AMENDMENTS AGREED TO

BROADCASTING AMENDMENT BILL

[B 34 - 2002]

CLAUSE 1

1. On page 2, in line 18 to insert the following paragraph:

(b) by the substitution for the definition of "authority" of the following definition:

"authority" means the Independent Communications Authority of South Africa established by section 3 of the Independent Communications Authority of South Africa Act, 2000.

2. On page 3, in line 13, after "this Act" to insert "the IBA Act".

3. On page 3 after line 15, to insert the following paragraph:

(e) by the substitution for the definition of "broadcasting signal distribution licence of the following definition:

"broadcasting signal distribution licence" means a licence granted and issued by the Authority in terms of this Act or the IBA Act to a person for the purpose of providing signal distribution for broadcasting purposes, or deemed by this Act or the IBA Act to have been so granted and issued.

4. On page 3, in line 30 after "commercial" to omit "broadcasting".

5. On page 3 in line 46 to omit the definition of "distribution licence".

6. On page 3, in line 48 before "distribution service" to insert "broadcasting signal".

7. On page 3, in line 51 to omit "item 11 of Schedule 2" and to insert "section 7(12)(a)".

8. On page 3, in line 54 to omit the definition of "free-to-air service" and to substitute:

"free-to-air service" means a service which is broadcast and capable of being received without payment of subscription fees".

9. On page 3, from line 61 to omit "item 11 of Schedule 2" and to insert "section 7(13)(a)".

10. On page 4, in line 3 before "distribution" to insert "broadcasting signal".

11. On page 4, in line 5, after under to omit insert "this Act or".

12. On page 4, in line 6, before "the IBA Act, to insert "this Act or".

13. On page 4, in line 33, after "public" to omit "broadcasting".

14. On page 4, from line 37, to omit the definition of "radio station".

CLAUSE 3

1. On page 5 in line 3 to omit "paragraph (a) of the following paragraph" and to insert "paragraphs (a) and (f), of the following paragraphs, respectively:"

2. On page 5, from line 8 to insert:

"(f) comply with [the] a code of conduct for broadcasting services as prescribed in [Schedule 1] terms of the IBA Act."

CLAUSE 4

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause to follow on clause 3:

Substitution of section 4 of Act 4 of 1999

4. The following section is hereby substituted for section 4 of the principal Act:

"Licenses

4. (1) (a) Notwithstanding section 39 of the IBA Act, any person who, immediately before the commencement of this Act, provided a broadcasting service without a broadcasting licence is deemed to have permission to continue to provide such service, if such person applies to the Authority for the necessary licence within six months after the commencement of the Broadcasting Amendment Act, 2002.

(b) The permission is deemed to continue until the Authority has refused the application or, in the event of a decision to grant the application, has issued the licence.

(2) This section must not be construed to mean that a broadcasting service licensed to provide such service to a foreign country by the appropriate authority and whose signal is incidentally received in South Africa, is required to hold a broadcasting licence issued by the Authority.

(3) Subject to subsection (5), a person who provides a licensed broadcasting service consisting of more than one channel may not include a channel in such a service unless the Authority, on application by such person, has authorised the channel.

(4) The Authority must prescribe the procedure and the appropriate conditions for the authorisation of channels, which must include how channels are defined.

(5) (a) Any person who immediately before the commencement of this Act provided an unlicensed broadcasting service consisting of more than one channel is deemed to have permission to continue to include those channels if such person applies to the Authority for the authorisation of the channels within three months after the publication of the regulations contemplated in subsection (4).

(b) The permission is deemed to continue until the Authority has granted or refused such application.".

CLAUSE 5

1. Clause rejected.

NEW CLAUSE

1. That the following be a new Clause to follow on clause 4:

Amendment of section 5 of Act 4 of 1999

5. Section 5 of the principal Act is hereby amended—

(a) by the substitution for subsection (2) of the following subsection:

"(2) Subject to this Act, broadcasting licences are categorised as—

(a) free-to-air broadcasting service;

(b) terrestrial subscription broadcasting service;

(c) satellite subscription broadcasting service;

(d) cable subscription broadcasting service;

(e) low power sound broadcasting service; and

(f) any other class of licence prescribed by the Authority from time to time.".

(b) by the addition of the following subsection:

"(3) Applications for broadcasting licences must be made in terms of the applicable provisions of the IBA Act and any regulations prescribed thereunder.".

CLAUSE 6

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause to follow on clause 5:

Substitution of section 6 of Act 4 of 1999

6. The following section is hereby substituted for section 6 of the principal Act:

"Charter of Corporation

6. (1) The Corporation must comply with the Charter as outlined in this part.

(2) The Authority must monitor and enforce compliance with the Charter by the Corporation.

(3) In terms of this Charter, the Corporation, in pursuit of its objectives and in exercise of its powers, enjoys freedom of expression and journalistic, creative and programming independence.

(4) The Corporation must encourage the development of South African expression by providing, in South African official languages, a wide range of programming that—

(a) reflects South African attitudes, opinions, ideas, values and artistic creativity;

(b) displays South African talent in education and entertainment programmes;

(c) offers a plurality of views and a variety of news, information and analysis from a South African point of view;

(d) advances the national and public interest.

(5) (a) The Board must prepare and submit to the Authority not later than three months after the date of conversion, policies that will ensure compliance with the Authority's Code of conduct as prescribed and with the licence conditions and objectives contained in this Act including:

(i) news editorial policy;

(ii) programming policy;

(iii) local content policy;

(iv) educational policy;

(v) universal service and access policy;

(vi) language policy;

(vii) religious policy.

(b) The Corporation must notify the Authority in writing of any amendments to the policies referred to in paragraph (a) as soon as reasonably possible.

(6) The Board must ensure that there is public participation in the development of the policies referred to in subsection (5) by inviting and considering public comment on draft policies and by other means.

(7) The Corporation must provide suitable means for regular inputs of public opinion on its services and ensure that such public opinion is given due consideration.

(8) The Corporation must develop a Code of Practice that ensures that the services and the personnel comply with—

(i) the constitutional principle of equality and the equitable treatment of all segments of the South African population;

(ii) the constitutional requirement of equitable treatment of all official languages;

(iii) the rights of all South Africans to receive and impart information and ideas;

(iv) the mandate to provide for a wide range of audience interests, beliefs and perspectives;

(v) a high standard of accuracy, fairness and impartiality in news and programmes that deal with matters of public interest.

CLAUSE 8

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause to follow on clause 7:

 

Substitution of section 7 of Act 4 of 1999

8. The following section is hereby substituted for section 7 of the principal Act:

"[Incorporation] Conversion

7. (1) The old Corporation is, with effect from a date determined by the Minister by notice in the Gazette, which may be a date prior to the commencement of this Act, deemed to be a public company incorporated in terms of the Companies Act, to be known as the South African Broadcasting Corporation Limited.

(2) The Corporation must have a share capital as contemplated in section 19 of the Companies Act with the State as its sole shareholder with effect from the date of conversion.

(3) The Minister must determine the memorandum and articles of association of the Corporation and must submit these to the Registrar at least a week prior to the date of the notice contemplated in subsection (1).

(4) The Registrar must, on the date of the notice contemplated in subsection (1), register the memorandum and the articles of association of the Corporation in terms of section 63(1) of the Companies Act and issue a certificate of incorporation and a certificate to commence business to the Corporation, but no fees are payable in respect of such registration or issue.

(5) With effect from the date of conversion the Companies Act applies to the Corporation as if it had been incorporated in terms of the Companies Act on that date, save to the extent stipulated in this Act.

(6) Sections 32, 44, 54(2), 60, 63(2), 64, 65, 66, 172, 190 and 344(b) and (d) of the Companies Act do not apply to the Corporation.

(7) All references in this Act to the conversion of the old Corporation must be construed as references to the conversion of the old Corporation into a public company having a share capital and having been incorporated in terms of the Companies Act as stipulated in subsection (2).

(8) Neither the repeal of the Broadcasting Act, 1976 (Act No. 73 of 1976), nor the conversion of the old Corporation affects—

(a) the continued corporate existence of the old Corporation with separate legal personality as from the date of its first establishment;

(b) any of the rights, assets, liabilities or obligations acquired or incurred by the old Corporation or on behalf of the old Corporation at any time before its conversion;

(c) the terms and conditions of service and accrued benefits of its employees; or

(d) the validity of any act lawfully performed by or on behalf of the old Corporation prior to the date of conversion.

(9) With effect from the date of conversion—

(a) any reference to the old Corporation in any contract, statute, licence or other written instrument is deemed to be a reference to the Corporation;

(b) (i) any reference to the old Corporation in the patents register,

trade marks register, design register, deeds register or any other register in the Republic is with effect from the date of conversion, deemed to be a reference to the Corporation;

(ii) the relevant registrar must make such entries or endorsements in any register referred to in paragraph (i) or other documents in the registrar's office or submitted to the registrar as are necessary to give effect to the conversion;

(iii) no fees or other levies are payable in respect of such entries or endorsements.

(10) Any legal proceedings instituted by or against the old Corporation prior to the date of conversion may, notwithstanding such conversion, be proceeded with by or against the Corporation subject to the law governing the prescription of claims.

(11) (a) The Minister of Finance, after consultation with the Minister, must determine the tax values of the assets owned by the Corporation as at the date of conversion for the purpose of calculating any wear and tear or capital allowance or any deduction as contemplated in the Income Tax Act, 1962 (Act No. 58 of 1962).

(b) The assets contemplated in paragraph (a) are for the purposes of sections 11(e), 12C, and 13 of the Income Tax Act, 1962 (Act No. 58 of 1962), deemed to have been brought into use for the first time at a cost equal to the value determined in terms of paragraph (a).

(12) (a) The old Corporation must before the date of conversion conduct a legal and financial due diligence investigation into the state of its affairs for the purposes of identifying and establishing the status of all its assets, rights, obligations and liabilities.

(b) The old Corporation must submit to the Minister, by not later than three months prior to the date of conversion, a legal and a financial due diligence report containing details of all of such assets, rights, obligations and liabilities and the implications of the contracts concluded by or on behalf of the old Corporation in respect of such assets, rights, obligations and liabilities.

(13) The old Corporation must, after submitting the due diligence report to the Minister and before the date of conversion submit to the Minister—

(a) an inventory of all its assets and liabilities;

(b) details of its financial policies relating to the allocation of such assets and liabilities between the public service division, the commercial service division and the shared group services of the Corporation; and

(c) details of its financial policies governing internal transfer pricing between the public service division, the commercial service division and the shared group services of the Corporation.

(14) The Minister must submit a copy of the inventory referred to in subsection 13(a) to the National Treasury and the Auditor-General.

(15) (a) Any use by the public service division or the commercial service division of any asset allocated to another division of the Corporation must be accounted for in the respective financial records of the public service division and commercial service division to ensure that such use took place on an arms length commercial basis.

(b) Any service rendered by or to the public service division or the commercial service division to or by another division of the Corporation must be accounted for in the respective financial records of the public service division and commercial service division to ensure that such service was rendered on an arms length commercial basis.".

CLAUSE 9

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause to follow on clause 8:

 

Amendment of section 8 of Act 4 of 1999

9. Section 8 of the principal Act is hereby amended by the substitution for paragraph (e) of the following paragraph:

"(e) to be responsive to audience needs including the closed captioning of the deaf, hard of hearing and visually impaired and account on how to meet those needs;".

CLAUSE 10

1. On page 7 in line 8, after "[The]" to omit "while the State is the sole shareholder of the Corporation,"

2. On page 7 in line 11, after "public" to omit "broadcasting";

3. On page 7 in line 12, after "commercial" to omit "broadcasting";

4. On page 7 in line 13, after "commercial" to omit "broadcasting".

CLAUSE 11

1. On page 7, in line 28, after "public" to omit "broadcasting".

2. On page 7, in line 33, after "public" to omit "broadcasting".

3. On page 7, in line 35, after "public" to omit "broadcasting".

4. On page 7, in line 37, after "public" to omit "broadcasting".

5. On page 7, from lines 39 to omit paragraph (c).

6. On page 8, in line 3, after "public" to omit "broadcasting".

7. On page 8, in line 4, after "commercial" to omit "broadcasting".

8. On page 8, in line 10, after "commercial" to omit "broadcasting".

9. On page 8, from line 11, to omit paragraph (c).

CLAUSE 12

1. On page 8 in line 31 after "commercial" to omit "broadcasting".

2. On page 8 in line 36, after "commercial" to omit "broadcasting".

3. On page 8, in line 37, after "commercial" to omit "broadcasting".

4. On page 8, in line 39, after "commercial" to omit "broadcasting".

5. On page 8 from line 41 to omit paragraph (c).

6. On page 8, in line 48, after "commercial" to omit "broadcasting".

7. On page 8 in line 49, after "public" to omit "broadcasting".

8. On page 8 in line 52, after "commercial to omit "broadcasting".

9. On page 8, in line 54, after "public" to omit "broadcasting".

10. On page 8, from line 55, to omit paragraph (c).

11. On page 8, in line 60, after "commercial" to omit "broadcasting".

CLAUSE 14

1. On page 9 from line 17, to omit subclause (b).

2. On page 9, after line 16 to insert:

NEW CLAUSE

(b) by the addition of the following subsection:

(12) The Board—

(a) must establish a public service subcommittee and a commercial service subcommittee—

(i) to report to the Board on the extent to which the public service division and the commercial service division have achieved their objectives during the relevant period, and

(ii) to perform such other functions regarding the organisation of the Corporation into the public service division and the commercial service division respectively, as may be delegated to them by the Board; and

(b) may establish such other subcommittees as it deems appropriate from time to time.".

CLAUSE 15

 

Clause rejected.

CLAUSE 16

 

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause to follow on clause 14:

Substitution of section 14 of Act 4 of 1999

15. The following section is hereby substituted for section 14 of the principal Act:

"Executive committee

14. (1) The affairs of the Corporation are administered by an executive committee consisting of the Group Chief Executive Officer, Chief Operating Officer, Chief Financial Officer and [six] no more than 11 other members. [appointed by the Board]

[(2) The Group Chief Executive Officer will be the accounting officer of the Corporation].

(2) The executive committee is accountable to the Board.

(3) The executive committee [will] must perform such functions as may be determined by the Board.".

CLAUSE 18

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause to follow on clause 16:

Substitution of section 22 of Act 4 of 1999

17. The following section is hereby substituted for section 22 of the principal Act:

"Amendment of broadcasting licences

22. (1) The Corporation must, within six months after the date of commencement of the Broadcasting Amendment Act, 2002, or the conversion date, whichever is the later, apply to the Authority for such amendments to its existing licences as are necessary in order to reflect the reorganisation of the Corporation into the public service division and the commercial service division and its related obligations in terms of this Act and the IBA Act.

(2) The relevant provisions of the IBA Act apply with the necessary changes to the applications referred to in subsection (1) but, irrespective of the contents of the application of the Corporation, the Authority may impose any appropriate licence conditions which are necessary in order to reflect the reorganisation of the Corporation into the public service division and the commercial service division and its related obligations in terms of this Act and the IBA Act.".

CLAUSE 19

1. On page 10 in line 26, after "must" to omit ", whilst the State is the sole shareholder in the Corporation,"

CLAUSE 20

1. On page 10 in line 33, after "Act" to omit "and whilst the State is the sole shareholder in the Corporation"

CLAUSE 21

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause to follow on clause 19:

Substitution of section 27 of Act 4 of 1999

20. The following section is hereby substituted for section 27 of the principal Act:

"Television licences

27. (1) (a) No person may use any television set unless such person is in possession of—

(i) a television licence issued by the Corporation against payment of the prescribed fee for each television set so used, unless exempted by regulation; or

(ii) a written exemption pursuant to the regulations; or

(iii) written confirmation, issued by the lessor of the television set in question that such person is a person to whom that television set has been rented, or otherwise made available in accordance with this Act.

(b) No business, dealer or lessor may use any television set unless—

(i) such business, dealer or lessor is in possession of a television licence issued against payment of a prescribed fee in terms of this Act for each television set so used, unless exempted by regulation;

(ii) such television set is used in accordance with such licence; and

(iii) such business, dealer or lessor is able to produce such licence on demand.

(c) A user who is required to be in possession of a television licence must possess all the categories of television licences as prescribed, which pertain to such use.

(2) Subsection (1) does not apply to a person who manufactures or repairs television sets, or who acts in the execution of his or her duties in the service of such a person, in so far as he or she uses any television set manufactured or repaired by him or her, in or on the premises where it was manufactured or repaired or on any other premises approved by the Corporation, for the purposes of testing such a television set.

(3) Any person who contravenes subsection (1) is, in addition to payment of the prescribed licence fee, liable—

(a) to pay to the Corporation by way of a penalty an amount equal to double the amount of the applicable prescribed licence fee; or

(b) in the event of a user proving that he or she had used the television set for a period of less than one year, to pay to the Corporation, by way of a penalty, in respect of every month or part of a month during which such a person had failed to take out such television licence, an amount equal to 10% of the applicable prescribed television licence fee: Provided that the total amount of the penalty may not exceed the amount of such television licence fee, unless otherwise prescribed.

(4) A dealer who sells or alienates a television set to a person who is not in possession of a television licence and who is not exempted from the obligation to be in possession of a television licence, is liable to pay the penalty contemplated in subsection (3) in respect of each television set sold or alienated to such person.

(5) Notwithstanding subsections (3) and (4), any person who—

(a) contravenes or fails to comply with any provision of this section or any regulations pertaining to television licence matters; or

(b) after an authorised inspector, referred to in subsection (6), has produced his or her written authority to such person fails, without good reason, to comply with any lawful demand made by that authorised inspector,

is guilty of an offence in relation to each television set in respect of which the offence is committed and is liable upon conviction to a fine not exceeding R500 in relation to each such offence or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.

(6) (a) The Corporation may appoint any person as an authorised inspector.

(b) An authorised inspector may—

(i) require a person who is required in terms of subsection (1) to be in possession of a television licence to produce such television licence for inspection;

(ii) require a person who uses a television set, or a person who is the owner or occupier of any premises on which a television set is used, to produce such television set for examination, in order to determine whether the provisions of this Act have been complied with;

(iii) require a person who uses a television set to furnish his or her identity document or licence registration number, whichever is applicable;

(iv) require a person who uses a television set, or a person who is the owner or occupier of any premises on which a television set is used, to furnish such information as may be prescribed or necessary in order to determine whether this Act have been complied with;

(v) require a business, dealer or lessor to produce records relating to transactions involving television sets for inspection, and make extracts therefrom or copies thereof;

(vi) enter upon any land, in so far as this may be necessary, in order to exercise a power conferred on him or her by this Act: Provided that entry may not be gained to a residence after dark without a warrant or the occupier's permission.

(7) A television licence is not transferable, save as may be prescribed.

(8) All television licence fees collected by the Corporation must be used by the Corporation solely for the public service to be provided by the Corporation as stipulated in section 10(1)(e), and all related administration and functions.

(9) To enable the Corporation to establish and maintain a national database register listing all sales of new television sets in the Republic, dealers, lessors and businesses must provide the Corporation with all information prescribed in respect of sales of new television sets.

CLAUSE 22

1. On page 12, in line 15, after "must" to omit ", whilst the State is the sole shareholder in the Corporation,"

CLAUSE 23

1. On page 12, from line 26, to omit subsection (8) and to substitute:

"(8) A subscription broadcasting service must contribute to South African television and music content in terms of regulations prescribed by the Authority.".

CLAUSE 25

Clause rejected.

CLAUSE 26

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause:

(1) In the performance of its public service mandate under section 10(1)(a) and (b), the Corporation must, within six months of the commencement of the Broadcasting Amendment Act 2002, apply to the Authority in terms of sections 13A and 41(4) of the IBA Act read with section 45(2) of that Act, to licence it to provide additional television services which broadcast:

(a) regionally.

(b) in such official languages as are appropriate, having regard to language usage within respective regions served by the proposed services.

(c) so as to ensure that between these regional services, broadcasting in the languages of Sepedi, Sesotho, Setswana, isiSwati, TshiVenda, Xitsonga, Afrikaans, isiNdebele, isiXhosa and isiZulu is provided on an equitable bases.

(2) The regional services provided by the Corporation may draw revenues from grants, donations and sponsorship and must receive grants from the State.

(3) The Authority must determine the extent to which these services may draw from advertising.

CLAUSE 27

1. On page 13, in line 27, after "cost" to omit

"considering prevailing market structures and in accordance with prescribed standards.";

2. On page 13 from line 31 to omit subsection (4) and to substitute:

"(4) (a) Any person who immediately before the commencement of this Act, provides a broadcasting signal distribution service without a broadcasting signal distribution licence is deemed to have permission to provide such service if such person applies to the Authority for the licence within six months after the commencement of the Broadcasting Amendment Act, 2002.

(b) The permission remains until the Authority has refused the licence or, in the event of a decision to grant the application, has issued the licence.".

NEW CLAUSE

1. That the following be a new clause to follow clause 27:

28. Section 35 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:

(1) Multi-channel distributors must hold a [separate class of ] licence issued by the Authority.

 

CLAUSE 29

Clause rejected.

SCHEDULE

1. On page 16 the 3rd column, in the 3rd line to insert the following item:

1. Amendment of section 13 by the addition of the following subsections:

(c) to administer, manage and plan the broadcasting services frequency bands in accordance with bilateral, multilateral or international regulation agreed to or adopted by the Republic;

(d) to approve technical parameters, signal standards, transmitters and transmission characteristics to be used by licensees;

(e) to inspect transmitters and other apparatus used by any licensee or prospective licensee;

(f) to assist the Government in preparing for international conferences convened by the International Telecommunications Union, and for that purpose attending such conferences and, where applicable, implementing any decisions adopted at such conferences.

2. On page 16 to insert a new item to follow item 3:

4. Amendment of section 44 by the substitution for subsection (2) of the following subsection:

"44 (2) An application for the renewal of a broadcasting licence shall be in the prescribed form and in all other respects section 41, 42 and 43 shall apply with the necessary changes in relation to an application for the renewal of a broadcasting service.