Legal Opinion - Representations to the Directors of Communication on setting up regional public broadcasters

April 1995

The IBA Act and the Constitution

There is some controversy over whether the IBA has jurisdiction over all public broadcasting in South Africa. Section 79 of the IBA Act 200 of 1993 read with section 45 (3) could be interpreted to mean that the IBA does have such jurisdiction. However, some confusion has arisen because of the provisions of section 126 in the constitution, which states that the provincial legislatures have legislative competence over, inter alia, provincial public media. This appears to contradict the IBA Act. However, a possible interpretation of what this means is to be found in the proviso set out in section 126 (3), for this proviso states that a law passed by a provincial legislature ... shall prevails over an Act of Parliament ... except in so far as - 

(b) the Act of Parliament deals with a matter that, to be performed effectively, requires to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the republic;

(c) The Act of Parliament is necessary to set a minimum standard across the nation for the rendering of public services.

David Dison, in a paper delivered to a conference of the FXI in October 1994, stated that public broadcasting services, as a form of public service, do require minimum standards across the nation for their effective provision and that this requires Parliament (i.e. the national Parliament) to set down uniform norms or standards regarding public broadcasting services, whether national or provincial, that will apply generally throughout the country. By using this provision of the Constitution, the IBA could be a national body issuing broadcasting licences, despite the fact that provinces are given legislative competence in terms of public broadcasting. This interpretation gives legal meaning to the provision in the IBA Act stating that IBA has jurisdiction over all public broadcasting in South Africa.

What then does the constitution mean when it gives to the provincial legislature legislative competence over provincial public media? Dison argues that this provides an opportunity for each province to establish provincial public broadcasting corporations in each province, separate form the SABC.

He therefore envisages a new Public Broadcasting Omnibus Act would set norms and standards that both national and provincial public broadcasters would be required to adhere to.

It would be a general enabling statute, allowing for a new SABC Act, a North Western Province Broadcasting Act, a Gauteng Broadcasting Act and so on. Each of the provincial legislatures would then be empowered and guided in the drafting of their own legislation particularly in the areas of the establishment process for an independent board, public hearings for such a board and so on.

Provincial Governments and Public Media

There are two situations a province could find itself in. (1) Where there is existing legislation regarding public broadcasting (basically TBVC states) and (2) Where there is no existing legislation e.g. Eastern Transvaal Province.

1) Where there is existing legislation

So, if there are existing laws which would need to be assigned to a particular province by the President, the Premier can request the President to do so. However, the province must have the necessary administrative capacity to perform the powers and functions in question. So, the province would need to already have or to set up the necessary bodies to administer, for example, a provincial radio station, using money from the provincial budget to do so. The President will not assign powers to the province in respect of an existing law without this being done.

For example, in the former Bophuthatswana (now North West Province) there was the Bophuthatswana Broadcasting Corporation Act which set up Bop TV. The NW province requested the power to administer this Act to be assigned to it. The Premier, Popo Molefe, requested President Mandela to assign the administration of the BBC Act to the North West Province. The NW Province had the necessary administrative competence to administer the Act, since the infrastructure of BBC still existed. By virtue of Proclamation No 110, 1994, published in the Government Gazette No 15813 on 17 June 1994, the President - in - Cabinet assigned the administration of the BBC Act 30 of 1989 to the government of the province of the North West. the North West Province was then free to amend the legislation in any way that they saw fit, for example, to set up an independent board to appoint the Director General of the Broadcasting Corporation instead of having the Minister of Media and Broadcasting appoint him as set out in the Act. (The province did not so amend the legislation).

2) Where there is no existing legislation

(I) Administrative competence required

This is not a legal requirement, but a practical one. Obviously, to have a law which is unable to be implemented because the provincial government lacks the necessary infrastructure to administer the law (for example, it could pass a law stating that it could levy licence fees for radio, but if they did not have the person power and administrative structures actually to collect such fees, and to fine those who did not pay, such a law would not be worth much). Therefore, before provinces start promulgating laws, they need to consider whether they have the necessary infrastructure and hence the financial means (i.e. allocation in the budget of the province) to administer the law.

(II) The IBA Act

If the IBA has national jurisdiction in relation to public broadcasting (And David Dison has argued above that it does), then before the provinces can begin public broadcasting, they will have to acquire a licence form the IBA. The provinces will then have to comply with the requirements set out in the IBA Act for the acquisition of licences. If the IBA does not have such authority, then presumably provinces could simply go ahead and broadcast. However, all indications are that the loophole IBA Act which has resulted in the confusion about the extent of its jurisdiction is going to be closed, so provinces would be advised to proceed as thought the IBA would have jurisdiction.

(III) The National Omnibus Act might override all provincial legislation

It seems that in terms of the Public Broadcasting Omnibus Act envisaged by David Dison above, the provinces should wait before enacting any legislation. The reason for this is that broadcasting is, he argues, something that to be performed effectively, requires to be regulated or co-ordinated by uniform norms and standards that apply generally throughout the republic, and that minimum standards for broadcasting need to be set across the nation for the rendering of this public service (as envisaged by section 126 (3)), the national Omnibus Act would take precedence over any provincial legislation which was enacted, and anything in the provincial legislation which contradicted the national Act would have to be scrapped.

It would therefore be better for provinces to wait for the Omnibus Act which would set out their powers and structures and then to act in accordance with this statute. However, it is theoretically possible, I think, for provinces to go ahead and start enacting broadcasting legislation, however, they run the risk that their legislation will be invalidated if it conflicts with the national Omnibus Act.