This is the second in a series of reports which will be produced on a two weekly basis. This report covers monitoring activities in the area of freedom of expression and access to information in South Africa between June 30 and 11 July 11, 1997. The activities which are covered in this report have been made possible by the funding from the European Union Foundation For Human Rights (EUFHR).
The report covers the following areas:
In broadcasting the report looks at the decision by Independent Broadcasting
Authority (IBA) to amend the broadcasting licence conditions of Electronic
Media Network(M-Net). This decision came out very controversial and was
criticised severely by the SABC, public broadcaster, and the Independent
Producers Organisation, body representing independent local producers.
What is important about their response to this decision is that they called
for the government to formulate a broadcasting policy so as to clear what
the SABC referred as "uncertainty" and "piece meal" regulating of the broadcasting
industry.
I have also reported on the proposed merger of the IBA and SATRA and its implications especially in relation to the independence of the IBA.
This report also carries a section on Films and Publications Act which
will be implemented pending the appointment of a new Films and Publications
Board by the end of August. Media ownership and control has also come under
spotlight especially in the light of a recent attack by President
Nelson Mandela on the media. In the report I looked at the issue both in
respect of the print and broadcasting sector.
Amendment of M-Net licence
An interim decision by Independent Broadcasting Authority (IBA) to allow Electronic Media Network (M-Net) to retain its "open time" slot and run its second TV channel, Community Service Network (CSN), sparked widespread criticism in some quarters. IBA is an independent regulatory body established by the Independent Broadcasting Authority Act of 1995, and its main responsibility is to regulate broadcasting industry in South Africa. "Open time" is a two hour daily slot during which the pay channel is allowed to broadcast programmes unencoded. The IBA’s decision which was an interim one subject to future changes, was taken in view of the imminent licencing of a free-to-air television station. M-Net is South Africa’s pay television channel. M-Net is also the only television station currently privately owned in South Africa. Unlike the public broadcaster, SABC, M-Net does not broadcast news and is dominated by entertainment such as overseas movies and local and international sport.
The decision by the IBA means that M-Net would retain open time and maintain its second channel, CSN, which broadcast programmes specifically for the Jewish, Indian and Portuguese communities. But IBA also imposed certain conditions. Among those conditions the IBA decided that M-Net should broadcast 20% South African drama quota during open time but also increased M-Net’s time for advertising from eight to a maximum of twelve minutes an hour. The Independent Producers Organisation(IPO), which represent hundred and seventy independent local producers of South Africa, complained about the IBA’s decision.
The IPO felt that the IBA’s decision did not serve the viewing public and the local production industry. They argued that this decision merely served the interests of a small group of shareholders. Among the IPO’s concerns was that extending M-Net’s license conditions would marginalise small independent producers since M-Net predominantly broadcast externally produced material.
IPO further argued that by extending licence conditions for M-Net they did not serve the viewing public. This is because they would flood them with foreign productions that were already predominant in our screens. According to Harold Bopalamo, Director of Regulatory Affairs at M-Net, M-Net broadcast about 15% locally produced material during open time and only 4% during the encoded time.
The SABC felt that a time has come for "certainty and stability to be brought to the broadcasting industry."As such SABC proposed that the IBA’s decision must not be implemented until the Ministry of Communications had come up with a policy on broadcasting on which all broadcasting regulation would be based. The SABC further argued that the current state of uncertainty and specific problems confronting the SABC were a direct result of "piece meal"regulating that were not governed by an overall policy from the Ministry by way of a White Paper. Currently broadcasting is regulated by the Public Broadcasting legislation and the IBA Act. The department of Communications is working on a Green paper on Broadcast and Postal policy. How this Green Paper will change or affect current broadcasting legislation is not clear. This paper is expected to be tabled in Cabinet during the next seating which will start around mid-August. Once the Cabinet ratifies this Green paper the public will then comment on it. From here it will be developed into a White Paper.
The SABC’s call for the government to come up with a broadcasting policy have the dangers of giving the Ministry a reason to start interfering with the broadcasting industry. If this becomes the trend, it will be regrettable especially after civil society campaigned so hard to make sure that broadcasting industry was as independent as possible from the government’s influence and intervention. Already there are indications that Minister Naidoo is keen on exerting some influence over the IBA. For example, when financial mismanagement at the IBA was exposed earlier this year, Naidoo’s reaction was that had the IBA been financially accountable directly to his office, the government would have been able integrate the IBA’s proposals for the SABC into government’s budget cycle, thus also saving the SABC the financial troubles it was in. This reaction from Naidoo is almost a sinister attempt at blaming the IBA for funding problems at the SABC when in fact this is largely due to government’s intransigence in this regard. It raises the question whether the government is really interested in funding the SABC at all, and if so then why didn’t it approach the SABC with the IBA’s public broadcasting proposal and workout a budget based on that proposal.
IBA and SATRA
Another factor which is also more likely to augment the Ministry’s grip on broadcasting is the proposed merger between the IBA and South African Telecommunications Regulatory Authority (SATRA). As the government is in the process of drafting the Green Paper on broadcasting the proposed merger has become a centrepiece of this policy draft document. Civil society fought strongly for the independence of the IBA and if the merger went ahead it might have serious implications for the independence of the IBA. SATRA, which was set up last year and is under the direct control of the minister regulates the telecommunications sector while the IBA regulates the broadcasting industry as a whole. It is worrying that Minister Naidoo insisted that SATRA is "one of the most independent regulatory authorities in the world" and therefore does not see any reason why the IBA cannot be regulated in this way. To sum up his motive Naidoo stated that "We cannot relinquish our right to govern."(Sunday Independent, 06 July 1997).
There are different understandings about what this proposed merger means in practise. Sources at the IBA understand the proposed merger to be only a matter of administrative convenience or as only limited to financial management. Sources from the ministry of communications understand it to mean that the two bodies are going to work closely on frequency band management but each will continue to function as an independent entity. If these two implications are the main crux of the proposed merger then it does not pose a great danger to the independence of broadcasting regulation. However, if it means that the IBA’s role is going to be reduced only to policy making without a say in the granting of licences as some have suggested then there is a cause for concern since is SATRA is directly under the control of the minister. The implications of this are that while regulating the telecommunications industry is more about regulating a frequency spectrum, which is the current role of SATRA, it is different with regulating broadcasting industry as content is also regulated, hence the importance of ensuring that there can be no political interference in this process.
If content is so important in broadcasting it may also serve as a weakness of the industry because the minister may be able to influence content through purse strings. Already the IBA is in financial difficulties and has asked the government for extra R9 million. Currently the IBA is getting around R33 million from the government. If it does not get this extra money two of its biggest projects this year, i.e. the licensing of a private television station and the licensing of four year community radio stations, would be negatively affected as there would be no funds to expedite those processes. This raises the most nagging question about financial independence and self-sustainability of statutory bodies like the IBA. According to acting CEO, Ms Brown Keene-Young, the IBA hopes to raise close on to R62 million in revenue in licences in the next four years and hopes to be financially independent by the year 2003.
For the proposed merger between IBA and SATRA to take place it is going to need a process of law to amend the constitution, which currently guarantees an "independent authority to regulate broadcasting."
CENSORSHIP LEGISLATION- Films and Publications Act
The new Films and Publications Act of 1996 is about to be implemented with more than 850 nominees having applied to serve on the new Films and Publications Board. The new board will be made up of thirty six members and four full-time administrators. The nominees for this body are expected to be interviewed in public sometime in August. The nominees will be interviewed by a panel consisting of among others sociologist Fatima Meer, who is a prominent anti-apartheid campaigner and an author of several books, Bophuthatswana TV head Cawe Mahlati, Vivien Smith, of the African National Congress parliamentary research department, Colin Douglas, of the South African Institute of Race Relations and film producer Anant Singh. Among the people who have been nominated to the board are Professor Kobus van Rooyen, chief of the former government’s Publications Appeal Board. According to reports the new Films and Publications Board is expected to start its work in September. Meanwhile the old act is still in operation and the movie Night Calls was banned on the 20th of June according to section 47(2) of this old legislation.
This new act has been criticised by many anti-censorship groups whose concern is that while it allows adults access to a wide range of material that would previously have fallen foul of the censors it criminalises hate speech. FXI is one of the organisations that have been very outspoken against this legislation. Despite protestation from pro-censorship groups that the act is making pornographic material readily available, it has been criticised for being "excessively draconian" by anti-censorship groups. The FXI’s position is that while this act certainly does not hark back to the pro-censorship apartheid days it certainly does not represent a remarkable break with the past. This Act has the potential to infringe on peoples’ freedom of expression in many ways. For example, the Act makes provision for the establishment of two bodies, the Films and Publications Board which will be responsible for, among other things, the classification of material, and the Review Board, whose responsibility will be to review decisions made by the films and publications board. There are many ways of classifying material but the most common one is the age restriction aimed at protecting children from harmful or disturbing material in a film. While it is reasonable, perhaps even desirable, for people to be warned beforehand about the content of a film or material, this must not be allowed to go to the extent of controlling and thus resulting in curbing peoples’ right to choose. If a movie is classified as XX it means it cannot be exhibited, distributed or advertised for distribution or can people have such material in their possession. Although the Act does not use the word ban this is effectively a ban.
Other problems are that the Act has many value-laden terms which are not clearly defined, such as "pornography", "sexually explicit" as these terms are subject to various cultural and societal norms in their interpretations.
OWNERSHIP AND CONTROL OF THE MEDIA
Ownership of the media as a tool for increasing diversity of opinion and expression is one of the most important media issues in South Africa today.
Print Media
The issue of diversity in the ownership and control of the print media has long been a bone of contention but recently the issue was opened anew when President Nelson Mandela described the South African media as being run by embittered whites. He said in a statement, "It is a great concern that an agency like the media should be controlled by a conservative white establishment." While this was viewed by some as the government’s attempt to subvert the media’s independence and make it the government’s mouthpiece and likely to result in government/press crisis, Mr Ivan Fallon, chief executive officer of the Independent Newspapers, was reconciliatory in his response. He said that while Mandela had a case, it must also be acknowledged that "the shape and balance of ownership of the media in the country is changing faster than in any industry"(Sowetan, 10 July 1997). Fallon argued that to interpret Mandela’s remarks as signalling a crisis would be a "gross misinterpretation of them"in that he was merely calling for a "reflective reaction." But Thami Mazwai, a veteran and outspoken senior journalist, said his concern is that "the president tarred all of us with the same brush"."Otherwise", he added, what the president is saying is true. Mr Mazwai argued that despite the fact that blacks are acquiring shares in major publishing houses "we know who really calls the shots", and that is, whites. According to Mazwai what we need is a "patriotic media" with a culture of "development" reporting.(Business Day,13/06/1997).
No matter how much both the media and government try to reach for each other the issue of media ownership and control is always going to be a sensitive one. As Clive Emdon in a recently published book correctly pointed out, it must be borne in mind that the increasing concentration of media ownership in the hands of the few has the implication of restricting the "diversity of opinion and expression"(see Emdon, C in Media Ownership and Control in the age of convergence, 1996, pp 191). While it may be offending to accuse certain sections of the media of unfairly criticising the government, this is indicative of a deep-seated resentment of the status quo.
While there is a commitment from the government in the form of the IBA Act, that it would ensure that media ownership and control in South Africa is reflective of the country’s demographics there are still other issues to be considered. As some may agree, the South African mainstream media is still in operating in the First World mode. In other words this means that the mainstream media is addressing needs and concerns of the privileged component of the South African society. Emdon argues that this kind of media "has little or no understanding of what development means in Third World terms"(ibidem, p.92).
In South Africa therefore there is a need to dichotomise between what
Emdon (1996:92) refers to as "libertarian, fourth estate approach to development,
which is to report about development, and the approach of media for development
in which there is a clear need for participatory media in support of development."
The failure to make this distinction will consequently lead to many people
misunderstanding the fears and criticism of many politicians and historically
disadvantaged people of the mainstream media, argues Emdon. It is difficult
for most of the current crop of politicians to identify with mainstream
media, especially those with liberation struggle background because, rightly
or wrongly, they do not understand or know its role.
Broadcasting media
A significant incident around cross-media and foreign media ownership in broadcasting played itself out after the IBA decided to grant the licence for Jacaranda radio station to Newshelf 71. Jacaranda, one of the former SABC regional radio stations that were sold off in terms of an IBA directive, is based in Pretoria, Gauteng. Naledi opposed the move on a number of grounds, including that of cross media ownership, foreign control over media. Naledi had also made a bid for the same licence. Both Newshelf 71 and Naledi had a substantive percentage of share holding participation by the historically disadvantaged. Newshelf 71 had a 65,1%share holding in the hands of historically disadvantaged and Naledi has 45% of its share holding in the hands of people from the previously disadvantaged. As such, the IBA was satisfied that these two applicants met the requirement as set out in section 2(1) of the IBA Act, which stipulated that the IBA in granting a licence, was required to "ensure that private, community, broadcasting licences, viewed collectively, are controlled by persons or group of persons from a diverse range of communities in the republic".
On the question of cross-media ownership Naledi argued that by granting
the licence to Newshelf the IBA was in breach of section(50) of the
IBA Act which prohibits a person or group who control newspaper from having
financial control over both a radio and television stations. The
dominant shareholders in Newshelf 71 were New Africa Investment Limited
(NAIL) which had recently participated in the takeover of mining company
Johnnic which control M-Net pay television as well as Times Media Limited(TML)
. As such , NAIL, was effectively in control of M-Net and a number of newspaper
titles in the TML stable.
Naledi also contested this decision on the basis of the fact
that the IBA council did not constitute a quorum when it made a decision
to grant this licence to Newshelf 71. The issue of foreign
media ownership and control was also raised. Naledi argued that Newshelf
71 was partly owned by a foreign company, Europe Development International(EDI),
which had a 21% equity shares in it. EDI also had shares in Primedia, which
controls a number of commercial radio stations in the country two of which
were in Gauteng. By granting Newshelf a licence it would have given EDI
more than a 20% share in the broadcasting industry in contravention of
the IBA Act which stipulated that one or more foreign persons shall not
, whether directly or indirectly exercise control over a private broadcasting
licensee, or have financial or voting interests in private broadcasting
licensee exceeding 20% in total.
Naledi’s challenge to the IBA decision resulted in the Supreme Court
instructing the IBA to restart the hearings on this licence. However,
the two bidders decided to settled this matter among themselves by joining
forces and bid together for this licence as partners. The new date for
the licence hearings for Jacaranda radio station is 22 July at the IBA
offices. There are no other bidders for this licence except these two.