Broadcasting Bill: consideration of amendments

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Communications

01 March 1999
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Meeting Summary

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Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
2 March 1999
AMENDMENTS TO THE BROADCASTING BILL



Documents Handed Out
ANC Amendments to Bill
Amendment agreed to by Committee (Appendix)

MINUTES
The Chairman opened the meeting with a suggestion that committee members assist the secretary in writing the report. A small argument ensued, questioning whether this was necessary. The Chairman stated this was a necessary document and interested members please submit their willingness in writing. He then outlined the plan for the meeting, stating that this would be a formal stage for the Broadcast Bill. The Committee will invoke Joint Rule 150 which means discussion can only center on the sections of the bill that were sent back to the committee.

Clause 40
Ms. Smuts (DP) stated that four options were discussed yesterday regarding 40.1(b). She asked that the committee amend the final sentence to "give effect to the provisions of the act." This was approved by the committee and amended as such.

Mr Kekana (ANC) questioned the word functions within 40.2 – what was meant by the term? Legal advisor Kelner stated it referred to the powers and duties of the IBA. This section was approved and adopted by the committee.

Schedule 13A
Mr Nitiski (NP) said that this was not a problem. Ms. Vos (IFP) asked if the Minister of Finance was involved. Mr Kekana (ANC) stated that it was only the Broadcast Minister who was responsible, not Finance. The Chair asked if he was correct in assuming that the minister did have to go through the Cabinet channels, just could not be an independent actor. Ms. Vos stated she recalled the committee grappling with the jurisdiction issue. Mr Kelner stated that the Minister named in this section is the general minister. If financial matters are involved, then he must consult. Ms. Vos (IFP) asked if a clause could be added, stating that the minister must consult with Finance. This was rejected. Ms. Smuts (DP) inquired whether "state broadcasting" is the correct term because SABC is a limited liability company now. Mr Kelner stated that the government owns the shares, thus it is the state’s assets. Mr Kekana (ANC) asked if the definition could be provided in the beginning of the bill for clarity to ensure a clear definition. Parliamentary legal advisor Mr Meyer agreed with both members, stating that he was unclear as to what precisely state broadcasting assets are. It seems as if the bill is discussing shares, but state broadcasting assets is extremely broad. If the bill is intended to mean shares, then it should be reworded as such.

13A2
Ms. Vos (IFP) asked if a clear explanation of the section could be provided. Ms. Smuts (DP) stated that this section was vague and could cause embarrassing situations. Mr Kekana (ANC) replied that if one understood English, the statute would be sufficient. Mr Kelner questioned what the term "deal with" entails. Mr Kekana (ANC) was amazed that the state legal advisor couldn’t make sense of it. He then offered the following example: if a pornographic uplink was received from outside South Africa, that communication is not within the IBA’s jurisdiction, and would require the Minister to deal with the situation. The statute caters for situations where only the minister could solve the problem. Ms. Smuts then responded that Mr Kekana was discussing censorship, and that the Bill of Rights protected the imparting and receiving of information. If the Minister now has a free hand to censor information, then Mr Kekana is opening a whole new can of worms. Mr Meyer stated that the committee has discussed this issue before. The IBA Act states that broadcast transmissions outside of South African Borders are not in IBA Jurisdiction. What is problematic about the clause is the action the Minister intends to take is unclear. This is what could cause constitutionality problems.
Ms. Van der Merwe (ANC) provided a hypothetical to determine how the Minister would handle the scenario. Mr Mohlomonyana (ANC) asked why the DP needed to bring free speech into the debate. Mr Nitiski (NP) said the committee should follow the regulations imposed by the IBA Act. Ms. Smuts (DP) stated that the function goes well beyond licensing. The IBA Act and Clause 192 give wider functions. Section 2 of this schedule discusses the broadcast domain region in SADAC. As the law stands, IBA already has a role in regulating policy within the region, making this amendment problematic. Mr Kekana stated that when the IBA goes to ITU, they are part of the government delegation. They, however, cannot represent the government. Mr Nitiski (NP) asked if a Roman numeral ii might be placed under the section 2 to denote Minister’s actions. These actions could be determined by the legal advisors, as to remain constitutional.

Section 2(a)
Mr Nitiski stated that the word "direct" seems very strong. Ask that the sentence be changed to "minister may request." If we must keep the word "direct," then let direction by the Minister be accompanied by funds. Ms. Smuts (DP) stated that conceptually, this sentence is the very problem and the DP believes that until this is amended, the bill will remain unconstitutional. Mr Kekana (ANC) agreed with Ms. Smuts’s first statement, but stated that the regulator is not outside of the government structure. Minister must provide some guidance, and the legal way to state such guidance is through policy directives. Mr Nitiski (NP) argues that with the current term, the minister can authorize tasks outside the Authority’s jurisdiction. Then must fund as well. The Chairman asked the legal advisors if direct meant to instruct without obligation. Mr Meyer stated that the word request is a softer term that does not imply obligation. To direct is to order or instruct. He also added that the IBA is not completely independent; it has significant government links. For example payment to the IBA is from the government. In addition, the Minister orders the IBA from time to time to supply him/her with certain information. This involvement is not beyond what the amendment is implying. By using the word request, it changes the face of the provision and pleases the DP, IFP, and NP. Mr Kekana stated that the word request does not make intentions clear. A recommendation to the IBA would be the same as a policy directive; however, a recommendation is not a legal form of communication. Ms. Smuts (DP) suggested the word refer, but agreed to discuss this argument later. Mr Kekana stated that the NP’s concern over funds is addressed in section 15 of the IBA Act. Ms. Smuts, however, stated that section 54 of the Broadcasting Bill repeals section 15 of the IBA Act. The Chair suggested that the committee insert a clause regarding the availability of funds. The IFP and DP felt that was a wonderful move, but it did not solve the inherent problem. Ms. Van der Merwe (ANC) stated that in the President’s letter he stated that "...it may very well be that the Minister may give general direction..." Ms. Vos (IFP) also read that independent organizations must remain independent. Ms. Smuts (DP) stated that the committee must give an appropriate definition of power for policy direction. Mr Kekana (ANC) stated that the legal definition doesn’t include policy – which is the government’s domain. To interpret statute 192 as allowing organizations to determine their own policies is unthinkable. Ms. Vos interrupted Mr Kekana, who then replied that Ms. Vos is an embarrassment to her own party because she is completely intolerable. He then restated that policy is within the government’s domain. Mr Nitiski requested a point of order, to return to the discussion of the term direct. He again asked the chair that a clause following 2(a) be inserted to read "any special investigation or inquiry as noted above in subsection (a) should be subject to the availability of funds. No consensus was reached on Clause 2.

Clause 4
Mr Kekana asked if the committee could delete the phrase Broadcasting Bill 1998 from paragraph (a). It seemed redundant to mention the bill because it only referred to the relevant section. Mr Kelner stated that it was necessary to mention the bill in its entirety because there are other areas of the bill that could be applicable.

Clause 4(a)i
Mr Meyer stated that this is not the root of constitutionality, rather interpretation problems arise. Section 28 of the IBA Act... what can the minister do here regarding provisions. Mr Kekana (ANC) stated that the argument by the ITU is saying there may be a case when broadcasts flip to other areas of the Radio Frequency Spectrum, however the authority cannot have the jurisdiction within the entire frequency because it couldn’t oversee army and defence bands. Ms. Smuts disagreed, stating this went to the heart of constitutionality. Contorl of the radio frequency spectrum is entirely SATRA’s, and with the merger, IBA and SATRA. This authority resides with them as stated in the Telecommunications Act 28.3b. To give the minister this authority would delete jurisdiction. Mr Kekana (ANC) replied that the RFS mentioned within the bill only means certain aspects of the spectrum. Ms. Smuts, however, replied that the Telecommunications Act stated The Radio Frequency Spectrum. No consensus was reached.

Clause 4(a)ii
Ms. Smuts stated that the licensing function interferes, and the ANC is putting general principles into the law. Mr Nitiski stated that there was no problem, just lack of specification. Again, no consensus was reached.

Clause 4(a)iii
The DP and IFP stated that these are policy directions and asked that the Chair look to previous arguments. Mr Kekana (ANC) stated that in the example of an EU meeting, IBA/SATRA need to communicate with formally. Just becuase they are part of the delegation doesn’t mean they will report to the rest of the authority. No consensus

Clause 4 (a) iv
Mr Kekana stated that the sentence should read actual application of technology with interface. The DP stated that the primary power of the IBA is to regulate new technology. This clause mitigates such power and is unconstitutional.

Clause 4(b)
DP stated this was part of the problem. What does it mean to consider? Mr Meyer stated the authority is not bound when it considers.

Clause 4 (c)
The NP stated that it restricts the Minister. All is good

Clause 4 (d)
Also well because restricts powers, according to DP, NP and IFP.

The Vote Occured as follows per section:
Clause 40 – approved by all parties

To amend 13(a) to
delete 13A(a) replace with 1
Yea: ANC
Nay: DP, IFP
Abstain: NP
delete 13A(b) replace with 2 (a), (b), (c), and (d) [This includes NP amendment]
Yea: ANC, NP
Nay: DP, IFP

To retain original 13A(c)
Yea: ANC
Nay: DP, IFP
Abstain: NP

To amend 13A(d) and replace with
4 (a) i,ii,iii,iv,v; (b), (c), (d)
Yea: ANC
Nay: DP, IFP
Abstain: NP

Amend 13A(e) to become 5
Yea: ANC
Nay: DP, IFP
Abstain: NP

To retain original 13A(f)
Yea: ANC
Nay: DP, IFP
Abstain: NP

To delete original 13A(g)
Yea: ANC
Nay: DP, IFP
Abstain: NP

To retain original 13A(h)
Yea: ANC
Nay: DP, IFP
Abstain: NP

To retain 13A (i)
Yea: ANC
Nay: DP, IFP
Abstain: NP

The committee dealt with the amendments as referred to by the President, although disagreement was noted by the IFP.

The minority groups asked that their statements be added into the committee report.

Appendix: Amendment agreed to by Committee

REPUBLIC OF SOUTH AFRICA

PORTFOLIO COMMITTEE AMENDMENTS

TO

BROADCASTING BILL

[B 94D—98]

(As agreed to by the Portfolio Committee on Communications (National Assembly))

[B 94E—98]

AMENDMENTS AGREED TO

BROADCASTING BILL

[B 94D—98]

CLAUSE 40

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause:

Regulations

40. (1) The Minister may, by notice in the Gazette, make regulations regarding—

(a) any notice required or permitted to be issued by the Minister in terms of this Act; and

(b) any administrative or procedural matter which it is necessary to prescribe in order to give effect to the provisions of this Act.

(2) No regulation may be made under subsection (1) on any matter falling within the functions of the Authority in terms of this Act, the IBA Act or any other law.

SCHEDULE

On page 50, in item 6, to omit the proposed section 13A and to substitute:

‘‘General role and powers of Minister

13A. (1) No acquisition or disposal of State broadcasting assets is valid unless it is approved by the Minister.

(2) The Minister may direct the Authority—

(a) to undertake any special investigation and inquiry on any matter within its jurisdiction and to report to the Minister thereon;

(b) to determine priorities for the development of broadcasting services;

(c) to consider any matter within its jurisdiction placed before it by the Minister for urgent consideration. 2

(3) Any special investigation or inquiry contemplated in subsection (2)(a) shall be financed by money appropriated to the authority for that purpose.

(4) The Minister shall, before a direction contemplated in subsection (2) is issued, consult the Authority.

(5)(a) Subject to paragraphs (c) and (d) the Minister may issue to the Authority policy directions of general application on matters of broad national policy consistent with the object mentioned in section 2 of the Broadcasting Act, 1998, in relation to—

the radio frequency spectrum, for the purposes of planning broadcasting and other services;

(ii) the universal service coverage targets of the public broadcasting services;

(iii) the Republic’s obligations and undertakings under international treaties and conventions, including technical standards and frequency matters;

(iv) the application of new technologies that interface with broadcasting;

(v) government regulations on financial, revenue and expenditure controls.

(b) The Authority, in performing its functions in terms of this Act, must consider any policy direction issued by the Minister under paragraph (a).

(c) No such direction may be issued regarding the granting of a licence or regarding the amendment, suspension or revocation of a licence.

(d) No such direction may be issued which interferes with the independence of the Authority or which affects the powers and functions of the Authority. 4

(6) The Minister shall, before a policy direction contemplated in subsection (5) is issued—

(a) consult the Authority;

(b) in order to obtain the view of interested persons, cause the text of such direction to be published in the Gazette together with a notice declaring his or her intention to issue that direction and inviting interested persons to lodge written representations in relation to the direction in the manner specified in such notice within 30 days from the date of the notice;

(c) refer the proposed direction for comment to the committees of Parliament appointed for the purpose of considering matters relating to broadcasting.

(7) The provisions of subsection (6) shall not apply in respect of any amendment by the Minister of a policy direction in consequence of comments or representations received by him or her pursuant to consultation, publication or reference in terms of that subsection.

(8) A policy direction issued under this section may be amended, withdrawn or substituted by the Minister, and the provisions of this section shall apply, with the necessary changes, in relation to any such amendment, withdrawal or substitution.

(9) The Minister shall table in Parliament the annual or any other reports of the Authority.’’.

 

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