Shortlisting of SATRA Councillor Nominations; Broadcasting Bill: discussion

ANC proposed amendments to Broadcasting Bill (Appendix 1)
Letter from SATRA chairperson outlining criteria for councillor appointments

(Appendix 2)

SUMMARY
A shortlist of eleven SATRA nominations was agreed upon.

The parliamentary law advisor explained the procedure for dealing with the Broadcasting Bill that had been referred back to the committee by the President. Political parties gave preliminary comments on the two clauses in the Broadcasting Bill that had been deemed unconstitutional but requested time to prepare position papers.

DETAILED MINUTES
Shortlisting of SATRA Councillor nominationsThree councillor positions needed to be filled from the 26 nominations received. The committee decided on a shortlist of eleven once each of the five political parties present had stated their preferences. (Both the Democratic Party and the Inkatha Freedom Party asserted their dismay at the paucity of expertise amongst the pool of nominations).

The following is the shortlist with the number of votes received from the political parties and they will each be asked to attend a thirty minute interview with this committee:
Ms X Kakana 5
Ms N Gosa 5
Ms K Baloyi 2
Ms V Simelane 2
Mr W Currie 5
Dr S Mudaly 2
Adv I Tiholwe 4
Mrs H Gouws 2
Ms F Mayimele-Hashatse 4
Ms M van der Walt 2
Mr T Makhakhe 2

Broadcasting Bill
The Parliamentary law advisor, Adv A Meyer, referred to Joint Rules 150, 152 and 153 in explaining the procedure the committee should follow in dealing with a bill referred back to Parliament by the President because of substantive defects. Rule 152 states that the Committee is confined to discussing only the clauses with which the President had reservations. Rule 153 allows for either amendment of these clauses or if the substance is so defective, it allows the bill to be rescinded.

Adv Meyer was asked by the committee to identify the problems and possible solutions with regard to the substantive defects but he declined to give an off-the-cuff opinion.

The political parties requested time to finalise their positions as only the ANC had a written position paper with regard to proposed amendments. In the meantime they each gave their preliminary reflections on Clause 40 (1) (a) and Item 6 in the Schedule which introduces a new clause, 13 (a), into the IBA Act.

ANC position: Clause 40 (1) (a)
They welcomed the referral of the bill back to Parliament which was in line with a constitutional democracy and were pleased that only two clauses had been deemed unconstitutional. They believe that the minister has a role to play with determining regulations on procedural and administrative matters but it needs to be put beyond reasonable doubt that this does not infringe on the independence of the IBA which is tasked to regulate broadcasting.

NNP position:Clause 40 (1) (a)
They expressed their disappointment that the parliamentary law advisors had not picked up the problems earlier. They stated that ministerial powers with regard to regulating IBA matters must be excluded.

IFP position:Clause 40 (1) (a)
Though they accept the committee is confined to only the two clauses identified by the President, they believe there are constitutional and substantive defects that go far beyond those two clauses. With regard to Clause 40 (1) (c), they wanted to know what is the meaning of "administrative and procedural matters".

DP position:Clause 40 (1) (a)
They believe the substance of the bill so defective that it should be rescinded.
In their proposed amendments, the ANC does not define what is intended by Clause 40 (1) (a) as "any matter" is enormously broad and likewise in Clause 40 (1) (c), "administrative and procedural matters" need to be defined. Examples of policy-making matters that the Minster is permitted to regulate according to this bill were cited: Clause 38 (4) (a), Clause 3 (2), Clause 30 (4) which allows the Minister to prescribe the level of local content, Clause 11 (a).
Pointing out that this sector needs to be immunised from government control,
Clause 13 (a) needs to be entirely deleted.

FF position:Clause 40 (1) (a)
They stated that the executive of a government always tends to take away power from Parliament via regulation. In analysing this bill one must look at the worst scenario. They agreed with the DP concerns.

PAC position:Clause 40 (1) (a)
They believed that the parties passed this bill in good faith and did not intend that there be an overlapping of powers. However the independence of the IBA needs to be clear.

Mr Kekana (ANC) listed examples of power being given to the Minister in this bill which need to be clarified: Clause 1 (ix) (c), Clause 1 (xxxiii), Clause 18 (2), Clause 3 (2), Clause 19 (2), Clause 20 (2), Clause 38 (4).

He continued by asking Adv Meyer to differentiate between regulate and regulation; plus the meaning of Clause 1 (xxxiii) where the Minister is charged with administration of this Act; and if there was a role for the Minster beyond merely channeling money to the IBA. He suggested looking at the experience and the problems of the IBA with the above in mind.

Adv Meyer responded that the IBA functions in the sphere of the executive since it is not part of the legislature or the judiciary. He could not give guidance at this stage on how far the powers of the Minister reach within the confines of the Constitution and where precisely the line should be drawn before the Ministerial powers become overbroad and overlap with those of the IBA. He added that making regulations is not the same as regulating.

Mr du Toit (ANC) defined ‘regulate’ as laying down abstract, general norms whereas ‘making regulations’ is imposing specific directives. Both he and Ms Smuts (DP) disagreed with Adv Meyer that the IBA belonged with the executive. These independent bodies are a type of fourth power subject only to the Constitution and law and not subordinate to the executive. (Section 85 of the Constitution gives authority not power to the executive).

Ms Smuts referred to the Gilbert Marcus opinion that states S192 of the Constitution, a clause unique to this country, ensures Parliament cannot transfer the power of regulation from an independent body to the Minister. This was to avoid executive control of broadcasting as in South Africa’s past.

Adv Meyer acknowledged that the IBA is not within the realm of the executive but believed that clarity was needed on how far this independence reached with regard to this specific bill.

An ANC member stated that the discussion was becoming academic and one needed to be more specific in addressing the president’s reservations. He suggested using the ANC proposed amendments as a basis for discussion.
Ms Vos (IFP) said that the IFP was not prepared to work from the ANC proposal but wanted to come with their own mandated position. The NNP felt that the committee was concerning itself too much with "semantics". This was rejected by Ms Smuts and Ms Verwoerd (ANC) who felt that this discussion involved deep legal questions and was not time-wasting.

The parties echoed similar views when reviewing the Clause 13A which is an amendment to the IBA Act and appears as Item 6 in the Schedule of the Broadcasting Bill. Both the DP and IFP wanted convincing reasons why this Ministerial power was needed. The only justifiable power was Clause 13A (b) where the Minister could direct the IBA to make special investigations, for example, into digitalisation. The FF asked how can one ‘direct’ someone who is independent. The ANC agreed that it was important to put it beyond doubt that any policy directive from the Minister does not interfere with the IBA.