Broadcasting Bill: public hearings

Documents handed out
Media and Broadcasting Consultants submission (Appendix 1)
National Community Media Forum submission (Appendix 2)
Radio KZ submission (Appendix 3)
Radio Pretoria submission (Appendix 4)
YFM submission (Appendix 5)

DETAILED MINUTES
Media and Broadcasting Consultants submission
Mr Markowitz said their organisation was committed to the development of the law in the communications sphere and to achieving democracy therein. He said that the law, especially in this field , needs to mirror the pressing needs of society. He sees the Bill as a necessary intervention by the government to catch up with other developments in South Africa, but the Bill should not be seen in a policy and legislative vacuum. A discussion about the Minister’s future role followed, in the light of the independence clause in the IBA Act. The ANC developed a firm policy for independent broadcasting, to which all other parties had agreed. The Minister’s regulatory powers must be consistent with the relevant provisions in the IBA Act. A dual regulatory system is thus envisaged – the Minister dealing with policy issues while the IBA deals with licensing. The fundamental principles in the Bill further entrench the independence clause in the IBA Act. Mr Markowitz said that the significance of the preamble in the Bill was that the primary objects of the IBA and principles now all need to be taken into consideration.

Mr Markowitz was aggrieved by the fact that there are two distinct definitions of "broadcasting" in the Bill and he pressed for clarification. He said that section 1(5) retains a definition of "private broadcasting service" which is contradictory and confusing and he submitted that one definition needs to be provided. Mr Markowitz was impressed by the technologically-related definitions in the Bill. Hee said this shows that an attempt is being made to update and improve the regulatory system and that these definitions take issues into consideration which the IBA Act had overlooked. He looked at the definition of "satellite" and "multi – channel distribution service", he said by defining these terms, a justified attempt is being made to make provision for satellite broadcasting licences: the latter term’s definition is too broad though because it may include broadcasters which the Bill did not intend to include.

They support Section 5 (Classes of licences). He said in order to pre-empt future situations where technology has become so advanced that, for example, a class of licence may no longer exist for a certain type of broadcasting necessitating having to amend legislation to make provision for the development, it is better that the power to develop other classes of licence be given now. He said that the privatisation of SABC is envisaged after the Bill has been enacted and that the Minister has a common law right to select a buyer without interference, but the buyer will have to meet certain requirements.

He then went on to discuss proposals with regard to public commercial TV. It was suggested that SABC 1 broadcasts in English for the purposes of nation-building while SABC 2 broadcasts in all other official languages, SABC 3 may be fully or partially privatised in terms of section 13 (aa) of the IBA Act. Bop TV will probably also be fully or partially privatised by 2002. He said the proceeds of the privatisation could be used for SABC’s public broadcasting, but an economic feasibility enquiry needs to be done. He also said that if section 29(9) of the Bill is read with section 2(9) of the Schedule of the Bill, it could lead to the withdrawal of certain community radio licences and the affected licencees could involve the Minister in law suits unnecessarily (that is, an unnecessary complication is being created by the definition of community-based licences as there is the threat of tedious and expensive lawsuits].

It was also suggested that "government broadcasting enterprises" in section 13(aa) be replaced because it is not defined and that section 13(a)(b) should be qualified by a proviso which furthers the independence of the IBA from the Minister.

Questions by committee members
Ms Smuts (DP) wanted to know from the chair whether any drafting assistance was given when the Bill was drawn up. Mr Moeti, the committee chairperson, responded in the negative saying that he had requested it, but as yet it was not forthcoming. The point was then raised that a possible Telkom situation could occur in broadcasting and this should be avoided. Further why could one or two channels not be sold off because no merit can be found in making the Minister the sole shareholder of the SABC.

Mr Markowitz responded by admitting that he is not a Company Law expert and so is not prepared to comment on the merits or demerits of the Minister becoming the sole shareholder. He also said the SABC will not be just sold off because, in terms of the white paper, some kind of review will have to take place first.

Mr Marsh (ANC) said that when dealing with (e) the proceeds of privatisation, one must keep in mind that huge debts were incurred by the SABC during the apartheid years and that privatising and investing somewhere else is no good. It will be a once-off sale and then how long will the SABC be able to sustain itself?

Mr Kekana (ANC) asked that since the constitution guarantees independence, would this not be enough to ensure that there is not any government intervention. The response was that the SABC needs to be held accountable and the government acts as the watchdog in its position of public custodian. The answer to the question on if the Bill at present gels with the constitution, was that it needs some amendments.

Mr Markowitz also professed to be no expert with regard to the frequency issue, but submitted that the Act does provide for low power transmitters. Mr Marsh suggested that the government should create subsidies for the public broadcasting to be used to off-set government debt. Mr Markowitz said this would create big problems because government coffers will be affected with regard to the subsidies and that it would be unfortunate if the SABC saw no benefit from its assets.

Radio KN submission
Mr Hotchkiss of Radio KN said financially community radio is in a no-win situation. He said a station that has to be completely representative of the community cannot be run effectively and no profit-making is allowed. He said you cannot build listernership if you keep changing listeners. The question was what happens if you have to represent the "community". He said you must have a common interest for example, sport which spans the different communities. He said Radio KN takes Christianity as the common focus point. He said community of interest radio provides diversity and is financially viable because it will receive support from that community. He said if section 29 (3)(4) and (5) are implemented it will create problems. He said clause 7 results in pointless financial restrictions. He also said community of interest provides a way forward for community-based radio stations and that it serves a multi-cultural purpose.

KwaZulu-Natal has the third highest number of community-based radio stations, 25 frequencies were advertised in the province, 7 have not been applied for, 2 of these are AM frequencies. He said there were 7 applications for KN’s spot. He said all these applicants have the competence to build bridges between communities and that community-based radio can do this better than geographically based radio stations.

He mentioned section 4.3 of the white paper in his conclusion, saying that bold and lateral thinking is needed to ensure diversity. He said section 29(3), (4), (5) and (7) need modification. We need to build a nation from diverse communities, we do not need little communities fighting for a bit of time on the radio.

Questions by committee members
Mr Marsh asked why Mr Hotchkiss has a problem with the objects of the Bill. He responded that funding is easier to obtain for community of interest radio than for a station that services everyone because if money is put into a specific cause, interested parties are more likely to give their money in support of that cause.

Mr Green (ACDP) asked whether he supported the view that ethnic-based stations are quite wealthy. Mr Hotchkiss had no comment because he did not know much about them. He went on to explain that the message KN has is what he thinks is needed to bring communities together. Mr Kekana wanted to know what KN stands for, the answer was that it stand for Konsernati (we praise the Lord together). Mr Kekana asked whether he was suggesting that community radio should be restricted to community of interest. Mr Hotchkiss said he was not because other types of licences can also achieve the objects of the Bill, but the best way to do so in most areas is through community of interest licences. He said the frequency issue was a mole-hill being turned into a mountain because, although expensive, there is the possibility of re-organising the FM spectrum resulting in more frequencies and that it was also possible to use low power transmitters.

Ms Smuts wanted him to elaborate on the networking issue. He said any community radio station is prepared to provide programming freely to developing radio stations therefore it boosts income, listenership, etc. He said that national advertisers have started showing an interest in community radio, although national advertising is not the main source of income for the community radio, but it helps where you have news networks.

Mr Kekana said it is impossible to say that Sowetans have the same interest as people in Pietermaritzburg because you have individuals in different communities who have different interests. The view that the Black people of South Africa only have one interest must be left in the past (he was referring to the 1973 Act which provided for English, Afrikaans and Black broadcasting). Mr Hodgkiss said Mr Kenana's comment reiterated his point that it is impossible to have a radio station which will be representative of all the interests in one community.

YFM submission
Mr D Hartford said that there should be regulations which allow, for example, the YFM to exist as a national station in South Africa. He said YFM caters mainly for the black youth of SA, and that the IBA has not given black youth a wide choice of stations to listen to, even though the youth are the majority in this country. He said it is therefore incumbent upon government whether through policy or regulation to make provision to service the youth.

Dirk Harford said YFM is unique because it meets all the requirements in the IBA Act far better than anyone else. YFM is the only station which is black-owned and controlled. YFM is multilingual and they devote 50% of their time to local content and this is having a great effect on South African musicians and the recording industry. Mr Hartford said that YFM has been running for 12 months and the advertising industry has been slow to assist in getting YFM off the ground. If YFM as the most successful new entrant, finds this problematic, how will other new entrants with less experience survive? He said the advertising industry is the most untransformed and yet this industry holds the fate of the entire media industry in its hands. He said that he welcomes the competition, the market should be opened up because he does not think that there are too many players. He said community of interest licences can succeed commercially.

Mr R Abrahams (YFM station manager) discussed the type of music which is primarily played on YFM i.e. hip hop. He said hip hop is a commercial reality and it is a youth-based type of music. He said we should give people what they want and not what we think they want. He suggested that a syndicated youth-radio licence be issued because it will allow for a greater degree of empowerment. He said it is incumbent upon the committee to breed success, as failure leads people to believe that radio as a whole is a failure. He said that the degree of success depends on the format radio is to take and that the urban contemporary format has been the most successful. He said in terms of the future of South Africa if we are going to change the youth's minds about the cultural ethos of South Africa, then music is definitely one route to take. He said in terms of the changes in music on the ground, there is the old belief that blacks like blues and whites like rock which is ridiculous. He said we need to build ideals for youth through music.

Mr Kekana said hip hop encourages violence and how is this problem to be addressed. Mr Green asked what culture can be learnt from hip hop rather than from gospel music. Mr Abrahams replied that these questions made him think of a 1956 Billy Holiday quote, "music is just music". He said certain types of music become acceptable only after time. He said there are lots of issues, but hip hop is a street culture which exists and for us to say it does not is wrong and it encroaches on freedom of speech. He said this notion of violence was primarily started by the industry (USA) itself in the hopes of boosting sales. He said YFM cannot play obscene music but it must play music which is reflective of what is happening. He suggested building a network of youth radio stations. There could be a morning and an afternoon drive time so that one station broadcasts throughout South Africa. For the rest of the time local radio stations would be heard in their respective areas and up-and-coming DJs are given an opportunity to be heard, but for at least two hours of the day everyone will hear the same thing on radio if tuned in to that particular frequency, but a national licence of some sort would be needed for this.

Mr Abrahams said the most important relationship in the radio business is the one between radio, the record industry and retail. We need to boost commercial success and local content. It is impossible to play 20% local rock if it does not exist and radio, the record industry and retail all have a role to play in ensuring that there is enough local content.

Ms Smuts said she supports YFM completely, and what they play is no one's business as long as they adhere to Schedule requirements. She said the primary obligation is that broadcasting must thrive and she agreed with Mr Abrahams that broadcasting should be a competitive sector.

Appendix 1: Media & Broadcasting Consultants

Media and Broadcasting Consultants (Pty) Ltd

7 September 1998

Introductory Remarks on the Broadcasting Bill

1.1 On behalf of my partners and fellow-directors in Media and Broadcasting Consultants (Pty) Ltd – David Dison and Willie Currie - I am privileged to be given the opportunity of presenting our written comments on the Broadcasting Bill to the honourable members of the Communications Portfolio Committee.

1.2 For the last six years, my partners and I have been involved in the development of policy, law and regulation for the broadcasting and telecommunications industries, as well as policy for the establishment of the government information service. We regard this presentation as a continuation of our professional and policy commitment to the democratic transformation of broadcasting in South Africa.

1.3 Law cannot be cast in stone. It has to develop and change in accordance with developments and changes in society. This pressing need for law to mirror society is even more so with the law governing broadcasting and telecommunications. Because of the particular nature of the industries these laws are designed to regulate, broadcast and telecom laws inevitably lag behind technological developments and their related political, cultural and economic consequences.

1.4 These consequences involve, inter alia: issues of access to and the monopoly of the means of communications; competition between the public and private sectors; diversity of content; the promotion of diverse languages and national culture; freedom of expression and information; state intervention; independent regulation; affirmative action; community participation and private economic empowerment. These issues have a fundamental impact on the relations of political and economic power in South Africa.

1.5 The Broadcasting Bill ("the Bill") is a necessary intervention by Government to "legislatively catch-up" with the various legal, policy and technological developments that have emerged in South Africa in the five years since the enactment of the Independent Broadcasting Authority Act, 1993 ("the IBA Act"). Specifically, we refer to the Bill’s new definitions, new licence classification system and new provisions for policy development procedures. As such, the Bill is an important document and could assist in the further transformation of the broadcasting sector as it enters the new millennium.

1.6 The Bill also proposes to legislate the transformation of the South African Broadcasting Corporation ("the SABC") into a wholly-owned state company, with separate commercial and public broadcasting arms, governed by a Charter and accountable (in different ways) to Parliament, the IBA and the Minister. It proposes a fundamental and far-reaching restructuring of public broadcasting.

1.7 The Bill and its proposed restructuring of the SABC do not, however, emerge in a policy or legislative vacuum. This Bill is the logical continuation of several statutes and other documents produced during the last five years. These include:

• The IBA Act, 1993

• The IBA Triple Inquiry Report, August 1995

• The Sentech Act, November 1996

• The Telecommunications Act, November 1996

• White Paper on Broadcasting Policy, June 1998

1.8 The Bill’s most politically significant provision – which has attracted a fair degree of controversy – is the proposed amendment of the IBA Act to include a section on the General Role and Powers of the Minister. As MBC understands it, the main point in dispute is whether this section (and others in the Bill which empower the Minister) conflict in anyway with section 3(3) of the IBA Act that provides:

"The Authority shall function without any political or other bias or interference and shall be wholly independent and separate from the State, the government and its administration or any political party, or from any other functionary or body directly or indirectly representing the interests of the State, the government or any political party

1.9 MBC hereby records its support for the proposal that the Minister, as a representative of South Africa’s democratically elected government, should be charged with the ultimate responsibility for policy development in the broadcasting sector.

1.10 Section 3(3) of the IBA Act should be understood in the correct political context. The law was negotiated and then finally drafted at the Multi-Party Negotiating Process (August 1993) when the apartheid government was still in power.

1.11 The principle of regulatory independence emerged through the negotiations but was partly influenced by the main parties’ negative considerations about each other. The ANC did not trust the National Party to oversee broadcasting during the transition to democratic elections. The National Party did not trust the ANC to independently regulate the electronic media after democratic elections. The ANC was also strongly influenced by a civil society lobby that had developed a firm policy position on an independently appointed and representative SABC Board and the establishment of an independent regulator for broadcasting and telecommunications.

1.12 Section 3(3) therefore emerged in a context where all the main players were agreed, albeit for different reasons, on the independent regulation of broadcasting.

1.13 Five years later, its is appropriate and entirely legitimate that the Minister should, within our established democratic, political and regulatory context, re-assert government’s policy role in the broadcasting sector.

1.14 Notwithstanding our support for this intervention, we still stress that the Ministers’ new regulatory role and powers should be consistent with the provisions of section 3(3) of the IBA Act. The Bill does not propose to amend or delete section 3(3) and therefore, we can conclude that the Minister supports the continuation of the IBA’s regulatory independence as defined above.

1.15 The Bill is attempting to create a dual regulatory system, wherein the Minister and the IBA have separate if sometimes overlapping powers but, on certain defined matters, the IBA would still enjoy regulatory independence as defined in section 3(3) of the IBA Act.

1.16 In trying to focus on the main issues within our circle of expertise, we have limited our comments and queries to the sections listed below. Where applicable we have suggested various alternative policy and legislative options that could be followed by the legislature. In many cases, we have merely posed queries and requested clarity about certain provisions.

2. Preamble and Fundamental Principles

2.1 MBC submits that the Fundamental Principles further entrench the application and enforceability of section 3(3) of the IBA Act.

2.2 We also submit that the Fundamental Principles take the concept of independent regulation further than the IBA Act does by recognising the entrenchment of the independent regulation of broadcasting in the Constitution. The provision in the Bill is set out as follows:

"This Chapter sets out the fundamental principles and objects of this Act. Freedom of expression and the journalistic, creative and programming independence of the broadcasters and independence of regulation are identified as guaranteed by the Constitution. These principles recognise that the South African broadcasting system comprises public, commercial and community elements which make use of the radio frequencies that are public property and provides, through its programming, a public service necessary for the maintenance of South African identity, universal access, equality, unity and diversity".

2.3 MBC notes that the opening provisions of the Bill are unequivocal on the need for independent regulation of broadcasting.

2.4 The Preamble of the Bill, read with its objects in section 2 and the fundamental principles, is a further expansion on the primary objects as set out in section 2 of the IBA Act that was, in effect, the IBA’s charter for the regulation of broadcasting in the public interest.

2.5 The importance of the Preamble and section 2 is that the IBA will have to take into account these provisions, in addition to its own primary objects, when regulating in the public interest.

2.6 The Bill endorses the policy foundations of the IBA Act and further expands on its public interest principles.

3. Section 1: Definitions and Interpretations

3.1 Subsection 1(iii): "broadcasting service"

3.1.1 We wish to draw the Committee’s attention to the fact that there are two distinct definitions of "broadcasting services" in the Bill. The first definition is provided for in subsection 1(iii) and, the second definition is provided for in subsection (2) of section 4.

3.1.2. This apparent and potentially confusing anomaly should be clarified.

3.2 subsection 1(iv): "commercial broadcasting service"

3.2.1 The Bill does not propose to repeal the definition of "private broadcasting service" as contained in section 1(1)(xxxii) of the IBA Act. This subsection provides that:

"`private broadcasting service’ means a broadcasting service operated for profit and controlled by a person who is not a public broadcasting licensee".

3.2.2 According to the Bill, this definition of "private broadcasting service" must now be read with the Bill’s definition of "commercial broadcasting service" which provides that a:

"`commercial broadcasting service’ means a broadcasting service operating for profit and includes any service provided by the Corporation that is not a public broadcasting service".

3.2.3 The joint operation of these two definitions will be contradictory and confusing. One definition should be drafted which provides for a profit-making broadcasting service that could also be controlled by a public broadcaster or, more specifically, by the SABC.

3.3 Technology-related definitions

3.3.1 MBC generally welcome the new communication, entertainment and information technology-based definitions proposed by the Bill. These definitions are an attempt to update and improve the regulatory system, taking into account many aspects not provided for in the IBA Act.

3.3.2 In regulatory terms we have come a long way. In 1921 Chief Justice Taft of the US Supreme Court made the following pronouncement on broadcasting regulation:

"I have always dodged this radio question. I have refused to grant writs and have told the other justices that I hope to avoid passing on this subject as long as possible....Interpreting the law on this subject is something like trying to interpret the law of the occult. It seems like dealing with something supernatural. I want to put it off as long as possible in the hope that it becomes more understandable before the court passes on the questions involved".

Chief Justice Taft (Chief Justice of the Supreme Court of the United States of America, 1921 - 1930)

3.3.3 Thankfully, over seventy years later, our Ministry, the regulators and the Portfolio Committee on Communications are not attempting to "dodge this radio question" and but are striving, through the Broadcasting Bill, to resolve some of the more "supernatural" elements of broadcasting regulating.

3.3.4 The relevant `modernising’ definitions include the following:

• subsection 1 (viii): "encryption"

• subsection 1 (ix): "free-to-air"

• subsection 1 (xiii): "local delivery service"

• subsection 1(xv): "multi-channel distribution service"

• subsection 1(xix): "public commercial broadcasting service"

• subsection 1 (xx): "satellite broadcasting service"

• subsection 1 (xxi): "subscription broadcasting service"

• subsection 1 (xxii): "terrestrial broadcasting service"

3.3.5 The inclusion of the definition of "satellite broadcasting service" and "multi-channel distribution service" is a justified attempt by the drafters of the Bill to provide for the regulation and licensing of satellite broadcasting service. Our only concern here is that the definition of "multi-channel distribution service" is far too broad and can easily, in its present form, include broadcasting signal distributors. We do not think that this was the intention of the legislature.

3.3.6 MBC submits that the Authority could also assume jurisdiction over satellite broadcasting services by making a determination in terms of an existing provision of the IBA Act. The Authority has jurisdiction to regulate and licence the broadcasting services frequency bands.

3.3.7 Section 1(1) (ix) of the IBA Act provides that:

"`broadcasting services frequency bands’ means that part of the electromagnetic radio frequency spectrum which is assigned for the use of broadcasting services by the International Telecommunications Union (ITU), in so far as such assignment has been agreed to or adopted by the Republic, as well as any other additional part of the electromagnetic radio frequency spectrum determined nationally for the use of broadcasting services" (our underlining).

3.3.8 MBC proposes that, by using the power conferred in terms of the underlined section of the definition, the Authority could determine that the Ku-Band, for instance, is part of the broadcasting services frequency bands. In our view, this simple administrative act would give the Authority jurisdiction to regulate satellite broadcasting services which are transmitted over the Ku-Band.

4. Preamble to Chapter II: South African Broadcasting System and Section 3(2): Ministerial responsibility for Policy Development

4.1 The preamble to Chapter II, correctly we believe, legitimises the intervention of the Minister in broadcasting policy development and provides that the Minister has "ultimate responsibility to fulfill certain obligations relating to the use, protection and access to broadcasting resources".

4.2 As stated above, MBC supports the intervention of the Minister in this regard. But the legislature should ensure that such the respective obligations of the Minister are properly defined and that Ministerial intervention is consistent with the provisions of section 3(3) of the IBA Act.

4.3 Section 3(2) confirms that the Minister is "ultimately responsible to develop policy". We deal with the specific powers of the Minister in this regard under our comments on section 5 of Schedule 1 of the Bill.

5. Section 4(2): Additional definition of "broadcasting service"

5.1 We refer the Portfolio Committee to our comments under our paragraph 3.1 above, dealing with the problem of two definitions of broadcasting services in the Bill.

5.2 The definitions overlap but also differ in material respects.

6. Section 5: Classes of Licences

6.1 In line with the need to develop and modernise existing legislation, MBC supports the introduction of the new classes of licences. These classes significantly enhance the limited three-tier system of licence categories provided for in section 40(1) of the IBA Act.

6.2 MBC recommends that, in order to preempt future situations where technology rapidly bypasses law and the effectiveness of broadcasting regulation, the Authority should be given the power to create new classes of licences through regulations and after due inquiry.

7. Chapter IV: Public Broadcasting Services and Charter of Incorporation

7.1 This chapter provides for the central purpose of the Bill and that is to finally enable the fundamental restructuring of public broadcasting in South Africa.

7.2 This restructuring could eventually lead to the full or partial sale of SABC-owned broadcasting services to the private sector.

8. Charter of Incorporation and Section 8: Objectives of Corporation

8.1 It was our understanding that a charter for public broadcasting should more appropriately be a policy and structural mandate, rather than the company Charter of Incorporation as set out in the Bill.

8.2 We submit that the provisions of section 8 (the objectives of the Corporation) should be combined with more specific public broadcasting objectives to comprise the SABC’s public broadcasting charter.

9. Section 9: Organisation into two, separate operational entities

9.1 MBC supports the Bill’s organisation of the Corporation into two separate operational entities.

9.2 Our first assumption is that the separate organisation of public broadcasting is in order to ensure its protection and viability. In this regard, section 11(d) of the Bill provides for the subsidisation of public broadcasting services by public commercial broadcasting services.

9.3 Furthermore, section 10(2) of the Bill provides that:

"The public broadcasting service provided by the Corporation may draw revenues form advertising and sponsorships, grants and donations, as well as licence fees levied in respect of the licensing of persons in relation to television sets, and may receive grants from the State".

9.4 Section 10(2) could allow for the establishment of different funding and revenue mechanisms for the SABC.

9.5 MBC has made the assumption that the statutory creation of a "public commercial broadcasting service" will legally, financially and structurally prepare certain SABC services for full or partial privatisation.

9.6 The White Paper on Broadcasting Policy clearly explained how the SABC’s separation into public and commercial entities will be taken further:

"This separation will be a precursor to the later, more complete restructuring of the SABC’s operational activities which will review the scope and size of the SABC commercial operations and investigate the possible privatisation of, or the introduction of private equity to, the SABC’s commercial services. This review will not take place until the impact on the market of the private free-to-air television service can be properly assessed.

9.7 MBC’s `privatisation assumption’ was also influenced by one of the powers provided for in the newly proposed section 13A of the IBA Act, namely Ministerial determination of "all matters relating to privatisations of government broadcasting enterprises".

9.8 The Minister, as the shareholder and seller, has the basic common law right to select a suitable buyer, without interference from any other party or body. But, in an example of dual regulation, the Ministry’s preferred buyer still has to go through the IBA’s licensing process. It is in this way that the interests of the Ministry and the regulator may diverge and conflict.

9.9 MBC submits that the Committee, Parliament and the relevant regulator should consider the implementation of a framework to govern the privatisation of state-owned companies in the broadcasting and signal distribution sector.

9.10 This framework would take into account the Ministry’s overall control of the privatisation process, subject as it is to regulatory approval of the preferred buyers in terms of now both the IBA Act and the Broadcasting Act, 1998.

9.11 We also refer the Committee to our comments on section 5 of Schedule 1 below.

10. Restructuring and Sale of Public Commercial Television Broadcasting Services

10.1 Taking into account:

• The recommendations of the IBA Triple Inquiry Report on the future of public broadcasting services;

• the Broadcasting Bill’s provision for the restructuring and funding of public broadcasting;

• the categorisation of SABC television services in public and private entities; and

• the preparation of certain services for full and partial privatisation,

MBC hereby submits the following proposals:

• SABC 1 and SABC 2 should be categorised as public television broadcasting services, with SABC 1 broadcasting in English and responsible for nation-building; and with SABC 2 broadcasting in a diversity of official languages;

• SABC 3 should be categorised as a public commercial television service and be prepared for full and partial privatisation in terms of the new section 13A(a) of the IBA Act;

• Bop TV should be categorised as a public commercial television service to be managed by a private entity which could be awarded such management contract after a tender process conducted by the Minister and the relevant regulatory authorities;

• This could lead to the partial or full privatisation of Bop TV in 2002 with the private management entity, having successfully prepared Bop TV for privatisation, being granted an equity stake;

• The proceeds of these privatisations and management contracts could be used to subsidise the SABC’s public broadcasting services. The creation of a Public Broadcasting Revenue Fund could be created in terms of section 11(d) for this purpose.

10.2 The Triple Inquiry report essentially proposed that the SABC should retain two, national public broadcasting television channels. We are merely restating this policy recommendation within the new organisational framework provided by the Bill.

11. Section 28: Subscription Television Service

11.1 We welcome the requirement that the IBA must conduct an inquiry into what the feasibility of competition in the subscription television market.

11.2 MBC submits that a low level of economic regulation may be necessary upon the introduction of a new player in this market. We assume that the inquiry into "economic feasibility" will necessarily take into account the ownership and control of the "platforms" used to distribute existing subscription television services in South Africa.

12. Section 29(9) Community Broadcasting

12.1 Section 29(9) must be read with section 2(a) of Schedule 1 of the Bill that defines "community broadcasting service".

12.2 It is clear that these sections, when read together, could lead to withdrawal of certain community radio licensees which cannot make the transition to the Bill’s requirement of a geographically-founded community.

12.3 Notwithstanding the fact that mainly religious and ethnic based communities have made use of the "community of interest" definition in the IBA Act, this form of community broadcasting licensee was originally intended by the legislature to benefit the following communities of interest:

• Women;

• Youth;

• Workers;

• Education; and

• Other primarily disadvantaged interest-based sectors.

12.4 MBC supports the retention of the `dual’ definition of community. Not only is this multi-faceted definition an internationally accepted view of "community, but the withdrawal of licences from (minority-based) interest groups could cause unnecessary and costly conflict. These licensees could tie up significant government/regulatory resources through legal action and political dissent.

12.5 At the time of writing this submission, we noted an article in The Star (2 September 1998) that the affected community licensees and the Department of Communications had reached an agreement on the relevant sections. Communications Department senior general manager Joe Mjwara was quoted as saying that his department never had any intention of "targeting certain community radio stations for exclusion".

12.6 We hope the matter is clarified and resolved soon.

13. Section 30: Signal Distribution

13.1 We will defer to the submissions of Sentech to whom MBC also consults. I will be available to discuss the main legislative issues regarding broadcasting signal distribution should. The Committee so request at the public hearing on 7 September 1998.

13.2 We only wish to note that the Committee, in considering the question of competition in broadcasting signal distribution, should have regard to recent amendments to the Competition Bill that could impact on state-owned enterprises.

14. Section 37: Regulations

14.1 MBC submit that this section may confer regulatory power on the Minister that could, because of its broad definition, conflict with the regulatory authority of the IBA and therefore contravene the provision of section 3(3) of the IBA Act.

14.2 While we support the dual regulatory system (with the Minister primarily responsible for policy and the IBA primarily responsible for licensing), MBC recommends that the Committee clarifies the respective areas of predominant regulatory competence.

14.3 On this issue, we refer to the Authority to our comments under sections 4 and 5 of Schedule 1 below.

15. Schedule 1: Laws Amended or Repealed

15.1 The drafters of this Bill clearly intended to ensure consistency between the IBA Act and the provisions of the Broadcasting Bill, which will repeal the Broadcasting Act of 1976.

15.2 The IBA Act and the new Broadcasting Act will provide for dual regulatory competence over broadcasting regulation. Section 4 and 5 of this Schedule are fundamental in ensuring the proper organisation of regulatory competence, power and accountability.

16. Section 4: General Powers and Functions of the Authority

16.1 MBC supports the insertion and definition of these new general powers and functions of the Authority.

16.2 The Bill retains an important link to an important principle in the IBA Act. The introductory paragraph of the amended section 13(1) provides:

"Without derogating from the generality of the provisions of section 3, the Authority shall, in addition to powers conferred upon it elsewhere in this Act, or by any other law, have the power –

16.3 Notwithstanding new Ministerial powers to issue policy directions, the underlined words clearly indicate that the IBA will continue to exercise its powers in terms of section 3(3) – "the independence clause".

16.3 MBC accepts, therefore, that the IBA will be independent, in so far as the exercise of its own powers are concerned. The real remaining question is whether the Minister’s powers contravene the spirit of section 3(3).

17. Section 5: General Role and Powers of the Minister

17.1 This is one of the more fundamental sections in the Bill. It fleshes out the details of the Ministers’ new regulatory power to make determinations on policy and other matters. These powers are set out in a new section 13A of the IBA Act.

17.2 Section 13(A)(a)

17.2.1 The term "government broadcasting enterprises" is a term neither defined in the Bill or the IBA Act. In any event, the Committee may agree that the words "government broadcasting enterprises" will not win the Most Promising PR Image for New Jargon Award.

17.2.2 Unless the drafter of the Bill intended otherwise, we submit that "government broadcasting services" could be replaced with anyone of the following options:

• "state-owned broadcasting and signal distribution companies";

• "public commercial broadcasting services and/or state-owned signal distributors"; or

• "state-owned companies in the broadcasting sector"

17.3 Section 13(A)(b) and 13A(g)

17.3.1 These subsections, requiring the Authority to directly follow the directions of the Minister, could conflict with section 3(3) of the IBA Act. We request that the Committee investigate this problem and potential conflict of laws.

17.3.2 On a proper statutory interpretation of section 3(3) of the IBA Act, read with subsections 13A(b) and (g) of the Bill, it is difficult to see how the relevant subsections will fail to conflict with "the independence clause".

17.3.3.MBC submits that it is possible to legislate for the avoidance of such conflict and preserve Ministerial powers to determine and enforce policy directions, while at the same time ensuring independent regulation of broadcast licensees.

17.3.4 In order to progress discussion on the matter we propose the following solution: Section 13A should be qualified by a proviso that further distinguishes the IBA’s independence within a dual regulatory system. It should read:

"Without derogating from the independent exercise of the Authority’s powers in terms of section 13(1), the role and powers of the Minister are as follows:

17.4 Scope and extent of policy directions

17.4.1 It is important to understand what the scope and extent of Ministerial policy directions and consequent regulations could involve. Since the IBA will be responsible for independently licensing broadcasters, could a Ministerial policy directions impact on the independence of the Authority’s administrative process?

17.4.2 MBC submits that our proposal to solve the potential conflict could prevent a Ministerial policy directive from compromising the IBA’s independent licensing and regulating of broadcasters.

18 Independent Regulation of Broadcast Licensing and related matters

18.1 MBC submits that it is important to maintain independent regulation over the allocation of scarce and profitable broadcasting licences to the public, private and community sectors.

18.2 While the Minister may determine the policy governing the licensing procedure, the actual consideration, grant and issuing of licenses must be free of vested interests. Independent broadcasting regulation, in this sense, will promote certainty in the industry and increase financial investment.

19 Section 13(c): Amendments, variations and late submissions

19.1 MBC is concerned about the implications of this amendment that could allow for the variation and amendment of information by applicants for broadcasting licences. It could also allow for the late submission of information.

19.2 We submit that the Authority should attempt to ensure administrative certainty in its regulatory processes and procedures. Regulatory deadlines for information should be strictly adhered to and applicants should not be allowed to amend or vary material information.

Concluding Remarks

We hope these comments will assist the Committee in its deliberations. I will be available to expand on our views at the public hearing scheduled for 7 September 1998.

By Michael Markovitz

Director

Appendix 2: National Community Media Forum

TABLE OF CONTENTS

INTRODUCTION

DEFINITIONS, INTERPRETATION & OBJECTIVES

S. A. BROADCASTING SYSTEM

CLASSIFICATION OF BROADCASTING

PUBLIC BROADCASTING & CHARTER OF CORPORATION

COMMERCIAL BROADCASTING

COMMUNITY BROADCASTING

SIGNAL DISTRIBUTION & MULTI-CHANNEL DISTRIBUTION

FREQUENCY SPECTRUM

ADVISORY BODY

SKILLS DEVELOPMENT

FUNDING

GENERAL

INTRODUCTION

This document reflects the views of the community media sectors response to the Broadcasting Bill 1998 as introduced by the Minister of Posts, Telecommunication and Broadcasting.

The collective interests of the community media sector is coordinated and represented by the National Community Media Forum (NCMF). Whereas this organisation was officially only formed in May 1995, it is a culmination of the struggles waged by community and independent media activists from the late 1970s. The NCMF in turn consists of four national networks that respectively coordinate and represent the interests of specific media interests:-

1. South African Students Press Union (SASPU) consists of student media projects based on institutions across the country;

2. Open Window Network that consists of community television and video projects based across the country;

3. National Community Radio Forum that consists of community radio projects across the country; and

4. Community Media Network of South Africa that consists of community newspapers across the country.

Collectively we represent about 117 member projects. These projects are affiliated to the mentioned sectors that in turn collectively constitute the NCMF.

Our general impression of the White Paper on broadcasting is that it fundamentally seeks to transform the country, but in respect to some issues doubt the extend to which it succeeds in this regard. We note how moves to formulate positions on the basis of global socio-political and economic development has informed GEAR-orientated resolutions and have reservations about their sustainability.

Furthermore, we believe that this process of restructuring the broadcasting sector should also emphasise co-operation and not only competition. Whilst we agree that the different broadcasters will inevitably find themselves competing with each other, we want to argue that they also have a collective co-operative role to contribute in redressing imbalances of the past.

2. DEFINITIONS, INTERPRETATION & OBJECTIVES

2.1 Under Chapter 1, section 1, the Bill suggests that the definition of community broadcasting service must have the meaning assigned thereto in the IBA Act..... Furthermore, section 29 (3) and (4) suggests that community broadcasters should only take on a geographic nature. Chapter 1, section 1 (1) (xv) of the IBA Act defines community broadcasting service as a geographic community as well as a community of interest.

This poses contradictions since the Bill seeks to phase out common interest stations to be defined within the context, terms and conditions of the geographically founded community category.

We support the view that community of interests broadcasters should be phased out and all community broadcasters should be controlled and managed by people representative of all sectors of the community or communities in the licensed area as determined by section 29 (4).

Our view on this matter should not be interpreted to mean that we believe that there should be only one community broadcasting licence per area. We propose that the Bill should clearly stipulate this view on condition that collectively the community broadcasters in one area should play a complimentary role and not a competitive one. Furthermore, the feasibility of more than one community licence in an area should determine the existence of such. Feasibility should look at the financial and proper community representation implications of one or more community stations.

We therefore proposes an amendment to the IBA Acts definition on community broadcasting to avoid potential contradictions.

2.2 We agree with the objects of the Bill as captured under section 2 since we believe that they seek to encourage broad transformation of the broadcasting industry and diverse ownership and control of the broadcasting sector. Even so, as in the case of section 2 of the IBA Act, we are not convinced that the Broadcast Bill puts in place necessary mechanisms to meet the objects as outlined.

3. S. A. BROADCASTING SYSTEM

3.1 It is a fact that given our history , South Africa needs a new broadcasting system that promotes the interest of all citizens within the spirit of the constitution of the Republic and in this regard we agree with the entire Chapter II, section 3. We want to further add that the vision of our broadcasting system should be integrated. The emphasis should not only be competition, but also co-operation between the different tiers of broadcasting.

3.2 We also propose that the preamble of Chapter II should state that National Government is responsible for developing policy and Parliament to adopt such policy whilst the Independent Broadcasting Authority is responsible for regulatory matters.

4. CLASSIFICATION OF BROADCASTING SERVICES

Other than under 29 (1), the Bill is silent about the categories of licenses to different tiers of broadcasting. The white paper suggests that there must be only free-to-air licences granted to community broadcasters, a position which we have argued against in our white paper submission. The Bill needs to be more clear on the issue that community broadcasters will not be restricted to terrestrial transmission, but also allow them to conduct their business via other transmission modes, on condition that it is easily available to the community.

This is taking into account the disparities caused by natural processes like topography and humidity, which may not allow community broadcasters to transmit good quality. The use of new and improved technologies will empower communities to effectively provide quality service.

5. PUBLIC BROADCASTING & CHARTER OF CORPORATION

5.1 We do not encourage the split of the public broadcaster into a public wing and a commercial one as proposed under Chapter IV. Our concerns is firstly in relation to proposals in the White Paper and Broadcast Bills references to the public broadcasters financial procedures and secondly the possibility of the public broadcasting arm not being prioritised.

5.2 We support the view that the Bill is suggesting that the SABC will account to parliament through the Minister and the regulator will monitor compliance to the charter which has been established by parliament.

5.3 We do not agree with section 16 (4) which proposes that any dividends received from the public broadcaster should be paid into the National Revenue Fund. We argue that the public broadcasters revenue should be allocated to an independent statutory structure that supports media diversity, like the MDA. See our submission on the White Paper for further details on nature and character of the MDA.

5.4 The Bill does not clarify the appointment procedure of board members referred to under section 14 (1), fails to outline how they relate to each other and does not indicate what their term of office should be.

We further propose that the positions of a Chief Executive Officer, Chief Operations Officer and the Financial Director should rather be ex officio instead of full board members.

5.5 We further propose that under section 15 board members service should also be terminated if they do not fulfil the criteria of board members under section 13 and when they resign.

6. COMMERCIAL BROADCASTING

We welcome the liberalisation of the broadcasting industry and that it should be diversely owned.

We agree with sub-section 26(7).

7. COMMUNITY BROADCASTING

7.1 As mentioned above, we disagree with what seems to be the proposed licence categories of the community broadcasting service as mentioned under section 29 (1).

7.2 Section 29(3) and (4) further reiterate the call for the redefining of the common interest licence category to fit in within the ambit of the geographic community. We agree with this view.

7.3 Section 29(7) Community broadcasters will have.............subject to limits on national advertising as determined by the Authority... This is very suicidal to community broadcasters. On the one hand the Bill calls for more competition amongst broadcasters and on the other hand it curtails revenue streams for community broadcasters. The Bill moves from the assumption that all and every one is equal and this premise is problematic.

The reality is that the local advertising revenue is unevenly distributed according to the concentration of economic activity of this country. Rural based stations will not be able to attract sufficient local advertising to sustain their activities, due to the fact that local economies may not be matured enough to sustain the radio station. If the Bill places trade limits on national advertising, the rural communities in particular will suffer the most. We are opposed in the strongest possible manner any limitations placed to the national advertising revenue on community broadcasters. We would support a regulatory system that will allow the authority to monitor the editorial independence of the broadcaster to the advertising influence, and the mechanisms to monitor the use of the operational surplus by the broadcaster.

7.4 We agree with section 29 (9) that the Authority should conduct a public inquiry to determine the terms and conditions of the transition phase from common interest to geographic community broadcasters. We suggest that the authority grants in the interim, those license applicants for 4 year licenses with conditions that applicants must put in place a clear programme of transition from common interest to geographic defined community broadcaster. This transitional plan should have a definite time frame attached to it. Further more the authority should have the powers to withdraw the license to any applicant who has failed to meet such obligations.

7.5 In license areas where there is more than one community broadcasting frequency available, the authority should grant a licence for such a frequency, so long as the applicant can demonstrate sufficiently that the broadcasting service to be established will be sustained and will complement the existing services.

7.6 In relation to section 29(10) we wish to mention that there are previous developments which answered some of the questions posed. Furthermore, the Broadcast Bill, IBA Act and regulations do provide a definition of community television, clarifies questions of frequency accessibility, ownership and control and legal framework. It is mainly sustainability which remains an unanswered question.

8. SIGNAL DISTRIBUTION & MULTI-CHANNEL DISTRIBUTION

Private signal distributors should be given universal service obligations which the authority should regulate on compliance . The regulator should ensure that signal distributors contribute to the development of the community broadcasting sector by means of levies that could be paid to the community broadcasting trust or the MDA.

We agree with the fact that a preferential tariff structure for community broadcasters should be developed, however, the option used in the restructuring of the tariffs should not affect the quality of service provided by the signal distributor to the broadcaster.

9. FREQUENCY SPECTRUM DIRECTORATE

9.1 We support the establishment of the frequency spectrum directorate, however its composition should be reflective of the demographics of the country.

9.2 In exercising its duties as mentioned under section 34, the frequency spectrum directorate should at all times ensure that there is public participation. Outcomes of its work should be made easily accessible to the public.

9.3 We also believe that there remains a need for the establishment of a body like the Spectrum Management Agency as proposed in the White Paper. This body we see enabling better and efficient use of the frequency spectrum.

10. ADVISORY BODY

We oppose the establishment of the South African Broadcast Production Advisory Body and once again reiterate our view that an independent statutory structure which would encourage and safeguard media diversity should be established. Functions of the proposed agency under Chapter IX should be performed by this body.

11. SKILLS DEVELOPMENT

11.1 Section 36 should also include training providers and must make reference to the Employment Equity Bill. This section would therefore read All licensees licensed in terms of the IBA Act, training providers and the provisions of this Act must comply with the provisions of the national policy regarding the National Qualifications Framework, Skills Development, Employment Equity Act and specific human resource development conditions determined by the Authority.

11.2 The Bill is silent on the establishment of the broadcasting school. Recognising that the school is established in terms of the Company Act, we propose that its existence should be recognised by the Broadcast law.

12. FUNDING

The White Paper proposed the establishment of a Community Development Trust. The aim of this trust is to provide funding to support the growth of community radio. We believe that government should assist the development and sustainability community radio through funding. However we do not believe that the establishment of a trust will be a sustainable method of funding community radio.

A statutory body like the MDA that will fund community broadcasting should be established and enacted in the legislation.

13. GENERAL

Support the repeal of the IBA act definition of community radio from the previous to that which is proposed. Such a definition which calls for the common interest communities to re-define themselves within the geographic terms and conditions.

Appendix 3: Radio KZ submission

Radio-KN

Submission on the WHITE PAPER ON BROADCASTING POLICY

from David Hotchkiss, Radio-KN.

I have been involved in community radio in South Africa since 1993, when I headed up the Radio Maritzburg team that was awarded the first one-year Community Radio broadcast license at the end of 1994. Community Radio is all about team work, and the IBA was impressed by the diverse team from Pietermaritzburg. Unfortunately local donors and listeners were less impressed when we tried to represent such diverse interests on one radio station. I left Radio Maritzburg in 1996 as part of a voluntary retrenchment, with the need to keep cutting the budget. One other reason for leaving was the difficulty of having to try to please everyone … there was much community demand; little community ownership. Because the station had to serve everyone, it belonged to no-one. To this day, these problems persist at Radio Maritzburg, and other geographically defined community stations that serve diverse communities.

In 1997, I joined Radio-KN, a Christian mission based radio initiative, with the potential to help empower the large number of very poor people who live in the rural areas between Durban and Pietermaritzburg. I have also recently completed a feasibility study for the agricultural union, KWANALU, on the possible use and development of community radio stations to assist its 33 000 members, mainly Zulu speaking, in rural KwaZulu-Natal.

It is out of this back-ground that I wish to make a few observations on the White Paper’s proposals for Community Radio (Chapter 4).

In my view, the White Paper has a lot that is positive, with its emphases on nation-building, and the empowering of rural communities. "A vibrant community broadcasting industry can make an immeasurable contribution towards achieving those goals and the improvement of living standards of all South Africans." (From 4.3). I also have no problem with its assessment of Community Radio’s performance in 4.1. It is in the means of achieving the goals that I believe that there are some problems.

The main problem comes in only allowing a geographical definition of community, and then requiring that community broadcasting "must truly represent all of the people in the community in ownership and control and decision-making." (4.3, second para.).

In practice, this is impossible, and in the urban context, this will mean that all stations must compete with one another, in representing all people. I believe that this will make it almost impossible for community radio to be viable, and survive.

In addition to this, there are advertising restrictions to be placed on Community radio.(4.7).

Radio-KN is a Christian mission initiative, and you must remember that Christian mission has made a very positive contribution to development and transformation, particularly in the history of this province. The Church spans rich and poor in the area, and provides a unifying force in communities who claim to be 80% Christian. Radio-KN is an initiative that has the support of disadvantaged rural communities between Durban and Pietermaritzburg (this can be demonstrated), and it has the financial support of more wealthy Christians. Understandably, people are more willing to give towards projects that they feel some ownership of … at present, Radio-KN is being financially supported by both rich and poor. If Radio-KN were to be defined purely geographically, and forced to represent all religions, even when those religions represent only a small minority in the area, the station would lose that aspect of sacrificial giving that is a necessary part of community radio. Community Radio is not generally profitable, in the commercial sense, and it relies on the support of listeners and donors. Such support is easier to find from a community that has a real interest in the radio station, than from a geographical area.

I believe the scrapping of the "community of interest" category, as proposed in the White Paper, will stifle positive community initiatives, and possibly kill community radio. Yes, I believe that the community should be geographically defined, but that it could also be defined in terms of an interest group. Community broadcasting should be judged on its ability to empower, develop and unite communities. It should be judged on whether it can tackle the tremendous challenges facing our communities .. political conflict, crime, AIDS and poverty. It should be encouraged to be viable, rather than restricted and forced to depend on funding from a Government appointed body.

My experience from the little research I have now done in the rural communities of this province is that people are unaware that broadcast licenses are available for them. Rural community radio can best be developed out of a stable and healthy community radio sector, rather than by stifling existing initiatives.

I speak out of the experience of initiating and managing an "all communities" station, Radio Maritzburg, the first community station granted a 1-year broadcast license by the IBA, and then initiating a Christian radio station, Radio-KN. (Further details in written submission.)

2. COMMUNITY RADIO: A new way forward.

I am fully convinced of, and excited about the potential of community radio to build a better future for this country. I also have no illusions about the difficulty of running a community radio station.

Financially, it is a no-win. You are not allowed to make a profit, but you very easily make a loss.

I also maintain that it is also impossible to run a radio station that "reflects the needs of all the people in the community" (29/5) where you have a diverse community. It may work in Soweto, it does not work in Pietermaritzburg or Durban. The language and music requirements are just too diverse. You cannot build listenership if you keep changing listeners. Anyway, what we want is to build bridges between our different culture groups, not create conflict, which is what has happened at radio Maritzburg.

A far better way is to have a common interest that spans the various communities …. For example, a particular music type, a particular sport, a particular religion, etc. Such stations will make a tremendous contribution to nation-building, create diversity on the air-waves, and will be financially viable, as they will receive financial support from their particular interest group. Radio-KN, for example, has received extensive funding from diverse Christian groups and individuals, both wealthy and poor, and has a tremendous potential to build bridges between communities in the area that lies between Durban and Pietermaritzburg.

However, 29/(3, 4, & 5) are a problem to us. We cannot, in all honesty, meet those criteria. The interpretation of the word "sector" in 29/4 is also not clear. Also, the financial restrictions imposed by clause 7 are pointless.

3. FREQUENCY SPECTRUM.

From a lot of what has been said by Minister Jay Naidoo and others, the emphasis of the new legislation seems to be on discouraging Community Radio applicants, because of the number of applicants, and the scarcity of available frequencies. I am a communications engineer by profession, and I understand the finite nature of the spectrum. More frequencies can be made available by a re-organisation process, but this is costly. However, I don’t believe the situation is nearly as "bad" as it is made out to be. As I understand it, KZN has the third largest number of applicants of all the provinces. May I use my province as an example. 25 frequencies have been made available for community radio. 7 of these have not even been applied for. (5FM, 2AM). There are a large number of applicants (about 37) for the other 18 frequencies, but all except 10 are community of interest (27). The frequency that Radio-KN has applied for is contested by 7 community of interest stations, and no geographical. I have looked at several of the applications, and many have no idea what they are letting themselves in for; and will never survive. Yes, there are a large number of applicants, but this is good, as it should allow a selection that would reflect the greatest diversity.

The act, as it stands, will deliver, at best, poor copies of the public broadcaster (SABC), or, at worst, deadly juke-boxes, unable to afford to serve the community effectively.

The CEO of the police, Meyer Kahn is quoted as saying "If the next generation has the same value system as this one, the best police force in the world will not be able to clean up the mess." Value systems are not changed with information, education and entertainment as suggested to the new legislation. Religion has an important role to play.

4. RURAL STATIONS.

My concern is for those areas that don’t have community radio…. Mostly rural. When will the IBA receive applications from these areas? How are we going to develop the potential of these most needy areas? I believe it is by encouraging a healthy and diverse community sector, and then allowing these developing rural stations to take feeds from existing stations and to supplement with their own programming in, say a two-year development phase during which their own local programme production increases.

5. SUMMARY.

"A vibrant community broadcasting industry can make an immeasurable contribution towards achieving those goals and the improvement of living standards of all South Africans." (From 4.3 of the White Paper).

We need some lateral and bold thinking to achieve diversity, and a community radio sector that will build a better South Africa. The bill, as it stands, will not allow this. I understand that there is a new definition of community, and clause 9 has been changed. However, at the very least, clauses 3,4,5 & 7 also need revision. Clause 6 should not be necessary.

D.G. Hotchkiss 07/09/98.

Radio Kwezi

RESPONSE TO WHITE PAPER ON BROADCASTING

We appreciate the motivation behind the White Paper on Broadcasting. The ideals of inclusiveness and fairness to previously disadvantaged communities is admirable and should be supported. These ideals have inspired the reasoning behind paragraph 4.2 which excludes "communities of interest". It is unfortunate, however, that some community of interest radio stations which have right-wing racist goals should spoil opportunities for the vast majority of community radio stations which have no political motives and are genuinely serving their communities, albeit religious or educational communities.

While we support the White Paper's emphasis on equity we do feel that a serious error has been made by punishing all community of interest radio stations because two or three of them have been distinctly right-wing. We also wish to remind the Communications Portfolio Committee that should they recommend the acceptance of the entire White Paper on Broadcasting in its present form it will be perceived as a direct attack on Christendom in South Africa. Foreign sympathetic Church groups will probably spread the message that the government in South Africa is anti-Christian and has broken its promise to uphold freedom of religion.

We suggest that the following points should be considered as valid reasons for keeping interest communities (together with geographical communities) as appropriate for the new broadcasting dispensation:

1. Success of Community of Interest Radio Stations

The IBA will attest to the fact that Community of Interest Radio Stations have been the most successful of community radios. Nearly all of them have managed to stay on air despite great difficulties. The value of the services which religious community stations provide to the community is evident in the very high levels of reciprocal support provided by the community, of both a financial and manpower nature. The high level of affinity between communities of interest inspires high levels of reciprocal support. To close these thriving community radios, by pushing through paragraph 4.2, will certainly translate into great loss for many communities across South Africa.

2. Investments

Those who have supported their local community of interest radio stations with their finances have trusted that the IBA Act was the future direction of broadcasting and that communities of interest were there to stay. Closing down these stations will result in the loss of many millions of Rands. People have responded to the current policy with confidence only to find now that the government is being inconsistent with their policy direction, not just in relation to broadcasting policy, but in developing broadcasting policy which runs counter to other key government policies in such crucial areas such as equity, religious freedom, community development etc.

3. Growing listenership in broader community

Even though Community of Interest Radio Stations often commence with a narrow focus when they start broadcasting, research has shown an ever-widening focus on supporting the community at large. There is no doubt that it is not only the local religious community that supports their local community of interest radio station but even the non-religious and those of other religions are tuning in. The reason for this is that programmes are not only of a religious nature but include: education, culture, news, sports and other items of community interest. Religious stations are careful not to denigrate those of other religions (the IBA has very few complaints regarding religious "hate talk") and thereby win the ears (and hearts) of listeners through their non-discriminatory attitude.

4. Communities of interest have kept IBA laws

Community of Interest Radio stations, especially those with a religious base, have proved over the last few years that they are sincere in keeping to the rules and regulations laid down by the IBA. The White Paper on Broadcasting, if it is passed in its present form, will close down those radio stations which have a proven track record of legality and legitimacy.

5. True service to the community

Religiously based community of interest radio stations, because of the nature of their faith, do their best to serve their whole communities and not their narrow denominational support group. The IBA is well aware of events and programmes which these stations have arranged to uplift the local community. These include: educational programmes for matriculants and other school goers, local community news and announcements, adult literacy programmes, Aids Education, counselling, support for local cultural and sports events etc. To close down these stations, on the grounds of paragraph 4.2 will bring all this to an end.

6. Moral values upheld

Radio stations which have registered as communities of interest because of their religious background are helping restore a culture of moral values which cannot be defined within narrow denominational terms. Values of: service, helpfulness, sexual chastity and faithfulness within marriage, honesty etc, have helped to create more wholesome communities. Most religious stations have a special focus on programmes which promote family values. There are daily programmes across the country which help husbands and wives to be more faithful to each other, children and teenagers to respect their parents and elders and a number of similar material. Some of these radio stations even offer a regular counselling service for those listeners who request more help. Surely this is what we need for our New South Africa?

CONCERN ABOUT ADVERTISING LIMITATIONS

Although this is a minor point in comparison to the potential total closure of Christian radio stations, it is disconcerting to notice in paragraph 4.7 that limitations are placed on the amount of national advertising allowed for community radio stations. This does not make good business sense and could place the very survival of a number of stations in jeopardy. Many community stations find it difficult to survive on local advertising (although the percentage is increasing) and a large proportion of revenue, besides donations from their community, is from national advertising. As is the practice in Western countries no limits should be placed on advertising. Let the free market find its own balance. Those community stations which use too much national advertising may well find a drop in listenership. Free enterprise will arrange appropriate advertising levels without Government intrusion.

Conclusion

For the above reasons, we respectfully urge the Government to reject the proposed paragraph 4.2 and, in its stead, reaffirm the validity of `community of interest' as a key criterion for community broadcasting. The Government should be seeing Christian community radios as allies in meeting the challenge of community development; not as enemies. Indeed, common sense suggests that it would be much more beneficial for all concerned if the Government were to support and, indeed, enhance the work being done by Christian community radio stations, simply because it lessens significantly the burden placed upon Government alone to meet the huge burden of community development. Quite to the contrary, the proposed policy direction will increase the burden on Government to provide such support.

In other words, what the Government should be seeking to do is to build further on what has been achieved already by nurturing lasting, productive, mutually-beneficial partnerships with Christian community radio stations. Indeed, experience around the world clearly demonstrates that, where governments have done this, EVERYONE benefits. Indeed, as the initiators of such partnerships, the government often receives the bulk of acclamation and kudos for the success that flows from such initiatives.

A.S.F. Sibisi (Station Manager of Radio Khwezi)

Appendix 4: Radio Pretoria

Radio Pretoria

MEMORANDUM OF RADIO PRETORIA FOR REJECTING; ALTERNATIVELY AMENDING THE BROADCASTING BILL, (B 94-98)

INTRODUCTION

1.1 Radio Pretoria hereby submits this memorandum to the Honourable Members of the Parliamentary Committee for Communication, setting out the reasons and grounds upon which Radio Pretoria contends that the Broadcasting Bill either be rejected or amended as is later indicated in this memorandum.

1.2 The main contention of Radio Pretoria re the Broadcasting Bill is that this bill only makes provision for licensing of radio stations within the confines of a geographical area and that community radio stations - as is provided for and defined in the present Act, viz the Independent Broadcasting Authority Act, 153 of 1993 - has been omitted from the provisions of the Broadcasting Bill. With this omission the national legislator tends to take away the acquired rights of community broadcasting stations; alternatively the national legislator has not made provision for community radio Stations in the true sense of the word, in the Broadcasting Bill as was defined in the Independent Broadcasting Authority Act of 1993. Although the consequences of this will be discussed more fully at a later stage, it is appropriate to point out here that the specific reference in section 1(c) (xiv) in the IBA Act to a community as "any group of person or sector of the public having a specific, ascertainable common interest" has been entirely omitted from the Broadcasting Bill. The latter only makes provision for a private broadcasting service which serves particular geographical area.

Moreover, even the reference to "community" as was formulated In the "Definitions" in section 1(1) (xiv) of the Independent Broadcasting Authority Act was omitted from the "Definitions and interpretations" in clause I of the Broadcasting Bill. Although the Broadcasting Bill refers in clause 29 to "community broadcasting services" this service refers only to a service in a specific geographical area and has no bearing on a "community broadcasting service" within the meaning and definition of the Independent Broadcasting Authority Act. Community broadcasting service in the IBA Act has a dual meaning viz a "geographically founded community" on the one hand "or any group of persons or sector of 'the public having a specific ascertainable common interest" on the other hand. It is abundantly clear that the Broadcasting Bill licenses in effect only a geographical area (which is astoundly described as a community service) and does not make room for the licensing of a community broadcasting service in the true sense of the word as is defined in the IBA Act.

1.3 With the omission of the category' of a "group of persons having a specific ascertainable common interest " in the Broadcasting Bill, the national legislator has made fundamental inroads in the newly found democracy and democratic order in South Africa; i.e. if one takes into consideration the fundamental rights, enshrined in the new Constitution, Act 108 of 1996. The fundamental rights which come into play in this regard is the right of freedom of expression, which includes the right of freedom of the press and other media, the right of freedom of association. the right to establish a private association, language rights and cultural rights of a community and the rights of minorities recognised in International Law.

1.4 A close reading of the Broadcasting Bill indicates that this bill in various respects ignores the application of the fundamental rights mentioned above. In this regard we have already indicated that the Broadcasting Bill has entirely omitted "community' as being a "group having a specific ascertainable common interest from its provisions. Furthermore, the Broadcasting Bill makes the application of fundamental rights subject to the majority will of the people living in a specific geographical area. We reiterate that the Broadcasting Bill only makes provision for radio stations within a geographical area.

1.5 As Radio Pretoria serves a community throughout South Africa, without reference to a specific geographical area within South Africa, it is beyond doubt that Radio Pretoria finds itself outside the ambit of the definition of a "community radio service" in Clause 29 of the broadcasting Bill, This, of course, means that the Broadcasting Bill puts Radio Pretoria out of business as a real community broadcaster and to this extent the Broadcasting Bill encroaches not only on the acquired rights of Radio Pretoria and its listeners but also on their fundamental rights in the South African Constitution. It is common cause that Radio Pretoria has been granted a licence by the Independent Broadcasting Authority exactly on the basis that Radio Pretoria serves the specific ascertainable Common interest of the Boere-Afrikanervolk.

1.6 The implications of these inroads on the acquired and fundamental rights not only of Radio Pretoria but of any other community stakeholder in the broadcasting field will be discussed at a later stage, when it will be indicated that not only the rights of Radio Pretoria but of all other Community broadcasters, whose listeners are to be found throughout South Africa has been put in jeopardy by the provisions of the Broadcasting Bill. These inroads on the right of private broadcasters who serve the broadcasting needs of n cultural community throughout South Africa are, it is submitted not only disastrous for the very existence of these private cultural institutions, but it tends to negate the whole democratic order in South Africa; brought about by the new Constitution

1.7 These submissions will in this memorandum be supported by an analysis of the legal position of Radio Pretoria and the constitutional impact of the provisions of the Broadcasting Bill on this position of Radio Pretoria; in particular in the light of the fundamental rights of Radio Pretoria and its listeners as contained in the Constitution of South Africa. ln this regard extensive reference would be made to South African and foreign case law as well as to this points of view of legal scholars

THE PRESENT POSITION OF RADIO PRETORIA WITHIN THE INDEPENDENT BROADCASTING AUTHORITY ACT, 153 OF 1993

2.1 Since the inception of the new constitutional dispensation in South Africa, which entered into force on 27 April 1994, Radio Pretoria has applied and has been granted a community broadcasting licence by the Independent Broadcasting Authority on a yearly basis. As it has been the practice of the Independent Broadcasting Authority to grant only temporary licences for all private broadcasters on a yearly basis, Radio Pretoria has also been granted such a temporary licence on a yearly basis. These applications had, however duly been granted by the Independent Broadcasting Authority and had put Radio Pretoria as a community broadcaster in a position to render a radio broadcasting service to "a group of persons having a specific ascertainable common interest"; viz the Boere-Afrikanervolk. It is of importance to point out that these licences had been granted to Radio Pretoria, being a community broadcaster as is defined in section 1 (1) (xiv)and (xv) of the Independent Broadcasting Authority Act and with reference to provisions of section 47 of the latter Act.

2.2 The Main Provisions of the Independent Broadcasting Authority Act, 153 of 1993

2.2.1 It is pertinently clear that Act 153 of 1993 makes provision for two categories of communities for which a licence could be granted; viz a "geographical founded community " on the one hand and "any group of persons or sector of the public, having a specific ascertainable common interest ''(see section 1 [xiv]) of the Act. Furthermore, the Act defines in section 1 (1) (xv) a ''community broadcasting service" as a service which -

"(a) is fully controlled by a non-profit entity and carried on for non-profitable purposes;

(b) serves a particular community;

(c) encourages members of the community served by it or person associated with or promoting the interest of such community to participate in the selection and provision of programmes to be broadcast in the course of such broadcasting service;

(d) may be funded by donations, grants, sponsorships or advertising or membership fees or by any combination of the aforementioned;"

2.2.2 This description of a community broadcasting service in section I (xv) of Act 153 of 1993 in which reference is clearly made to a particular community and which encourages members of that community or persons associated with it, or promoting the interest of such community to participate in the selection and provision of programmes to be broadcast, is fundamentally changed in the Broadcasting Bill in clause 29 thereof and specifically in subclauses (3), (4), (5), (6), (7), (8) and (9) to which we would revert more fully at a later stage and which read as follows:

2.2.3 The above provisions are complimented by section 47 of the IBA Act, which refers specifically to "community broadcasting licences" and reads as follows:

"47. (1) In considering any application for a community broadcasting licence, the Authority shall, with due regard to the objects and principles as enunciated in section 2, inter alia take into account -

(a) whether the applicant is fully controlled by a non-profit entity and carried on or to be carried on for non-profit purposes;

(b) whether the applicant proposes to serve the interest of the relevant community;

(c) whether, as regards the provision of the proposed broadcasting service, the applicant has the support of the relevant community or of those associated with or promoting the interests of such community, which support shall be measured according to such criteria as shall be prescribed; and

(d) whether the applicant proposes to encourage members of the relevant community ort hose associated with or promoting the interests of such community to participate in the selection and provision of programmes to be broadcast in the course of such broadcasting service.

(2) Paragraphs (a), (b), (d), (g) and (i) of section 46(1) shall mutatis mutandis apply in relation to a community broadcasting licence.

In the light of these provisions, there cannot be any doubt that the IBA Act 153 of 1993 puts a community broadcaster in a position to have a broadcasting licence granted to it on behalf of a particular community; either geographically founded or to a community not geographically founded but having a specific ascertainable common interest. It is furthermore clear that Radio Pretoria has requested and granted a licence by the IBA on the basis of these, last mentioned provisions that the Boere-Afrikanervolk be seen as a community having a specific ascertainable interest. At this juncture we draw the attention of the Honourable Members of the Committee to the definitions and case law as far as the description of a community is concerned; to which we refer infra.

2.2.4 It is, of course, also of significance that section 47 of the IBA Act carries with it certain obligations, which a community broadcaster have to fulfil; e.g. that it must be controlled by a non-profit entity and for non-profitable purposes, that it must "serve the interests of the relevant community" and that it must have ''the support of the relevant community or those associated with it or promoting the interest of such a community" and which "support shall be measured to such criteria as shall be prescribed". On the other hand section 47 gives the community and/or its members a right '' in the selection and provision of programmes to be broadcast …. ".

2.2.5 In contradistinction to these provisions of the IBA Act, the Broadcasting Bill has entirely changed the position of community broadcasters, as it has been defined and regulated in the IBA Act. To this we would revert at a later stage. Suffice to point out here that the fundamental right of a community, without a geographical foundation to have a lisence granted to it has been taken away, in that a community broadcasting service has been given only a geographical content, which is coupled with majority rule within that geographical area. It stands to reason that the right of a minority within that geographical area to have a licence granted to it, is now practically an impossibility because the majority in a specific geographical area will in practical effect out vote the minority; thereby infringing upon the minority rights and fundamental rights of such a minority or the individuals thereof.

2.2.6 From a constitutional and international point of view the minority rights of a community such as the Boere-Afrikanervolk and the fundamental rights in Chapter 2 of the Constitution is now merely made subject to the majority will within that geographical area. This is from a human rights point of view totally untenable and indefensible. A fundamental right remains a fundamental right and cannot be voted out by any majority vote, unless, of course, Parliament - and not the inhabitants of a geographical area - amends the Constitution and the fundamental rights therein in accordance with the special amendment procedures in section 14 of the Constitution. See in this regard Rautenbach and Malherbe, Staatsreg, Butterworths, 1996.

2.2.7 Moreover, the provisions contained in section 47 of the IBA Act had been omitted entirely from the Broadcasting Bill. For Radio Pretoria and other community broadcasters this has severely implications for the very existence of these broadcasters. In real terms it means that the rights, and obligations that section 47 renders to Radio Pretoria and its listeners have now been taken away. It stands to reason that the right of freedom of expression not only of Radio Pretoria and its listeners, but also of the media as such has been dealt a disastrous blow, whilst at the same time it negates the whole South African democratic order.

2.3 The Recent Media Pronouncements of the Minister for Communication.

In recent press releases the Minister for Communication has given his interpretation of the provisions of the Broadcasting Bill relating to community broadcasters. In this connection the Minister said in an official press release the following:

" … There is a growing misconception among community radio broadcasters that religious stations are to be shut down in terms of the draft Broadcasting Bill currently before Parliament. 'I want to make it very clear to every community of interest broadcaster - of which the religious sector is one - that there is absolutely no truth to these rumours. We have no jurisdiction to shut down radio stations - that is the domain of the Independent Broadcasting Authority. And the IBA cannot arbitrarily shut down stations if they are performing in accordance with their license conditions.' …"

The "assurances" of the Minister stand in sharp contrast with what one of the officials of the IBA apparently told members of a Christian broadcasting station with reference to the provisions of the Broadcasting Bill. According to CFT News of 15 August 1998 the IBA official said:

"When the While Paper becomes law (before Parliament goes into recess on 23 September 1998), it will spell the end of religious stations in South Africa. All applications for "community interest" licenses will be returned to the applicants and applications for geographical community licenses will be scrutinised to make sure that Christians do not control community radio stations.

Rev. Van Tonder reacts as follows to what this official of the IBA said:

"Die waarheid van dit wat die IBA amptenaar gesê het kan ek dus bevestig en so n ietsie byvoeg van wat een van die IBA se lede aangevoer het as motivering vir hulle standpunt. (Dit het aan die lig gekom tydens ons onlangse verhoor deur die IBA vir die toestaan van ons lisensie vir die volgende jaar) In die toekoms sal geen lisensies vir Christen radiostasies toegestaan word nie, want dit is onmoontlik vir die ANC om hulle vir propaganda te gebruik.

In answer to this Rev. Fano Sibisi, vise-chairman of the Association of Christian Broadcasters, said that there is increasing concern among Christian broadcasters that the government seems bent on pushing through this new legislation. He has appealed to Christians to apply pressure on the Portfolio Committee on Broadcasting, which will be handling complaints, to recommend the removal of the

"anti-religious section of the White Paper".

" … (The Bill) requires community radio programming to serve the needs of all people in the geographically defined community. The Bill seeks to include as many community interests as possible in a non-discriminatory manor. It is inclusive of all genuine community interests. There is in fact no mention of the character of the stations in the Bill. If communities want to identify themselves in a religious, cultural or any other way within a geographic area, its up to them to define themselves in that way. The change to geographically defined stations will be phased in by the Bill …. "

2.3.1 Suffice to say that the media pronouncements by the Minister for Communication and some of the officials of his department that nothing has been taking away from communities as far as a community broadcasting service is concerned is with great respect not only totally illogical but it also turns a blind eye to minority rights and the human rights provisions of the South African Constitution and especially in the way in which the Broadcasting Bill negates these minority and fundamental rights of the community broadcasters and of the communities they serve. In particular these media pronouncements do not take cognisance of the right of a community to apply for a community broadcasting licence as is the case in the IBA Act of 1993. This right does not exist in the Broadcasting Bill.

2.3.2 When the Minister however says that nothing has been taken away from any "community broadcasting service " in the Broadcasting Bill, he probably means that the majority in a specific geographical area could, if they so wish, grant a licence to that specific community within that geographical area. The other side of a coin is however not to be ignored. If the majority within that geographical area does not wish to grant a licence to a specific community like the Boere-Afrikanervolk, there would be nothing that such a community could do within the framework of the Broadcasting Bill. The will of the majority will prevail thereby negating the minority rights as well as the fundamental rights of that community.

2.3.3 This position is, as has been indicated above, from a human rights point of view totally indefensible. The existence of human rights and minority rights cannot be made subject solely to the majority will of the people. Had this been the case, then the majority - and not Parliament with the prescribed amending procedures - could, if they so wish, tomorrow decide to annul all the fundamental rights contained in Chapter 2 of the South African Constitution and thereby annul the cornerstone of the South African democratic order, enshrined in the new Constitution. Exactly this very argument has been used by the Government for the non-introduction of the death penalty. It has been argued in this connection that South Africa has from 1994 a new constitutional dispensation with fundamental rights which rights cannot be made subject solely to the majority will of the people - in contradistinction to the majority will of Parliament amending the Constitution - and that the right to life as a fundamental right stands above the mere majority will of the people.

2.3.4 A human rights system enshrined in a Grundnorm constitution, like South Africa's, stand above the mere majority will of the people. This is also recognised in German constitutional law. The modern German Constitution has, after two world wars, aptly been described as the Grundnorm - the basic law - of the German constitutional dispensation and, further, that the fundamental human rights enshrined in this constitution override any other law or constitutional norm and could not be changed by the mere majority will of the people. If it had been otherwise, it would have been possible for a popular government with the necessary majority to annul the German constitution and thereby creating a position of lawlessness. German legal literature in this regard refers to the "dictatorship of the majority (See Konrad Hesse, Grundzuge des Verfassungsrechts der Bundesrepublik Deutschland on page 60 - 61:

[Ed. note: the German quotation has not been included.]

RADIO PRETORIA AS A COMMON BROADCASTER FOR A SPECIFIC COMMUNITY, viz THE BOERE-AFRIKANERVOLK

3.1 It is appropriate here to refer extensively from the application by Radio Pretoria for a community broadcasting licence, which application had been lodged on 23 November 1995 in terms of the existing Independence Broadcasting Authority Act. The contents of this application, which is annexed to this memorandum, marked "A", will put Honourable Members in a position to come to grips with the principles and aims as well as the structure of Radio Pretoria and the description of the specific community served by Radio Pretoria, viz the Boere-Afrikanervolk. We request the indulgence of the Honourable Members to read this Annexure into this Memorandum.

3.2 From Annexure A" it is clear that the primary aim of Radio Pretoria is to serve the interests of a specific community, viz the Boere-Afrikanervolk, on the basis of its Christian and other values. In this regard it is further appropriate to point out that the community interest of the Boere-Afrikanervolk has been, as far as broadcasting is concern, been served by Radio Pretoria since 1993; firstly under the guidance of the Afrikanerkultuurbond, which has on behalf of the Boere-Afrikanervolk, established a broadcasting station for its needs. With the inception of the Interim Constitution in 1994 and the adoption of the present Constitution, Act 108 of 1996, Radio Pretoria has established itself as a section 21 company in terms of the Company laws of the Republic of South Africa. This incorporation of Radio Pretoria has become effective on 13 September 1994 and attached hereto the Honourable Members of the Parliamentary Committee for Communication will find the letters of incorporation of Radio Pretoria, as a section 21 company, marked Annexure "B".

3.3 It is apparent from the above Annexures, and this had been an essential element of the application by Radio Pretoria to the Independent Broadcasting Authority, that the primary aim and principles of the Boere-Afrikanervolk as a cultural community, which is served by Radio Pretoria, could be defined as follows:

3.3.1 To be guided by the Protestant Christian belief and to serve this community in South Africa, which community has its own characteristics and distinctiveness;

3.3.2 This Boere-Afrikaner Protestant Christian community has a deep sense of faith in the Triune God and has over the years found a fatherland in Africa; to white South Africa. It is recognised world wide that this people has over three centuries develop itself in a distinct community with ascertainable common interests (see the definition in section 1 (l)(xiv) of the IBA Act of 1993. This distinct community has over centuries become known as the Boere-Afrikanervolk and has for the sake of the realization of its right of self-determination fought and has suffered tremendously in two liberation wars (1880 - 1881 and 1899-1902) at the hand of British colonialism in Africa. Through these years the Boere-Afrikanervolk has developed an African commitment, which commitment is clearly distinguishable from the western cultures in Europe. As such, this Boere-Afrikanervolk has develop its own character and distinctiveness and its own language and culture.

3.3.3 The Boere-Afrikaner community places a high premium on its own body politic within South African civil society and great emphasis on its own cultural heritage and Christian faith, which is the guiding yardstick in everyday life. These characteristics form the cornerstone of the distinctiveness of this community.

3.3.4 Obedience and service to the Triune God and to their own people is of the highest order for this community. We submit that there cannot be any doubt that this community has in International Law the rights of a minority people within the geographical confines of South Africa. As individuals of this distinct community the members thereof have the fundamental human rights, enshrined in the Constitution of South Africa and especially those fundamental rights enumerated in Chapter 2 of the Constitution.

THE BOERE-AFRIKANERVOLK IS FROM A LEGAL POINT OF VIEW A COMMUNITY

4.1 On the above point de depart we submit that the Boere-Afrikanervolk, which is from a broadcasting point of view, served by Radio Pretoria could, from a legal point of view, be truly described as a specific and distinct community with ascertainable common interest. See the definition in this regard in section 1(1) (xiv) of the IBA Act. In this regard the "Woordeboek van die Afrikaanse TaaI" describes a "community" as follows:

"Persone wat deur gemeenskaplike belane, lewensonstandighede, gesamentlike regter, politieke of godsdienstige oortuiging ….. n eenheid vorm en in mindere of meerdere mate samehorigheid openbaar; samelewing, maatskappy, groep."

The well known Afrikaans dictionary "HAT" gives the following description of a community:

''Aantal individue ….. wat n samehorige groep vorm."

The "Nasionale Woordeboek" states, as far as a "community" is concerned, the following:

(1) Groep mense met dieselfde belange, samelewing.

(2) Samehorigheid.

(3) Groep, organisasie van mense.

The "Verklarende Afrikaanse Woordeboek" of Kritzinger and Labuschagne refers to a community as:

"Groep mense met min of meer dieselfde belange … "

In Webster's Third New International Dictionary a "community" is described as:

"The people living in a particular place or region and usually linked by common interests, broadly, the region itself: any population cluster."

4.2 Antony Cohen, The Symbolic Construction of Community, 1985 defines a "community" on page 15 as follows:

"Community is that entity to which one belong, greater than kinship but more immediately than the abstraction we call 'society'. It is the arena in which people acquire their most fundamental and most substantial experience of 'social life outside the confines of the home. In it they learn the meaning of 'kinship to be able to perceive his boundaries - this is by juxtaposing it to none-kinship, they learn 'friendship', they acquire the sentiments of a close social association and the capacity to express or otherwise managed these in their social relationships. Community, therefore, is where one learns and continues to practise to 'be social'. At the risk of substituting one indefinable category for another, we could say it is where one acquires 'culture'.

4.3 Chaskalson et al, Constitutional Law of South Africa, 35l15 proposes the following description for a "community":

"At its most general the word "community" can mean simply an aggregation of people 'similar' to 'state or society'. More precisely the modern usage of the word denotes and aggregation of people with a particular quality of relationship, held together by something in common. It is the quality of relationship that is crucial.

In applying this to the people, who speak Afrikaans in South Africa, they finally come to the conclusion that "it seems clear that should section 31 of the Constitution of South Africa not be available to protect against measures affecting the Afrikaans language because of a restrictive definition of a 'community', the right in section 31 would serve very little purpose.

4.4 A description of a "community" along the same lines could be found in the dictum by the learned judge in a Canadian decision National Council of Jewish Women of Canada Section v Township of New York (1962) OR 1 on page 3:

"The word 'community' has been applied in a variety of ways. It has been used to apply to the quality of holding goods in common; to society or the social state their life is in association with others to a body of individuals having common or equal rights, to those members of a civil community who have certain circumstances of nativity, religion, or pursuit common to them , such as religious communities, to a socialistic or communist society; and to a body of persons living in the same locality, 'those little communities which we expressed by the word neighourhood'. 'The community' is an expression generally applied to the people of a country or a district as a whole, the general body to which for a right belong, the public. " (See in this connection further the similar interpretation given to the word "community" "by the Privy Council of the United Kingdom, viz Oppenheim V Tobacco Securities Trust Company Limited 51 AC 297 (HL) on page 305

THE PROVISIONS OF THE BROADCASTING BILL IN THE LIGHT OF FUNDAMENTAL HUMAN RIGHTS IN THE SOUTH AFRICAN CONSTITUTION

5.1 It has been stated above that, if a community, like the Boere-Afrikanervolk, as a minority within the geographical area of the Republic of South Africa is deprived of the right to apply for a community broadcasting licence, this would necessarily mean that they are deprived of several fundamental rights, viz. The right of freedom of expression, the right of freedom of association, the right to establish one's own private institutions; their language and cultural rights and also their rights pertaining to minorities recognised in international law. These rights are being analysed infra so as to answer the question whether the relevant provisions of the Broadcasting Bill is in conformity with the minority rights recognised in international law as well as the fundamental rights of the South African Constitution.

5.2 The Right of Freedom of Expression which includes the Right of Freedom of the Press and other Media.

No right in constitutional and international law has, it is submitted, been granted such an immunity from governmental and other interference than the right of freedom of expression. Although the right of freedom of expression is no legal system absolute, this right is almost in every legal system recognized as been absolutely central to democracy and the very existence of a modern system of human rights protection.

It is the intention of this memorandum to analyse this right of freedom of expression in some legal systems as well as in international law briefly.

5.2.1 The Right of Freedom of Expression in the United States and Canada.

The Right of Freedom of Expression has in no legal system received more unfettered recognition than in the United States of America. It cannot be the purpose of this memorandum to discuss the Right of Freedom of Expression in American constitutional law extensively. Suffice to say that the American Supreme Court has given the Right of Freedom of Expression as the First Amendment primary importance as a right without which no legal system could be truly called democratic. In addition to American Supreme Court has interpreted any governmental interference with a Right of Freedom of Expression restrictively.

In the United States freedom of expression has been described in the well known case of Palko V Connecticut 302 US 319 (1937) Act 326l7 as follows:

"Freedom of thought and speech is the matrix, the indispensable condition of nearly every other form of freedom".

In Canadian constitutional law the same position prevails. On the basis of the Oakes case the Canadian Courts have likewise interpreted any inroads on the Right of Freedom of Expression restrictively and has supplied the test of proportionality, which means that the courts had to answer the question whether the result could not have been attained in a more restricted way.

For a further discussion of the right of freedom of expression in the United States, see Tribe, American Constitutional Law, 2 ed (1988) 785l9; Emmerson, The System of Freedom of Expression, 1970 and as far as Canadian Constitutional Law is concerned, see Hogg, Constitutional Law of Canada, 3 ed (1993).

5.2.2 The Right of Freedom of Expression in German Constitutional Law

In German constitutional law the press is given an institutional autonomy by virtue of the right to free expression and the right of freedom of the press and other media. In this instance section 5(1) the German Constitution provides as follows:

Everyone has the right freely to express and to disseminate

His opinion by speech, writing and pictures, and freely to

Inform himself from generally accessible sources.

Freedom of the press and freedom of reporting by radio and motion pictures are likewise guaranteed. There shall be no censorship.

It is generally recognised in German constitutional law that without a right of freedom of expression which includes freedom of the press and other media not only the German constitution and democratic order, but the country as a whole would fall apart. The freedom of the press and other media is seen as an institutional form of public criticism and public control over the government and governmental institutions. Grundzuge des Verfassungsrechts der Fundesrepublik Deutschland, states that the right of a free press and other media also includes the freedom of radio and television broadcasting. He further indicates that it is an essential prerequisite of any modern democracy to protect press freedom, which is, in practical terms, nothing more than the democratic freedom to speak one's mind and to be listened to. Therefore, the state carries the obligation to see to it that also the minority group's right in this regard is fundamentally guaranteed. See in this regard the cases of the German Constitutional Court (Bundesverfassugse gericht) in BverfGE 12 205 (259)ff); 31,314(325ff); Rundfunkfreiheit: BverfGE 35, 202(222f)57,295(3 19ff); BverfGE 12, 205(261ff); 57, 295(319ff) and BverwGE 39,159(163ff).and see further the scholarly discussion with regard to freedom of the press and radio freedom. H.H. Klein, Die Fundfunkfreiheit (1978 on 57ff).

For a discussion of this right in German constitutional law See further D Currie, The Constitution of the Federal Republic of Germany, 1994, 227 and D Davis, M Chaskalson and 3 De Waal, Democracy and Constitutionalism; The role of Constitutional Interpretation in D Van Wyk et al Rights and Constitutionalism 1994 102l3.

5.2.3 The Right of Freedom of Expression recognised in International Law

In International Law the right of freedom of expression is without doubt accepted as one of the most essential foundations of a democratic society. Freedom of expression forms the basic condition within which the progress and development of a democratic society as such and the members of such a society could take place. For instance in the case Handyside V United Kingdom, 5493l72 1975, EHRR 737 the European Court for human rights had even gone so far as to hold that freedom of expression applies not only to information or ideas that are favourably received or regarded as inoffensive ,but also to those that offend, shock or disturb the state or any sector of the population.

The Right of Freedom of Expression has received unanimous support in various international instruments to such an extent that it could safely be stated that this right and its concomitant viz. the right of freedom of the press and other media is now universally accepted and is also part of international law.

Suffice here to quote from various international instruments where this right has been expressly recognised.

5.2.3.1 The Universal Declaration of Human Rights of 1948 states in article 18 as follows:

"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or believe, and freedom, either alone or in community with others and in public or private, to manifest his religion or believe in teaching, practice, worship and observance." (my italics).

Article 19 provides as follows:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart

information and ideas through any media and regardless of frontiers (my italics).

5.2.3.2 Furthermore, in article 4 of the American Declaration of the Rights and Duties of Man of 1948 it is stated as follows:

"Every person has the right to freedom of investigation, of opinion, and of the expression and the dissemination of ideas, by any medium whatsoever".

5.2.3.3 The right to broadcast as a concomitant of the right of freedom of thought and expression is very clearly stated in article 30 of the American Convention of Human Rights of 1969. It reads as follows:

1. Everyone shall have the right to freedom of thought and expression. This right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or any other medium of one's choice.

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to liability, which shall be expressly established by law to the extend necessary in order to ensure:

(a) respect for the rights or reputations of others; or

(b) the protection of national security, public order or public health or morals.

3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over, radio broadcasting frequencies, or equipment use in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

4. Notwithstanding the provisions of paragraph 2 above, public entertainment may be subject by law to prior censorship for a sole purpose of regulating access to them for the moral protection of childhood and adolescence.

5. Any propaganda for war and any advocacy of national, race, or religious hatred that constitute in citements to lawless violence or to any other similar illegal action against any person or group of persons, or any grounds including those of race, colour, religion, language, or national origin shall be considered as offences punishable by law.

5.2.3.4 Article 19 of the International Covenant of Civil and Political Rights of 1966 specifically refers to the right of freedom of expression in the following terms:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with its special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessarily;

(a) for respect of the rights or reputations of others;

(b) for the protection of national security or of public order (ordre public) or of public health or morals.

5.2.3.5 The Copenhagen Document of 1990

In the Copenhagen Document signed by 35 participating States of the Conference of Security and Co-operation in Europe of 1990 the following stipulation is found in article 9.

"Everyone will have the right to freedom of expression including the right to communication. This right will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of this right may be subject only to such restrictions as is prescribed by law and of consistent with international standards...."

5.2.3.6 The Right of Freedom of Expression in the European Convention of Human Rights

In article 9 of the European Convention of Human Rights the freedom of expression is described as follows:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belie{ and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitation as are prescribed by law and necessary in a democratic society, in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

As far as the right of Freedom of Expression, and its concomitant the right of a free press, which includes broadcasting within the European convention of human rights is concerned is concerned, it is appropriate to refer to the interesting case in Radio ABC v Austria, decided by the European Court of Human Rights (22 ERR 1996 EC.D). The facts this case should be briefly summarised as follows. On 28 August 1989 the Applicant association (Radio ABC) requested the Vienna Lower Burgenland Regional Postal Administration to grand its permission to establish and operate a radio installation and to allocate a radio frequency for the purpose of a broadcasting programme in the Vienna area. On 9 February 1990 the Vienna Regional Postal Administration dismissed the Applicant's request. It based it dismissal on the provisions of the Constitutional Broadcasting act of 1974.

The Applicant company then lodge a complaint to the Constitutional Court, which Court dismissed the Applicant's complaint in 1991. After the entry into force of the Regional Radio Act on 1 January 1994, the Applicant on 17 April 1994 requested to be granted a broadcasting licence for the frequencies available to private broadcasters in the area of Vienna. The Regional Radio Authorities, however dismissed this request. Suffice to say that the Regional Radio Act could impose licensing requirements for private, local and regional radio broadcasters. According to section 2 of this Act, the Federal Minister of Public Economy and Transport by ordinance has to establish a frequencies utilization plan for allocating the available frequencies of he Austrian Broadcasting Corporation and to the private broadcasters.

In a decision on 27 September 1995 the Austrian Constitutional Court set a side section 2 of the Act as being unconstitutional and accordingly declared the frequency plan has been based on it, as invalid. Thereupon the Applicant approached the European Court of Human Rights on the basis of the right of freedom of expression as is articulated in Article 10 of the European Convention of Human Rights.

The decision of the Commission could be summarised as follows:

The Commission finds that the refusal to set up an operational radio station by the Applicant constitutes an interfering with the Applicants right to impart information.

As regards the notation of necessity, the Commission recalls that a contracting State, in the need of interfering, enjoy a margin of appreciation, but this margin goes hand in hand with European supervision. In cases where there has been interference with the rights and freedoms guaranteed in Article 10 (1), supervision must be strict because of the importance of the rights in question. In this regard the Commissioner refers to the well known case of informationsverein Lentia and others, (1994) 17 EHRR 93.

Finality, the Commission comes to the conclusion that the interference by the Austrian Authorities complaint of by the Applicant, was disproportioned therefore, not necessary in a democratic society within the meaning of Article 10(2) of the European Convention of Human Rights. On this basis the Commission concludes that in this case there has been a violation of Article 10 of the unanimously concludes that in this case, there has been a violation of Article 10 of the European Convention.

5.3.1 The Right of Freedom of the Press and other Media in South African Constitutional Law

The most important fundamental right, however, that has been tampered with in the Broadcasting Bill is, of course, the right of freedom of expression and its concomitant the right of freedom of the press and other media. If the Bill should be accepted, Radio Pretoria will most definitely have lost its right as a community broadcaster to apply for a community broadcasting licence from the Broadcasting Authority; as is the position at present in terms of the IBA Act of 1993.

With regard to the right of freedom of expression, section 16 (1) (a) of the Constitution of South Africa, Act 108 of 1996 provides that the freedom of expression includes the freedom of the press and other media. The question that arises in this connection is whether the specific reference in the Constitution to the press and the media means that the South African Constitution upholds the view that the press and the media fulfil a special function in a democracy and that they therefore deserve a greater degree of protection than other fundamental rights.

This question whether the press and the media enjoys a greater degree of constitutional protection of free speech has been considered in the American decision First National Bank of Boston V Belloti 435 US 765 (1978).

In this case the first amendment, which guarantees the freedom of expression and especially the freedom of the press and the media had been considered by Chief Justice Burger. He came to the conclusion that the specific reference to the press in the first amendment does, however, not give the press more right than others. On the other hand this decision should not be understood that the American constitutional law does not give press freedom a high degree of protection. In the well known case of New York Times Co. v United States 403 US 713 (1971) the American Supreme Court referred specifically to the important role of the press and other media in a democracy. In this case Black J decided as follows:

The constitutional guarantee of a free press gave the free press the protection it must have to fulfil its essential role in our democracy. The press was to serve the government and not governors. The government's power to censor the press was abolished so that the press would remain forever free to censure the government . Only a free and unrestrained press can effectively expose deception in government.

Chaskalson et al, Constitutional Law of South Africa points to the heart of the right of freedom of expression in the following words:

"lntegral to a political process justification for freedom of expression are two functional arguments. First, freedom of expression is a check upon the abuse of power and a form of resistance to totalitarian control. Secondly, social stability is furthered by freedom of expression, permitting the articulation of the dissent and offering a method of working through social conflict instead of acting it out in a destructive manner.

In this regard Brandeis J of the US Supreme Court has decided in Whitney v California 274 US 357 Act375, 47 SCt 641(1927):

Suppressing expression substitutes falls for rational discussion and reduces society's ability to adjust to change." As far as South African constitutional case law see Qozeleni v Minister of Law and Order and another 1994 (3) SA 625 (E) Act 634BlC, 1994 (1) BCLR 75 (L) Act 80GlH and the Namibian case Kauesa v Minister of Home Affairs and others 1996 (4) SA 965 (Nms) Act 982J.

In general it could be said that although the right of freedom of expression is in no legal system absolute, this right is almost in every legal system recognized as been absolutely central to democracy and the very existence of a modern system of human rights protection and more deserving of immunity from governmental regulation than are other forms of social practice. Freedom of expression is viewed as been central to the enterprice of democracy. See in this regard further Mandela v Falati 1995 (1) SA 251(W) Act 259F, 1994 (4) BCLR 1(W) Act 8E-F is a case in point.

"In a free society all freedoms are important, but they are not all equally important. Political philosophers are agreed about the primacy of the freedom of speech. It is the freedom upon which all others depend, it is a freedom without which the others would not long endure." See further In re Munhumeso and others 1995 (1) SA 551 (ZS) Act 557C-D, 1995 (2) BCLR 125 (ZS):

The importance attaching to the exercise of the right to freedom of expression of assembly must never be under estimated. They lie at the foundation of a democratic society and are 'one of the basic conditions for its progress and the development for every man', per European Court of Human Rights in Handyside v United Kingdom (1976) 1 HER 737 Act para. 49.

It is generally recognised that freedom of the press is a necessary concomitant of freedom of expression. In this regard the courts in Namibia had already decided in 1987 in Free Press of Namibia (Pty) Ltd. v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA) Act 623G:

If freedom of speech is to have any significance in a democratic country, its concomitant, freedom of the press, must be recognised because it is only by reaching a large number of people and rallying their support that their freedoms can be utilised for the benefit of society.

Furthermore in Holomisa v Argues Newspapers Ltd. 1996 (2) SA 588 (W) Act 608Jl609D Cameron J specifically gave recognision to the independent guarantee of the press in the following words:

"In a system of democracy dedicated to openness and accountability, as ours is, the especially imported role of the media, both publicly and privately owned, must in my view be recognised. The success of our constitutional venture depends upon rebust criticism of the exercise of power. This requires alert and critical citizens. But strong and independent newspapers, journalists and the broadcasting media are needed also, if those criticisms are to be effectively voiced, and if they are to be informed with the factual content and critical perspectives that investigative journalism may provide. It is for this very reason that the constitutional dispensation recognizes the special importance and role of the media in nurturing and strengthening our democracy. This recognition obvious is 15 (1) of the Interim Constitution which expressly states that freedom of speech and expression (shall include freedom of the press and other media)

The important role of the press in an open democracy was a articulated in Government of the Republic of South Africa v "Sunday Times" Newspaper and another 1959(2) SA 221(T) at 227 I/228A, 1959(2)BCLR182(T) at 188lH:

The role of the press is in the front line of the battle to maintain democracy. It is the function of the press in a democratic society to furret out corruption, dishonesty and graft where ever it may occur and to expose perpetrators. The press must reveal dishonesty mal- and inept administration. It must also contribute to the exchange of ideas already alluded to and must advance communication between the governed and those who govern. The press must act as the watchdog of the government."

In South Africa Cameron J in Holomisa v Argus Newspapers, supra recognised the special role of the press in a constitutional democracy but on the other hand followed the First National Bank of Boston case by stating that this does not mean that journalists must enjoy special constitutional immunity beyond that accorded to ordinary citizens. However, there cannot be any doubt in South African constitutional law that the right of freedom of expression is looked upon as one of the most fundamental rights in the South African human rights system. It is submitted that any inroads on the right of freedom of the press and other media must be interpreted in the narrowest sense of the word so as to disallow legislation whereby the right of freedom of the press is curbed.

For a further discussion of the right of freedom of expression in South African constitutional law, see Esterhuizen, "Freedom of Expression" in Van Wyk, Dugard, De Villiers and Davies (eds), Rights and Constitutionalism 264, Suttner, Freedom of Speech 1990, 6 SAJHR 372 and Sachs, Towards a Bill of Rights in a Democratic South Africa, (1990)6 SAJHR 13.

Furthermore section 16 (1) (b) of the Constitution specifically enumerates the right to receive and impart information and ideas. Erasmus and De Waal come to the conclusion that this provision of the Constitution removes any doubt as to whether the right of freedom of expression aims to protect only speakers or both speakers and listeners.

This is of course, very important for a radio broadcaster, like Radio Pretoria. In essence it means that not only Radio Pretoria but also its listeners have locus standi in this regard to put their view to the Honourable Members of this Committee on the untenability of the provisions of the Broadcasting Bill in debarring a real community broadcasting service, which serves a specific community and its listeners, without that community being linked to a specific geographical area.

Exceptions to the right of freedom of expression stated in section 16 (2) of the constitution

The scope of the right of freedom of expression enumerated in section 16 (1) of the South African Constitution does not extend to the three categories of expression listed in this subsection. These specifically enumerated exceptions are:

* Propaganda for war;

* Incitement of imminent violence; and

* Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

There can be no doubt that these three categories enumerated in section 16 (2) of the Constitution - due to the fact that they constitute exceptions to a fundamental right -should therefore be interpreted restrictively; according to the dictum in S v Smith 1997 (1) BCLR 70 (Nnm) 72H in witch it was specifically stated that "exceptions to the right of freedom of expression must be restrictively interpreted."

However, from these exceptions stated in section 16 (2) of the Constitution flow the position that no one, and that includes Radio Pretoria, would be permitted to abuse the right of freedom of expression as is indicated in these three categories of exceptions to the right of freedom of expression. For an elaborated discussion on the exceptions to the right of freedom of expression contained in section 16 (2) of the constitution, Chaskalson et al, Constitutional Law of South Africa, 20l60 - 20l63.

Limiting the Freedom of Expression of Radio Pretoria in the Broadcasting Bill

The question whether the provisions of the Broadcasting Bill and in particular Chapter VI thereof could not be seen to fall within the ambit of the limitations clause in section 36 of the Constitution, could, it is submitted, be ruled out, because the Broadcasting Bill does not merely limit the existing right of freedom of expression of community broadcasters, as is stated in the Independent Broadcasting Authority Act of 1993, but completely substitutes this existing right of community broadcasters with an entirely new provision, a new method and a new structure for community broadcasting stations.

It has previously been pointed out that the Broadcasting Bill has now given a purely geographical meaning to community broadcasting. In any event, and on the basis that it could be argued that the limitation clause of section 36 finds application, it is submitted that the purpose and or and/ or of the Broadcasting Bill is such, that it could safely be argued that the provisions of the Broadcasting Bill in connection with community broadcasters in Chapter VI either have an unconstitutional purpose or an unconstitutional effect and in any case is disproportionate to the result it wishes to attain. This, of course, invalidates the purported provisions in the Broadcasting Bill and they therefore fall outside the scope of the limitation clause. (See further in this instance the Canadian decision in Irwin Toy Ltd. v Quebec (A-G)

(1989) 58 DLR (4th) 577 (SCC) Act 610l11

5.3.2 The Right of Freedom of Association in the South African Constitution

As far as the content and ambit of the right of freedom of association in South African constitutional law is concerned, we can do no better than to quote extensively from the work of Chaskalson et al, Constitutional Law of South Africa, in which it is stated on: 22l1 - 22l3

Some 160 years ago Alexis de Toqueville wrote that no one and especially 'no legislator can attack [the freedom of association] without impairing the very foundations of society'. Today, if Michael Walzer is to be believed, de Toqueville's fears of impaired foundations have been realized. Walzer asserts that '[i]ncreasingly, associational life in the advanced capitalist and social democratic countries seems increasingly at risk. Publicists and preachers warn us of a steady attenuation of everyday cooperation and civic friendship …. The Hobbesian account of society is more persuasive than it once was.' If we continue to ignore the foundational nature of associations, Walzer concludes, we do so at our own peril.

Associations and the freedom of association are essential components of a well-ordered society. They are essential because associational freedom makes participatory politics meaningful and genuinely representative politics possible. An individual is unlikely to have either the ability or the resources necessary to mount an effective campaign to convince large numbers of his peers that his position on a particular subject is correct. However, a like-minded group of individuals - with their collective insight, effort and resources - is far more likely to make itself heard. Once heard, they have the opportunity to influence fellow members of society. If they are able to influence a sufficiently large number of their fellow citizens, they can, perhaps, translate their influence into the election of representatives. These representatives, who wield the real power, may then effect the desired political change. Associations thereby provide the bridge from individual efforts to collective political action.

Associational freedom also secures private goods. Most of us believe that our intimate relationships are crucial to our self-understanding and that we, as individuals, should have relatively unfettered control over decisions about intimate relationships. If we are to be truly free to make these self-defining choices, then we need the protection provided by the freedom of association in order to prevent the state from exercising too substantial an influence over our decisions about whom to love and how to love them.

Associational freedom protects cultural goods. Cultural practices and affiliations - like intimate relationships - often form an integral part of our self-understanding. Cultural associations sustain these practices and affiliations. If, therefore, we wish to safeguard these basic or primordial attachments from undue state interference, then we must be willing to place cultural associations securely within the freedom's protective sphere. we might also wish to protect cultural associations for more instrumental reasons. For one thing, cultural associations often act as effective buffers between the individual and state power. For another, the greater the number of and more varied are our cultural associations, the more enriched our national culture and our individual lives tend to be. For a third, cultural associations, like other associations, tend to fill the breach left by the decline of familial hierarchies and the concommitant increase in individualism. They mediate the anomie of modem society, often perform welfare functions the state is unable or unwilling to undertake, and generally function as the glue preventing social disintegration.

Associational freedom realizes economic goods. Business associations, for example, may realize certain efficiencies or advances through the sharing of price, product and technical information. Optimally, and ultimately, the benefits of such shared knowledge should flow to the consumer in the form of lower prices and better products.

Associational freedom advances social goods. The freedom enables individuals and communities to organize around particular issues of concern. It thereby permits these groups to contest and ameliorate the structure of social power in ways that are not directly political. It also allows them to organize to pursue activities that they just happen to enjoy.

Associational freedom realizes social uplift or substantive equality goods. It frees labour to bargain collectively so that it may compete with capital on a more equal footing. It frees women to form educational institutions suited to their particular needs. If we believe that the economic uplifting of subordinated groups is a sufficiently pressing social goal, then we may want to insulate such associations from significant state interference so that these groups can advance their historically subordinated interests.

The foregoing list of goods should suggest that the sphere of liberty secured by the freedom of association is important for three very basic reasons. First, individuals (and groups) are freed to pursue or maintain those attachments which they believe are constructive of their being. Such attachments might be intimate, cultural, religious or social. Secondly, individuals (and groups) are further freed to realize - spontaneously, if not consciously - a most important instrumental goal: a rich and varied civil society. This rich and varied civil society in turn serves many ends: facilitating social debate and participatory politics, providing a buffer between the individual and the state, sustaining a vibrant culture, and ensuring economic progress and advancement. Thirdly, the foregoing list of goods should also imply that if we withdraw constitutional protection from these various forms of association, our ability to protect individuals from the abuses of state - as well as unchecked social and economic - power will be significantly diminished.

5.4 THE PROTECTION OF MINORITY RIGHTS IN INTERNATIONAL LAW

A question that has haunted International Law for decades is whether minorities, when not a full subject of International Law, could be called a subject with quasi-international status. On the other hand it is now well accepted that minorities have certain and specific rights recognised by International Law. Before these rights could, however, come into play, one has to answer the question first and foremost, what is to be understood under "a minority". In this regard it is pertinent to indicate that the most authoritative definition of "a minority" has been proposed by Francesco Capotorti, the Special Rapporteur of the Sub-Commission of the Prevention of Discrimination and the Protection of Minorities. He defines "a minority" as follows:

"A group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members - been nationals of the state - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language."

In this official document of the Sub-Commission on Minorities it is suggested that the effective protection of minorities requires two categories of legal provision. Firstly, and, secondly, these are measures aimed at securing equal treatment for minorities, and secondly measures aimed at the protection of the minority identity. The difference between these two categories of the legal protection of minority has been explained as follows:

1. Prevention of discrimination is the prevention of any action which denies to individuals or groups of people the quality of treatment which they may wish.

2. Protection of minorities is the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics, which they possess and which distinguish them from the majority of the population.

For an elaborated discussion in this regard see Patrick Thornberry, The Rights of Minorities, in DJ Harris and Sarah Joseph (eds). The International Covenant on Civil and Political Rights and United Kingdom Law, 1995, 597.

The most advanced instrument in International Law that for protecting the rights of persons belonging to minorities is the International Covenant on Civil and Political Rights, which states in article 27

"In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."

Paul Sieghardt, The International Law of Human Rights, Oxford, 1995 op 337 has interpreted article 27 of the International Covenant indicating that, although this right is attached to persons", it may be said to be a collective right..."

Since the adoption of article 27 of the International Covenant on Civil and Political Rights in 1966, the General Assembly of the UN adopted in 1992 the authoritative Declaration on the Rights of Persons Belonging to National Ethnic, Religious on Linguistic Minority, which was the product of a 14 years study by a working group of the Commission on Human Rights.

This document on the one hand sets out the individual rights of persons belonging to minorities and on the other hand addresses the content and ambit of the obligations of states in respect to minority rights. As far as the latter is concerned the Declaration states that the conditions a state should fulfil to remove the legal obstacles to the cultural development of minorities. A state should furthermore facilitate the growth of the institutions which underlie a flourishing culture of minorities and the state should, furthermore, respect the distinctive characteristics of minorities, living within the confines of the state territory.

This latter document, we submit, should be seen as complimentary to article 27 of the International Covenant of Civil and Political Rights.

The protection of minority rights in South African constitutional law finds expression in sections 30 and 31, which guarantee respectively the right of every citizen in South Africa to use the language and to participate in the cultural life of their choice. right, with other members of their community, to enjoy their culture, practise Persons belonging to a cultural, religious or linguistic community cannot be denied the their religion and use their language and to form join and maintain cultural, religious and linguistic associations.

It should, we submit, be emphasised that section 31 of the South African Constitution affords rights to members of cultural, linguistic and religious communities to participate in the culture, language and religion "with other members of that community". It stands to reason that this right, which a member of a cultural or linguistic community possesses, cannot meaningfully be exercise alone. It could only be exercised communally. This privation, we submit, is in accordance with article 26 of the International Covenant.

In connection with section 31 of the South African constitution Chaskalson at 35l13 stresses the following:

" ..... an individual right of enjoyment of culture assumes the existence of a community that sustains a particular culture. Similarly, a right to use a language implies the existence of a community of fellow users of a language. An individual's right or participation in cultural life will be impugned, if some harm comes to the cultural community in which that individual takes part."

The right in section 31, however requires for its exercise the existence of an identifiable community, practising a particular culture or religion or speaking a particular language. Therefore, if as a result of state action or inaction, that community loses its identity, if it is absorbed into the majority population, the individual's right of participation in a cultural or linguistic community will be harmed.

Section 31, without doubt, requires non-interference with a community's initiatives to develop and preserve its culture. In addition, it is likely that it requires positive measures by the state in support of cultural, religious and linguistic minorities that do not have the recourses for such initiatives. In some countries e.g. Belgium the German minority is assisted by governmental action to such an extend that the state even supports financially newspapers in the German language; on the basis that this minority does not have the resources to maintain their own cultural institutions. South African constitutional law in this connection has still a long road to go. See the dictum of Sachs J in Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of certain provisions of the Gauteng School Education Bill of 1995, 1996 (3) SA 165 (CC) 196 (4) BCLR 537 (CC), in which it was stated that International Law and the minority rights provisions of the interim Constitution required the state not to interfere with such initiatives. Presumably, the question is left open whether the state in South Africa should not only not interfere, but assist a minority with positive action and initiatives from governmental sources.

If one compares section 31 of the South African Constitution, however, with article 27 of the International Covenant one immediately sees that section 31 avoids the term "minority" in article 27 and instead uses the term "community". Although one should not read to much in the alternative usage of the word community" in article 31, the Fathers of the Constitution could, so we submit, would have put the South African legal society on a par with international experience, if they had rather opted for the term "minorities", which is widely accepted in international instruments and in which the definition of "minorities" of Capotorti, had been accepted. We furthermore draw the attention of the Honourable Members of the Communication Committee in this regard to the submissions we made above in connection with the terms "community" and "minorities".

5.4 CONCLUSION

5.4.1 On the basis of the above analysis, it could, we submit, be concluded that the South African constitution guarantees to Radio Pretoria and it's listeners the fundamental rights indicated above namely the right of freedom of expression; the right of freedom of association; the right to establish private institutions, (e.g. a section 21 Company as had been incorporated by Radio Pretoria); and the minority rights, referred to above, which are recognised as such in international law.

5.4.2 It has been pointed out in the above analysis that freedom of the press, which includes the fundamental right of radio broadcasting, must be seen as one so fundamental that no modern democracy could exists without rendering wide recognition to the right of private institutions to establish a broadcasting station and the right to broadcast to their own communities in their own language. Any governmental interference with this right would, prima facie be unconstitutional. It is also accepted in all legal systems that interference by governmental institutions with this right must first be justified within the framework of the prerequisite of proportionality.

5.4.3 There cannot be any doubt that the Broadcasting Bill does not and cannot succeed this test. The Broadcasting Bill has not only tampered with the right of the freedom of the press and the freedom of radio broadcasting. It has taken away the fundamental rights of community broadcasters, like Radio Pretoria to, which have been indicated above to exercise these rights. In particular, Radio Pretoria is within the framework of the Broadcasting Bill not entitled to exercise the right to apply for a community broadcasting licence.

5.4.4 This is a severe interference by government with the right of freedom of the press and there cannot be any doubt that this interference is fundamentally flawed and unconstitutional.

5.4.5 The scope of this unconstitutionality of the provisions of the Broadcasting Bill becomes evident, if one scrutinises closely clause 29 of the Bill.

5.4.5.1 According to clause 29(1)(a) licences for community broadcasting services may be granted by the Authority only as far as radio broadcasting is concerned in the category "free to-ear-terrestrial radio broadcasting service". This provision infringes upon the acquired rights of Radio Pretoria, granted to it by the Independent Broadcasting Authority, in terms of the IBA Act. In this connection it must be appreciated that Radio Pretoria has, since 10 October 1997 and with the approval of the IBA extended its broadcasting services by satellite (Sentech) to approximately 10 000 homes countrywide. This again proves that the community, served by Radio Pretoria, reside throughout the country and is not limited to a specific geographical area. The cost involved in this broadcasting service by satellite is in the vicinity of R22 000 monthly. Since its inception this satellite broadcasting service to its listeners in all 9 provinces has cost Radio Pretoria R220 000.

If this acquired right of Pretoria should be annulled it stands to reason that this amount had been spend by Radio Pretoria and its listeners in vain.

Furthermore, it must be indicated that 10 000 homes to reach we have referred previously, has each bought a satellite reception unit to the cost or R1 800. For 10 000 homes this would bring about a loss of R18 000 000.

In addition it must be stressed that the IBA has granted licences to 18 companies or trusts, incorporated by people and communities associating themselves with Radio Pretoria. The total cost for these applications amounts to R99 000 which again, would have been spend in vain, should Parliament accept the Broadcasting Bill, which provisions would encroach upon the acquired rights of Radio Pretoria.

5.4.5.2 The provision in clause 29(4) according to which "a community broadcasting service is controlled and managed by people representative of all sectors of the communities in the licensed service area", is one of the key clauses in the Broadcasting Bill because it makes the fundamental and minority rights of community radio broadcasters, who numerically cannot muster a majority within a geographical area, totally subject to the will of the majority in that geographical area. This, in effect jeopardises the very existence of a true community broadcaster, like Radio Pretoria not in accordance with the provisions of the Companies Act with specific reference to section 21 thereof.

This means that this provision infringes upon the right to establish a private accompany and to manage the pertinent in this instance to point out that the Independent Broadcasting Authority has in terms of the IBA Act specifically requested Radio Pretoria to establish a section 21 company; whereas the Broadcasting Bill now nullifies this and regulates that the affairs of a geographical community broadcaster be man aged by a Board, which "must be

democratically elected, from all members of the community... in the licensed geographic service area

It should, therefore be said that this provision infringes upon the principles of the right freedom of association, according to which a community, which has establish itself in an institution, cannot be prescribed how it should manage its own affairs or what it should do with its investments. This logic flows from almost every legal principle and it is embodied in every modern human rights system, provided, of course, that such a private institution does not transgresses any rule of criminal or civil law, which has cogens character.

5.4.5.3 The provision in section 29(7) of the Broadcasting Bill according to which the revenues of community broadcasters from advertisements could not be drawn from national advertising, is, to say the least, draconic. This provision must from a human rights point of view and also from the point of view of private business, be out rightly rejected. That any form of legislation or administrative action could prescribe a private business institution how and where it could advertise, is totally indefensible. In addition, the formulation "national advertising" boggles the mind. Is the advertisement of a countrywide warehouse, for example, in Nelspruit a local or national advertisement? The sooner this provision is rejected, the better for freedom and private enterprise in the whole of South Africa.

5.4.5.4 The provision of the Broadcasting Bill is such, that the practical implications of its provisions, viz. to grant a licence only to a geographical area, means that it infringes upon the right of religious Communities to have a broadcasting service, rendered to them, which is based on Christian norms. From a Christian point of view, Radio Pretoria has its only yardstick the Bible and biblical norms to which Radio Pretoria strenuously adheres. It is for radio Pretoria no coincidence that The Bible in fact holds:

"I, the Lord your God, am a jealous God." Exodus 20:5 (The New American Standard Version).

From the Christian point of view it would therefore be heresy for Radio Pretoria to render a service to which it is obliged to broadcast religious messages for all (e.g. also non-Christian) beliefs or even for atheists. Such a position for Radio Pretoria would not be a totally unacceptable, but also a sin in the eyes of God All Mighty, whose guidance Radio Pretoria seeks for its very Existence.

RECOMMENDATION

6.1 On the above premises, it is recommended to the Honourable Members of the Communications Committee that the Broadcasting Bill either be rejected entirely or amended, so as to introduce the previous position that existed in the Independent Broadcasting Authority Act, 153 of 1993 and especially the position that existed in section 1(1) (xiv) and (xv) and in section 47 thereof. If the Minister's media pronouncements could be taken seriously that the Broadcasting Bill has not taken away anything from community broadcasters, there can, on this argument of the Minister, be no reason why the Broadcasting Bill cannot be amended as is recommended above.

6.2 Should the Communications Committee however, decide to push through with the acceptance by Parliament of the Broadcasting Bill Radio Pretoria will have no other option as to challenge the constitutionality of the provisions of the Broadcasting Bill pertaining to the legal position of community broadcasters. This, of course would entail applications to the High Court and the Constitutional Court of South Africa and if necessary an application to the authoritative Commission of Human Rights Of the United Nations in Geneva, Switzerland

In this connection Radio Pretoria would take legal advice from prominent lawyers specialising in human rights law on international level. However Radio Pretoria is confident that this would not be necessary and that the Honourable Members of the communications committee would rather opt for rejecting or amending the Broadcasting Bill.

6.3 In addition, if Parliament should accept the Broadcasting Bill the provisions of the latter would also infringe upon the acquired rights of Radio Pretoria within the framework of the provisions of the Independent Broadcasting Authority and the granting of a licence to Radio Pretoria by the IBA. It is of importance to indicate that in this connection Radio Pretoria and its listeners, who have invested in their own broadcasting station would stand to lose approximately R18 500 000. We are confident that the Honourable Members appreciate the position that Radio Pretoria would have no other alternative as to institute legal proceedings for damages to recover this and future losses.

6.4 It must however be pointed out that the loss of Radio Pretoria would not only be a pecuniary. By far, its loss would be the loss of a fundamental right to freedom of broadcasting to its own people in their own language. It must be appreciated that Radio Pretoria will never be prepared to accept such a situation.

Chambers,

4 September 1998

Adv. SC Jacobs

Instructed by Wilsenach Van Wyk, Pretoria

Appendix 4: Yfm submissionSubmission on the Broadcasting Bill 1998

By Yfm

The aim of this submission is to present a case for a national urban broadcasting license for a private radio service targeting young South Africans.

Yfm, a Gauteng-based station targeting young mainly black people, believes its unique composition, service and the need, demand and viability of its projected audience nationally warrant that it be treated exceptionally among private broadcasters and be granted a national license in terms of the provisions laid down in the Broadcasting Bill and White Paper.

The White Paper, in Sections 3.1 to 3.8, poses questions about the structure of the radio market and the effect so far of the deregulation/liberalisation of the radio market.

And the Broadcasting Bill, in terms of its objectives (2 a, b, c, d, e, f, g, m, n, and u) and the SA Broadcasting system (3 a, b, c, d and 7, 8, 9) and Commercial Broadcasting Services (27-1 and 2) outlines certain requirements expected of (commercial) broadcasters.

Yfm would like to make some observations in regard to the above provisions in the Broadcasting Bill and White Paper in motivation of its appeal that it be granted a national license.

Yfm is not any other commercial broadcaster making a submission. Yfm is unique in the new broadcasting environment in a number of ways which we believe should be taken cognisance of in assessing the merits or not of our argument.

Yfm is the only private broadcaster in the country which is

· completely controlled by black people. We are 94% black owned. Our financing comes from trade union members. Our shareholders include major youth and worker groupings and black media professionals and businesses.

· broadcasting in languages other than English. Yfm broadcasts in a multilingual format dominated by English, isiZulu and seSotho.

· playing local music way, in excess of IBA requirements. Yfm is currently playing 45% local music - the biggest local music quota in the country out of all radio stations. In addition, Yfm is at the forefront of breaking new South African music. In our first ten months on the air we have played over 80 new South African songs for the first time and some of them went on to become big hits and platinum sellers.

· targeting a mass audience which has never had a media service directed at it before and which is, in every sense, the heart and soul of South Africa in the next millenium

- i.e. the black youth who represent over 75% of the black population.

· producing programmes addressing the needs of youth viz. Talk shows on sex, drugs, crime, education, health and the environment

· drawing the vast majority of its presenters and staff from community and university radio stations.

In addition, Yfm currently employs 42 people of whom 90% are black and 40% are women. The average age of the entire Yfm staff is 25 years and the average age of our presenters is 22 years.

All these factors set Yfm way apart from other private broadcasters. Yfm has, far more then any other private broadcaster, taken on public responsibilities and created a truly empowered organisation in both its ownership and its staffing. Yfm is, we believe, the first born child of the new South African media.

Although it is still early days it is worth also pointing out that the last Amps figures indicate that Yfm made a major impact on the broadcasting scene in its first six months of operation. It is the biggest regional radio station in the country by a factor of over 200,000 (weekly listenership) with a total weekly listnership of 962,000 in Gauteng. It is also the fastest growing radio station ever in SA's history and the most viable commercially of all the new entrants to the SA radio market..

Deregulation has delivered greater diversity in terms of ownership, empowerment, access and programme format. It could hardly be any other way. The old apartheid system was completely monopolised by the SABC (and PrimeMedia) so any change would have to be an improvement on the situation.

At the level of ownership we do not believe that there has been significant enough change. PrimeMedia has been able to significantly strengthen its position in the broadcasting environment and established white businesses like Liberty Life, Anglovaal, Boland Bank and the Independent Group have been able to secure a significant foothold.

Foreigners like P4, EDI and Classic FM have also ended up with fairly substantial interests.

At the same time new black media players have emerged and, in many cases. broadcasting staffers have been empowered in the new environment. This is a step forward.

But with the exception of Yfm, all the new consortiums still have a substantial white business presence and in most instances their influence in the overall running of the operation is substantial. Yfm does not think the changes have been sufficient nor do we think they have led to a situation where the critical mass in the operation of the new broadcasters is actually in the hands of the previously disempowered.

On the programming front, deregulation has not occurred in a way which necessarily provides for the long term development of a mature broadcasting environment in South Africa.

Instead of laying down a bed of broadcasting services directed at big numbers of the population, on top of which more niched services could be provided for down the line, the IBA has opted for mainly adult orientated niched formats. Private licenses have been issued to broadcasters with highly niched formats -(classical, smooth jazz and african heritage) - while the young majority of people in those regions do not have any existing service directed at them, much less a choice.

The 6 stations sold by the SABC have essentially retained their existing formats which were all directed at white adult audiences.

The most striking feature of the new radio dispensation is that young people - the majority of people in the country are under 25 years - have not really benefited from deregulation, except in Gauteng where Yfm got a license.

Despite being the overwhelming majority of the population and, in every sense, the future in the present of the country, there is still virtually no media explicitly targeted at young people. With the exception of a magazine and slices of youth programming on radio and television, there has been no media directed to young black South Africans in particular.

It was hoped by many young people, youth organisations, provincial governments and the advertising industry that the deregulation of broadcasting would change this situation.

If the deregulation process was meant to provide services and choice to those who previously did not have them, then it has not succeeded in doing this except with Yfm in Gauteng. White and black adults in the major urban areas have been given more choice by deregulation, but black youth are the one and only sector of the population who still have no choice outside of Gauteng.

They have to either take their chances with Metro, which plays music and addresses issues from an adult perspective, or the ALS's which have only small slices of youth programming and play virtually no music that black youth enjoy.

The playing field needs to be levelled and it appears that this can now only be done through regulation. Just as white youth have a commercial music orientated station directed at them (5FM), so black youth should have a station that plays music they enjoy and addresses issues of concern to them.

A national station directed at black youth, combined with existing services, would lay a sufficiently sound broadcasting bed for the introduction of still other niched formats in the future.

The broadcasting situation will then consist of a matrix of the PBS 11 language based stations whose mixture of programming is aimed at a wide spectrum of the population; the community stations who also address a variety of sectional interests, the commercial stations (including Metro, 5fm, Lotus and Goodhope) which together cater for the basic needs of white youth and white and black adults and a new national station directed at black youth.

There is no question that there is a national need for such a station. As we have already pointed Out, there is no service existing which is explicitly targeted at black youth and which plays the music and addresses the issues that black youth want.

Yfm has been inundated with requests from all other regions in SA to extend our signal to their regions.

The youth market, more then any other, is extremely homogeneous in the issues it is concerned with and the music and culture it aspires too. In fact, it is a misnomer to talk of black and white youth stations. The fact of the matter is that black and white youth largely listen to different types of music and it is the music listened to by black youth, more then race, which demands a new service.

Yfm plays kwaito, rap, hip-hop and R&B in particular. No other station in the country plays this music in a contemporary hit format although it is among the biggest selling music in the country (kwaito) and in the world (R&B, hip-hop).

Informal research by Yfm, and CD buying habits nation-wide, indicate that there is massive support for the music format of Yfm throughout the country among young black South Africans. Yfm's listenership is unprecedented in the country for a new start-up station. There is nothing to suggest that the response would be any different nationally, especially in the major urban areas. On the contrary... everything indicates the opposite.

Advertisers are crying out for a vehicle which can reach the burgeoning black youth market. Like young people all over the world. South African youth are very brand conscious and their combined buying power in certain markets is enormous.

The presence of a whole lot of new players on the broadcasting scene, from the community to the private sector, will rearrange the way in which media buyers make their decisions to a more niche orientated focus - at least for most products The I o-24 age group is a mass niche market which deserves a service.

Government should regulate that a national license be set aside for a station directing itself at young black South Africans precisely because this majority sector of the population has no choice while most or all other broadly definable groups do.

In Chapter 5 on Commercial Broadcasting Services, Section 26 (1) should read Commercial broadcasters must hold a separate license for each service they provide, whether the service be national, regional or local AND Section 27 (1) (a) should read must provide a diverse range of programming addressing a wide section of the SA public including the youth who compromise the majority of the population

Yfm believes it should be allowed to have its license area extended to meet this need in at least the major urban centres of South Africa and that it should be categorised as one youth commercial service.