "subject to subsection (2) no person providing broadcasting or signal distribution service shall provide a service through a channel or station that is not defined in a broadcasting or signal distribution license immediately…"

This will allow for better clarity, as a service is not provided by a license.

Section 7
The section is welcomed, is long overdue
It will bring certainty to the type of entity that the SABC will assume

Section 32
The section is welcomed as it seeks to promote access to information for the underserviced arrears, as well as assist the Authority and the SABC in meeting their mandates.

The potential problem is that concerning advertising, deriving revenue therefrom.
The advertising cake has shrunk, thou still healthy, it has sunk to the bottom
Will the regional television services focus solely on "building" communities, or will they also "compete" with other broadcasters

Will the services be able to share in the advertising revenue cake
How do we define their viability as it may happen that their content is rich but there is no financial return as it such services do not always enjoy a fair or reasonable size of the advertising cake?

VNI would like to take this opportunity to once again thank the Portfolio Committee on Communications for the time afforded it to present this oral submission.


 

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