The Committee was informed by a Senior State Law Advisor that the Select Committee had mandated the State Law Advisor’s Office to investigate whether the Independent Communications Authority of South Africa (ICASA) could have concurrent jurisdiction with another board or institution that was established by an Act of Parliament. At the time of that investigation, such an instance had not been found. It was as a result of this that the NCOP amendment providing an exemption had been proposed and accepted by the Select Committee. The Film and Publication Board had been given a blanket exemption from dealing with the terrain dealt with by ICASA. However an example of concurrent jurisdiction had since manifested itself, that of the Competition Commission and ICASA. Therefore the issue of concurrent jurisdiction could be considered and the Film and Publication Board (FPB) could thus have authority over the issue of content.
It was decided to take the NCOP proposed amendments to the political party study groups. A decision to accept or reject the amendments would be made on 24 June. The Chairperson said that matters of constitutionality would be left for the Constitutional Court to decide.
The Film and Publication Board argued a strong case for the retention of the concept of “behaviour degrading to human beings” in Section 24 which the parliamentary law advisors had caused to be jettisoned because they believed it could not be defined.
The regulation of pornography on cell phones was identified as another terrain that would need to be dealt with and regulated sometime soon.
Films and Publications Amendment Bill (B27B-2006): deliberations on NCOP amendments
Adv Mukesh Vassen, Parliamentary Legal Advisor, read out the amendments that had been proposed by the National Council of Provinces (see document).
The Chairperson opened the floor to Members for comment on the NCOP amendments as presented by the Parliamentary Law Advisor but on second thoughts asked the State Law Advisor to offer his opinion first, followed by Mr Chetty, Acting CEO of the Film and Publication Board as he was a “major stake holder”.
Mr Titus Madoda, Senior State Law Advisor, said he was initially involved when the Select Committee was dealing with the Bill and his team was asked to offer an answer to an opinion received by a senior counsel who indicated that some clauses were unconstitutional. He was involved in formulating this response, explaining it centred on the issue of ICASA and the Film and Publication Board both having – and wanting to have – jurisdiction over which publications could be broadcast by television. He said the Select Committee had requested that his team find out whether there was an instance in which ICASA had concurrent jurisdiction with another board or institution as established in terms of an Act of Parliament.
He went on to say how at the time no such instance was apparent but since then, his team had discovered that the issue of concurrent jurisdiction, where ICASA had the authority to oversee what broadcasters were doing, while another board had the authority to monitor certain issues, was in fact allowed. He offered as an example the regulation by the Competition Commission on competition issues and ICASA on general broadcast issues. He quoted the Competition Amendment Bill, which he noted was an amendment still being considered. He said the Competition Commission had the jurisdiction to regulate issues of competition and ICASA the jurisdiction to regulate matters of concern to it. In closing, he said that this proposed amendment could therefore be revisited and the issue of concurrent jurisdiction be considered. He said in this instance the Board be given the opportunity to regulate on issues of content but not publication in general, and offered that ICASA then have an absolute mandate with regard to other things.
The Chairperson said that in dealing with this Bill one of the issues raised was the role of ICASA versus that of the Film and Publication Board. He noted this had been dealt with in their last meeting at which everyone was very satisfied. He said it had already been established that the content the Board focused on was different to that of ICASA’s general responsibilities and that the NCOP amendments were therefore not informed by that because the Board had been given a blanket exemption from dealing with the terrain dealt with by ICASA. The Chairperson noted this as a problem.
He said Mr Madoda’s input helped show the Members the route in which this should go. He said he did not want the Committee to agree or disagree on the matter because then a Mediation Committee would have to be brought in to deal with the disagreement over amendments between the National Assembly and the NCOP. He said Members should apply themselves to the matter and think about what they want to achieve in terms of allowing the Board powers to regulate in an area of jurisdiction. He added that the Committee would not be able to finalise things in the meeting as it needed time to digest the issues being dealt with. He said that if blanket exemptions started to be issued then there would be no use for the amendments.
Ms H Weber (DA) said she had concerns about what the state law advisor had said. In her opinion there were far too many different organisations involved that would hold some measure of jurisdiction and she asked whether these would be given specific roles within the Bill. She warned that too many bodies might result in these skirting responsibilities and asked that there be clarification on who would be responsible for what.
Mr K Morwamoche (ANC), proposed that instead of immediate discussion around the matter the Members take the Bill and amendments back to their study groups and that they continue discussion at a later stage.
The Chairperson asked that instead the Members engage on questions of clarity so that when the Members went back to their study groups they were very clear on the issues. He highlighted the issue of power relations, and said that the rest were minor amendments but still very significant.
Adv Mukesh Vassen, Parliamentary Law Advisor, said he could not comment on the ICASA matter as it was the State Law Advisors who had driven the exemption provision in the NCOP and it was a proposal that the NCOP had adopted. He was surprised that there had been a change of view.
The Chairperson said that a lot of work had been done by the State Law Advisors in order to address the issues of content and the role of ICASA and the FPB. The Committee would have to look into which entity dealt with content, and it was strongly felt that the FPB be mandated to deal with issues of content.
Mr Tsietsi Sebelemetje, Acting Director, Legal Services, Department of Home Affairs said that the Department would rely mostly on the Board in practical situations, as was initially the case, but with the recent information regarding the Competition Commission this would have to be reconsidered.
Mr Iyavar Chetty advocated strongly against the omission of part of Section 24 that dealt with degrading human behaviour. It was difficult to accept the reason provided by the law advisors that degrading human behaviour could not be defined. It should be noted that Section 28(1)(d) of the Constitution talks about degradation as far as children were concerned. He also said that had the parliamentary law advisors asked him if instances where behaviour degrading to human beings in films had been dealt with by the Board over the past ten years, they would have found it was not a concept unfamiliar to the Board which they could not use or interpret. He therefore found it problematic that “behaviour degrading to human beings” could not be defined. He said that it had been defined and used already.
The Chairperson queried the relationship between the Department and Board and whether they had worked together while the Bill was with the NCOP, because it was apparent that there were issues on which certain individuals were divided.
Mr Tsietsi Sebelemenje said that the Department had been working together with the Board, consulting them first in terms of practicalities and particularly with the amendments, and said that there were not many disagreements between the two bodies. The Department noted that the only particular concern of the Board was with the issue of the exemption of broadcasters.
The Chairperson reiterated that he had wanted to know the role of the Department in their working with the Board and how they were receiving the submissions given to them. He said that those within the Department, as well as legal advisors, should be informed by the Board so that by the time amendments reached the level of Parliament, there was a clear way forward.
Adv Mukesh Vassen said that when the Department’s proposed amendments had gone to the NCOP there had been a general agreement between the parliamentary legal advisors, the Department and the state law advisors, except for Section 24(b). He pointed out that in terms of the Constitution the matter could not go for mediation as it was a Section 75 Bill, and therefore the National Assembly or Committee must either pass the Bill – with or without the NCOP amendments – or decide not to proceed.
Mr W Skhosana (ANC) noted that there was a proposal to include ‘extreme violence’ as apposed to domestic violence. Clarity should be provided on the difference between the two.
The Chairperson asked for comment on the display of sexual material on cell phones. The service providers claimed that there was a cap which prevented children from accessing sexual content on their cell phones. However nothing seemed to be happening.
Mr Chetty said that cell phones seemed to be the most popular form of sexual content distribution amongst children. The FPB had been having discussion with the mobile companies and some of them were interested in introducing core regulation. However it was very difficult to monitor and control peer to peer distribution. A sustained and focused education campaign was needed.
Mr Morwamoche said that the State Law Advisors had agreed with the Portfolio Committee when amendments were being made. Clarity should be provided on why they changed their mind in order to suit the NCOP’s wishes.
The Chairperson explained that the State Law Advisor was bringing a new opinion after further research on the issue of content.
Mr Vasson replied that when it came to newspapers there were various bodies that regulated content. However they were all subject to the regulating scheme. On domestic violence, the Domestic Violence Act had a long definition on the matter.
Mr Sebelemetje replied that the Department had to create a balance between the word domestic and extreme and the word extreme was found to be a qualifying variance and appropriate.
Mr Morwamoche asked the Department why they did not quote the Domestic Violence Act when trying to find a suitable definition for domestic violence.
Mr Sebelemetje replied that the Act dealt with home based issues, whereas the Film and Publications Bill dealt with content on films.
Mr Chetty said that the Film and Publication Board had to interpret terms and expressions in the context of classifications. There were various guidelines and the principal act set the guidelines which interpreted what constituted domestic violence.
The Chairperson asked for the guidelines to be forwarded to the Committee
Mr Mathebe asked for clarity on the regulation of newspapers
Mr Vasson replied that tabloids were regulated by the Newspaper Press Union of South Africa (NPUSA) but the community newspapers however were not regulated by NPUSA.
Mr P Mathebe (ANC) said that he could not find a reason why the NCOP found Clause 19 unconstitutional.
The Chairperson said that it was not up to Parliament to rule on the constitutionality of the Bill, as it was the work of the Constitutional Court. The areas that needed to be addressed included the beefing up of the FPB. Some issues could be pushed through and the constitutionality of the Bill could be dealt with in the process. The main concern however were that more problems, such as the regulation of pornography on cell phones, would come up. It should be a criminal offence to have pornographic material on cell phones. The Committee would look at the amendments on 24 June and once the NCOP amendments had been adopted or rejected, the Bill would be out of the Committee’s hands.
The meeting was adjourned.
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