FREEDOM OF EXPRESSION INSTITUTE’S
SUBMISSION TO THE NATIONAL COUNCIL OF PROVINCES:
SELECT COMMITTEE ON LABOUR AND PUBLIC ENTERPRISES
IN RESPECT OF
THE BROADCASTING AMENDMENT BILL


06 September 2008

 
 INTRODUCTION

1.    The Freedom of Expression Institute (“FXI”) thanks the National Council of Provinces Select Committee on Labour and Public Enterprise (“the NCOP”) for the opportunity to make this submission on the Broadcasting Amendment Bill [B72 2008] (“the Bill”), which is, subsequent to the Draft Broadcasting Amendment Bill’s publication, consideration and approval by the National Assembly, before the NCOP for consideration and public comment.

2.    FXI kindly requests an opportunity to present an oral presentation in respect of this submission at the public hearing in 10 September 2008.
  
3.    FXI was established in 1994 to protect and foster the rights to freedom of expression and access to information, and to oppose censorship. The FXI’s primary objectives are to fight for and defend freedom of expression; to oppose censorship; to fight for the right of equal access to information and knowledge; and to promote access to media and a free press.

4.    Its subsidiary objectives are the opposition of any limitations imposed on the freedoms aforementioned be they at the instance of the State, the private sector or civil society, through public pronouncements and litigation; provide support, solidarity and unity of purpose among those subject to censorship; Educating the public about the dangers of censorship; monitoring the effect and implementation of censorship in South Africa; network and engage in solidarity with groups opposing censorship locally and internationally; promoting access to information and knowledge and information generally and by monitoring proposed legislation that may make this possible; campaigning for the freedom and independence of all media.

5.    The FXI undertakes a wide range of activities in support of these objectives, including lobbying, education, monitoring, research, publicity and litigation and the funding of legal cases that advance these rights.

6.    FXI is a member or the Civil Society Coalition: Save our SABC – Reclaiming Our Public Broadcaster (“the Coalition”) and endorses the submission made by the Coalition. The purpose of our separate submission is to expand upon certain of the issues raised by the Coalition and to raise issues that are of great importance to FXI.

7.    In the light of this we have prepared this submission for presentation to the NCOP. It should be noted that our main concerns are merely summarized, and the FXI will be more than willing to elaborate on any aspect of these concerns at the public hearing.

8.    We would like to at the outset commend the National Assembly for amending and passing a Bill that is a vast improvement on the Draft Broadcasting Amendment Bill (“the Draft Bill”) that served before the Portfolio Committee on Communications during August this year.  We do however have a number of concerns regarding the Bill, which we set out herein below.

9.    Our concerns are largely to do with the honouring of the Constitution of the Republic of South Africa (“Constitution”) and the building of our fledgling democracy. The principles espoused in the Constitution must be reflected in all legislation and to this end it is vital that the Bill should advance both the spirit and the letter of the Constitution and serve the public interest.


10.    The concerns alluded to above will be addressed as follows:

10.1.    Matters of Principle:

10.1.1.    Principal Objective.
 
10.1.2.    Objectives of the Bill.

10.1.3.    Constitutional Principles of Freedom of Expression.


10.2.    Technical Considerations:

10.2.1.    Definition of Appointing Body.

10.2.2.    Removal from Office Provisions.


10.3.    SABC Articles of Association.


10.4.    The Way Forward.


10.5.    Conclusion.



MATTERS OF PRINCIPLE

PRINCIPAL OBJECTIVES

11.    FXI’s principal objective is the creation of an independent and accountable South African Broadcasting Corporation (“public broadcaster”) that provides fair and unbiased information to the public as a whole. A proper analysis of the Bill requires that this objective be attained. This is in line with section 192 of the  Constitution of the Republic of South Africa, which states that:

“National legislation must establish, an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African Society” [emphasis added]

12.    The aforementioned is also in line with the public broadcaster’s mandate and the provisions of the Broadcasting Act 4 of 1999 (“Act”) specifically section 10(1)(d) which provides as follows:

“10 (1) The public service provided by the corporation must –
..
(d) provide significant news and public affairs programming which meets the highest standards of journalism, as well as fair and unbiased coverage, impartiality, balance and independence from government, commercial and other interests;..”
 


OBJECTS OF THE BILL

13.    We acknowledge Parliament’s concern in respect of the on-going crises at the public broadcaster and we applaud Parliament’s desire to find solutions to these crises.
 
14.    In our view the crisis at the public broadcaster has manifested itself as a buildup of unaccountable behaviour on many levels of the public broadcaster, and this unaccountability has not been checked by the institutions charged with oversight of the broadcaster. Since the appointment of the 2003 Board, there have been more examples emerging of editorial timidity, even self-censorship in the broadcaster: a trend that the Board has been unable to stem. There is evidence of a blurring of the lines between governance and management functions inside the public broadcaster, as well as management and editorial functions, leading to high levels of internal conflict. At times, the public broadcaster has displayed news values more in keeping with a state broadcaster than a public broadcaster. The current Board lacks the legitimacy to deal decisively with all these instances of unaccountable behaviour, as it is widely perceived as being unrepresentative and tainted by political manipulation.

15.    We share the Coalition’s view that the current crises plaguing the public broadcaster are deep rooted and arise as a result of a number of serious problems with:

15.1.    the provisions of the Broadcasting Act, 1999, the Memorandum and Articles of Association of the SABC and the Shareholder Compact between the SABC and the Minister of Communications;

15.2.    the unlawful and direct interference in Parliament’s process of appointing the current Board;

15.3.    the on-going politicization of the public broadcaster’s Board and the failure by the public broadcaster’s leadership (including Board members and senior management) to represent the public interest effectively in the carrying out of their respective duties; and

15.4.    the silence by the Independent Communications Authority of South Africa (ICASA) about the crises and its failure therefore to fulfill its legislative responsibility to monitor compliance by the public broadcaster with its Charter and the Broadcasting Act, 1999.

16.    An holistic review of the challenges facing public broadcasting in South Africa, would in our view, include:

16.1.    an assessment of the root causes of problems plaguing the public broadcaster;

16.2.    a review of the White Paper on Broadcasting (developed close to ten years ago) in order both to evaluate the effectiveness of the framework developed in the policy and to craft policies in the light of the changing broadcasting environment given, for example, convergence and digital migration; and

16.3.    the promulgation of an SABC Act to replace the current Broadcasting Act, taking into account the problems identified above and the policy developed as a result of the proposed policy review process.

16.4.    Some of the challenges impacting on public broadcasting which need review through this   process include:

16.5.    the vague wording in the SABC Charter which has resulted in a lack of clarity about the public broadcaster’s real mandate;

16.6.    the on-going funding crises at the public broadcaster, resulting in an over-reliance on commercial activities, to the detriment of public interest programming;

16.7.    the structural dysfunction at the public broadcaster between its public and commercial divisions. The stated motivation of such division was to relieve the public wing’s reliance on commercial revenue. The separation, however,  has not achieved this;

16.8.    a lack of clarity on the role of the Board;

16.9.    the appointment/ disqualification and removal criteria and processes for both executive and non-executive members of the Board;

16.10.    the lack of clarity around the role of the Minister with regard to the public broadcaster;

16.11.    the fact that the Memorandum and Articles of Association of the public broadcaster and the Shareholder Compact are in many respects, ultra vires the provisions of the Broadcasting Act;

16.12.    the fact that public stakeholders have no formal way of inputting their concerns to the Board; and

16.13.    the failure of the public broadcaster to abide by its own editorial policies, particularly with regard to the recent “blacklisting crisis”.

(Note this is not an exhaustive list)

17.    We too are of the view that the current crisis cannot be addressed in a piecemeal fashion.

CONSTITUTIONAL PRINCIPLES OF FREEDOM OF EXPRESSION

18.    Section 16 of the Constitution guarantees everyone the right to freedom of expression. This includes the freedom of the press and other media and the freedom to receive and impart information and ideas.

19.    Closely linked to the right of freedom of expression is the right of access to information guaranteed by section 32 of the Constitution which provides that everyone has the right of access to any information held by the state and any information that is held by another person that is required for the exercise or protection of any rights.

20.    The Constitutional Court has articulated the importance of the right of the public to receive information and ideas and the role which the media plays in being the conduit through which the public receives such information. In this regard we refer you to the following cases:

20.1.    in Khumalo and Others v Holomisa  the Constitutional Court made the following statement:

“The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the rights to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out our constitutional mandate…

The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression.. . .

In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility.

20.2.    in South African National Defence Union v Minister of Defence & Another,  the Constitutional Court stated that:

“Freedom of expression lies at the heart of democracy.  It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally;”

20.3.    In the decision of the Constitutional Court in NM v Smith  O'Regan J stated that:

“Freedom of expression is important because it is an indispensable element of a democratic society. But it is indispensable not only because it makes democracy possible, but also because of its importance to the development of individuals, for it enables them to form and share opinions and thus enhances human dignity and autonomy. Recognising the role of freedom of expression in asserting the moral autonomy of individuals demonstrates the close links between freedom of expression and other constitutional rights such as human dignity, privacy and freedom.  Underlying all these constitutional rights is the constitutional celebration of the possibility of morally autonomous human beings independently able to form opinions and act on them.

20.4.    In the case of National Media Ltd v Bogoshi  the Supreme Court of Appeal held that:

“We must not forget that it is the right, and indeed a vital function, of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion …. The press and the rest of the media provide the means by which useful, and sometimes vital, information about the daily affairs of the nation is conveyed to its citizens …

21.    The importance of public interest cannot be overstated and it is the role of the media to convey information which allows matters of public interest to be fully scrutinized by the public at large.
 
22.    Furthermore, Section 7 of the Constitution specifically requires the State to “respect, protect, promote and fulfill the rights in the Bill of Rights”.  In this regard we share the Coalitions view that there is a specific constitutional obligation upon Parliament (namely both the National Assembly and the NCOP) to ensure that it does its utmost to give effect to the Constitution by ensuring that any legislation that is passed will uphold the spirit and letter of the Constitution and in the present circumstances is able to guarantee and put in place sufficient checks and balances for the creation of an independent public broadcaster, which will in turn ensure independence in respect of its broadcasting content and operations.  Failure to give effect to this will deny the majority of South African’s the right to receive information and a diversity of views and, to express themselves accordingly.

23.    It is essential that Parliament puts in place legislation that will safeguard against political and commercial interference in the public broadcaster and exercises its oversight role in an effective matter by scrutinizing the conduct of the public broadcaster. It is only in doing so that the public confidence in the public broadcaster and Parliament will be maintained.


 TECHNICAL CONSIDERATIONS

24.    Subject to the elucidations made herein, the submissions made by the Coalition are fully endorsed by the FXI.




ROLE OF THE “APPOINTING BODY”

25.    FXI believes that role of the appointing body in the appointment and removal of members of the Board and the board as a whole should, due to the nature of the public broadcaster’s mandate, be a non-discretionary role and is obliged to act on the instructions of Parliament. This is essential in order to attain proper credibility of the public broadcaster and to bolster its independence.

26.    If the process was conducted along these lines, there would be far greater public acceptance of the appointments and a considerable improvement in the level of confidence in the public broadcaster’s impartiality. This would also contribute to a reduction in conflict between executive and non-executive members which in turn would result in the Board being able to function more effectively. 

27.    Consistent with this is the legal interpretation of the word “recommend” or phrase “on the recommendation of” which should be interpreted as affording no discretion to the appointing body in the circumstances.

REMOVAL FROM OFFICE PROVISIONS

28.    Section 15 provides as follows:

“Removal from office and resignation of member

15. (1) The appointing body –
(a) may remove a member from office on account of misconduct or inability to perform his or her duties efficiently after due inquiry and upon recommendation of the Board; or
(b) must remove a member from office after a finding to that effect by a committee of the National Assembly of a resolution calling for that member’s removal from office in terms of section 15A.
(2) A non-executive member of the Board may resign by three months written notice addressed to the appointing body, provided that the appointing body may on good cause shown allow a shorter period.”  [emphasis added]

29.    Section 15 provides for two circumstances in which a board member can be removed. In the first instance, upon the recommendation of the Board and in the second instance, upon the adoption of a resolution by the National Assembly calling for a members removal in terms of section 15A.
 
30.    This section is highly problematic for the following reasons:

30.1.    In the first instance the appointing body may on the “recommendation of the Board”, remove a member of the Board on account of misconduct or inability to perform his or her duties efficiently after due inquiry. In our view this provision is unacceptable as this decision is ultimately left in the discretion of the appointing body and will reduce the independence of the public broadcaster. All appointments and removals must be upon the adoption of a resolution by the National Assembly calling for such removal, after due process and due enquiry.


30.2.    This section, as it stands, supports a view that the legislation is not seeking to give the appointing body a non-discretionary function in the appointing and removal of the Board and foresees the final decision being made by the appointing body, which does not solve the problem highlighted above.

31.    We are of the view that section should read as follows:

“15(1) The appointing body must remove a non-executive member from office after a finding to that effect by a committee of the National Assembly and the adoption by the national assembly of a resolution calling for that non-executive member’s removal from office in terms of section 15A(1)(a).”.

32.    We share the Coalition’s view in respect of critical lacuna which is not addressed in the Bill, namely, regarding the removal of executive directors of the Board. A clear distinction has to be made between the appointment and removal of the non-executive members of the board on the one hand and the executive members on the other. As the Broadcasting Act currently stands, the in the extraordinary event of the Board as a whole being removed, the executive members will be included in the removal.
 
33.    This lacuna has been the basis of many of the on-going conflicts between the Group Chief Executive Officer and the Board of Directors of the SABC and must be addressed by the Bill if it is indeed to resolve the current crises. In line with best corporate governance practices, the power to remove the executive members of the Board ought to vest in the non-executive members of the Board, again in order to avoid implications of political and other undue interference.

34.    In this regard FXI endorses the Coalition’s proposed amendments to section 15(3) and to its view that the proposed section 15A(1)(b) and 15A(2)(c) of the Bill must:

34.1.    make reference to due process and an appropriate finding by a committee of the National Assembly in order to meet the Constitutionally required standard of administrative justice; and

34.2.    must relate only to the non-executive members of the Board to avoid the ongoing confusion between the roles of the executive and non-executive members of the Board and to avoid the appointment of an Interim Board being unworkable given that the three executive members are to be part of the Interim Board.

SABC ARTICLES OF ASSOCIATION

35.    The FXI would like to bring to the attention of the NCOP a concern we have held for some time about the independence of the public broadcaster, which is partly relevant to the hearing by the NCOP of public comment on the Bill, and serves as a further motivation for why the non-executive directors should appoint the executive directors.

36.    In terms of the Broadcasting Act, the public broadcaster enjoys editorial independence. Yet, what the corporatisation of the public broadcaster did after the promulgation of the Broadcasting Act was that it reconfigured the relationship between the Board to the Minister of Communications, in that the Minister as the sole shareholder now enjoys significant levels of control over aspects of the public broadcaster through the ‘backdoor’ of  the Articles of Association (“AoA”).

37.    We have conducted an analysis of the AoA, both the 2003 and 2006 versions, and have been advised by Counsel that the AoA may well be unlawful, and even unconstitutional, in that they violate the requirement in section 13(11) of the Broadcasting Act which states that the Board shall control the control the affairs of the Corporation.

38.    The AoA give too much power to the Executive, through the Minister of Communications, to control aspects of the Board’s affairs, which strips the Board of  its ability to act independently on crucial issues. According to our advice, if a court were approached for a declarator on the matter, the AoA would almost certainly be declared unlawful.

39.    Some of the ways in which the Board’s independence is violated is as follows:

39.1.    In terms of the AoA, the Board must submit its corporate plans for approval to the Minister and the SABC must consider any comments on the business plans. Lodging of a business plan for approval especially, may invite censorship and threaten independence.

39.2.    The Board is required to comply with any statutes or any resolution passed by a General meeting. Given the fact that the Minister, as the sole shareholder on behalf of the State, has total control over General meetings, the Board could be made to comply with resolutions that are deeply compromising of the independence of the public broadcaster.

39.3.    The non-executive directors must recommend to the Minister the appointment of the executive directors, which interferes with the ability of the Board to make appointment decisions independently of the Minister. One of these appointments is that of the Group Chief Executive Officer. Given that the GCEO is also the editor-in-chief, it could be argued that the Minister has indirect control over the public broadcaster’s content, through the appointment of the GCEO. While it may be argued that the power to appoint is non-discretionary, the Minister has refused to appoint a recommended candidate recently, implying the exercise of discretion.

40.    The Act must be amended to ensure that the non-executive directors are responsible for appointing the executive directors. Also, to the extent that the AoA are illegal, they must be amended to ensure that the Board appointed in terms of the amendment Bill enjoys the necessary levels if independence.

41.    Attached hereto as ”Annexure A”, is a copy of the a legal memorandum highlighting and dealing with the problems alluded to above.





THE WAY FORWARD

42.    The FXI respectfully submits that a number of gremlins still exist in the Bill which will prevent the resolution of the current crises plaguing public broadcaster. We are of the view that the suggested amendments made by the Coalition and FXI should be adopted in order for the Bill to do so.

43.    We reiterate that the Bill if correctly drafted will play a helpful role in solving the arises alluded to above, however, should only be seen as the first step in respect of an in-depth investigation and process to identify and rectify the myriad problems facing the public broadcaster, which investigation must be comprehensive, transparent, inclusive and thorough in order to identify all the problems at the root of the current crises at the public broadcaster, some of which have been identified above.

44.    FXI, as a member of the Coalition calls upon Parliament, including the NCOP, to ensure that Government, particularly the Department of Communications, undertakes a thorough Green and White Paper policy review process to develop lasting and in-depth solutions to the problems at the pubic broadcaster; and

45.    We call upon Parliament, including the NCOP, to institute legislative processes to enact an SABC Act to replace the current Broadcasting Act, taking into account the problems identified above and the policy developed as a result of the proposed policy review process.



CONCLUSION

46.    The FXI would like to thank the NCOP for its time and engaging with us on these important issues. We reiterate that we are as always ready to engage in discussions on these matters and elucidate and matters which we have touched upon and trust that that our submission is of assistance to the NCOP.


Freedom of Expression Institute