This is the third two weekly report from the Freedom of Expression Institute in South Africa. This report was prepared with financial assistance from the European Union Foundation for Human Rights(EUFHR). The views expressed herein do not necessarily represent the official view of the European Union Foundation for Human Rights in South Africa. This report is based on the monitoring activities undertaken in the period between 14 and 25 July 1997 but also includes the latest developments on the Denel case.
This report covers the following areas:First, the report looks at the
appointment of councillors to the Independent Broadcasting Authority(IBA),
South Africa’s broadcasting regulatory body. President Nelson Mandela,who
has to approve the names submitted to him by the Portfolio Committee on
Communications, has sent the names back to parliament to seek further advice.
Reasons for this decision and the implications thereof are looked at.Secondly,
the report also looks at the Independent Producers Organisation’s briefing
paper entitled: "Towards the Reconstruction of our National Public Broadcaster"
which examined the current crisis at the SABC.
Thirdly, the report looks at the issue of access to information in possession of the government and specifically at the case between Denel, South Africa’s arms manufacturer, and several newspapers regarding the publication of the details of the largest arms export deal ever brokered in South Africa.
There is also a brief section on the new policy on information disclosure
relating to arms deals, which was unveiled earlier this month by the Minister
of Water Affairs and Chairperson of the National Conventional Arms Control
Committee, professor Kader Asmal.
Broadcasting
Independent Broadcasting Authority(IBA)
Appointment of councillors
The five new councillors chosen to the IBA have not been ratified by President Nelson Mandela, two months after being chosen by the parliamentary portfolio Committee on Communications. The president has sent the names back to parliament to seek further advice. The president’s decision was in line with section(4) (2)(c) of the IBA Act which states that "Councillors shall when viewed collectively, represent a broad cross-section of the population of the Republic" of South Africa. The president acted within the provision of the relevant statute and therefore cannot be blamed for referring the names back to the Parliamentary Portfolio Committee on Communications. Instead the latter committee seemed to have failed to take into consideration the relevant provisions in the IBA Act before it made its decision. Two of the newly chosen candidates were white and if approved, the IBA council would have comprised four whites and three blacks. The situation was worsened by the fact that one of the black councillors-elect, Mr Solly Mokoetle, had withdrawn his candidature for private reasons. According to sources at the IBA councillors-elect were also about to withdraw. If this happened the whole process of nominating other candidates would have to be restarted.
The president’s approval, usually viewed as a formality, is needed before the councillors can take up their posts. The process of selecting new councillors to the IBA was started after five of the seven IBA councilors resigned in May following a report by the Auditor General detailing serious financial irregularities at the authority.
Earlier the Independent Producers Organisation(IPO), which represents 167 local independent producers, argued that the newly chosen councillors did not have the breadth of skills needed to deal with the "nuts and bolts of broadcasting, nor do they have vision for the future of broadcasting." The list submitted for the president’s approval was made up of the following people, Libby Lloyd from the Institute for the Advancement of Journalism, Dr Roy Williams from the University of the North West and former IBA councillors Advocate Luthando Mkumatela and Felleng Sekha and SABC’s strategic planning manager Mr Solly Mokoetle.
The IPO’s chair Mfundi Vundla also argued that the public hearings were a farce as major stakeholders such as his organisation were not informed of the dates set aside for the hearings, despite attempts on several occasions to reach the portfolio committee. However, invitations to the hearings were done through the Government Gazette by the portfolio committee on communications and not on an individual or organisational basis.
The delay in the appointment of the new councillors means the regulator’s activities in the next few months will be hampered. Among these activities are the issuing of four year licences to community radio stations and a free-to-air private television licence by the end of the year. Currently the IBA is managed by former councillors and two co-chairs. The former councillors are serving out a three month notice period, which is supposed to end in August. Another concern voiced was that there was a need for continuity so that a consistent team of councillors who were aware of the workings of the IBA remains in place.
The IBA is battling with lack of funds which is another problem that may disrupt its plan of activities. Earlier this year, the IBA made a request to government for an additional R13 million, saying that without this money it would not complete the activities it set out to perform for this year. According to sources at the IBA the government had not yet responded to this request. It was important for the government to make this money available so as not to hamper the activities of the IBA despite the fact that, according to sources at the IBA, the problem was partly due to reckless or unbudgeted spending by the IBA. The IBA was receiving about R27 million from the government per annum.
South African Broadcasting Corporation(SABC)
The SABC has once again come under severe criticism following the release of a briefing paper by the Independent Producers Organisation(IPO). The paper titled: "Towards the Reconstruction of our National Public Broadcaster," was written by six members of the media subcommittee of the IPO to stimulate debate among stakeholders in the broadcasting industry.
The paper puts the SABC in the dock and blames the corporation for most of its problems. The IPO, which represent about 167 local producers, disputes the fact that the problems facing the SABC are due to them having too little money to carry out the public mandate as imposed by the IBA. Earlier this year, the SABC called on the government to make additional funds available so as to enable it to carry out its mandate. The SABC refused to put a specific figure on the amount of money it needed from government. The call from the SABC followed consistent complaints from corporation that it was buckling under its mandate and that the obligations imposed on it were over ambitious.
After the IPO’s briefing paper was released the SABC reiterated that its problems were due to lack of funds. But the IPO argued that there was a lot of money, estimated at R1, 5 billion, turning through the broadcast industry in South Africa. While this may be true it must be noted that the SABC is not the only broadcaster in South Africa as there are other broadcasters and therefore cannot be expected to be the sole beneficiary of the whole industry.
According to the IPO , the crisis at the SABC was its failure as a broadcaster because it did not have "faith, trust and respect of its audiences". The IPO did not qualify this accusation while the SABC quoted statistics showing that 92 per cent of the country’s viewers watched SABC television as confirmed by All Media Products Survey(AMPS) figures. The AMPS figures also put SABC 1 between 31 and 40 per cent, SABC 2 between 27 and 36 per cent, SABC3 between 9 and 24 per cent(see SABC’s press release of July 24). The SABC had also introduced drastic changes to its television formats specifically with the aim of breaking with the past and making broadcasting more equitable in its scope and range. If this was not a clear indication of the SABC’s commitment to its audience then what was?
The IPO complained bitterly that the SABC had disrupted the local programme production industry by trying to meet South Africa’s audience needs through what they referred to as "inferior apartheid-style and imported programming". What this means in effect was that by buying more foreign material as opposed to local material the SABC had failed both the audience and the local production industry. This accusation was, however, not qualified by the IPO. The transformation process taking place at the SABC especially with regard to local content programming disprove this accusation.
The IPO, further argued that the SABC’s three channels were becoming "ratings-driven populist entertainment services" which were going to lead to local quality dramas and information programming such as documentaries fading from the public broadcasting arena. Because of its attempt to save some money, charged the IPO, the SABC was going to fail to tap into new emerging talent. The IPO’s charges followed a decision by the SABC earlier this year to cut some of its magazine programmes, including a number of art and actuality programmes and the entire breakfast TV show, Good Morning South Africa (GMSA), due to high costs. The SABC’s decision was informed by the fact that it cost about three times more to produce and broadcast local material as opposed to some foreign produced material. The IPO’s claims, however, may be alarmist since the SABC did not specifically say it would cut the amount of locally produced material, but rather that it would close down its own production arm, Safritel, and source out the work, with the exception of news production. The SABC argued that it was still committed to local content programming but noted the costs of this as opposed to buying foreign material.
While this decision made financial sense it had other implications. For example, the IPO argued that it might result in the SABC’s increasing lack of contribution to and partnership with local production and advertising industries. This accusation was off the mark especially since the SABC’s closure of Safritel meant that the SABC would have to depend more on local producers for local content material. The SABC further argued that the implication of the SABC broadcasting in 11 languages meant that the local production industry would have to grow in producing good quality programmes in African languages which they could buy and broadcast. The SABC acknowledged that although local content programmes were not a source of income yet for them, they were the future of the public broadcaster.
The IPO report also acknowledged that while there were changes in the viewing patterns at the SABC there definitely was a challenge on the SABC, in terms of its public mandate, to break white English/American domination. The question of having three-language based channels was looked at critically as overstretching the SABC and thus making it lose focus of audiences and goals. The results of this, the report charged, were skewed income generation, resource allocation and the disruption of the supply of programmes. The SABC’s head of Corporate Communications, Mr Enoch Sithole, argued that they had set in motion a process of transforming the corporation that included questions of languages and local content programming. Although the process of transformation may not have satisfied all sectors of the South African society it would be unfair to say that there was no commitment by the SABC to break the white English/American domination on television screens.
The SABC was also criticised for not having a coherent interpretation of the public service mandate. The SABC was urged to work on a policy driven by a combination of a coherent interpretation of its public service mandate, interest group needs, public taste and ratings. The IPO accused the SABC of being patronising in its interpretation of its public service mandate and thus entrenching class and race divisions in South Africa. The difficulty with this accusation was that the IPO acknowledged that South Africa was characterised by people from different cultural, religious and racial backgrounds and should all be catered for by the public broadcaster. Therefore it must be acknowledged that there was always a danger of looking or even sounding patronising when an institution served such a diverse audience. The IPO did not elaborate on this criticism making it difficult to know what its reasoning was behind this criticism. The SABC did not comment on this criticism either.
The IPO report also pointed out that very soon the SABC would be just one of the media options as opposed to the current situation where the SABC is competing only with M-Net, the only privately owned pay television station. For example, if things go well at the IBA there should be a private free-to-air television station by the end of this year, thus increasing competition. The IPO warned that if by then the SABC had not built poles of audience which would always pull viewers back, it would falter. For the SABC to successfully build a loyal and committed audience it needed to define and prioritise its public service task.
The report was also very critical of the recommendations by the Mackenzie management consultants who recommended a number of cost cutting measures, including the cutting of expensive programmes which happened to be locally-made programmes and the maximisation of commercial potential for the public broadcaster. The Mackenzie management consultants from the US were commissioned by the SABC to recommend ways of restructuring the corporation in line with its new public mandate. The IPO argued that the recommendations negatively affected local content programming and had the potential to destroy the public broadcaster. The effects of these recommendations were felt earlier this year when the SABC axed a number of art programmes from its programming schedules. The IPO therefore called on the SABC to invest directly in the local production industry instead of commissioning more products at higher prices. The IPO envisaged this direct investment to take the form of buying new talent, developing projects, establishing co-productions, co-financing feature films, investing in education and training as well as establishing local and international distribution channels for these products. If the SABC did not take these proposed moves seriously, warned the IPO, especially the suggestion for greater cooperation with local production industry, "There is no valid reason to contribute funds from the national coffers to a monopolistic commercial service which acts as local distributor of American products", the IPO emphasized (see IPO’s paper). The SABC contended that they did invest in new talent in the form of training and development, but strongly urged institutions of higher learning like universities and technikons as well as organisations like the IPO to be actively involved in this process since the SABC was not a training institution.
Access to Information
Denel Case
In a situation reminiscent of the old apartheid days the South African arms manufacturer, Denel, successfully applied for a court interdict against several newspapers, preventing them from publishing the name of the Middle East country involved in a R7 billion arms deal. By the time Denel applied for the interdict, the arms deal had already been published in the Sunday Independent newspaper and two of its sister papers Sunday Argus and Sunday Tribune. Denel lawyers argued that they had promised their client non-disclosure of its name and the structure of the deal. The court order also prevented the disclosure of commercial structure of the deal despite the fact that those details have already been published. Denel subsequently laid criminal charges against the Sunday Independent, Sunday Tribune, Sunday Argus newspapers and the editors and one journalist, Mr Newton, in terms of the Armaments Development and Production Act of 1968. According to this law anyone disclosing information about the supply, marketing and export of arms can be fined up to R15 000 or eight years in jail.
The case is an important demonstration of the challenges facing South Africans as far as transparency and openness are concerned. The reason being that despite the fact that South Africa is a fully democratic country there are still many laws on the statute books which restrict free flow of information and free expression of ideas. In a document prepared by the Centre for Applied Legal Studies(CALS), the University of the Witwatersrand, numerous laws including that cited by Denel were identified as restricting freedom of expression and access to information. The Denel episode also brought to light the urgent need for the passage of Open Democracy Bill, which is expected to lead to more accessibility to information in possession of the state, while also repealing some of the archaic laws restricting access to information. The Bill was approved by Cabinet in June, but apart from that developments regarding this bill have been a closely guarded secret.
Gilbert Marcus, a prominent human rights lawyers in South Africa, argued
that the Denel case revealed that the old security mentality still prevailed
in some government quarters. Raymond Louw, Freedom of Expression Institute’s
deputy chairperson, described the Denel court action as "totally immoral"
and further questioned the government’s attitude to open democracy.
In the midst of the Denel row, the Minister of Water Affairs and Chairperson
of the National Conventional Arms Control Committee, Professor Kader Asmal,
unveiled a new policy on arms deals developed by this committee. The new
policy is ostensibly aimed at making the arms industry more
transparent, but still maintains the right to non-disclosure on the basis
of commercial interests. However what may or may not constitute commercial
interest was not spelled out, raising a dilemma since Denel had used the
argument of commercial interest to prevent publication of information that
would have contributed to legitimate public debate on South Africa arms
deals. The company had specifically sought to prevent disclosure of the
client country- which was crucial for the public to know in order to be
satisfied that arms were not being sold on behalf of the country to clients
with a poor human rights record.
While the arms industry itself was satisfied with this new policy, there was a lot of dissatisfaction outside government and understandably so. The secrecy surrounding the arms industry and the discretion retained by the government was in conflict with the freedom of information clause in the Bill of Rights, according to Laurie Nathan who was a member of the government appointed Cameroon Commission Of Inquiry, which probed irregular arms deals. Peter Batchelor of the Centre for Conflict Resolution (CCR) argued that the government’s retention of its discretion on information disclosure to the public was "merely a finessing of the current position" where accessing information in possession of the government was still very difficult. . In a surprise move, however, Asmal said he was personally critical of Denel’s attempt to silence the media. He accused Denel of trying to "smother" public debate with legislation dating from the apartheid era(see Mail&Guardian, July 25, 1997, p2). He said that Denel had to know that it could not rely on apartheid era legislation in a society like South Africa where freedom of speech, transparency and public debate were entrenched in the constitution. There was no question of national security raised by Denel in defence of its decision to prevent the disclosure of information on the details of the deal in question.
END.