Broadcasting Bill: informal discussion

Documents handed out:
Proposed amendments to the Broadcasting Bill (Appendix 1)
African National Congress (Appendix 2)
Democratic Party (Appendix 3)
Inkatha Freedom Party (Appendix 4)
National Party (Appendix 5)

The Chairperson, Mr Moeti, said that the committee was involved in the informal stages of discussing the Bill. No decisions would be made at this stage. The Democratic Party, Inkatha Freedom Party and the National Party informed the committee that they thought the Bill was unconstitutional. The Chief State Law Advisor, Mr Daniels, responded by saying that the Bill was prima facie constitutional. He said that those parties who objected to certain clauses in the Bill could discuss the unconstitutionality thereof the following day.

Ms Smuts (DP) welcomed the opportunity to discuss those clauses with the Chief State Law Advisor and the Department. Mr Swanepoel (NP) concurred with Ms Smuts.

Mr Kekana (ANC) and Mr Magashule (ANC) both suggested that the committee go through the Bill clause by clause instead. Through this process, they suggested that the unconstitutionality of clauses would be revealed.

The committee decided that the Department could take them through the proposed amendments which were tabled that day and they would ask questions of clarification. Mr Mjwara read through the proposed amendments, highlighting reasons for some of the changes. He said that the definitions of "Authority", "broadcasting", "broadcasting license" and "broadcasting licensee" were taken from the IBA Act, 1993, making cross-referencing easier between the Bill and the Act. The committee had no questions of clarification on the definition list.

Regarding the insertion of "matters" (Clause 2) Ms Vos (IFP) wanted to know if that meant all sectors of broadcasting. Mr Mjwara replied that "matters" meant all issues of broadcasting.

Ms Smuts wanted to know why Clause 2 of the Bill was similar to the same clause in the IBA Act. Mr Mjwara responded that it complimented one another. She made the same remark for Clause 3. The answer given was that the objects and the description of the Act was different to the Bill.

Mr Mjwara carried on with Clause 4 and told the committee that the reason for the changes in that section was to accommodate the new technology which had arisen since the IBA Act. The new clause related to multi-channel systems.

No questions were asked on clauses 5, 6, 7, 9, 10 of the proposed amendments. Mr Mjwara told the committee that clauses 12, 13, 14 and 15 had been reworked for easier reading.

Commenting on the new clause, subsection 6, which would be inserted before Part 6: financial matters, Ms Smuts wanted to know if it did not interfere with the independence of the Minister for Posts, Telecommunications and Broadcasting. Mr Mjwara said that it did not. Ms Vos wanted to know who would declare dividends if there were any. Mr de Klerk , law advisor for the department, said that it would be the board of directors.

Clause 17 was read and Mr Mjwara said that it had been formulated by the committee.

Clause 30 was reworked and a new clause was formulated. Mr Swanepoel wanted to know if a time frame could be inserted in the new clause 30 as it should not be left open-ended. The answer given was that it depended on what the committee decided.

Mr Kekana wanted to know if the Director General (formerly the Post Master General) was part of the Frequency Spectrum Directorate in the new subsection of clause 34. Mr Mjwara replied that it was open for discussion.

In Schedule 1, the code of conduct for broadcasting services related to elections according to Mr Kekana. The Independent Media Commission did not exist any longer as it had been replaced by the Independent Broadcasting Authority (IBA). The IBA would have to be given money for monitoring the elections.

Regarding the broadcasting of political party elections, the committee would have to revisit political advertising.

The Chairperson wanted the minority parties (DP, IFP and NP) to mention which clauses they deemed to be unconstitutional so that the law advisors could have specific answers for them the next day. Ms Smuts (DP) mentioned clause 37 and 13(a) in the Schedules, Ms Vos (IFP) said clause 37 as well and 1(a) in the Schedules and Mr Swanepoel (NP) wanted the definition of freedom of speech amongst cultural and linguistic minorities to be added.

The meeting adjourned until the following day, Wednesday, at 9h00.

Appendix 1: Proposed amendments

20th October 1998

BROADCASTING BILL [B94-98]

AMENDMENTS TO BE CONSIDERED

CLAUSE 1

1. On page 8, from line 19 to omit "broadcasting, broadcasting service, community broadcasting service, private broadcasting service, sound radio set, television set, television broadcasting service,".

2. On page 8, to insert the following definitions:

(i) "Authority" means the Independent Broadcasting Authority established by section 3 of the IBA Act;

(ii) "broadcasting" means any form of unidirectional telecommunications intended for the public or section of the public or subscribers to any broadcasting service having appropriate receiving facilities, whether carried by means of radio or any other means of telecommunication or any combination of the aforementioned, and "broadcast" shall be construed accordingly;

(iii) "broadcasting signal distribution" means the process whereby the output signal of a broadcasting service is taken from the point of origin, being the point where such signal is made available in its final content format, from where it is conveyed to any broadcast target area by means of a telecommunication process and includes multi-channel distribution;

(iv) "broadcasting licence" means a licence granted and issued by the Authority in terms of this Act to a person for the purpose of providing a defined category of broadcasting service, or deemed by this Act to have been so granted and issued;

(v) "broadcasting licensee" means the holder of a broadcasting licence;

(vi) "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 allocations has been agreed to or adopted by the Republic;

"broadcasting signal distribution licence" means a licence granted and issued by the Authority in terms of this Act to a person for the purpose of providing signal distribution for broadcasting purposes, or deemed by this Act to have been so granted and issued;

"broadcasting signal distribution licensee" means the holder of a broadcasting signal distribution licence;

"channel" means a single defined television programming service of a licensee other than a video on demand programming service.

"community" includes a geographically founded community or any group of persons or sector of the public having a specific, ascertainable common interest;

(ix) "community broadcasting service" means a broadcasting service, which is fully controlled by a non-profit entity and carried on for non-profitable purposes, which meets the needs of the community, and which amongst others include youth, cultural, women, language and religious needs and serves a particular geographic area;

"direct to home broadcasting" means broadcast via satellite directly to individual users and includes multi-channel satellite distribution;

(xi) "licence area" means the geographical target area of a broadcasting service as specified in the relevant broadcasting licence;

"licensee" means the holder of any licence granted and issued under this Act or deemed by this Act to have been so granted or so issued;

"low power sound broadcasting service" means a community, private or public sound broadcasting service which radiates power not exceeding one watt;

(xiii) "Minister" means the Minister for Post, Telecommunications and Broadcasting;

(xiv) "radio" means an electromagnetic wave propagated in space without artificial guide and having by convention a frequency of lower than 3000 GHZ;

(xv) "sound broadcasting service" means a broadcasting service destined to be received by a sound radio set;

(xvi) "sound radio set" means any apparatus designed or adapted to be capable of receiving by radio the transmissions broadcast by a broadcasting service, and reproducing them in the form of sounds, but not also in the form of images or other visible signs or signals;

(xvii) "telecommunications" means any system or method of conveying signs, signals, sounds, communications or other information by means of electricity, magnetism, electromagnetic waves or any agency of a like nature, whether with or without the aid of tangible conductors, from one point to another, and the derivative noun "telecommunication" shall be construed accordingly;"television broadcasting service" means a broadcasting service consisting in the sending of visual images or other visible signals whether with or without accompanying sounds, where the visual images are such that sequences of them are seen as moving pictures;

"television set" means any apparatus designed or adapted to be capable of receiving transmissions broadcast in the course of a television broadcasting service;

(xviii) "National Revenue Fund" means the Fund established by section 213 of the Constitution.

On page 8, from line 24, after African to omit "Broadcasting" and to substitute "Broadcasting Production".

3. On page 8, in line 28 to omit "a service that delivers television programmes or radio programmes to a person having equipment appropriate for receiving that service" and to substitute " 'broadcasting service' means any service which consists of the broadcasting of television or sound broadcasting material to the public or sections of the public or to subscribers to such a service".

4. On page 8, in line 27, after "limited" to omit "established in terms of section 12 of this Act" and to substitute "appointed in terms of section 13 of this Act.".

5. On page 8, in line 39 after "profit" to insert "or as part of a profit making entity" and after "Corporation" to omit "that is not a public broadcasting service".

6. On page 8, in line 55 the definition of "local content" rejected. To insert the following new definition:

"local content" as defined in section 53 of the IBA Act.

7. On page 10, from line 13, the definition of "public commercial broadcasting service" rejected. To insert the following new definition:

"public broadcasting service" means public broadcasting service referred to in section 10.

CLAUSE 2

1. On page 10, in line 30 to omit "policy" and to insert "system".

2. On page 10, in line 31 after "control broadcasting" to insert "matters".

3. On page 10, in line 31, after "Republic", to insert "in the public interest".

On page 10, in line 42, after "development" to insert "and training in the broadcasting sector".

CLAUSE 3

on page 12, in line 4 after "broadcasting", to omit "policy"

On page 12, in line 25 after "persons to omit "form" and to substitute "from".

CLAUSE 4

On page 14, in line 9 after "terrestrial" insert "or any other form of delivery".

On page 14, in line 10 after "licence" omit "or" and insert "and".

On page 14, after line 11, insert new sub-clause (2), 4(2) in the bill becomes 4(3):

NEW SUBCLAUSE 4(2)

Any broadcasting service existing as of the commencement of this Act, upon application to the Authority for a broadcasting licence, is authorized to continue its activities for a period not exceeding six months from the commencement of this Act or until such time as the Authority has decided on the licence application and, in the event of a decision to grant the application, has issued such licence.

On page 14, in line 12 to omit "Act" and to substitute "Chapter".

On page 14, in line 12, after "a broadcast service" to omit "means" and to substitute "includes".

On page 14, after line 24 insert new sub-clause :

NEW SUB-CLAUSE (6)

(a) Each channel provided in a multi-channel environment must be authorised by the Authority upon application by the person offering a broadcasting service to the public.

(b) Any channel carried by a broadcasting service as of the commencement of this Act, upon application to the Authority for authorization, is authorised to continue its activities for so long as the broadcasting service carrying that channel is authorised in terms of subsection (2).

CLAUSE 5

1. On page 14, in lines 34 and 35, to omit the word "broadcasting".

On page 14, from line 41 after "service" to omit "Including multi-channel terrestrial such as cable, microwave multi-point distribution systems and local multipoint distribution systems".

On page 14, after line 43 to insert a new subsection

NEW SUBSECTION

Low power radio service

On page 14, after line 44, to insert, " or any other class of licence as determined from time to time"

CHAPTER IV

On page 14, from line 49, to omit "The Authority monitors compliance with the Charter by the Corporation. Parliament will enact the Charter" and to substitute "The Authority monitors and enforces compliance with the provisions of the Charter of the Corporation".

CLAUSE 6

1. On page 16, in line 4 and 5, "subsection (2)" rejected.

On page 16, in line 6, after "monitor" to insert "and enforce".

CLAUSE 7

1. On page 16, in line 9, after "Part 2:" to insert "Establishment,".

2. On page 16, in line 11, to omit "upon" and to substitute "on".

3. On page 16, line 11, before "incorporation" to insert "establishment by".

4. On page 16, in line 24, to omit "may" and to substitute "must".

5. On page 16, from line 26, subsection (7) rejected.

NEW SUBSECTION

"The Minister must, when in his or her opinion the old Corporation has properly discharged its functions and all directives issued under subsection (5), by notice in the Gazette, fix the date of establishment and incorporation".

CLAUSE 9

1. On page 18, lines 35, 36 and 37 to omit "service" and to insert "arm"

2. On page 18, in line 36, after "a" to omit "public".

3. On page 18, in line 37, after "commercial" to insert "broadcasting".

CLAUSE 10

1. On page 18, in line 42, to omit "strive to".

2. On page 18, in line 43, to omit "as circumstances permit".

3. On page 18, in line 44, after "reflect" to insert "both" and after "the" to insert "unity and".

4. On page 20, in lines 5 and 6, to omit "Public" and insert "Corporation's".

CLAUSE 12

Clause rejected.

NEW CLAUSE

"12. The Board consists of—

(a) twelve non-executive members; and

(b) the Group Chief Executive Officer, the Chief Operations Officer, the Financial Director or equivalent who will be executive members of the Board.

CLAUSE 13

Clause rejected.

NEW CLAUSE

"13. (1) The twelve non-executive members of the Board must be appointed by the President on the advice of the relevant Portfolio Committee of the National Assembly.

(2) The three non-executive members of the Board must be appointed in the following manner—

(a) participation by the public in a nomination process;

(b) transparency and openness; and

(c) publication of shortlist of candidates for appointment, taking into account the objects and principles of this Act.

(3) The President must designate one of the members of the Board referred to in subsection (2) as the chairperson and another member as a deputy chairperson, both of whom must be non-executive members of the Board.

(4) The members of the Board must, when viewed collectively—

(a) be persons who are suited to serve on the Board by virtue of their qualifications, expertise and experience in the fields of broadcasting policy and technology, regulation, media law frequency planning, business practice and finance, marketing, journalism, entertainment, education, social and labour issues;

(b) be persons who are committed to fairness, freedom of expression, the right of the public to be informed, and openness and accountability on the part of those holding public office;

(c) represent a broad cross-section of the population of the Republic;

(d) be persons who are committed to the objects and principles as enunciated in the Charter of the Corporation.

(5) The members of the Board must hold office for such period as the President may determine which period must not exceed five years.

(6) The deputy chairperson referred to in subsection (2) must, when the chairperson is absent or unable to perform his or her duties, act in his or her stead and when so acting, exercise or perform any function of the chairperson.

(7) Every appointment of a member of the Board must be published in the Gazette.

(8) A member of the Board appointed to fill a casual vacancy must hold office for the unexpired portion of the period for which the vacating member was appointed.

(9) Members of the Board appointed immediately before the transfer date will retain their appointments with all existing benefits.

(10) Nine members of the Board, which must include the chairperson or the deputy chairperson, will constitute a quorum at any meetings of the Board.".

CLAUSE 14

Clause rejected.

NEW CLAUSE

"14. (1) The affairs of the Corporation are administered by an executive committee consisting of the Group Chief Executive Officer and six other members appointed by the Board.

The Group Chief Executive Officer will be the accounting officer.

The executive committee is accountable to the Board.

(4) The executive committee will perform such functions as determined by the Board.

CLAUSE 15

Clause rejected.

NEW CLAUSE

"15. The appointing body may remove a member from the Board on account of misconduct or inability to perform his or her duties efficiently after due inquiry and upon recommendation by the Board.

NEW CLAUSE

1. On page 22, at the end of part 5, before line 20, to insert the following new clause:

"Disqualification

(1) A person will not qualify to be appointed to the Board if such person—

(a) is not a citizen of and not permanently resident in the Republic;

(b) is subject to an order of a competent court declaring such person be mentally ill or disordered;

(c) is convicted, after the commencement of this Act, whether in the Republic or elsewhere, of any offence for which such person has been sentenced to imprisonment without the option of a fine;

(d) at any time prior to the date of commencement of this Act was convicted, or at any time after such commencement is convicted—

(i) in the Republic, of theft, fraud, forgery and uttering a forged document, perjury or an offence in terms of the Corruption Act, 1992 (Act No. 94 of 1992);

(ii) elsewhere, of any offence corresponding materially with any office referred to in subparagraph (i); or

(iii) whether in the Republic or elsewhere, of any other offence involving dishonesty; or

(e) has been convicted of an offence under this Act.

Disclosure of conflict by interests

A board member shall not vote or in any other manner participate in the proceedings at any meeting of the Board nor be present at the venue where such a meeting is held, if, in relation to any matter before the Board, he or she has any interest which precludes him or her from performing his or her functions as a Board member in a fair, unbiased and proper manner.

(2) If at any stage during the course of any proceedings before the Board it appears that any Board member has or may have an interest which may cause such conflict of interest to arise on his or her part -

(a) such Board member shall forthwith and fully disclose the nature of his or her interest and leave the meeting so as to enable the remaining Board members to discuss the matter and determine whether such Board member is precluded from participating in such meeting by reason of a conflict of interests; and such disclosure and the decision taken by the remaining Board members regarding such determination, shall be recorded in the minutes of the meeting in question.

(3) if any Board member fails to disclose any interest as required by subsection (2) or, subject to the provisions of that subsection, if he or she is present at the venue where a meeting of the Board is held or in any manner whatsoever participates in the proceedings of the Board, the relevant proceedings of the Board shall be null and void.

NEW CLAUSE

1. On page 22, after line 28, after subsection (3) to insert the following new subsections before subsection (4) and subsection (4) becomes subsection (7) respectively:

(4) The Corporation must draw up proper financial records which must be approved by the Minister

(5) The Corporation must open and maintain an account with a Bank registered as such in the Republic, or with any other financial institution so registered and approved by the Minister for Finance.

(6) The monies of the Corporation which are not immediately required for contingency purposes or to meet current expenditure may in a current financial year, on written approval by the Minister and in concurrence with the Minister of Finance, be deposited with a bank registered as such in the Republic or with any other financial institution so registered.

CLAUSE 17

1. On page 22, in line 37, after "in" to omit "Parliament" and insert "National Assembly".

CLAUSE 18

1. On page 22, in line 45, after "with" to omit "any" and insert "a".

CLAUSE 23

1. On page 24, in line 40 after "of" to omit "that" and to insert "each".

2. On page 24, in line 44 to omit "a public" and before accountant to insert "an".

3. On page 26, in line 21 to omit "auditor" and to insert "Corporation".

CLAUSE 24

1. On page 26, in line 44 to omit "by means of the establishment of" and to insert "establish".

2. On page 26, in line 45 to omit "the provision of".

3. On page 28, in lines 1 and 2 to omit "South African Broadcasting Corporation" must to substitute "Old Corporation".

4. On page 28, in line 3, to omit "shall" and to substitute "must".

5. On page 28, in line 7, to omit "transferring to the employ of", and to substitute "transferred to" and to omit "shall" to substitute "must".

6. On page 28, in line 9, to omit "advantages" to substitute "privileges".

7. On page 28, in line 12, to omit "upon the transfer of the" and after "employees" to omit "of the" and to insert "transferred from".

8. On page 28, in line 13, to omit "such employees".

9. On page 28, in line 17, to omit "employment by" and to substitute "transfer to".

10. On page 28, in line 18, to omit "is to" to substitute "will".

CLAUSE 25

1. On page 28, in line 27, to omit "during its immediately preceding" and to substitute "of the previous".

2. On page 28, in line 29, to omit "which have been".

3. On page 28, in line 30, to omit "in the report so furnished".

CLAUSE 26

1. On page 28, in line 50, to omit "Commercial broadcaster" and to insert "Any person intending to offer a commercial broadcasting service" and after licence to insert "or authorisation".

2. On page 28, in line 50 after "each" to insert "broadcasting".

CLAUSE 27

1. On page 28, in line 53, after "services" to insert "when viewed collectively".

2. On page 30, in line 1, after "must" to insert "as a whole".

3. On page 30, in line 3, after "must" to insert "as a whole".

4. On page 30, in line 10, to omit "must" and to substitute "must as a whole".

5. On page 30, in line 11, after "aspiration" to omit "all of".

6. On page 30, in line 12, after "to serve" to insert "subject to licence conditions".

7. On page 30, in line 20, to omit "shall" and to substitute "must".

8. On page 30, in line 20, after "Authority" to omit "specifically on South African local content and other conditions relating to the licence".

9. On page 30, in line 23, after "must" to insert "as a whole".

10. On page 30, in line 27, "subsection (4)(b)" rejected.

CLAUSE 28

1. On page 30, in line 43, after "provision of" to omit "more than one", and after television to omit "service" and to insert "services" and after services to insert "is feasible".

2. On page 30, in line 46, after "provision of" to omit "more than one" and after television to omit "service" and to insert "services".

CLAUSE 29

1. On page 30, after line 54, to insert the following new paragraphs—

"(c) Free-to-air satellite broadcasting service;

(d) Free-to-air satellite television service.".

2. On page 32, in line 2, after "managed" to insert "and controlled" to omit "Board" must be small letter "b".

3. On page 32, in line 3, after "from" to omit "all" and after "community" to omit "or communities".

4. On page 32, in line 4, after "geographic" to omit "service".

5. On page 32, in lines 5, 6 and 7 to omit "subsection 29(4)".

6. On page 32, subsection (5) rejected.

7. On page 32, in line 10, after "must" to insert:

"reflect the needs of the people in the community which must include amongst others cultural, religious, language and demographic needs."

8. On page 32, subsection (7) rejected.

9. On page 32, in lines 27, 28 and 29, after "determine" to omit "the terms regulations and conditions... and other".

10. On page 32, in line 29, after "community", to insert "radio".

CLAUSE 30

1. Clause rejected.

NEW CLAUSE

"30.

The Authority must conduct an inquiry to determine the licence conditions, obligations, and tariff structure for signal distribution including the regulatory regime for multi-channel distribution services and convergence.

(2) As part of the inquiry in terms of subsection (1), the Authority must issue recommendations as to whether sections 49 and 50 of the IBA Act shall apply to broadcasting services carrying more than one channel and, if so, the extent and the terms upon which such sections shall apply. Sections 49 and 50 of the IBA Act shall not apply to such broadcasting services unless the Authority has issued such a recommendation, and that recommendation has been adopted by the National Assembly.

CLAUSE 31

1. On page 32, in line 51, before "The signal" to insert "Subject to licence conditions determined by the Authority".

2. On page 34, in line 1, to omit "and multi-media".

3. On page 34, in line 4 to omit "subparagraph 31(2)(d)".

4. On page 34, in line 10, to omit "subsection (3)" and to insert:

"(3) The Authority must in a licencing process promote the participation by South Africans in the broadcasting signal distribution sector, provide employment and training for South Africans and the payment of a licence fee.".

CLAUSE 33

1. On page 34, from line 27, paragraph (c) of subsection (1) rejected.

2. On page 34, in line 34, after "set out in" to omit "Chapter II of".

3. On page 34, after "objectives" omit "of the" and to omit line 34 and 35 and to substitute "of this Act".

CLAUSE 34

On page 34, after line 51, insert new subsection :

NEW SUBSECTION

"The Frequency Spectrum Directorate in performance of its functions must co-operate with the relevant bodies where applicable."

CLAUSE 35

1. On page 36, in line 9, after "Minister" to omit "a written agreement entered into for that purpose between the Minister and the Advisory Body" and to insert "in concurrence with the Minister of Finance".

2. On page 36, in line 21 to insert a new paragraph (g).

"(g) co-productions and the forging of international treaties.".

3. On page 36, in line 24, after "determine" to insert "after consultation with the Minister of Arts and Culture, Science and Technology and Language, Minister of Trade and Industries and The Minister of Finance.

4. On page 36, in line 25, after "govern" and to insert "give effect to".

CHAPTER XI

1. On page 36, line 43, after "Regulations" to insert "of this Act".

CLAUSE 37

1. On page 36, in lines 44, 45 and 46 subsection (1) rejected.

NEW CLAUSE

The Minister may by notice in the Gazette, make regulations regarding—

(a) any matter which is required or permitted by this Act;

(b) any notice required by this Act to be prescribed;

(c) any administrative or procedural matter to be necessary for the provisions of this Act.

CLAUSE

1. To insert the following new clause after clause 38 but before clause 39.

"Application of this Act

38. In the event of conflict between the provisions of this Act and those of any other laws relating to broadcasting, the provisions of this Act must prevail.".

SCHEDULE 1

On page 40, before item 1 to insert new item:

NEW ITEM

In this Act, unless the context otherwise indicates, broadcasting, broadcasting signal distribution, broadcasting service, community broadcasting service, private broadcasting service, community, public broadcasting service, broadcasting services frequency bands, have the meaning assigned thereto in the section1 of the Broadcasting Act of 1998"

On page 40, item 1 (a), omit "broaccasting" and "broacasting" insert "broadcasting.

On page 40, item 1(b), to omit "in" insert "by".

On page 40, item 1(c) rejected.

On page 40, item 2(a) rejected

NEW ITEM 2(a)

"community broadcasting service" means a broadcasting service, which is fully controlled by a non-profit entity and carried on for non-profitable purposes, which meets the needs of the community, and which amongst others include youth, cultural, women, language and religious needs and serves a particular geographic area;

NEW ITEM 2(b)

Amendment of definition for "election period" to be substituted for new definition to read: "means the period commencing with the date on which the election day is proclaimed and ending on the immediately following upon the day on which candidates of any of the political parties are declared elected"

NEW ITEM 2(c)

"financial interest" means interest that may not have voting rights attaching to it but which gives the person or entity a financial interest directly via shares or indirectly via an agreement of some form giving it the power to have control of the licensee or effective say over the affairs of the licensee"

On page 40, item 2(c) rejected

NEW ITEM 2(d)

"public broadcasting service" means public broadcasting service referred to in section 10 of the Broadcasting Act, 1998.

On page 40, after item 2(c) to insert:

NEW ITEM

Amendment of section 2 by the substitution for subsections (b), (i), (l) the following subsections:

promote the development of public, [private]commercial and community broadcasting services which are responsive to the needs of the public;

ensure that [private] commercial and community broadcasting licences, viewed collectively, are controlled by persons or group of persons from a diverse range of communities in the Republic.

(l) ensure that public broadcasting licensees, [private] commercial broadcasting licensees and signal distribution licensees comply with internationally accepted standards;

7. On page 40, item 4 ,reject the following sentence "Substitution for section 13 of the following section;" and replace with " Amendment of section 13 by insertion of the following subclauses"

On page 40, item 4, 13(1) rejected.

On page 44, in subitem (k), to delete "1988" and replace with "1998".

On page 48, after subitem (c)(ii) to insert "May retain application fees for administration purposes".

NEW ITEM

Amendment of section 14(1) by substitution of "Chief Administrative Officer" for "Chief Executive Officer"

On page 54, item 16(1), to delete "15%" and replace with "20%".

NEW ITEM

On page 54, item 16 to insert new subsection 16(4) to read: "The Authority may on good cause shown and without departing from the objects and principles as enunciated in section 2, exempt the publisher of a newspaper or, where such publisher is a company, the person in control of such company, from adherence to any of the limitation determined in terms of this section."

On page 50, item 12 rejected

NEW ITEM 12

Repeal section 40.

On page 54, after item 15(c) to insert: " on clauses 48, 49, 50 and 54 where the word "private" appears to substitute for the word "commercial"

On page 58, after item 19(4) to insert:

NEW ITEM

Amendment of section 48(1)(b) by substitution of "Have financial or voting interests in a private broadcasting licensee exceeding twenty percent in total" for "Have financial interest or interest either in voting shares or paid-up capital in a private broadcasting licensee exceeding twenty percent

NEW ITEM

Amendment of section 67by substitution for subsection 2(h)(ii), 2(h)(iii) of the following subsections:

2(h)(ii) in the case of a contravention of sections 32, 39 and 74, to a maximum of R1000 000 per day.

2(h)(iii) in the case of a contravention of section 71 (1), and in the case of an offence contemplated in paragraph (d) of this subsection, to a maximum fine of R100 000

On page 58, after item 20 to insert

NEW ITEM

Repeal section 80

On page 58, after item 20 to insert

NEW ITEM

"Television licenses

(1) The Corporation may issue a television licence conferring to the holder the right to use a television set or any number of television sets specified in the licence.

(2) The licence is renewable annually.

(3) The utilisation of television set which was commenced without authorisation before the date of commencement of this Act, must within twelve months after the date and subject to the rules of the Corporation relating to the authorisation, apply for such licence.

(4) The Corporation must maintain a register of all the licences.

(5) For the purposes of this Act, "holder" means—

(a) owner of a television set;

(b) any business or institution with reference to a category to which such business or institution belongs;

(c) holder of any permit registered for a place, vehicle, vessel or aircraft so specified, where a business or the affairs of that institution are carried on, or which has already been recorded on the register of the Corporation.

(6) The Authority may after consultation with the Corporation make regulations in regard to any matter pertaining to television licence fees may be issued.

(7) The Corporation can delegate the collection of the payment of television licence fees to other persons.

(8) Failure to be in possession of a valid television licence is a civil offence".

Appendix 2: ANC proposed amendments

African National Congress: Proposed Amendments 20/10/98

OCTOBER 20,1998

ANC AMENDMENTS TO THE BROADCASTING BILL [B94-98]

1. The African National Congress notes inputs raised by members of the public including broadcasting stakeholders in the parliamentary public hearings on the Broadcasting Bill [B94-98]

2. The apartheid system has for many years denied the majority of South Africans freedom of expression and access to information. The regime used heavy and strenuous legislation to undermine the rights of individuals and communities. Draconian apartheid laws prevented the media from gathering and disseminating information to public. Legislation such as the Broadcasting Act 1976 "threw blanket over entire communities and institutions". Section 12 (3) of the Broadcasting Act 1976 states that The corporation shall frame and carry out its broadcasting programmes with due regard to the interests of English, Afrikaans and Black culture." Furthermore, "the Minister may establish an advisory board or boards, with such names as determined by him to advise the board in regard to programmes broadcast by the corporation" These are extracts from the present legislation that governs the SABC and thus has an impact on the entire broadcasting industry.

3. The SABC has gone through a major restructuring to be in line with requirements of the Constitution, especially the Bill of Rights. The needs and demands of the public and viewers in a competitive compelled the SABC to also adjust its programming. The restructuring of the SABC, its viability and its repositioning in the broadcasting industry has to take place in a clear legal framework. The Broadcasting Act 1976 is clearly un-Constitutional and create uncertainty in the broadcasting industry and must therefore be repealed without delay.

4. The ANC believes that the Broadcasting Bill[B94-98] in its present form lays the basis for Parliament to improve the Bill. The White Paper and the draft Bill went through extensive consultation with Stakeholders and the Department of Communication. The Parliamentary Committee also conducted public hearings and received many written sub missions to improve the content of the Bill. The Department of Communication and the Principal State Law Adviser have worked tirelessly to accommodate all concerns and the tabled amendments greatly improve the contents of the Bill.

5. These is the context in which the ANC makes its provisional amendments. The tabled Bill is not cast in stone. Bills tabled in this democratic Parliament since 1994 are subject to pubic scrutiny and Portfolio Committees have the legislative power to amend or improve the Bill as so desired. Parliament is not a rubber stamp it is a law-maker that has Constitutional powers to amend, reject and pass Bills. The Broadcasting Bill [B94-98] lays the groundwork for meritorious laws to be passed by tins Committee.

Additional Amendments

Clause 1

1. On page 8, from line 19 to include" broadcasting signal distribution licence, broadcasting signal distribution licensee, community, community broadcasting service",

2. On page 8, to insert the following definitions:

(i) "appointing body" means the body charged with the appointment of members of the Board in terms of section 12;

(ii) "broadcaster" means any legal or natural person who composes or packages or distributes television programme services for reception by the public or sections of the public or to the subscribers to such service, irrespective of technology used.

(iii) "common carrier" means service for broadcasting signal distribution as provided by Sentech Limited, established in terms of the Sentech Act 1996.

3. On page 8, in line 28 to omit "and service that delivers television programmes or radio programmes to a person having equipment appropriate for receiving that service" and to substitute " 'broadcasting service' means any service which consists of the broadcasting of television or sound broadcasting material to the public or sections of the Public or to subscribers to such service but does not include-

4. On page 8, in line 38 to omit and includes any service provided by the Corporation that is not a Public broadcasting service" and substitute "or as part of a profit entity and controlled by a person who is not a public broadcasting licensee;

5. On page 10, from line 13, the definition of "Public commercial broadcasting service" rejected. To insert the following new definition:

"public broadcasting service" means Public broadcasting service as defined in the IBA Act.

Clause 4

3. On page 14, in line 12, "(2)" rejected.

Clause 8

1. On page 13, after line 4 to insert new (h) "to provide television programmes and material to be transmitted or distributed by the common carrier for reception by the public or sections of the public:

2. On page 18 "(h)" becomes (i), sequential

Clause 9

1. On page 18, lines 35 to omit "broadcasting"

2. On page 18, in line 36, after "a" to omit 'public" and" broadcasting"

Clause 10

On page 18, in line 58, after "and the" to omit "disabled" to insert people who are differently-abled"

Clause 27

1. On page 28, in line 53 after "services" to insert "as a whole".

2. On page 28 in line 3 after "provide" to delete "as a whole".

Clause 29

1 On page 30, after line 54, retain 29(i)

Conclusion

The Broadcasting Bill is the general legal framework and represents progress in the creation of a conducive environment for dynamic competition, the achievement of universal service and access to services for the general public. It lays the groundwork for certainty in the broadcasting industry and amendments will greatly improve the Bill. Any attempt to delay the passing of this Bill will create uncertainty and delay investments and access to more services to the public and viewers of our country.

The Broadcasting Bill is the general law for Broadcasting and other policy positions adopted in the White Paper on Broadcasting will be dealt with by other specific legislation in due course.

Appendix 3: DA proposed amendments

DEMOCRATIC PARTY

AMENDMENTS AND COMMENTS

BROADCASTING BILL 94/98

Preamble and introductory passages should be designated as explanatory sections.

2. Object of the Act

This does not reflect the goals set in the White Paper : to deal with globalisation and convergence.

This section is essentially identical to s.2 of the IBA Act and creates a parallel statute.

Nothing new is being achieved.

The logic should be that we protect SA culture in terrestrial free-to-air services (but the IBA Act already does) while preparing and providing for new technologies which can't be regulated much.

(q) What? Viewers/listeners don't need Sentech itself!

CHAPTER II

s.3 This is modeIled on Canada's section 3 but really just repeats the two section 2's. Surely the point is that the system will include new technologies (like worldspace) and that investment and competition are encouraged. while terrestrials must share public mandate obligations with the pbs, which is primarily responsible.

(2) See comments under Schedule 1.

(7) This is a policy statement, not law.

CHAPTER III

delete 4 (1) (c)

(5) repeats(1)

5.5 (2) Broadcasting licences may be granted in the categories described in (1) to applicants using any of the following and any future technologies (or similar expression).

At present (1) and (2) conflict.

CHAPTER IV

The DP suggests that the "Charter" which has caused so much confusion reflected in submissions should relate only to the independence and public mandate under part 3, which was what was intended when we all asked for a charter at the time of the Broadcasting Amendment Bill. Therefore reference to "Charter" should be deleted from Parts 1 and 2.

Incorporation

On p.16 after line 17 new subsection (4)

The memorandum and articles of association must be approved by Parliament as schedules amending this Act.

On p.16 in line 31 add:

and shall not dispose of any shares except with the assent of Parliament.

Objectives

(b) to provide public broadcasting services which reflect and protect South African culture and identify and inform, educate and entertain, funded by licence fees levied on owners of television sets, advertising, sponsorship and grants, including grants from the State for specific purposes

(e) delete (repeats (b)

(h) clause taken from old SABC/BBC makes no sense even as amended

(m) should SAABC do research and development into technology? BBC yes but SABC no

(o) manufacture apparatus? This is BBC

(g) add: subject to licence conditions set by the Authority in the case of broadcasting services, which conditions shall be similar to conditions set for private commercial licences

Organisation (separation of pbs and commercial)

9. Delete clause. No convincing case has been made that it will work, that the result will be different from the present programming, that income for cross-subsidy of pbs will increase or that any market impact study has been done.

Moreover, it is this separation that creates the potential, if not arguably actual, Constitutional conflict. If the Minister under 11 (d) decides the extent of cross-subsidy and is simultaneously taking on equity partners (White Paper p.20) who will want dividend he is a player in the market and is exerting undue influence. A string of financial clauses increase his powers, e.g. s.20; new clause after 16. If the State wants to sell off a TV channel there is nothing stopping it except an update of the market impact analysis the IBA did when recommending exactly that. Likewise with radio.

Proposed

Part 3 Charter of Independence and Public Mandate

10. (1) The Corporation shall function and fulfil its public mandate impartially and independently and free of any political or commercial influence.

The corporation must, subject to licence conditions set by the Authority:

(2) (a) strive to make high quality free-to-air terrestrial television broadcasting

services available to South Africans in all the official languages and must provide a sound broadcasting service for each official language.

(b) as is, amended

NEW (c) make its services available throughout the Republic

(d) current affairs (not public)

comprehensive instead of significant

why not add contribute to public debate

(e) line 51 both curriculum-based and informal, on social, political and economic subjects

(f) as well as entertainment

(g) provide a comprehensive range of programming which includes programming directed at children, etc.

(2) delete

PART 4

The DP believes this should be deleted (see comment on s.9).

In particular (d) and (e) create problems. The Minister cannot be permitted to determine how big and strong and good the pbs is by approving cross-subsidy especially if he is, under (e) looking for maximising of revenues for the government or an equity partner.

If this Part is retained, the approval of the Minister must be removed - it is untenable interference - and if a substitute is needed, the IBA is the obvious choice.

PART 5

13 (d) No person who has held political office in the previous 12 months is eligible for appointment.

15(1) Insert after office on the advice of Parliament

15 (2) an inquiry by whom?

recommendation by the Board to Parliament

PART 6

16 (4) after State after the Board and Authority have determined the subsidy to fulfil the public mandate in terms of s.11(d)

new sub-clause

How does this relate to s.17?

How can the Ministers be allowed to run the SABC to the degree that they allow bank deposits?

Clause 18

Sub (2) the entitlement is problematic : it conflicts with the idea of monitoring compliance.

Sub (2) should rather for transitional purposes recognise the SABC as it is now and entitle the Corporation to a set of once-off licences, to be written properly by the IBA. It should be able to amend brand new departures like BOP, however.

New clause on licences Who decides lincence fee increases?

Clause 20

delete - out of step with incorporation

Clause 21

delete - already in Sentech Act. SABC isn't supposed to be a signal distributor.

Clause 23 (6) (7) (8)

delete 'by the auditor"

Clause 25

(g) add but excluding any information the provision of which could be reasonably be expected to compromise or constrain the editorial independence of the corporation.

New clause proposed

The SABC should be listed for the purposes of the Reporting by Public Entities Act

(instead of being subjected for the Minister)

CHAPTER V

Repeated tinkering with amending phrases like "when viewed collectively" has still not solved the basic problem which is a lack of logic. This results from the fact that the regulator who will create this landscape (eventually, if the economy allows, presumably) by introducing licence conditions as described here (not regulations) is ignored. The only reference is in sub 5, which says the Authority may make regulations on SA programming "and other matters which reflect these circumstances" . Heaven knows what this phrase means, a court certainly won't. Clearly what the Chapter wants to do is spread the public mandate load onto commercial broadcasters.

This is no doubt constitutional provided inter alia that conditions are not so onerous that they can sink a channel or station; that they are tailored to each licensee's nature, conditions and audience and so forth AND provided they apply only to terrestrial free-to-airs. There is no "comprehensive service" argument for others, and transcontinental bouquets aren't capable of this kind of licencing. CNN or BBC can't do these things, yet 26 and 27 (1) includes them. They don't use scarce resources anyway. Why should their content be regulated?

The IBA Act s.46 should simply be amended to add comprehensive service requirements on to the criteria under which the IBA licences, such as the demand for the proposed service. No audience, no successful broadcaster.

CHAPTER VI

The IBA Act should be amended, as in Chapter V, or at least referred to.

CHAPTER VII

SIGNAL DISTRIBUTION AND MULTI-CHANNEL DISTRIBUTORS

s.30 and s.31

Like the section on commercial broadcasters this section really means to sketch a "when viewed collectively" picture after the sector is open to full competition. The Bill can't sensibly call on the Authority in section (30) to enquire into and determine terms, licence conditions and obligations and then in 31 proceed to set obligations.

In addition many of the obligations are content I broadcasters' obligations: diversity, education as much as language, which is already deleted. All 31 sub (2) can really say is that there should be universal access, as in (b), but this is Sentech's common carrier obligation under present conditions, and the roll-out (f) and interoperability (g) are part of the wish list for the full opening up of the sector to competition. Access to high sites is part and parcel of the picture.

These are issues that can only be resolved after enquiry and should be left alone.

What needs to be done now is the opening up of the sector to full competition and this (as Sentech pointed out) is an economic enquiry, which will have an effect on laws now in place affecting Sentech. S.30 should mandate the enquiry and its findings will result in amendments to the Sentech and IBA Acts. A question : on what justification are tariffs proposed to be regulated? The public interest surely requires full competition.

For that matter why should they have licences? The multi-channel enquiry should be separate (see below).

PROPOSAL:

s.30

The Authority shall conduct an enquiry into the opening of the signal distribution sector to full competition.

s.31

Signal distributors will be required to hold a licence.

Multi-channel distributors

All that can possibly be done at this stage is:

32 (1) Multi-channel distributors must hold a separate class of licence issued by the Authority.

(2) The authority must enquire into a regulatory regime for multi-channel distributors We cannot conceivably legislate "objectives" which are really obligations before an enquiry which will necessarily be enormous.

SURELY the objectives of both Signal Distribution and a Multi-Channel regime are to make the choice and diversity provided by the new technology available to viewers and listeners, and to encourage and facilitate investment and economic activity.

The question really is on what justification, constitutional or otherwise, do we have any right or role to pass law which imposes licencing and content conditions where there is no scarcity issue, and which imposes operational obligations on persons legitimately pursuing their economic rights? These would be the key questions in an enquiry.

s.35

In line 12 delete facilitate and offer guidance and advice in respect of any scheme.

The Minister would be interfering directly if he offered advice or 3 (b) the screening and airplay to either broadcasters or the IBA.

In line 25

Delete "and display"

Only the regulator is properly placed and qualified to do this. Read together with

Ministerial powers of regulation and policy directive making, it constitutes interference.

5s37

Delete.

Freedom of expression including broadcasting freedom is guaranteed in s.16 of the constitution. The regulation of broadcasting by an independent regulator constitutes the permissible limitation on that right as described in s.192 of the Constitution.

s.38

In line 10 and 11 delete "and remains in force until repealed or amended". Licence conditions, periods and so forth cannot be arbitrarily amended.

SCHEDULE 1

We deal with only 3 matters, others will follow.

4. (c) and

(d)

Regulation and licencing now occur under s.2 of this Act, not s.2 of IBA. We do not see much difference. See comments on s.2.

(f) add and to make rulings pursuant to such hearings

(g) after Minister add who shall table the report in Parliament

g(vi) details not deals

(h) what is meant by community standards? It is an American concept well understood in free speech law there, but here?

(The Code of Conduct IBA Act should be updated, or at least checked).

13.A The Minister can of course make policy by making law, or amending law, placed before Parliament, and by taking executive action under such law. The Regulator is there to conduct the kind of enquiry described in e(ii) and then to make rulings, which in some cases come to Parliament for assent.

A ministerial policy directive cannot constitute an arbitrary limitation on any right. It cannot pertain to licencing or editorial matters. It could arguably serve the purposes of opening up and liberalising the technological terrain a decision on digitisation, for example. But enquiry would have to precede it, and an amendment to the law is not onerous.

Perhaps the answer is to give the Minister a power to direct the IBA to investigate, then to let Parliament decide. The legal status of various kinds of Committee Report decisions should be established, and the most appropriate form chosen.

Privatisation decisions should certainly be preceded by enquiries and comment, especially if they relate to public broadcasters rather than Sentech.

CROSS-HOLDING CLAUSE

The Minister clearly and expressly advised us that the previous Parliamentary amendments would stand and that an enquiry would be called for because convergence has thrown up new issues.

Why do the amendments not reflect this?

Appendix 4: IFP proposed amendments

Inkatha Freedom Party

OCTOBER 19, 1998

FROM: SUZANNE VOS MP (IFP)

REF: PROVISIONAL AMENDMENTS/ COMMENTS - BROADCASTING BILL

The IFP does not support this Bill in its present form. The Party questions the constitutionality of the proposed powers of the Minister in relation to Sections 16 and 192 of the Constitution. Therefore, Section 37 and Schedule 1 of the Bill, 13A in particular, are strenuously opposed. The IFP will, if necessary, seek legal redress to protect the independence of the Independent Broadcasting Authority from Government control or interference.

As with the IBA, the IFP will not be a party to the obliteration of the independence, role and function of the South African Telecommunications Regulatory Authority and Section 34 is opposed.

The IFP believes this Bill should be withdrawn and rewritten as it is poorly drafted and fundamentally flawed.

Ambiguities abound throughout the Bill. Definitions and interpretations (Section 1) do not appear in the text of the Bill and there are no Section 1 definitions for phrases which are used in the main text.

Introductory Paragraphs/principles and headings often contradict legislative text. The Act must specifically exclude all footnotes, headings and introductory paragraphs.

As an issue of principle, the IFP does not support the separation of the SABC into public and commercial entities. (Significantly Government is silent on those stations, both radio and television, which are earmarked for commercialisation.)

The IFP desires the development of independent and well-funded public broadcasters (national and provincial) throughout the Republic which must not be overtly or covertly beholden to the Minister of Communications for their budgets.

We share the concerns expressed by SABC executives in the public hearings held by the Committee with regard to the continued financial independence of the SABC should this Bill be passed in its present form.

The Party does not believe it is the role of Government (as the sole shareholder) -- alongside the existing public broadcaster -

- to own commercial entities governed through a Board with the chairperson selected by the President of the Republic and board members ultimately selected by vote if necessary by MP's of the majority party. Opposition Members of this Committee have had experience of the majority party forcing through their candidates on a vote.

The broadcasting industry involves content and in part the politically powerful production of news/comment etc. Coupled with the intention to give the Minister enormous powers to regulate (S37) while diminishing the powers of the IBA and SATRA, an extremely dangerous (to democracy) situation is being created. Ultimately the financial control (as the Bill now stands) of the public and commercial broadcasters will lie in the hands of the Minister of Communications and the Minister of Finance.

The IFP cannot support a proposed situation in which the Minister of Communications will define policy for an industry in which he is a shareholder and will, at the same time, ultimately decide on the allocation of funding for the public broadcaster

The so-called "Charter" for the SABC is nothing of the sort. It is anything but a Charter and this terminology in its present form should be deleted.

Numerous other principled issues relating to the Bill will be expressed during the forthcoming meetings of the Committee.

The IFP brings to the attention of the Committee the following suggested amendments. Clearly the Bill needs to be redrafted:

CHAPTER 1

Section 1: Definitions and interpretation:

Add "this Act excludes footnotes, headings and introductory paragraphs";

delete broadcasting licensee, sound broadcasting service, sound radio set and television broadcasting service because the definitions are not used in the Bill therefore there is no need to define them;

refer to Department's new amendments dated September 21, 1998:

(1) definition of "broadcasting": this paragraph does not need to be expressly included as it is identical to the definition in the IBA Act and is already incorporated in line 19 of the Bill;

(2) definition of "broadcasting signal distribution": should be incorporated in the amendments to the IBA Act in Schedule 1 as this definition is different from the definition in the IBA Act. Dual definitions are undesirable;

(3) definition of "community": as this definition is identical to the one in the IBA Act it should simply be included in the opening paragraph of Section 1. Add "community";

(4) definition of "community broadcasting service": There is a conflict because the opening paragraph in Section 1 incorporates the definition of "community broadcasting service" in the IBA Act while item 2 in Schedule 1 repeals this definition and replaces it with a new definition. Item 2 in Schedule 1 should be deleted and the reference to community broadcasting service in the opening paragraph in Section 1 should be retained (IBA Act definition);

(5) definition of "broadcasting service": This should be set out in Schedule 1 dealing with amendments to the IBA Act. Delete reference to broadcasting service in the opening paragraph of Section 1 to avoid dual definitions;

S 1 (vi) "Corporation": The "Corporation" is not established in terms of Section 7, it is merely referred to in that Section. The word established should be replaced with the word referred to;

S 1 (xi) "incorporation date": This phrase has not been used in the Bill and therefore should not be defined;

S 1 (xii) "local content": "local content" is not defined in the IBA Act. "Local television content" is defined in Section 53 (1) (a) of the IBA Act and is different to this definition. (Refer to the Local Television Content Regulations Government Gazette 17981, Notice No R661 of the May 2, 1997 which elaborates on the definition in the IBA Act. Delete the definition of "local content);

S 1 (xiii) "local delivery service": this phrase is not used in the Bill and therefore should not be defined;

S 1 (xv) "multi-channel distribution service": this phrase is not used in the Bill and therefore should not be defined. However, phrases such as "multi-channel distributors", "multi-channel delivery system" (see Section 32 of the Bill) are used but never defined;

S 1 (xvi) definition of "old Corporation": this phrase is not consistently used -- e.g. in Section 24 (3) reference is made to the South African Broadcasting Corporation when in fact it should be a reference to the "old Corporation" (line 1, page 28);

S 1 (xx) definition of "satellite broadcasting service": this phrase is not used in the Bill and therefore should not be defined;

S 1 (xxii) definition of "terrestrial broadcasting service":

this phrase is not used in the Bill and therefore should not be defined;

S 1 (2) this sub-section is unnecessary as all legislation must be interpreted in the light of the Constitution. The other difficulty with this sub-section is that it does not correctly reflect the provisions of the Bill of Rights in the Constitution while omitting to expressly reflect important Constitutional principles such as the independence of the regulator, Section 192.

Object of Act:

Reconcile Section 2 of the IBA Act with Section 2 of the Bill and move this section to Schedule 1, amendments to the IBA Act.

"Objects" must include the advancement and empowerment of women in the broadcasting industry and not merely reflect programming needs.

CHAPTER II:

Section 3 (2) conflicts with Section 192 of the Constitution;

S 3 (7) should refer specifically to women.

CHAPTER III:

Section 4 (2) should be deleted as it is too broad and includes activities that could not possibly be broadcasting services.

Section 5 (1): Section 40 of the IBA Act already sets out categories of licences and should be amended to include the category of "commercial" broadcasting service, if necessary.

Delete 5 (2). This section should be technology neutral.

CHAPTER lV:

The IFP fundamentally Opposes the corporatisation of the public broadcaster and its separation into public and commercial services.

Charter of the Corporation:

This is not an appropriate Charter for the SABC. There needs to be a separate Charter enacted by Parliament.

The SABC can be listed as a public entity in terms of the Public Entities Act, No 93 of 1992. This Act would prescribe the way in which the SABC's accounts, auditing of financial statements, directors reports etc must be handled. The Committee should study this Act.

Section 7 dealing with incorporation should not form the subject matter of a "Charter".

Section 9: Delete.

Section 11: Delete.

Section 16: Should any restrictions be imposed on the SABC Ltd's shares? Other statutes which corporatise parastatals usually have some form of restriction imposed. See, for example, the Airports Companies Act 44 of 1993.

Section 18 (2): Section 18 is supposedly intended to be a "deeming" provision for the existing licences held by the SABC. This intention is not conveyed by the language of Section 18. This section does not expressly refer to the existing licences and can be interpreted to refer to a licence other than existing licences.

Proposal: Despite Section 74 of the IBA Act, on the date of incorporation, the Authority must transfer the broadcasting licences held by the old Corporation to the Corporation.

Section 20: Exclude Minister of Communications.

Section 21: The Expropriation Act of 1975 and the Constitution will apply to any land or right in or over land required to be expropriated by the Minister of Communications on behalf of the Corporation. This entire section is unnecessary in light of the general powers of the Expropriation Act of 1975 and the property clause in Section 25 of the Constitution.

Section 22: If the SABC is to be corporatised the SABC must keep separate accounts for its commercial and public arms. The transfer of a subsidy from the commercial arm to the public arm must be a transparent process and must be recorded in the accounting procedures of the commercial arm.

Who will declare a dividend? The Minister or the Board of the SABC?

CHAPTER V

Section 34: Delete.

Section 36: Delete. All licensees are obliged to comply with existing skills development legislation and the Authority already in terms of the IBA Act sets human resource development conditions for licences.

Section 37: Delete. Schedule 1:

IBA Act, 1993: Not to be amended as proposed. 13A, in particular, strenuously opposed.

The IFP accepts the amendments recommended by the Auditor-General and as such these have not been included in this draft.

Appendix 5: National Party proposed amendments

NATIONAL PARTY

20 October 1998

DESIRABILITY OF BROADCASTING LEGISLATION

Whilst it would be desirable to put into place new Broadcasting Legislation the legislation before the committee is problematic in a number of respects.

· We remain concerned with regard to the Constitutionality of the Legislation and especially with regard to the restrictions imposed in the legislation on the provisions in the Constitution guaranteeing free speech.

· Similarly, the definition of Community Broadcasters does not in our opinion adequately protect Community of Interest Broadcasters. Even with the proposed amendment sufficient guarantees are not afforded to Community of Interest Broadcasters operating across geographic areas.

· With regard to cross-media ownership a whole public enquiry process is required before we can legislate in this field. It is clear from submissions made that the provisions of the Bill are based on misconceptions and misunderstandings of what has actually been happening in the industry. Even the Minister has agreed that the Act should provide for such a process. It seems pre-mature to legislate before the enquiry process.

· Rules for multi-channel distribution are unclear and an investigation is to be held. Similar to the previous point multi-channel rules should be deferred until the investigation is complete.

· It is our submission that due to the fast development of technology, which the legislative process cannot keep up with, that the Broadcasting Bill rather follow a minimalist approach. thereby being technologically neutral.

· There are a number of conflicts of interests when it comes to the Minister of Communications, specifically where provisions are there for him to define policy for the industry in which he is the shareholder of the public broadcaster. Throughout the Bill Ministerial powers are excessive.

Accordingly, given our reservations with regard to the above, and others, it is our submission that the Bill in its current form has too many flaws, is not sufficiently coherent, does not adequately cater for technological advancements and the changes in the media environment.

From the vast number of submissions made it is clear that the concerns are real and justice will not be served by rushing through the legislation.

To give effect to true transparency we accordingly propose that the legislation be referred back to the Department for re-drafting, taking into account the submissions and after retesting the updated and refined legislation in a transparent manner throughout the industry.

In its current form the National Party cannot support the vote on desirability.

D W SWANEPOEL, MP

CHIEF DIRECTOR

NATIONAL PARTY - PROPOSED AMENDMENTS TO THE BROADCASTING BILL B94-98

CHAPTER 1: DEFINITIONS

Insert:

"Community includes a geographically founded community or any group of persons or sector of the public having a specific, ascertainable common interest. It includes any cultural, religious or linguistic community, which community may or may not be confined to a specific geographic area.

Insert:

"Community broadcasting service" as per IBA Act.

CHAPTER 1: OBJECT OF ACT

2(c) encourage greater diversity of ownership and control of broadcasting services through participation of persons from historically disadvantaged groups.

2(n) ......in a manner which does not discourage foreign investment in the broadcasting sector.

CHAPTER 3: PART 1: BROADCASTING LICENCES

4(1) .....which the Authority may determine in a consistent manner from time to time.

4(2)(a) delete " or packages of signals."

4(2)(b) delete

4(2)(c) delete in entirely.

4(5) delete

CHAPTER 4 : PUBLIC BROADCASTING SERVICE

7(1) .... which shares shall not be disposed of except with the consent of Parliament.

7(3) ..... after approved by Parliament.

10(d) ….. as well as fair and unbiased coverage....

CHAPTER 5: COMMERCIAL BROADCASTING SERVICES

26. …. provide. The Authority shall consider less intrusive arrangements, including a registration system in line with international practice to cater for international channels carried by multi-channel distributors.

CHAPTER 6 : COMMUNITY BROADCASTING

29(3)To amend sub-clause (3) in the following manner:

"The licensee referred to in subsection (2) must be managed by a Board which must be democratically elected by and [,] from [all] members and/or relevant interest groups of the relevant community or communities in the licensed [geographic] service area."

29(4) In line 6, to insert after "the" "relevant".

29(5) In line 9, to insert after "the" "relevant".

29(7) In line 22, to delete "local" and to delete ", but will subject to limits on national advertising as determined by the Authority"

CHAPTER 7: SIGNAL DISTRIBUTION

30 The Authority shall conduct an inquiry into the opening up of the signal distribution sector to full competition.

New 32(2) The Authority shall conduct an inquiry into the regulating framework for multi-channel distributors.

32(3) delete

33(1)The objective of the multi-channel delivery system are to-

(a) [give priority to] favour the carriage of South African programming services and, in particular, to the carriage of South African services;

(b) provide efficient delivery of programming using the most effective technologies available at reasonable cost, based upon market considerations;

(c) provide reasonable terms for the [packaging and retailing] carriage of broadcasting services, where such services are supplied pursuant to contractual agreements, failure of which will be determined by the Authority;

(d) carry original programming, including local programming, where the Authority considers it appropriate.

(2) The multi-channel delivery system must carry out its objectives on such terms and conditions as are determined by the Authority to achieve the objectives of the broadcasting policy set out in Chapter 2 of this Act, and in particular to provide access to the under-served and historically disadvantaged groups.

(3) This section is not intended to introduce regulation of subscription fees charged by a licensed multi-channel distributor.

CHAPTER 9: ADVISORY BODY TO MINISTER

35(1) The Minister must in consultation with the broadcasting industry and Parliament establish....

new 35(2) Limitations as to composition and size of the body.

CHAPTER 11: GENERAL

37(1) The Minister may in consultation with Parliament make

(Question the desirability for such extensive powers for the Minister to be contained in regulations)

37(2) .....the Minister and Parliament [is] are obliged to consider the [commendations] recommendations of the Authority.....

SCHEDULES

7(c)(2) ..... to the Minister for his or her approval in consultation with Parliament, granted ….

13A (a) The Minister shall in consultation with Parliament …..

(b) Delete

(c) Delete

(d) The Minister may from time to time in consultation with Parliament by notice …

(f) Delete

(h) Delete

Schedule 1 clause 16(1) to be deleted and to provide for a public enquiry into the issue.

in any event

16(1)..... in an area where 50% of the circulation of the relevant newspaper is within the licence area of the relevant broadcasting licence.