SUBMISSION BY THE INDEPENDENT COMMUNICATIONS OF AUTHORITY OF SOUTH AFRICA (ICASA) ON THE BROADCASTING AMENDMENT BILL
1. Introduction
The Broadcasting Amendment Bill ("the Bill") was published for public comment on 15 August 2002 in Notice 1426 (Government Gazette No. 23745).
The Authority has studied the Bill to:
The Authority has a public duty to ensure that any legislation introduced does not conflict with the regulator’s legislative and constitutional mandate. In so far as clauses in the Bill conflict with the Constitution and the Authority’s duties as set out in the IBA Act and Broadcasting Act, the Authority has an obligation to point out these dangers to Parliament.
Section 2 of the Constitution provides that:
"This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."
The Authority welcomes those amendments that seek to address deficiencies in the Broadcasting Act, the IBA Act and the ICASA Act. Many of these corrective amendments have been the product of an ongoing consultative process with the Department of Communications during the last three years. In particular, we refer to the amendments set out in Schedule 1 of the Bill. Apart from a typographical error (which we identify below), the Authority fully endorses the amendments set out in Schedule 1.
The Authority also supports other corrective amendments which seek to clarify the distinction between broadcasting and broadcasting signal distribution.
2. Constitutional Protection for the Regulation of Broadcasting.
The Authority believes that it is important to first outline the legal framework underpinning the constitutional protection for broadcasting regulation.
Section 192 of the Constitution states the following:
192. Broadcasting Authority
"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".
Section 192 expressly obliges Parliament to establish an independent authority to regulate broadcasting. In execution of this constitutional obligation, Parliament has enacted the Independent Communications Authority of South Africa Act 13 of 2000 ("the ICASA Act"). The preamble to the ICASA Act acknowledges "that the establishment of an independent body to regulate broadcasting and telecommunications is required". Section 3(1) of the ICASA Act establishes ICASA as a juristic person. Section 3(3) and (4) then state the following:
"(3) The Authority is independent, and subject only to the Constitution and the law, and must be impartial and must perform its functions without fear, favour or prejudice.
The appointment, removal and financing provisions in section 5, 8 and 15 respectively provide further objective structural guarantees of ICASA’s independence. Quite apart from the provisions of the ICASA Act, section 192 of the Constitution itself guarantees the independence of ICASA in so far as it is responsible for broadcast regulation. Any legislation or executive conduct which encroaches on the independence of ICASA in this regard is accordingly unconstitutional and invalid.
Since the enactment of the IBA Act and the Interim Constitution in 1993, government has had no direct involvement in the regulation of broadcasting content.
Section 16 of the Constitution (1996) provides that:
"16. (1) Everyone has the right to freedom of expression, which includes
(2) The right in subsection (1) does not extend to
Subject to section 16(2), all broadcasters have the right to freedom of expression in terms of section 16(1).
Only the Authority and the Broadcasting Complaints Commission of South Africa (BCCSA) are empowered to adjudicate complaints and enforce remedies regarding broadcasting content.
The Authority enforces a statutory Code of Conduct in terms of section 56(1) and Schedule 1 of the IBA Act. In terms of section 56(2), the Authority’s Code "shall not apply to any broadcasting licensee if he or she is a member of a body which has proved to the satisfaction of the Authority that its members subscribe and adhere to a code of conduct enforced by that body by means of its own disciplinary mechanisms: provided such code of conduct and disciplinary mechanisms are acceptable to the Authority". In this regard, the Authority has accepted the Code and disciplinary mechanisms of the BCCSA.
All broadcasters, including the SABC, therefore have to adhere to a Code of Conduct that is enforceable by either the Authority or the BCCSA. At present, the SABC (as a member of the National Association of Broadcasters) subscribes to the Code of the BCCSA.
Section 192 of the Constitution vests the function of regulating broadcasting exclusively in ICASA and precludes the legislature or the executive from usurping any material aspect of this regulatory function.
This is further evidenced by the phrasing of the section 13A(5)(a) of the IBA Act which provides that ICASA need do no more than "consider" policy directions issued by the Minister. Moreover, paragraphs (c) and (d) of the subsection provide that:
The IBA Act vests full control of the licensing process in ICASA.
Section 40 of the Broadcasting Act, whilst conferring regulatory powers upon the Minister in terms of subsection (1), provides that "no regulation may be made under subsection (1) on any matter falling within the functions of the Authority in terms of this Act, the IBA Act or any other law".
It is clear that the legislature originally sought to protect the Authority from any interference by the Executive on regulatory matters that are within the constitutionally protected domain of the Authority. This specifically includes matters relating to broadcast licensing and content.
3. Amendment of Section 1 – Definitions and Interpretation
Clauses (c), (d), (f), (j), (o), (p), (q) and (s).
"the founding provisions of the Republic as provided in Chapter 1 of the Constitution, 1996 (Act No.108 of 1996).
This is the first time Government has attempted to legislate a definition for the concept of "national interest". Chapter 1 of the Constitution provides for:
But it should be noted that no broadcaster can be prohibited from covering events or matters which criticise the founding provisions of the Constitution unless such criticism amounts to:
In addition, the Codes of the Authority and the BCCSA are effective regulatory mechanisms for dealing with programming that offends or breaches certain norms and standards. It is our understanding that broadcasters are subject to the Constitution in all respects. Therefore the definition of "national interest" does not take the matter further in the context of this Bill.
"a regulation made under section 40 but excludes financial regulations made under section 18".
For the sake of clarity, the Authority proposes that a different term be used for the financial regulations to be drawn up by the SABC in terms of section 18. It is recommended that the word "rules" may be more appropriate.
4. Amendment of Section 4 – Licences
The Authority proposed amendments to section 4 in order to rectify problems in the 1999 Act. These amendments have been included in the Bill. The Authority welcomes the distinction between "authorisation" and "licensing" as set out in subsections (6), (7) and (8) of section 4.
5. Amendment of Section 5 – Classes of licences
The Authority proposed amendments to section 5 to rectify problems in the 1999 Act. Most of these amendments have been included in the Bill.
But the Authority has a problem with the proposed section 5(3) which is a clear indication that the legislature has created two licensing provisions in different Acts for the same types of licences. In the Authority’s experience this has created uncertainty in the industry.
The Authority recommends that the legislature clarify that all licence applications for broadcasting licences and broadcasting signal distribution licences be made in terms of the IBA Act, and that the underlying statutes be amended accordingly.
6. Amendment of Section 6 – South African Broadcasting Corporation
6.1 Deletion of section 6(2)
Before dealing with these proposed amendments, it is important to restate those provisions in the IBA and Broadcasting Acts which impact on the public broadcaster and its programming and editorial independence.
Section 2(d) of the IBA Act provides that the Authority has a statutory duty to:
"protect the integrity and viability of public broadcasting services".
The preamble to Chapter 1 of the Broadcasting Act states the following:
"This Chapter sets out the fundamental principles and objects of this Act. Freedom of expression and the journalistic, creative and programming independence of the broadcasters and independence of regulation are identified as guaranteed by the Constitution. These principles recognise that the South African broadcasting system comprises public, commercial and community elements which make use of the radio frequencies that are public property and provides, through its programming, a public service necessary for the maintenance of South African identity, universal access, equality, unity and diversity".
Section 2(3) of the Broadcasting Act provides that:
"Any interpretation of the provisions of this Act must be construed and applied in a manner which is consistent with freedom of expression and the journalistic, creative and programming independence of the broadcasters guaranteed by the Constitution".
It is therefore of some concern that the Bill proposes to delete section 6(2) of the Broadcasting Act which provides that:
"In terms of this Charter the Corporation will in the pursuit of its objectives and the exercise of its powers, enjoy freedom of expression and journalistic, creative and programming independence".
By deleting section 6(2), the Bill implies that the Corporation will no longer enjoy such freedoms, notwithstanding the fact that the preamble to Chapter 1 and section 2(3) of the Broadcasting Act still provide that these freedoms are guaranteed by the Constitution. It is noteworthy that the drafters of the Bill have left the preamble and section 2(3) intact.
The Authority recommends that section 6(2) not be deleted as proposed in the Bill. The deletion of section 6(2) would also conflict with the preamble to Chapter 1 and section 2(3) of the Broadcasting Act.
6.2 Insertion of section 6(4)
It is the Committee’s view that the proposed section 6(4) may be unconstitutional in that it seems to usurp a power exclusively reserved for the Authority. Section 6(4) provides that:
"The Board must prepare and submit to the Minister for approval within three months after the date of conversion, policies governing the exercise of accurate, accountable and fair reporting in order to advance the national and public interest of the Republic".
As stated above the Minister is not empowered to regulate broadcasting content issues which are the exclusive domain of the Authority (or another body recognised by the Authority in terms of section 56(2) of the IBA Act). The proposed section 6(4) therefore subverts the provisions of section 56 of the IBA Act dealing with the Code of Conduct for Broadcasting Services. Notwithstanding the SABC’s adherence to the BCCSA Code, section 6(4) implies that the SABC may have to comply with a Ministerial Code on news and current affairs programming. The Bill further implies that the Minister may reject the SABC’s policies on news and current affairs although it is silent on what would happen should this occur. Ignoring for one moment the obvious constitutional problems inherent in this scheme, should the Minister approve the SABC’s policies it is not clear what remedies or procedures would be available to the Minister should a person complain that the SABC had breached its programming policies.
It is recommended that section 6(4) of the Bill be deleted to avoid conflicting with section 56 of the IBA Act and consequently the Constitution.
Should the legislature believe that it is important for the SABC to develop such polices, the Authority proposes an alternative formulation as follows:
"The Board must prepare, within three months after the date of conversion, policies that will ensure compliance with the Authority’s Code of Conduct as prescribed in terms of section 56(1) of the IBA Act".
7. Amendment of Section 10 – Public Service
The Authority has concern that sections 10(3)(c) and 10(4) of the Bill may be unconstitutional for reasons similar to those outlined under section 6(4) above.
In terms of section 10(3)(c) the Bill provides that the SABC must submit to the Minister for approval:
"a set of policies of the public broadcasting service division relating to
However if the Authority’s proposed section 6(4) is accepted, then it is our view that subparagraph 10(3)(c)(i) is not necessary as it would be repetitive. Sub-paragraphs 10(3)(c)(ii) – (iv) are regulatory matters and should rather be imposed as licence conditions. Accordingly, it is recommended that section 10(3)(c) should be deleted.
Section 10(4) provides that the policies of the public broadcasting division stipulated in section 10(3)(c) must include a code of conduct of the Corporation services and personnel that reflects a range of noble principles, values and standards.
The Authority is again concerned that the Bill proposes to grant to the Minister
regulatory powers exercised by the Authority.
If the legislature deletes section 10(3)(c) as proposed but is still concerned
that the SABC subscribes to the noble values and principles outlined in
section 10(4), then the Authority proposes an alternative introductory
formulation as follows:
"10(4) The internal policies of the public broadcasting service division must include a Code of Conduct for the Corporation’s services and personnel that reflects – "
This approach avoids the problems outlined above but entrenches the core
values and principles that must be part of a Code of Conduct.
8. Amendment of Section 11 – Commercial Services
The comments on sections 10(3)(c) (above) are equally applicable to the proposed section 11(2)(c).
9. Insertion of Section 13A – Management Boards
There has been much debate regarding the management boards of the proposed public and commercial broadcasting entities of the SABC. If amended, section 13A of the Broadcasting Act would make provision for the Minister to nominate six board members for each of the proposed commercial and public broadcasting management board. However, it is not immediately clear as to whom the Minister makes the nominations and who will ultimately make the appointment of the board members.
It bears repeating that the Board members are appointed in terms of section 13 of the Broadcasting Act by the President upon the advice of the National Assembly, following a public and transparent process. The Minister has no involvement in the appointment process of the Board.
It is therefore recommended that the Chairperson of the SABC Board, in consultation with his Board members, make the appointments to the relevant public broadcasting and commercial broadcasting boards. Section 13A should be amended accordingly.
10. Substitution of Section 22 – Transfer of broadcasting licences
The Authority welcomes this amendment as it places the restructuring of the SABC within a statutory, regulatory context and allows for some public participation. Section 22(2) will also allow the Authority to impose such conditions as it deems fit in issuing the licences to the SABC (see also proposal on indigenous languages under paragraph 15.4 below).
The committee is of the view that, to avoid confusion, section 22(1) should rather refer to the IBA licensing provisions and not to section 4(2) of the Broadcasting Act.
11. Substitution of Section 27 – Television licences and Amendment of Section 40 – Regulations
Currently, licence fees are regulated by section 27(6) which provides:
"The Authority may after consultation with the Corporation make regulations in regard to any matter pertaining to television licence fees which may be issued".
In terms of the Broadcasting Amendment Bill, the entire section 27 of the Broadcasting Act is to be deleted and substituted by a new section. In terms of the new section 27(6)(f):
"The Minister must issue policy directives on the use of television licence fees"
Furthermore, the Minister is empowered by section 40(1)(c) to make regulations regarding licence television fees.
It appears that the Minister, if this amendment was approved, would usurp the power previously held by the Authority. This potentially raises the possibility of problems similar to those that have been dealt with elsewhere in this submission.
Finally, it should be noted that the Minister’s regulatory powers exercised in terms of section 40 of the Broadcasting Act are not subject to the same notice and comment procedure as that set out in section 78 of the IBA Act. As such any regulation issued in terms of section 40 of the Broadcasting Act avoids public participation and scrutiny.
12. Amendment of Section 31 – Subscription Television Service
The Authority notes that subsections (2) and (3) of section 33 have not been repealed or amended, yet they are almost repeated verbatim in subsections (3) and (4) of section 31. While these subsections may be better placed under section 31, there should have been a consequent amendment to section 33.
Furthermore It should be noted that, in terms of subsections (3) and (4) of section 31, "the National Assembly" has been replaced by "the Minister". The Authority seeks clarity as to why this is the case.
13. Insertion of Section 32A – Regional Television Services
The Authority was not consulted on the insertion of this section and unfortunately the drafters have not had regard to the Authority’s own policy and licensing process for private regional television.
13.1 Background on Private Regional Television Licensing
It is important to set out the background to the proposed regulation of regional television in South Africa.
In 1995 the Authority’s Triple Inquiry Report to Parliament proposed, inter alia, that:
In 1997 the Authority produced a Position Paper on the Introduction of the First Private Free-to-Air Television Service in South Africa. Following the recommendations of the Triple Inquiry Report, the Authority considered the structure of the service, that is whether the private television licensee should be a single national licence or a network of regional stations. The Position Paper set out the following framework for the Structure of the Service:
"The Authority has decided that the new television entrant will take the form of a single national licence.
It is the Authority’s belief that the new national broadcaster will have sufficient financial resources to fulfil a number of public service obligations. As a strong, national broadcaster, the new entrant will be able to add to the diversity of services available to the public. It is expected to produce high-quality programmes local programmes, contribute to the growth of the television industry and facilitate a fair competitive environment.
Taking into account the results of the financial and economic analysis and the factors set out in the "Mandate for the Service"….the Authority has decided that at this time a network of regional television stations will not be able to make these valuable contributions. It is the Authority’s view that a network of regional stations would not be able to generate sufficient revenue to fulfil the mandate required of the new entrant. There is a danger that if the regional network route is followed at this point, the standard of programming offered to audiences will be compromised.
However, the Authority has heard the concerns articulated in some submissions around the danger that a national licence will fail to recognise adequately provincial diversity in its programme mix and programme sourcing. The Authority will therefore evaluate the applicants’ commitment to reflecting provincial diversity during the licensing process.
To accommodate concerns for a regional network of stations, the Authority will consider publishing a time frame for licensing regional television stations. At this stage the Authority expects to introduce regional television players in the year 2000. The Authority will be looking at the most viable mix for dividing the country into regions. In due course the Authority will provide further policy guidelines on the requirements for regional television services"
Capacity issues and the merger of the IBA and SATRA delayed these somewhat optimistic projections for the introduction of regional television stations. ICASA’s Strategy and Business Plan for the MTEF Period 2003-2006 has incorporated and budgeted for the proposed introduction of regional television services. In the Financial Year 2003-20043 an inquiry and feasibility study on Regional Television will be conducted. A Position Paper on the policy framework and licensing rules for Regional Television will be published in May 2004. It is expected that the licensing of Regional Television will begin during the third quarter of 2004.
In summary, the licensing of regional television has a long policy trajectory commencing in August 1995 with the Triple Inquiry. The proposed insertion of section 32A introduces a new, mandatory licensing process for two state-owned regional television services which has the potential to jeopardise the Authority’s own policy and licensing process.
13.2 Commentary on the drafting of section 32A
It was always envisaged that new regional television services would be privately owned. However, section 32A(4) provides that the state will initially be "the sole shareholder and the Minister may thereafter invite public and private investor participation in the regional television services in compliance with the objectives set out in section 2 and 3".
Subsection (4) does not explain in terms of which powers Parliament may require the licensing of these television services. In addition, the Minister’s role in "inviting public and private investor participation" in a broadcasting licence, seems based on powers set out in the Telecommunications Act. However, there is no basis in either in the Broadcasting Act or the IBA Act for the Minister to issue an ITA for "investor participation" in a broadcasting licence. In addition the subsection does not envisage a role for the Authority in this ITA-styled process.
Notwithstanding the above textual and policy difficulties, there may be constitutional problems with the proposed section 32A.
13.3 Possible Constitutional Problems with Section 32A
The Broadcasting Amendment Bill, through the insertion of section 32A, appears to usurp functions which are constitutionally reserved for ICASA. Not only will Parliament become involved in the licensing process by requiring the licensing of two state-owned regional television services, but the Bill vests material regulatory powers in the Minister. Neither the Broadcasting Act nor the IBA Act provides for the involvement of the Minister in broadcasting licensing and, in fact, expressly prohibits such involvement. As stated above, the Minister may not issue policy directions on "the granting of a licence or regarding the amendment, suspension or revocation of a licence". Section 32A proposes to involve Parliament and the Minister in a licensing process, and consequently provides that the Minister may be involved in a licensing amendment process through the issuing of an ITA to public and private investors.
As such the scheme set out in section 32A of the Bill appears to be inconsistent with the underlying statutes and section 192 of the Constitution.
The Authority has a number of other practical queries that would normally be answered before any licensing process commenced. These include:
13.4 Proposal on Indigenous Languages
The Memorandum on the Objects of the Broadcasting Amendment Bill explains that:
"Section 32 is amended to provide for the establishment of two regional television services in the country which will assist the national broadcaster in rolling out programming in indigenous languages which are not adequately covered by national broadcaster".
If the concern of Government is to address the marginalisation of indigenous languages, section 32A is not the most effective and constitutionally safe mechanism to achieve this goal. To avoid the constitutional problems set out above, the Minister may rather issue a direction in terms of section 13A(2)(b) of the IBA Act. This section provides that:
"the Minister may direct the Authority to determine priorities for the development of broadcasting services".
Therefore in terms of section 13A(2)(b) the Minister may, for example, direct the Authority to address the marginalisation of indigenous languages through:
Before issuing such a direction in terms of section 13A(4), the Minister must consult the Authority.
By exercising this power in such a manner, the Minister may make a direction on broadcasting policy without becoming involved in the licensing and control of broadcasters.
In addition to this approach, government may establish an Indigenous Language Programming Fund that may be utilised by the SABC and indeed other broadcasters to produce programming in indigenous languages that have not been adequately covered by South African broadcasters. The Authority believes that this may be a more practical solution for the achievement of government’s policy objectives in this regard.
With regard to radio the Authority has prioritised indigenous languages in the licensing of community radio. Commercial radio broadcasters were supposed to have established a language fund but this has not been utilised. The Authority also recommends that the Pan South African Language Board be consulted with regard to the promotion of indigenous languages.
It should be noted that in 1995 the IBA recommended that one of the SABC TV channels be privatised. However the SABC effectively convinced the Portfolio Committee that, in order to meet its language and public service obligations, all three channels be retained. However seven years later, it is the regulator’s view that the SABC is in effect delivering LESS in terms of its language obligations in that SABC 3 is an English only service. The Authority hereby reiterates its view that, when 're-licensing' the SABC in terms of section 22, the language imperatives will definitely be considered in the finalising the SABC's licence conditions.
Language delivery must be part of our national policy objectives. The Authority needs to ensure that languages are not further marginalised by becoming 'second' best to national services and only available on regional channels.
Schedule 1
The Authority welcomes the amendments set out in Schedule 1 of the Bill. The amendments to section 56 will repeal the existing Code of Conduct (which has been declared unconstitutional" by the Constitutional Court) and allow the Authority to gazette a new Code of Conduct by regulation. It should be noted this new Code of Conduct is ready for promulgation and was in fact developed after a public process of consultation in 1999.
The amendments to section 69 will allow the Authority more flexibility in delegating its powers on broadcasting matters. This amendment has become increasingly urgent following the merger of SATRA and the IBA which had the result of halving the total number of councillors dealing with both broadcasting and telecommunication matters.
There is a typographical error on page 18. The sentence "Schedule 1 is hereby repealed" should be number 4 and the sentence "Substitution for section 69 of the following section" should be number 5.