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Researched and written by Tusi Fokane, independent consultant, and Jane Duncan, Freedom of Expression Institute
21st Floor Sable Centre, 41 de Korte Street, Braamfontein, Johannesburg
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ISBN: 978-0-620-40300-9
The Broadcasting Independence Handbook:
Lessons from the South African experience
A handbook in three parts
The Freedom of Expresssion Institute
21st Floor, Sable Centre, 41 De Korte Street, Braamfontein, Johannesburg
Telephone: 011 403 8403
L
List of Appendices
A.
B.
C.
D.
E.
F.
G.
H.
i
COM Memorandum to SABC
Jabulani! Conference Resolutions
Free, Fair and Open Conference Resolutions
Free, Fair and Open: COM Submission to CODESA
CIB Declaration
CIB Draft Proposal on SABC Board Selection Process
Guidelines for the appointment of the new SABC Board ........
Broadcasting Archive Database
The Broadcasting Independence Handbook: Lessons from the South African experience
A
Abbreviations
ADJ
ACAG
ANC
APC
CIB
CINE
CODESA
COM
COSAW
COSATU
DIP
ECA
FAWO
FXI
IBA
ICASA
IDASA
IMC
MDM
MWASA
MPNP
NECC
NP
PAC
PAWE
SABC
SACC
SAMWU
SAUJ
TBVC
UDF
WG1
Association of Democratic Journalists
Anti-Censorship Action Group
African National Congress
All Party Conference
Campaign for Independent Broadcasting
Conference for Independent Editors
Convention for a Democratic South Africa
Campaign for Open Media
Congress of South African Writers
Congress of South African Trade Unions
Department of Information Policy (ANC)
Electronic Communications Act
Film and Allied Workers Organisation
Freedom of Expression Institute
Independent Broadcasting Authority
Independent Communications Authority of South Africa
Institute for a Democratic Alternative in South Africa, now known as the Institute for
Democracy in South Africa
Independent Media Committee
Mass Democratic Movement
Media Workers’ Association of South Africa
Multi-Party Negotiating Process
National Education Co-ordinating Committee
National Party
Pan African Congress
Performing Arts Workers Equity
South African Broadcasting Corporation
South African Council of Churches
South African Municipal Workers’ Union
South African Union of Journalists
Transkei, Bophuthatswana, Venda and Ciskei (the former ‘independent’ homelands)
United Democratic Front
Working Group 1
The Broadcasting Independence Handbook: Lessons from the South African experience
ii
T
Table of Contents
Introduction
....................................................................................................................................................iv
Part one:
The fight for broadcasting independence under apartheid: a history of
COM and CIB..........................................................................................................................................................1
Part two:
Post-apartheid broadcasting regulation: an overview of the independence of
the IBA and ICASA ..........................................................................................................................................17
Part three:
Post-apartheid public broadcasting: an evaluation of the independence
of the SABC ..........................................................................................................................................................25
Endnotes............................................................................................................................................................31
Bibliography...................................................................................................................................................38
iii
The Broadcasting Independence Handbook: Lessons from the South African experience
Introduction
This handbook focuses on the transformation from
state to independent broadcasting in South Africa,
and the lessons that can be drawn from this
transformation for the Southern African Development Community (SADC), where many countries
have broadcasting sectors that are undergoing
transformation. The handbook is for use by South
African and Southern African Development
Community (SADC)-wide civil society organisations,
as well as independent and community media.
Broadcasting exploded in South Africa after 1994,
following the ‘freeing of the airwaves’ by the
Interim Constitution of 1993 and the passage of the
IBA Act in 1994. An entire new stratum of radio
suddenly burst onto the scene with dozens of
community radio stations across the country
receiving licences to broadcast. Commercial radio
and television were also licenced and the public
broadcaster, the South African Broadcasting
Corporation (SABC), faced new regulatory
frameworks, mechanisms and procedures.
The period from 1994 until the present – with its
increase in electronic broadcasting, battles around
licences, regulations and the role of the public
broadcaster – has been an exciting one for
electronic broadcasting in South Africa. And, as can
be expected, it has been a period characterised by
much contestation, with two of the most contested
institutions being ICASA and the SABC. Often these
institutions are taken to be ‘models’ for
independent regulation and public broadcasting in
the SADC region. But as these contests have shown,
these ‘models’ have strengths and weaknesses. One
key objective of this handbook is to problematise
the widely-held view that South Africa’s
broadcasting sector was transformed successfully
from a state controlled sector to an independent
sector, and that post-apartheid South Africa
therefore enjoys independent broadcasting.
The objectives of this handbook are as follows:
• To provide resources to civil society organisations
in the SADC which are seeking to achieve
independent broadcasting regulation and an
independent public broadcaster;
• To share South Africa’s experiences of setting up
and running independent statutory communi-
cations bodies, focusing specifically on Icasa and
the SABC;
• To provide a user-friendly but in-depth analysis of
the strengths and weaknesses of the South
African ‘model’ in relation to independent
broadcasting;
• To explore the role of civil society activism in
amplifying the strengths, while addressing the
weaknesses of independent broadcasting in
South Africa;
• To explore whether a balance has been struck
between independence and accountability in
relation to the SABC, and to look at what the
challenges are on both these levels;
• To develop recommendations on how to
strengthen the South African ‘model ‘ of public
broadcasting and broadcasting regulation, while
avoiding its pitfalls.
Each section of the handbook will end with a series
of discussion points.
Part one is entitled ‘The fight for independent
broadcasting under apartheid: a history of the COM
and CIB’, and was written by Tusi Fokane, who was
commissioned by the FXI to write a history of the
Campaign for Open Media and the Campaign for
Independent Broadcasting. The FXI acknowledges
her contribution, with thanks. This section
examines the history of the transformation from
state to independent broadcasting under
apartheid, and looks particularly at the role of civil
society in bringing about the transformation. It
argues that, while major advances were made in
transforming broadcasting, the relationship
between civil society organisations and political
organisations was, at times, a fraught one, and the
CIB failed to maintain its involvement in multiparty
negotiations, where compromises were made that
the CIB did not necessarily agree with. Civil society
also become demobilised after negotiations,
leading to some of the gains of negotiations being
compromised later on.
Part two is entitled ‘Post-apartheid broadcasting
regulation: an overview of the independence of the
IBA and Icasa’. It examines how the term
‘independence’ has come to be defined by the
Constitutional Court, and the very many ways in
The Broadcasting Independence Handbook: Lessons from the South African experience
iv
which this substantial definition of independence
has been compromised in relation to broadcasting
regulation. It examines how, since the late 1990s,
the independence of the regulator has been
gradually eroded: a trend that could be attributed
partly to its unclear Constitutional status.
Part three is entitled ‘Post-apartheid public
broadcasting: an overview of the independence of
the South African Broadcasting Corporation’.
v
It focuses on the extent to which the CIB’s objective
to establish an independent public broadcaster was
achieved in post-apartheid South Africa. It notes
that, while the SABC is nominally independent, its
independence both from government and from
commercial sources has been compromised in often
insidious ways.
The Broadcasting Independence Handbook: Lessons from the South African experience
1
PART
The fight for independent broadcasting under apartheid:
A history of COM and CIB
Introduction
The South African media policy reform process
came about largely as the result of political changes
in the country. The 2nd of February, 1990 (regarded
as a turning point in South African history), and the
political events that followed, created a space for
media activists to initiate discussions around the
question of dealing with the media during the
transition period. The National Party (NP)
government had publicly committed itself to the
creation of a new South African society, promising
that the negotiated constitutional reform process
would be one that would facilitate the political
participation of all South African citizens. The NP’s
approach to democratic reform followed what
commentators referred to as the ‘reform apartheid’
strategy – government’s attempt to share power
without relinquishing total control over the
economic and political spheres.
Elements of the NP’s reformist approach were
evident in the government’s attempts to
unilaterally ‘restructure’ the SABC through the
appointment of a government commissioned ‘Task
Group on Broadcasting’ in March 1990, a month
after former State President de Klerk’s public
pledge to constitutional negotiations.
The SABC had been a strategic propaganda tool for
the NP since the enactment of the Broadcasting Act
of 1936 (later amended by the Broadcasting Act of
1976). The NP had created for itself a monolithic
ideological channel through which it could further
its policies with little regard for the public interest.
The NP government had sole jurisdiction over the
appointment of Board members and staff of the
SABC, licensing of broadcasters (through the
Postmaster-General) and controlled editorial
content and programming. Administrative control
of the Broadcasting Act was not determined within
the Act, with the result that various NP ministries
such as Foreign Affairs, Education, Home Affairs,
Posts and Telegraphs and Information were, over
the years, responsible for the control of the SABC.
The net effect was the lack of a policy directive
governing the SABC.
The establishment of the Viljoen Task Group in
March 1990, which some analysts regarded as the
first coherent attempt by government to define a
public broadcasting service for the country, was
met with resistance by civil society organisations. 1
Media pressure groups organised themselves to
stop any further unilateral discussions around the
future of broadcasting in the country. The Mass
Democratic Movement (MDM), comprised of
elements of the liberation movement, including
some media activists, quickly identified the SABC as
a site and instrument for transformation.2
Progressive
movements
mobilised
around
campaigns to formulate a media policy position
that would bring an end to NP control over the
airwaves. Their most immediate challenge was to
curtail unilateral NP activity and, concurrently, to
ensure that broadcasting matters would be
brought within the ambit of the constitutional
agenda. Consequently, the SABC was the first state
institution to undergo transformation through a
negotiated process facilitated by the Convention
for a Democratic South Africa (CODESA).
As the negotiation process unfolded, civil society
began to insert itself into the process, at times
setting the agenda for political parties. There
emerged within civil society various schools of
thought on how the transformation of
broadcasting should take place, under the popular
slogan of “democratising the media”. Horwitz
(2001) identifies the dominant philosophy behind
civil society initiatives as the post-social democratic
approach to transforming broadcasting. Advocates
of this philosophy advocated a mixed broadcasting
system that would cater for a mixed public-private
The Broadcasting Independence Handbook: Lessons from the South African experience
1
media sector. The African National Congress’s (ANC)
media policies were, to a large extent, shaped and
influenced by the principles espoused by the postsocial democrats.
The Campaign for Open Media (COM) and, later,
the Campaign for Independent Broadcasting (CIB),
were instrumental lobby-groups which coordinated the progressive movements’ resistance to
NP domination of the airwaves. The CIB was an
umbrella body that represented more than 40
interest groups. The CIB and its affiliates sought to
transform the SABC from a state to a public
broadcaster through the establishment of an
independently elected and more representative
Board that would govern the SABC during the
transition period. The campaign’s second objective
was to ensure that the regulation of the airwaves
and the issuing of licences would be placed under
the control of an independent and democratically
elected regulatory authority. The CIB and its
affiliates agitated for a democratic media through
public debates, a phone and fax campaign,
workshops, discussions, negotiations and protest
action.
These attempts to formulate a civil society-based
media policy resulted in a series of conferences that
brought together various media stakeholders. The
Rhodes University Media Policy Workshop (1990),
the Jabulani! Freedom of the Airwaves conference
(1991), the University of Bophuthatswana Media
Policy Workshop (1991), the COM/IDASA
conference (1991), and the Free, Fair and Open
Conference (1992) were convened to give direction
to the campaign to free the media from party
political control.
The intensive three-year campaign to democratise
the media resulted in the first independent Board of
the SABC being elected to office on 31 May 1993 despite a last-minute intervention by the then State
President, F.W. de Klerk. Civil society could also
count the passage of the Independent Broadcasting
Authority Act (153 of 1993), which was assented to
by the President on October 18, 1993, as a victory. 3
The Campaign for Open Media (COM)
The “Campaign for Open Media” (COM) was
launched in January 1990 by the anti-censorship
pressure group, the “Save the Press” committee,
which was formed in 1986 by a group of journalists
that Tomaselli and Louw (1991) identify as the
independent social democrat press at that time.4
The committee was formed with the two specific
aims of drawing attention to:
2
1. government restrictions on the press; 5 and
2. the targeting of journalists during the state of
emergency.
The committee had a working alliance with the
Anti-Censorship Action Group (ACAG) in the late
1980s, and had successfully challenged the
government on proposed legislation that called for
the registration of “news agencies” - an attempt by
the government to muzzle dissenting voices within
the print media. 6
The latter part of 1989 brought an ease to
government pressure on the media; it was
rumoured that the National Party government had
initiated secret discussions with the then-banned
African National Congress (ANC). Despite the
positive political indications, anti-media laws were,
however, still in place and the harassment of
journalists continued to dominate the media
landscape. 7 Cognisant of imminent changes in NP
policy and in partial response to plans to
reconstruct the emergency regulations, the “Save
the Press” committee convened a conference to coordinate a campaign for press freedom and
freedom of information before the opening of
Parliament on 2nd February, 1990.
COM was launched in Johannesburg on 29 January
1990 and the launch was attended by more than
100 representatives of civil society groups. Based on
the success of previous “Save the Press” initiatives,
the meeting was convened with the aim of
“launching a new and intensive campaign with the
immediate objective of having the media
emergency regulations lifted and the broader
objectives of fighting the many other restrictions
on the press.”8 The campaign’s demands were:
• The lifting of the State of Emergency in its
entirety, since the freedom of individuals cannot
be divorced from freedom of expression;
• The repeal of all censorship laws;
• A moratorium on all prosecutions and the setting
aside of all convictions of journalists for actions
taken in the course of their work;
• The removal of government control of television
and radio and the placing of such control in the
hands of the public; and
• The opening up of official sources of information.
One of the main items on the agenda was the renaming of the Save the Press campaign as the new
campaign would require a more dynamic name
that reflected its aims of freeing the media from
government control. Hence the re-naming of the
campaign to the Campaign for Open Media and
the adoption of a constitution. The founding
The Broadcasting Independence Handbook: Lessons from the South African experience
organisations were the Anti-Censorship Action
Group (ACAG), the South African Union of
Journalists (SAUJ), the Association of Democratic
Journalists (ADJ), the Media Workers’ Association
of South Africa (MWASA), and the Conference for
Independent Editors (CINE). The Film and Allied
Workers Organisation (FAWO) 9 and the Congress of
South African Writers (COSAW) later joined COM.
The organisation that evolved was a non-aligned
lobby group that would maintain its independence
from both government and commercial interests.
The spirit of the campaign was summed up by then
Interim Chairperson of the Save the Press
committee, Raymond Louw:
What is new is that we are trying to give form
and substance to a campaign to make the public
more aware of what they are being deprived of
and the government more and more aware of
the illegitimacy of its actions in keeping
information from the public. We intend to keep
the campaign operating at a pitch that will
make this government realise that the flow of
news, information and opinion is an inalienable
human right enjoyed by millions of other people
in the world and that to continue to deprive the
South African people of that right is not only
wrong but that it is counter-productive and
hopefully painful to it. 10
Various proposals were put forward with regard to
activities that the newly formed anti-censorship
campaign could engage in; these ranged from
working with theatre groups to public screenings
to open defiance and press campaigns. However, it
was only in August 1990 that the new campaign’s
skills were put to the test.
The People shall govern: a civil society
response to the Viljoen Task Group
COM’s 12-person committee spent the next few
months recruiting support for the campaign. The
committee made a representation to the South
African Media Council regarding a review of
legislative restrictions to free media reporting. The
Campaign’s most famous activity was the 25th
August 1990 “March on the SABC” in which 1,000
people marched to the headquarters of the SABC
to protest against state-controlled broadcasting.11
The march, which brought together progressive
cultural organisations, was initiated by FAWO but
took place under the banner of COM. It was
supported by organisations such as the Congress of
South African Trade Unions (COSATU), the ANC,
Black Sash, MWASA, COSAW, ADJ, SAUJ, and the
United Democratic Front (UDF), amongst others.
The march was in reaction to the state-appointed
Task Group into the future of South African
broadcasting, the so-called Viljoen Task Group. 12
COM presented a comprehensive memorandum to
SABC Chairperson and Chairperson of the Task
Group, Professor Christo Viljoen, detailing its
objections to the aims, composition and processes
of the Task Group.13 The Viljoen Task Group was
criticised for its narrow composition and for lack of
consultation with all stakeholders. 14 Furthermore, it
was pointed out that Professor Viljoen was a
member of the Broederbond, a secret Afrikaner
organisation, and that its secret deliberations were
counter-productive to the ideal of creating a new
and open society. The report was further criticised
for its slant towards the privatisation and
commercialisation of a national asset, the SABC.
For the Mass Democratic Movement, the main
critique of the Viljoen process was that:
The appointment of an unrepresentative task
force with a hidden agenda to privatise
broadcasting goes against the spirit of
negotiation politics. Public broadcasting is an
institution of national and constitutional
importance. Hence decisions on the restructuring
of the sector need to be taken democratically. 15
COM presented the following demands to the
SABC:
• The dissolution of the government-appointed
task force;
• A halt to unilateral restructuring of broadcasting
by the government and the SABC;
• The establishment of an independent board to
ensure impartiality of the SABC during the
transitional period;
• The extension of the right to freedom of
association to SABC employees;
• The lifting of the ban on ‘political ’ South African
films;
• The implementation of affirmative action
principles in terms of recruitment policies; and
• Open debate on the future of broadcasting in
South Africa. 16
The march resulted in an exchange of letters
between COM, the SABC and the government.
Viljoen’s response on the contentious issue of the
Task Group’s lack of representation was that “the
Task Group does not comprise of representatives of
different organisations, but consists of people who
were appointed in their personal capacity.” 17 Thus,
the SABC sought to de-politicise the broadcasting
restructuring process by emphasising that, “This
Task Group has to investigate technical and
specialised aspects of broadcasting rather than
The Broadcasting Independence Handbook: Lessons from the South African experience
3
political, constitutional or social issues.”18 COM
argued in its response that broadcasting was
fundamentally a political issue considering that the
scope of the work of the Task Group necessitated a
recommendation on the future controlling
structures of the SABC, as well as a legislative
review on broadcasting laws in South Africa.19 COM
also noted its dissatisfaction with Viljoen’s response
to two of its most central questions: the
accountability of the public broadcaster during the
transition period, and the democratisation of
public radio and television.
The government refused COM’s repeated requests
for a meeting and loftily replied that the Task Group
was not an SABC Task Group but a government
appointed body to review all aspects of
broadcasting in South Africa. The Home Affairs
Minister, Gene Louw, would have COM believe that
it was normal for the government to conduct such a
review. The Task Group called for interested parties
to make submissions; progressive groups declined
for fear of legitimising the Task Group’s existence. 20
The 25th August 1990 was instrumental in putting
on the public agenda the question of who would
control radio and television services during the
transitional period. The march also served as
confirmation that the MDM had accepted the issue
of broadcasting as a legitimate site for struggle. For
COM, the interaction with the SABC and
government gave its fledgling advocacy campaign
greater impetus and authority.
Although the Viljoen Task Group refused to accede
to any of the fundamental democratic processes
proposed by COM (i.e. an open and public review
process), it responded to some of COM’s criticisms
by appointing three additional ‘independent’
members to the Task Group, albeit the new
appointees were not without their fair share of
controversy.21 COM could count as a small victory
the press conference and ‘open’ meeting held by
the Task Group in November 1990 - an
unprecedented move as government agencies had
never before held meetings where members of the
public were present.
The shape and role of the media in a new
South Africa
COM had succeeded in drawing attention to the
need to democratise the state broadcaster. It had
succeeded in mobilising a broad base of support for
its universal demands for a free SABC and ended its
inaugural year with a national conference on “The
Shape and Role of the Media in a New South
4
Africa.” Co-hosted by the Institute for a Democratic
Alternative for South Africa (IDASA), the
conference brought together members of political
organisations, academics, journalists, members of
progressive cultural groupings and invited three
speakers from the SADC region.22 The topics
included media ownership, the notion of an open
media, media rights, media ethics, the media’s role
in society, and control and access of the media. 23
This conference served as a stock-taking exercise on
the deficiencies of the existing media system in a
democratic landscape. For the campaign, it
highlighted the issue of the SABC and the Task
Group and was useful in facilitating various
stakeholders’ articulation of their visions for a
democratic media in South Africa.
Jabulani! Freedom of the airwaves
The next major conference, Jabulani!, formulated
principles for achieving the goals of an
independent media in the new South Africa.
The Jabulani! Freedom of the Airwaves Conference
took place in Doorn, the Netherlands, in August
1991. It was organised by the anti-apartheid
organisation, Omroep Voor Radio Freedom, the
African European Institute, the Dutch AntiApartheid movement and the Dutch government,
and was facilitated by COM, the ANC’s Radio
Freedom and FAWO. Conference participants
included representatives of major trade unions,
cultural organisations, commercial and community
media players, journalists and academics. 24
Jabulani! was the first major attempt at drawing up
specific guidelines for freeing the media from party
political control. The conference recommended
that there should be three tiers of broadcasting in
South Africa: public, commercial and community.
The conference made explicit recommendations on
how the state should surrender control of the
airwaves during the transition period: 25
• Firstly, the proposed All Party Conference (APC)
should appoint a Commission of Inquiry into
broadcasting; the outcome of which would be a
set of recommendations on the re-regulation of
broadcasting under a democratic constitution;
• Secondly, the APC should simultaneously appoint
an Interim Broadcasting Consultative Committee
(IBCC) that would draft a code of conduct for the
SABC during the transition; and
• The conference further recommended that COM
set up an Independent Media Monitoring
Commission to monitor the media and publicise
its findings.
The Broadcasting Independence Handbook: Lessons from the South African experience
The Jabulani! recommendations set the terms of
debate for the next rounds of policy discussions
and provided a solution to the media policy
vacuum that existed at the time.26 Jabulani! directly
addressed the challenge of how to deal with the
control of broadcasting services in the interim
period. The ANC, in anticipation of its role in the
proposed multi-party negotiation forum, held a
National Media Seminar in November that year.
The seminar consolidated the ANC’s position on
broadcasting policy and culminated in the
production of the ANC’s Media Charter.27 Louw
(1993:231) describes the Charter as a “philosophical
statement of intent“; it was a long-term document
drafted with the intention of articulating the
party’s guiding principles towards an independent
media system.28 The Media Charter prefaced the
conference resolutions which dealt more directly
with the question of broadcasting during the
transitional period. The proposals were written
with a view to highlight the illegitimacy of the NP
government and the unfair advantage that it
would hold during the transitional period if the
status quo remained. The ANC’s guidelines for an
impartial media followed the Jabulani!
Recommendations that the All Party Conference
should appoint a Commission of Inquiry that would
solicit public input on the re-regulation of
broadcasting during the interim period.29 The
conference also agreed on the establishment of an
Interim Broadcasting Consultative Committee
(clause 4) as well as an Independent Broadcast
Monitoring Group (clause 5).
The ANC conference passed a resolution on the
development of a broad-based broadcasting
campaign that would:
• Oppose the privatisation of the SABC and TBVC
(Transkei, Bophuthatswana, Venda, Ciskei)
broadcasters;
• Oppose any unilateral restructuring or reregulating of the broadcast sector by the
National Party Government;
• Demand the free, fair and impartial flow of
information on broadcast media; and
• Free the airwaves. 30
Codesa
Greater policy clarity on the issue of broadcasting
in the transition was achieved in 1991. The MDM
had reached consensus on the need for an
independent broadcasting service that would be
overseen by an independent regulator. To achieve
this objective, it became necessary to ensure that
discussions around the broadcasting sector be
brought into the mainstream of the multi-party
negotiation forum.
The highly anticipated multi-party negotiating
forum, known as the Convention for a Democratic
South Africa (CODESA), assembled on 20th
December, 1991. Despite the fact that multi-party
political discussions were a novel development in
South African political history, many political
leaders entered the talks with optimism and the
expectation that the forum would provide a
prompt resolution to the daunting task of creating
a new and democratic South Africa.
The issues under negotiation were entrusted to
five working groups: 31
Working Group 1
to formulate a plan for the creation of a climate of
free political participation;
Working Group 2
to negotiate the principles of the new constitution
and the process whereby it would be drafted;
Working Group 3
to negotiate the manner in which the country
would be governed during the introduction of a
new constitution;
Working Group 4
to negotiate the state of the TBVC states in
conformity with the new constitution; and
Working Group 5
to give documentary form to the consensus
reached in the first four groups.
Broadcasting matters fell under the ambit of
Working Group 1: Sub-group 3 (WG1SG3), issue
1.1.4(f), “Political neutrality and fair access to
State-controlled/statutorily instituted media
(particularly the SABC and SATV), including those
of TBVC states.” COM used the opportunity to
present its views on an acceptable broadcasting
order to a more representative forum. It submitted
a copy of its comments on the Viljoen Task Group
to CODESA, stating:
[W]e have decided that the proper forum for
instituting an inquiry into broadcasting is not
the present government but the Convention for
a Democratic South Africa and that whatever
decisions are required to implement a new
broadcasting structure should be made by the
new government. 32
By that time, the ANC was ready for multi-party
negotiations on the control of broadcasting
services. The illegitimacy of the NP government
and its biased influence over the South African
media had been established, resolutions to the
question of how to deal with the media in the
The Broadcasting Independence Handbook: Lessons from the South African experience
5
short-term had been provided and, finally, the ANC
indicated that it would mobilise popular support
to achieve its goals. In a well-articulated
presentation to WG1SG3, the ANC said:
State-owned or state-controlled or statutorily
instituted media in South Africa and in the
TBVC territories fall under the direct or indirect
control of a few parties only here at CODESA.
Undoubtedly, these media being the largest
single medium of communicating information,
the parties exercising such control have a
monopoly on reaching millions of South African
who are the recipients of their services. The end
result is that the people unavoidably receive
distorted and skewed information, see and hear
only that which has been selected for them by
these parties directly or indirectly. Besides
seriously restricting the free flow of
information and opinion, this has seriously
eroded public confidence in the reliability and
impartiality of the information doled out by the
public media. The capacity of the citizen to
make informed choices and participate actively
in society’s decision-making process, is also by
and large heavily hamstrung.
This untenable situation has to change. The
public media, the property of the people of
South Africa, should be placed in the hands of
an independent authority in the interim. The
ANC recommends that CODESA should consider
establishing such an interim, independent
authority which will regulate broadcasting
during the period of transition and ensure
fairness, neutrality and impartiality in this
regard. 33
The National Party, in responding to issue 1.1.4(f)
called for the status quo to be maintained. It
argued that:
The SABC is free from government involvement
or interference in any form whatsoever. The
SABC is not even funded by the SA Government.
There is no justification whatsoever for any
inference to be drawn that there is bias towards
the Government solely because the government
appoints the members of the SABC Board. The
mere fact that the government makes certain
public appointments cannot mean that such
body is contaminated as a result thereof.
As the National Party is satisfied that the aims
with regard to neutrality and impartiality can
be achieved without any modification to the
present structure the status quo should be
maintained as an interim measure. This should
6
not in any way hamper the political processes. 34
The NP maintained its ambivalent position
throughout the negotiations and was later to
cause havoc during a crucial period of the
transformation process.
Free, Fair and Open - South African Media
in the Transition to Democracy
COM convened its next major conference, “Free,
Fair and Open”, to coincide with the opening of
Parliament in February 1992. Hosted by the
University of the Western Cape’s Centre for
Development Studies (CDS), the conference’s major
objective was to halt the government’s unilateral
restructuring process and to ensure broadcasting
issues would be addressed by the multi-party
forum.35
Free, Fair and Open was convened specifically to
formulate proposals on how the mass media could
contribute to a climate of free political activity
during the transition period. Its key objectives
were to reach agreement on:
• Legislative and constitutional changes necessary
for freedom of information during the transition;
• The depoliticisation of SABC control; and
• Monitoring of the media during the transition
period.
The conference solicited input from the major
political parties on their views on the media in
transition. It was decided that the SABC would be
invited to address the conference but would not
be granted a decision-making position with regard
to formulating resolutions.36 The conference
focused on the following themes: 37
• Political views of the media in transition;
• Legal and constitutional considerations for a free
media in the transitional period;
• The role of the electronic and state media during
the transitional period;
• Media ethics: mechanisms to prevent bias and
distortion; and
• Monitoring of the media during the transitional
period.
The conference then passed recommendations on
four key areas that would facilitate the adoption
of the principles of freedom of information and an
accountable broadcasting service by the CODESA
forum.38 These were recommendations on:
1. the independence of the SABC from all political
parties;
2. the need for a regulatory structure that would
draft legislation on broadcasting;
3. the re-integration of the former TBVC
The Broadcasting Independence Handbook: Lessons from the South African experience
broadcasting services into the national
broadcasting service; and
4. a moratorium on unilateral restructuring by the
SABC.
COM submitted its proposals to CODESA on
February 5, 1992, recommending strongly that the
proposals and conference resolutions be
implemented by March 31, 1992. 39
In its submission, COM brought before the
convention three matters requiring urgent
attention:
1. the existing legal and constitutional restrictions
on the free flow of information and opinion;
2. the unrepresentative and non-independent
nature of existing structures of regulation and
control over broadcasting and;
3. the absence of any broadly accepted processes
for ensuring fairness and limiting distortion in
media coverage.
COM recommended that point 3 should not be
discussed at CODESA as “it would be inappropriate
for a body of party-political and state interests,
such as CODESA, to play any direct role in
implementing the proposals.”
COM followed up on its submission to CODESA
with a request for an oral presentation to the
Working Group. It also made another submission to
WG1, detailing the existing statutory limitations to
media freedom.
Deliberations at Free, Fair and Open had created
the expectation that CODESA would fast-track
discussions on broadcasting but this was not the
case. It became evident that multi-party talks would
not provide an immediate resolution to the
problematic issue of broadcasting in the transition
period.
Frustrated by the lack of progress, FAWO initiated
discussions on holding a picket at the start of
CODESA 2 in May. This idea was welcomed by COM
in light of the fact that the only agreement that
had been reached thus far by Working Group 1 was
that it was necessary to establish some form of
independent broadcasting authority that would be
responsible for the issuing of licences.40 COM
continued in its efforts to influence WG 1 and
submitted a report on the results of a monitoring
exercise of SABC TV1 news coverage; it also voiced
its dissatisfaction with meetings that the Working
Group’s representatives had been holding with the
SABC.
The suspension of talks the following month caused
a hitch in the process, according to former COM Co-
ordinator, Jeanette Minnie.41 Horwitz (2001:140),
however, views the break-down as a positive
development for the MDM as it provided it with an
opportunity to re-organise its strategy around the
issues.42
The Campaign for Independent
Broadcasting (CIB)
With the term of the existing SABC Board due to
expire in March 1993, there was increasing concern
within the progressive movement that the
suspension of talks would pave the way for a new
NP-appointed board that would serve another fiveyear term. COM felt that NP control of the SABC
during the elections would jeopardise any chance
of free and fair electioneering.43 The ANC had
allegedly entered into bi-lateral discussions with
the government over SABC editorial policy in
September, a move that was severely criticised by
the MDM. COM’s members felt it was time for a
civil-society led initiative that would ensure the
integrity of the broadcaster during the elections.
Besides the political fiasco, the campaign had lost
some of its energy and it was widely acknowledged
that the campaign needed a fresh approach. A
workshop was convened on 14 November and was
envisaged as a working meeting that would
address itself specifically to the issue of the
transitional control of broadcasting services.
Thus the Campaign for Independent Broadcasting
(CIB) was born. It was agreed that the CIB be
constituted as a broad coalition of civil society
organisations. There was some level of debate
around the role and position that political parties
should assume in the new coalition and it was
decided that political parties would be allowed to
join the CIB but could not sit on the steering
committee.44 Participants agreed that the campaign
would:
• oppose the unilateral restructuring of the SABC;
• address the issue of control of the SABC ;
• call for the appointment of a representative SABC
Board;
• call for the establishment of an (interim)
Independent Broadcasting Regulatory Authority;
and
• call for the re-integration of the TBVC
broadcasters into the national public broadcaster.
Campaign strategy
Participants at the CIB’s first plenary agreed the
campaign should organise itself around the
31st March deadline. The suggested programme of
The Broadcasting Independence Handbook: Lessons from the South African experience
7
and publicising the SABC’s commitment to a
transparent appointment process;
• The SABC would provide details on its ‘affirmative
action’ strategies.
action tabled at the first plenary included:
• the issuing of a common declaration;
• public protests;
• withdrawal of advertising;
• television licence boycott;
• international pressure.
A steering committee was set up consisting of two
representatives from each of the SAUJ, MWASA,
COM, COSATU, NECC and SACC. FAWO, PAWE, and
COSAW were each allowed one representative.45
There was also agreement that the steering
committee would report directly to the coordinating committee, which was comprised of one
representative from each organisation willing to
sign the declaration. The steering committee was
given the mandate to arrange meetings with the
SABC management and the Minister of Home
Affairs.
The CIB was officially launched on 25th November
1992 and it launched the declaration on
independent broadcasting on the 1st December.46
The SABC responded to the establishment of the
CIB with an ironic letter sent to COM. SABC Group
Chief Executive, Harmse, wrote:47
I have heard via the grape-vine that you are
planning a COM session on Saturday 14
November, and that certain sensitive issues
affecting the SABC directly will be discussed.
In these changing times in South Africa where
negotiation and consultation has become the
order of the day, we find it strange that COM
should contemplate instituting mass action and
disruptive activities against the SABC unilaterally
without having discussed the issues with the
SABC management, not taking into account the
many positive changes which the SABC is
implementing.
Therefore I should like to convey the following
to you:
1. The SABC should and wishes to be part of any
future planning with regard to broadcasting.
Closer liaison with COM should therefore be
established.
The proposed SABC/COM meeting took place on
4th December, 1992 culminating in the following
agreement:
• The SABC would make a public statement in
support of a transparent, public process to
appoint a new Board along the lines outlined by
the Campaign for Independent Broadcasting;
• The SABC would produce a programme to be
broadcast, outlining the proposals of all parties
8
There was clearly a shift in SABC strategy. The
Corporation, fearing the threat of strike action, was
at pains to be perceived as supporting the
democratic process.48 The Corporation had also
taken the initiative to revise its corporate code to
align it with democratic sentiments.
The first meeting between the CIB and Home
Affairs Minister, Louis Pienaar, took place on
9th December, 1992. It was agreed at that meeting
that a joint CIB/Home Affairs working committee
would be established to discuss CIB proposals on
the appointment of a new Board and that the joint
working group would meet before the end of
January 1993. The next day, 10th December, the CIB
met with Harmse, outlining the need for an
independent and apolitical board and agreeing to
hold a follow up meeting.
The CIB’s steering committee then enlisted the
assistance of two legal consultants to devise an
appointment procedure for the SABC Board. The
two consultants, David Dison and Michael
Markowitz, based the draft proposal largely on the
Free, Fair and Open resolutions. The draft
procedure was sent to the Home Affairs Minister on
18th December. The proposal recommended that: 49
1. The State President should publicly request the
two CODESA Chairpersons, Justice Mohamed
and Justice Schabort, to inform political parties,
political organisations, and other interested
parties that a new procedure for the appointment of the SABC Board is to be set in motion.
2. Each political party should then be given a week
to nominate ten eminent South Africans to
serve on the SABC appointment panel. The
proposed closing date for nominations was
8th February, 1993.50
3. The CODESA Chairs should select and establish
the appointment panel by 15th February, 1993.
4. The two judges should concurrently call for
nominations for the new SABC Board.
5. The appointment panel should comprise of
seven eminent South Africans who may not
have any financial interest in communications
related matters, nor should they hold office in
any political party.
6. The panel should continue to receive
nominations until 22nd February, 1993 and
should, by 1st March, 1993, draw up a shortlist
of potential Board members. This list should be
made public.
The Broadcasting Independence Handbook: Lessons from the South African experience
7. The panel should then conduct public hearings,
allowing interested parties the opportunity to
make submissions.
8. The hearings should be completed by
15th March and the final selection made by
22nd March, 1993 and be formally handed over
to the State President to be gazetted.
The proposal was widely circulated and approved
by the ANC which used it as a guide to inform its bilateral discussions with the NP over the proposed
issues. The ANC did, however, recommend that the
appointment panel should be established through
a university or media agency.
On 6th January, 1993, the joint CIB/Home Affairs
working group met for the first time in Cape Town
to discuss the proposal with government
representative Jack van der Merwe. The CIB voiced
its dissatisfaction over the fact that the Minister
had reneged on the initial agreement by
unilaterally issuing a call for nominations by
18th January. Although the government agreed
that 1) it would not would not act on any
nominations received but that these nominations
would be handed over to the new structure; 2) it
would accept the broad outline of the CIB’s
proposal subject to Minister Pienaar’s approval; and
(3) no further public statements would be issued,
the transgression was an indication that the
government had not entered into discussions with
the CIB in good faith.51 The government cancelled
the next meeting (scheduled for 18th January),
prompting the CIB to convene a media conference
on the 27th January to draw attention to the fact
that the government was deliberately trying to
sabotage the process of appointing an
independent board.52
With just two months left before the term of the
board expired, the CIB held a meeting of its
affiliates on 30th January. It also circulated
nomination forms to “stimulate critical thought
about potential board members.”53 It sent a letter
to the State President requesting a meeting to
discuss the lack of progress and received a reply
from the President’s office that he could not
intervene until the Home Affairs Minister, who “is
conducting extensive consultations with regard to
the appointment of a new board for the South
African Broadcasting Corporation,” had made his
presentation to government.54
ANC bi-laterals
The government made it clear it would no longer
discuss the problem of broadcasting with the CIB.
This did not end the CIB’s campaign as ANC
negotiators provided a strategic link between the
CIB and the government. An understanding of the
exact nature of the CIB/ANC collaboration remains
a contested issue. The CIB’s Jeanette Minnie and
Raymond Louw maintain that the ANC was
mandated by the CIB to act as its representative.
The ANC’s Joel Netshitenzhe, however, maintains
that the ANC was already a CIB affiliate and
reported back on bi-laterals as a matter of courtesy
and to gain wider support from civil society
movements.55 Whatever the relationship, the ANC
made it practice to report to the CIB’s steering
committee on the progress being made in bi-lateral
negotiations with the NP. The ANC’s first reportback was that:
• The government was dissatisfied about the two
judges kick-starting the process;
• The government wanted the judges to play a
greater role in defining criteria;
• The government would not agree to seven
panellists; and
• It felt public hearings would be too inquisitorial.56
The CIB continued with its programme of action to
publicise the campaign and pressurise the
government. It held briefings with the diplomatic
corps, faxed and phoned the State President
demanding an end to apartheid broadcasting,
released media statements, participated in radio and
television discussions, organised a picket outside the
SABC and drafted eligibility criteria for the selection
panel and SABC board.57 It also attempted to
‘nationalise’ the campaign through a series of
consultative workshops with regional affiliates.
Bi-lateral negotiations continued, hampered by the
fact that the ANC and NP could not reach
agreement on the identity and numbers of the
judges and the issue of public hearings.
On 1st March, 1993, the CIB submitted a
memorandum and two draft agreements to be
presented at the bi-laterals. Draft Agreement A
provided for the two judges to select an
appointment panel of eminent persons. Draft
Agreement B excluded an appointment process but
the CIB’s legal consultants stipulated there should
be as little deviation from the rest of the proposals
as possible, if this was the agreement that the
government accepted.58 The exclusion of an
appointment panel from the process caused an
outcry within the coalition. Trade union affiliate
NACTU said, “The ANC is a political and interested
party on the matter, and therefore mandating it to
negotiate on our behalf betrays our independence
from political manipulation and maneuvering
(sic).”59
The Broadcasting Independence Handbook: Lessons from the South African experience
9
The CIB, in turn, acknowledged that “we made a
tactical error in mandating the ANC to continue to
raise our demands in the bilaterals once the govt
refused to meet with the CIB. For this reason, the
steering committee has decided to communicate
with the ANC that unless they reach agreement on
the package which we mandated them to take to
the bilateral today the ANC should simply deadlock
on the matter of the SABC Board and refer the
matter back to the CIB.”60 This threat failed to
materialise.
Then the government, on 9th March, 1993, made a
counter-proposal that it wanted to implement on
10 March 1993. Its demands were as follows:
• The selection panel should be comprised of four
judges (the additional two to be appointed by the
NP);
• The judges would hold criteria hearings between
17-19th March;
• The composition of the board should be
expanded to 21 people;
• Only those organisations that had submitted
representations or nominations in the print media
would be allowed to attend the hearings.
The following day, the CIB, through the ANC, put
forward its recommendations to the government.
Its bottom-line position was that the two CODESA
co-chairs had to be on the selection panel and that
one of the other two judges must be black in order
to bring representivity to the panel. The CIB’s
second non-negotiable was that the interview
process had to be public (even if that only meant
that there was a media presence at the interviews).
Finally, the CIB insisted that the number of board
members could only be increased if it would not
require an extensive and time-consuming
legislative or multi-party consultative process.61
A week later, with just 13 days before the
31st March deadline, the CIB was forced to make
further compromises in an attempt to bring
resolution to the appointment process. Writing to
the ANC, the CIB conceded that it would accept the
removal of the word “public” regarding the
holding of public hearings if the principles of
transparency and openness were adhered to.
The CIB’s increasing impatience and desperation
with the process (specifically the NP’s delaying
tactics) were spelt out in its correspondence to the
ANC:62
We believe we have already made extensive
compromises on our original proposals to the
extent that some members of our committee are
disturbed at how far we have gone. What is
10
increasingly apparent to us is that no matter
how many times we agree to modify our
positions we still are unable to reach
agreement…we have delayed too long. The CIB
has not pushed ahead with a vigorous campaign
as it always seemed to appear as though
agreement was imminent (sic). That has been a
serious mistake. What we are now proposing is
that we publicly announce that we have
reached a dead-lock in the negotiations with the
State and will now push ahead with a campaign
to force the state to accede to the popular
demand for a new SABC Board.
The CIB and its affiliates then embarked on a more
vigorous campaign to draw attention to the crisis. It
organised a rally on 21st March and its affiliate,
COSATU, organised a short protest picket on
27th March.
As the 31st March deadline drew closer, the CIB
pulled out all the stops to curb the NP’s unilateral
activity. The CIB issued a statement on the day,
warning that “should the government continue to
stall, the CIB and its affiliates will take all actions
inside South Africa and internationally to force the
government to accept a democratic process.” The
government and the ANC embarked on eleventhhour negotiations during which the ANC
threatened a deadlock and mass action to force the
government to act reasonably on the matter. The
CIB also called on present board members to refuse
to accept any unilateral extension of their terms of
office.63
The result was an agreement on guidelines for the
appointment of the new SABC board concluded on
7 April 1993.64 The CIB was forced to concede on an
independent selection panel through the
intervention of the State President who demanded
a judicial panel. The final selection panel was made
up of Justice I. Mohammed and Justice P.J.
Schabort, retired judges, the Hon ex-Justices J.J.
Trengrove and G.Viljoen, advocate T.L. Skweyiya SC,
and magistrates S.K. Ndlovu and N.C. Erasmus. The
agreement made a provision for the State President
to refer back any nominees who did not meet with
the guidelines’ criteria.
The selection process
The selection panel would hold public hearings to
receive submissions on the criteria it should use for
appointing board members during May and the 21
board members would be announced by 31 May
1993. It was also agreed that hearings for shortlisted candidates would be held in public.
The Broadcasting Independence Handbook: Lessons from the South African experience
The CIB made its representation to the selection
panel on 5th May, 1993. The CIB’s submission
explained in detail that the requirements of
independence and non-partisanship should not be
construed to mean that the Board is precluded
from including members with strong and principled
beliefs (s9). The CIB also argued that only persons
with a high political profile of a partisan nature
should be disqualified from being Board members.
Furthermore, insisted the CIB, the Board should
consist of people with a demonstrated ability to put
aside their personal and political viewpoints in the
interests of the common good (s10). The CIB took
exception to paragraph 5(e) that provided for
continuity to be maintained. The CIB opposed the
inclusion of this criterion on the basis that the
process was set in motion to establish a new and
independent SABC Board. To counter NP claims for
nominees that had experience with the previous
board and whose inclusion, it could be argued,
would provide continuity, the CIB insisted this
specific criterion should be applied without
derogating from any of the other criteria.
took exception to Professor Ndebele as the Chair
because Ndebele was also Principal and ViceChancellor of the University of the North, where
ANC President, Nelson Mandela, was Chancellor.66
Two subsequent meetings took place before the
SABC Board was finalised. The State President
replaced the seven ousted candidates with Herman
Bailey, Leonard Bartell, Gertina Cilliers, Professor
Arnold de Beer, Enos Mabuza, Gordon Sibiya and
Franklin Sonn.67
Under pressure from its trade union affiliates, the
CIB’s submission called for a proviso to the
disqualifications set out in section 5(f), that would
allow at least one member of the Board to be
elected by present SABC staff.
The crisis of legitimacy deepened as the State
President appointed Dr Frederick van Zyl Slabbert
to the Chair instead of Prof Ndebele. There were
two immediate resignations from the new Board:
Franklin Sonn and Enos Mabuza refused to take up
their positions. The CIB convened several meetings
which were attended by some SABC Board
members to formulate a position and plan of action
against the State President’s decision. The CIB called
upon concerned SABC Board members to exert
pressure from within the Board for the
reinstatement of Ndebele as chairperson.
The appointment process
The panel received over 700 nominations for the
new SABC Board. It reduced this to a short-list of 86.
Members of the public were invited to lodge their
objections to the candidates before hearings were
conducted. The 86 nominees were then
interviewed, marking the first public hearings for
public office in the history of South Africa. The
panel examined the qualifications of candidates by
questioning them and raising whatever objections
it had received. Parts of the hearings were
broadcast on radio and television and reported on
by the print media. The panel then made a
recommendation on the first democratically
constituted 25-member SABC board and the names
were submitted to the State President on 21st May
for approval.65
In a meeting called by the government on 25th May
1993, the State President said he was not a rubber
stamp and he was dissatisfied with the proposed
Chairperson. He refused to endorse seven of the
nominees on the grounds that they did not comply
with the guidelines governing the appointment
procedure. He suggested alternatives to replace
those names. It was widely reported that de Klerk
SABC Board and crisis of legitimacy
De Klerk’s intervention drew widespread criticism
and caused a political fiasco. The CIB said his actions
were a breach of the requirement that “the new
board be chosen in a process independent of the
government of the day.”68 To try and resolve the
Board’s crisis of legitimacy and credibility, the CIB
and ANC called on the seven replacement
candidates to resign and called on the remaining
eighteen appointees not to take their seats unless
the original list was reinstated.
The CIB also agreed that it would embark on a
campaign to gain local and international support
for the resolution of the question of the chair and
the status of the seven excluded candidates. In its
submission to the SABC Board on 24th June, the CIB
recommended that the board itself would be the
most appropriate body to address the issues facing
it. The CIB urged the Board to “demonstrate its
ability to act independently of the government of
the day and of party political interests, and to
reverse the consequences of past party political
intervention.”69
Van Zyl Slabbert’s resignation as chairperson of the
board led to the Board’s election of Dr Ivy MatsepeCasaburri as Chair and Colin Hickling as Deputy on
4th August 1993. The CIB then proposed, in its
presentation to the Board, that the seven members
be re-instated, necessitating the expansion of the
board to 32 members. However, the Board decided
The Broadcasting Independence Handbook: Lessons from the South African experience
11
to retain its composition and presented its choice of
chair to de Klerk, threatening to disband should he
not approve its recommendations.
De Klerk accepted their decision and so did the CIB
which felt that although the Board remained silent
on the issue of the ousted seven, it had
demonstrated its independence from the State
President.70 With election campaigns already in
progress, it was expedient for all parties involved
that the new Board set about the business of
restructuring the SABC to ensure an independent,
impartial news and current affairs service that would
engender free, fair and open elections in 1994.71
The establishment of an independent board for the
SABC was an achievement for independent
broadcasting. However, it was not an unqualified
success. Members of the CIB believed that the
principle of public accountability, which was an
inherent assumption in the setting up of a new
board, was compromised by the lack of formal
procedures that would enable the public to have
access to the new Board.72 Media freedom
organisations such as the FXI continue to call for
increased public access to the SABC Board.73
The Independent Broadcasting Authority
Proposals for an independent regulator to control
broadcasting in South Africa were mooted as far
back as Jabulani! and Free, Fair and Open but the
MDM regarded an independent SABC as a more
worthy campaign because it was a deadline issue
that could be addressed without having to embark
on a protracted legislative process.74 With
negotiations already underway, it was felt that the
establishment of a free and impartial public
broadcaster (through an independently elected
and representative SABC board) would be a better
guarantor of free and fair elections.
Initial discussions around an independent
broadcasting authority came from the NP camp.
Chapter 9 of the Viljoen Report provided for a
broadcasting regulatory body whose mission would
be to ensure that broadcasting in South Africa
served the public in a way that advanced the ideals
of a democratic, non-racial, non-sexist and
prosperous society.75 In what some commentators
regard as progressive for an apartheid state organ
document, the Viljoen Report noted that a
potential regulatory body could function properly
only if the following principles prevailed:
• A new South African constitution should
guarantee freedom of speech, specifically with
regard to freedom of broadcasting;
12
• Regulation of broadcasting by an independent,
depoliticised, impartial body was essential;
• Viewers and listeners should be given a greater
choice and a diversity of opinion through fair
competition.76
The Viljoen Report did, to a certain extent, indicate
far-sighted thinking (specifically regarding an
independent regulatory authority). Its proposed
missions and goals for such an authority (some of
which were incorporated into the final IBA Act)
included:
• The advancement of a democratic, healthy,
dynamic, competitive and prosperous broadcasting
system
offering
good
quality
programmes;
• Taking into account the development needs of
the people with due regard for equal
opportunities, fostering of common values and
goals, and acknowledgment of the rich diversity
of cultures and languages in South Africa;
• Ensuring that the broadcasting industry
maximised and fostered local content and created
employment.77
The MDM’s policy position on an independent
regulator, articulated at the Jabulani! conference in
August 1991, exhibited a general agreement with
some of the Task Group’s recommendations.
Jabulani! had proposed that the All Party
Conference (APC) should appoint an Interim
Broadcasting Consultative Committee (IBCC) that
would be responsible for the control and
regulation of broadcasting in the interim period.
The IBCC would be vested with the authority to,
inter alia, require the SABC to adhere to a code of
conduct to ensure impartiality of broadcasting
during the transitional period and would also
undertake limited re-regulation in the interests of
fair and open broadcasting.78 Professor Viljoen had
been invited to conference to participate on the
last day but failed to provide satisfactory answers
on the method and composition of the IBA, its
functions and powers, its jurisdiction, structure and
licensing policy, which prompted the conference to
note the above-mentioned points as an area for
further investigation and research.79
The Free, Fair and Open conference built on the
idea of an IBA as proposed by Jabulani! Free, Fair
and Open consolidated ideas on the appointment
process by drawing on some legislative
recommendations made by FAWO’s Broadcasting
Commission at Jabulani!80
Free, Fair and Open proposed the establishment of
an Independent Communications Authority (ICA),
The Broadcasting Independence Handbook: Lessons from the South African experience
to be appointed by the relevant CODESA working
group.81 It was envisaged that the working group
would call for nominations for ICA members from
members of political parties and civil society
according to specific criteria.82 It was also
recommended that CODESA should facilitate new
boards of control and advisory boards for all
broadcasters by March 1992.
Towards an IBA
COM’s response to the Viljoen Report highlighted
certain deficiencies related to the scope and
authority of the proposed IBA.83 COM pointed out
that the proposed regulator would be acting
beyond its mandate if it were to interfere with the
programming content of broadcasters. The MDM
also took exception to clause 9.6 (Functions of the
IBA) that required the IBA to advise government on
broadcasting matters and act as a buffer and a
channel of communication between the
government and broadcasters on the grounds that
an independent regulatory authority could not be
expected to act as a mechanism for conveying
government views. Another point of contention
was the recommendation that the IBA should
report to Parliament through a cabinet minister
responsible for broadcasting (clause 9.6.1.11). This,
it was felt, would compromise the independence of
the regulator. The method of appointment and
composition of the IBA was also a contentious
point; the Task Group recommendation was that
the State President should appoint the board
(clause 9.7). COM viewed a politically appointed
IBA as problematic as it would jeopardise the
representivity and independence of the regulatory
authority.
“Briefing documents of technical committees.”85 In
addition to establishing technical committees, the
Negotiating Council was also responsible for
electing experts to serve on the committees.
The seven technical committees were appointed on
7th May, 1993. The Negotiating Council decided
technical committees were not fora for discussing
substantive issues; each technical committee was to
prepare systematic documentation (which may
even take the form of draft legislation) for
structured discussion and amendment in the
Negotiating Council. If no agreements had been
reached on any specific issue on aspects of a
technical committee report, the issue would be
referred back to the technical committee for
further revisions which would take into account
comments made by the Negotiating Council. The
process would be repeated until participants in the
Negotiating Council reached agreement.
As with the establishment of the SABC Board, the
IBA process did not confine itself to recommended
deadlines. The FAWO Broadcasting Commission
found itself operating as the advisory committee to
the ANC DIP, with the result that the drafting of the
IBA Act was left up to ‘experts’. The Multi-Party
negotiators were engaged with more pressing
issues, such as the terms of the upcoming elections.
The IMC and Independent Telecommunications
Authority Technical Committee was made up of nine
members who were tasked with the responsibility of
drafting legislation for the proposed Independent
Broadcasting Authority.86 According to David Dison,
an advocate who served on the committee, the draft
IBA legislation passed through 17 stages and eight
drafts.87 Each draft was presented to the
Negotiating Council for comment and discussion.
Interested parties were invited to submit written
comments on the drafts and the committee received
over 55 submissions on the fourth draft of the
Independent Broadcasting Authority Bill. The CIB
was one of many external organisations to submit
comments to the drafting committee. Due to time
limitations and deadline pressure, the committee
did not accommodate oral submissions or public
hearings during the process. This despite the fact
that the obligation of public inquiries was written
into the legislation to enable interested parties to
input into policy aspects of the IBA Act that would
be dealt with once the IBA had been established,
such as: the future structure and financing of all
public broadcasting services, cross-media ownership
limitations and local content obligations.
The Multi-Party Negotiating Process, through the
Negotiating Council, agreed to establish seven
Technical Committees that would facilitate
discussion and the reaching of agreements in the
Negotiating Council. The Committee responsible
for broadcasting matters was the Independent
Media Commission (IMC) and the Independent
Telecommunications Authority Committee.84 The
basic processes within which the Technical
Committees were to operate were outlined in the
The “Special Report on the sixth draft of the
Independent Broadcasting Authority Bill”
highlighted some challenges confronting the
drafters. Given the alacrity with which the
regulatory legislation came into being, the
Technical Committee found itself in a position
where it was unable to make certain decisions
independent of other processes. For example, the
meaning of “political party” could only be defined
by the Independent Electoral Commission which
The Broadcasting Independence Handbook: Lessons from the South African experience
13
had not yet reached agreement on that point. The
drafters of the IBA Act were strongly opposed to
the proposed co-chairpersonship of the authority,
arguing that it would compromise the constitution
and functioning of the IBA.
• Ensuring equitable treatment of political parties
by licensees during an election period; and
• Ensuring an adequate complaints mechanism in
relation to broadcasting services and broadcasting signal distribution.
The IBA Bill was completed in just over three
months, from the period of the appointment of the
Technical Committee to its being assented to by the
president on 18th October 1993.88 The drafters
incorporated into the Act some of the best
international provisions. The local sound content
provision was based on the Canadian model;
licence categories were derived from the Australian
model; provincial public broadcasting was
modelled on German legislation and procedural
safeguards were adopted from the US Federal
Communications Commission (FCC).89 The IBA Act
was also the first piece of South African legislation
that contained an empowerment statute.90
The IBA was also required to develop a national
broadcasting policy framework which was, in 1996,
adopted by Parliament. The resultant ‘Triple Inquiry
Report’ contained policy proposals on the
following matters:
• The protection and viability of the public
broadcaster (which dealt with the issue of
establishing the SABC as a public broadcaster);
• Local content and South African music; and
• Cross-media ownership of broadcasting services.
The Act provided for a diverse range of sound and
television broadcast services on national, regional
and local levels. The Act, more importantly,
provided for three tiers of broadcasting services in
the country: private, public and community, as a
means of fulfilling the policy objective of a
pluralistic and diverse media sector. The IBA Act
required all broadcasters to adhere to public service
obligations through the enforcement of local
content quotas. It also contained strong crossmedia limitations in order to ensure a diversity of
ownership and a plurality of voices.91
The IBA Act set out 21 objects for the Authority
which, in addition to those outlined above,
include:
• The regulation of broadcasting in the public
interest;
• For broadcasters, when viewed collectively, to
inform, educate and entertain;
• The promotion of equal employment practices in
the broadcasting industry;
• The encouragement of the ownership and control
of broadcasting services by people from
previously disadvantaged backgrounds;
• The refraining from undue interference in the
commercial activities of licensees, whilst taking
into account the public interest;
• Promoting fair competition between broadcasting licensees;
• Promoting investment in the broadcasting
industry;
• Promoting the stability of the broadcasting
industry;
• Ensuring that licensees adhered to an acceptable
code of conduct;
14
IBA Council
The election of IBA councillors became a
controversial
matter
because
of
the
acknowledgement that the IBA process was
fraught with political implications from the start.
The appointment of the IBA Council was facilitated
by the Transitional Executive Council (TEC) which
came into being a few months before the first
general elections. The TEC appointment procedure
deviated from the principles of an open and public
appointment procedure as had been the case with
the establishment of the SABC Board. The selection
panel consisted of representatives of the various
political parties which opened the process up to
political ‘horse-trading.’
The appointment of two co-chairs was a political
compromise. The IBA was, initially, to have only one
chair, educationist Sebelesto Mokone-Matabane,
who was unanimously approved by the TEC. Home
Affairs Minister, Danie Schutte, who represented
the NP, insisted on Viljoen as co-chair. Viljoen was
then replaced with advertising executive Peter de
Klerk, who the TEC felt was a more appropriate
candidate.92 The other councillors were: media
lawyer William Lane, journalist John Matisonn, exunionist Frank Meintjies, anthropology professor
Harriet Ngubane and ANC telecommunications
expert Lyndall Shope-Mafole. ANC selector, Pallo
Jordan, expressed some dissatisfaction with the
candidates because he felt the group was not
representative in terms of race and gender.93
The IBA process was not without its fair share of
criticism. Apart from the question of the joint
chairs, some critics pointed out that the IBA’s
jurisdiction was limited by the inclusion of the
“grandfather clause” protecting the M-NET licence
”under the existing conditions” for a period of
The Broadcasting Independence Handbook: Lessons from the South African experience
eight years. The composition of the IBA Council
itself was perceived as a weakness as the councillors
lacked experience of broadcasting. Horwitz
(2001:148) notes that the creation of a permanent
regulatory body exceeded the mandate from COM
and CIB, which called for an interim Independent
Communications Authority. The creation of a
permanent IBA was inappropriate in Horwitz’s view
because it was not based on a thorough democratic
framework.94
Conclusion
The media policy vacuum that existed in the 1990s
paved the way for greater interaction between
political
parties
and
progressive
media
organisations. The newly created broadcasting
dispensation was the result of a series of
compromises between the outgoing National Party
and the incoming African National Congress.
Discussions were, it could be argued, mediated by
the post-social democratic movement that wanted
to establish a broadcasting system that was
independent from state and commercial
interference. The NP, wary of a post-election ANCdominated SABC, entered into protracted
negotiations with a view to maintaining its power.
The ANC, fearing an NP-aligned SABC during the
elections, initially wanted to wrest control from the
government and to create a more ANC-aligned
SABC that would serve the party in a similar
fashion. The ANC, however, allowed the MDM to
guide it towards a more moderate policy position
that ignored centralist desires for total control over
the airwaves.
This relationship between the ANC and MDM was
conducive to participatory decision-making; civil
society organisations were able to impact on the
policy-making process, either directly through
engagement with the relevant power structures or
indirectly, through input into the ANC policy
formulation. The Campaign for Open Media (COM)
and the Campaign for Independent Broadcasting
(CIB) became the main fora for discussing the
democratisation of South African broadcasting.
Progressive civil society movements facilitated
independent broadcasting in the country through
the establishment of the first independently
appointed SABC Board and the establishment of an
independent regulator to ensure a diversity and
plurality of voices. The progressive movement also
instituted the practice of holding public hearings
for public office in the country. The current SABC
board nomination process is facilitated by the
Parliamentary
Portfolio
Committee
on
Communications, which receives nominations from
the public, holds public hearings and presents a list
of recommended names to the President for
appointment. This lends greater credibility to the
Board but limits the participation of working class
citizens, thereby perpetuating an elitist system of
democracy.95
Over a decade after the democratising of
broadcasting in South Africa, several issues remain
unresolved. Although the SABC and IBA processes
created a space for civil society input, media
activists have taken the SABC to task over the
public’s lack of access to the Board and have
questioned the Board’s accountability to the public.
Institutionally, the SABC has been transformed
from a state to a public broadcaster but the SABC’s
current funding model (over 80 percent of its
revenue is derived from advertising) precludes it
from becoming a truly public broadcaster as it finds
itself unable to meet its public service obligations.
The IBA found itself in a similar funding
conundrum and had to significantly curtail its
operations due to lack of adequate funding.
The present government is exhibiting less tolerance
for criticism and is showing signs of wanting to
revert to a centralist command doctrine. Over the
years, there have been two major attempts at
increased control and undue external interference
in the public broadcaster’s editorial content. In
August 2002, the government proposed
amendments to the 1999 Broadcasting Act through
the Broadcast Amendment Bill. The proposals, inter
alia, sought to grant the Ministry of
Communications the authority to approve the
SABC’s editorial and financial policies, a move that
was severely criticised by media stakeholders. The
government retracted this particular requirement,
leading to agreement that the SABC’s Policies
would be overseen by the IBA’s successor, the
Independent Communications Authority of South
Africa (ICASA), although the SABC retained the
right to finalise the Policies.
The SABC, in accordance with section 6 of the
amended Broadcasting Act, developed Draft
Editorial Policies for public comment.96 The section
on ‘Editorial Responsibility and Upward Referral’
raised the ire of media activists who viewed the
provision for the SABC CEO to exert editorial
authority and control over news as undue
interference in the normal operations of news
production. This section effectively makes the CEO
the Editor in Chief of the SABC. This section, when
read in conjunction with other sections on
‘Mandatory referral’, raises serious questions of
The Broadcasting Independence Handbook: Lessons from the South African experience
15
editorial independence and undue interference by
the CEO.
The above-mentioned cases illustrate that the
‘independent’ status of the broadcaster and
regulator exist as institutional rights but that the
process of transforming broadcasting in South
Africa is not necessarily a guarantor of freedom of
expression or editorial independence. This matter
will be elaborated on in the remaining sections. A
challenge confronting decision-makers and policymakers is to ensure that the SABC and ICASA are
sufficiently resourced in order to meet their stated
objectives. The space still exists in the South African
broadcasting sector to create a more vibrant and
dynamic media industry through the equal
participation of its citizens, especially insofar as the
public broadcaster is concerned.
Discussion points
• Civil society advocacy was central to the
transformation from state to independent
broadcasting. However, it would seem that civil
society lost control of the process once the issue
of broadcasting entered the party-political
negotiations phase, leading to outcomes that the
CIB was not entirely happy with. How should civil
society remain engaged in a process once it is
taken over by political parties?
• The CIB experience raised the important question
of how to engage an illegitimate government,
particularly in situations where the government
claims the right of final decision-making about
processes like the appointment of the SABC
Board. The fact that the government retains the
power of veto over any democratic decisions can
threaten to subvert the whole process. How could
this problem of overall political control over the
transitional period be dealt with?
• There are real benefits to organising a broad civil
society front to ensure the transformation of
broadcasting. If negotiations threatened to reach
deadlock, as was the case in relation to the
appointment of the first independent SABC
Board, the coalition (in this case the CIB) could
mobilise its constituency to engage in mass action
to ensure that it was taken seriously. How is it
possible to ensure that all mass organisations
remain mobilised, since negotiations are
inherently disempowering as they generally
involve the resolution of issues by small
negotiating groups and technical committees?
• The coalition brought together civil society
organisations outside the SABC as well as trade
unions inside the SABC. This coalition was
16
important in that it ensured that pressure was
brought to bear both from without and within.
How possible are such alliances in countries where
media unions are not allowed in the state media?
• The CIB experience underlined the possibilities
and problems attached to civil society cooperation with political liberation movements.
The CIB chose to use the ANC as its mouthpiece in
multiparty negotiations, yet there seemed to be a
disagreement between the CIB and the ANC
about precisely what this meant. The CIB
considered the ANC to be mandated to represent
particular positions, while the ANC considered
itself to be a contributor to the CIB, but not
necessarily bound by its decisions. It would seem
that this relationship was not clarified, which led
to conflict between the CIB and the ANC about
who was controlling the process from the
liberation movement’s side. The CIB’s use of the
ANC also alienated other organisations aligned or
sympathetic to other political tendencies in the
liberation movement, as well as organisations
which
considered
themselves
politically
independent. How should broad coalitions relate
to political parties?
• Insufficient provision was made for accountability
mechanisms for the SABC Board. This meant that
once board members were in office, there was
little incentive for them to account to the
constituency that brought them to office. The rise
to power of the ANC also meant that civil society
organisations relaxed, leading to the demise of the
CIB. This further ensured that little backup support
came from civil society once the new Board was in
office. If a transformation process is to be deep
rooted, it needs popular mobilisation even after
the political transformation has taken place. How
does one ensure that mass organisations remain
mobilised after the political transition, when the
real nuts and bolts of institutional transformation
of broadcasting are worked out?
• Insufficient attention was paid to the IBA process,
which tended to be left in the hands of ‘experts’.
This lack of popular participation was also evident
in relation to the appointment of the IBA Council,
which emerged from negotiations in the TEC. This
was a significant weakness, as the appointment
procedure lacked the transparency and public
participation of the SABC Board. It also
entrenched a horse-trading approach to
appointments from the start, where party
political appointments were made and
opposition parties conceded candidates because
they wanted to ensure their own candidates got
in. This was to set a poor precedent for the future.
The Broadcasting Independence Handbook: Lessons from the South African experience
2
PART
Post apartheid broadcasting regulation:
An overview of the independence of the IBA and ICASA
The previous section focussed on the history of the
campaign for independent broadcasting in South
Africa. This section focuses on the extent to which
the objective of the CIB to establish an independent
broadcasting regulator was achieved in postapartheid South Africa. This section considers the
vexed question of independence in relation to
communications regulation. It addresses the issue
of whether the South African communications
regulator, the Independent Communications
Authority of South Africa (Icasa), is independent
enough and also considers the lessons to be drawn
from attempts to establish an independent
communications regulator.
What is meant by ‘independence’?
Chapter 9 of the South African Constitution
establishes a number of statutory institutions to
bolster Constitutional democracy and to assist
Parliament in its oversight function of the
Executive. These institutions were included in the
Constitution as their independence had to be
established at the highest possible level of
lawmaking. Their role as constitutional watchdogs
would have simply been impossible without this
strong guarantee.
According to Section 181 of the constitution:
(2) These institutions are independent, and
subject only to the Constitution and the law, and
they must be impartial and must exercise their
powers and perform their functions without
fear, favour or prejudice.
In Chapter 9, the drafters made provision for “an
independent authority to regulate broadcasting in
the public interest, and to ensure fairness and a
diversity of views broadly representing South
African society”.97 The IBA was considered to be the
institution that gave effect to this provision. It was
replaced by Icasa in 2000. The Interim Constitution
did not explicitly guarantee the independence of
the regulator; rather, it required that ‘all media
financed by or under the control of the state shall
be regulated in a manner which ensures
impartiality and the expression of a diversity of
opinion’. Clearly, the emphasis here was on the
regulation of the SABC, but not on the
independence of regulation as such.98 To this
extent, the final Constitution was an advance on
the Interim Constitution.
In terms of general provisions in Chapter 9 of the
Constitution, the President, on recommendation of
the National Assembly, must appoint members of
the Chapter 9 institutions. The involvement of the
National Assembly is considered important as this
means that the appointment process is subject to
multiparty debate and public scrutiny as hearings
are generally in public. The involvement of civil
society in the nomination process should also be
provided for. It also states the grounds for removal
from office of these members and the procedures
for removal.
The extent of the independence of Chapter 9
institutions has been a source of controversy, with
some of the institutions complaining that while
they were nominally independent from the
Executive, substantially they were not. Pressure for
reform of the relationship between the Chapter 9
institutions and the government began to mount
after a number of Constitutional Court decisions
suggested that the existing relationship violated
the constitutional requirement of independence.
Two of these decisions related to the certification
of the permanent Constitution by the Constitutional
Court, which was an exercise conducted to
determine whether the constitution complied with
the 33 constitutional principles drafted during
multi-party negotiations. In one decision,99 the
Constitutional Court gave legal meaning to the
term ‘independent’ by stating that regard had to
be paid to a number of factors, such as the
The Broadcasting Independence Handbook: Lessons from the South African experience
17
appointment of officers in the institution, as well as
their tenure and removal, and provisions
concerning institutional independence.
In 1999, the Constitutional Court delivered another
judgement which gave content to the meaning of
‘independence’ specifically with respect to Chapter
9 institutions, and in relation to another regulatory
body, the Independent Electoral Commission (IEC).
In New National Party of South Africa v
Government of the Republic of South Africa and
Others, 1999, the then-Deputy Chief Justice, Pius
Langa, speaking of the IEC, noted two factors
impacting
on
independence:
‘financial
independence’ and ‘administrative independence’:
[The first] implies the ability to have access to
funds reasonably required to enable the
Commission to discharge the functions it is
obliged to perform under the Constitution and
the Electoral Commission Act. What it does
mean, however, is that Parliament must consider
what is reasonably required by the Commission
and deal with requests for funding rationally, in
the light of other national interests. It is for
Parliament, and not the Executive arm of
Government, to provide for funding reasonably
sufficient to enable the Commission to carry out
its constitutional mandate...
The second factor, ‘administrative independence’, implies that there will be control over
those matters directly connected with the
functions which the Commission has to
perform under the Constitution and the Act.
The Executive must provide the assistance that
the Commission requires “to ensure its
independence, impartiality, dignity and
effectiveness”. The Department cannot tell the
Commission how to conduct registration, who
to employ, and so on.100
Having outlined these features of independence,
Justice Langa noted that Chapter 9 institutions
were a relatively new invention, and had been
established in a context where older legislative and
policy arrangements, public administration
practices, and budgetary conventions still applied.
As a result, these practices were applied to these
institutions without regard to their appropriateness.
A number of these practices violated the
constitutional requirement of independence, such
as that in Treasury Instruction K5. This instruction
governs the transfer of payments to public bodies
by the Director-General of a government
department, who acts as the Department’s
accounting officer. The Director-General is entitled
to stipulate conditions which s/he regards as
18
desirable in respect of any payment to be made,
and has the power to withhold payment if s/he is
not satisfied that the conditions in respect of the
previous payment have been met, the necessity for
continued assistance still exists, the financial aid is
still meritorious, and the set objectives were
attained.
According to Justice Langa, Treasury Instruction K5
empowers the Director-General to
do two things which are by their very nature
invasive of the independence of the public
entity. Firstly, the accounting officer can
stipulate further conditions considered desirable
and which must be fulfilled before any further
money is paid to the public entity. Secondly, he
or she is obliged to perform an evaluative role in
relation to the public entity.101
As a result of this legal conundrum, Justice Langa
said these practices, rules and conventions would
have to be brought into line with the constitutional
requirement of independence of Chapter 9
institutions.
From these judgements, a basic definition of
independence can be inferred. For a regulatory
institution to be independent, it should have the
following characteristics:
• It should be located outside government, but not
necessarily outside the state;
• It should have sufficient resources to enable it to
discharge its mandate;
• It should have control over those matters directly
connected with the functions it has to perform
under its founding statute; and
• The tenure of its members is governed by
appropriate appointment and removal provisions
which ensure that members are appropriately
qualified, do not serve at the pleasure of the
Executive and can be removed only on objective
grounds relating to job performance. In terms of
the Constitution, Parliament must be involved in
appointments and dismissals.102
This definition has been repeated in the recent final
report of an ad-hoc Parliamentary Committee set
up to review Chapter 9 and associated institutions.
This review was established by the National
Assembly in 2006 to assess whether the mandates
of these institutions are still relevant, whether their
consumption of resources was justified by their
outputs and whether it would be desirable to
rationalise them. The Committee was also tasked
with reviewing the appropriateness of the
institution’s appointment and employment
arrangements for Commissioners/Councillors,
The Broadcasting Independence Handbook: Lessons from the South African experience
institutional governance arrangements, whether
these institutions co-ordinated amongst themselves
sufficiently, the effectiveness of the oversight role
of Parliament, and the appropriateness of the
funding models of these institutions.103
Icasa’s budget through a quarterly drawdown once
Parliament has approved its appropriation level.
This practice was instituted in 1997, with respect to
the then-IBA, after scandals about financial
overspending, leading to an official investigation.
Taking the above definition of independence into
account, the Commission found that the existing
funding arrangements did not guarantee financial
independence. It recommended that the budgets
of the Chapter 9 institutions be contained in a
separate programme in Parliament’s budget
vote.104 It also noted that the appointment
procedures should be more consistent with
upholding and protecting the independence of
these institutions by removing the role of Ministers
in appointments, and enhancing public
involvement in these processes. Additionally, it
suggested that the capacity of Parliament to review
these institutions should be enhanced and they
should become more publicly accessible.105
Some of the problems with the current financial
arrangements are discussed below:
Icasa and independence
In spite of the fact that the independence of
broadcasting regulation is constitutionally
guaranteed, there are a number of ways in which
Icasa’s independence is compromised.
The independence of Icasa’s predecessor, the IBA,
was guaranteed in terms of the IBA Act, which
ensured the independent regulation of broadcasting
according to a number of guiding principles.
However, since the passing of the Broadcasting Act
in 1999, there were indications that the IBA’s
independence was under pressure, a problem that
was carried over, to an extent, to Icasa.
Many of these problems flow from the fact that the
regulator’s Constitutional status is unclear. In fact,
there has been controversy about whether Icasa is a
Chapter 9 institution or not. This is because Icasa is
not named as a Chapter 9 institution in the
Constitution, but there is a lack of clarity about
whether all provisions in Chapter 9 refer to Icasa,
including the provisions relating to the
appointment and dismissal of Council members.
Does Icasa have financial independence?
The controversies around Icasa’s financial
independence focus on what Icasa perceives to be
underfunding of the regulator, as well as the extent
of Departmental control over the financial affairs
of Icasa, including its budget-making and financial
management.
The Department of Communications administers
• The potential for manipulation of the budgetmaking process
The underfunding of Icasa has proved to be an
intractable problem: a problem that set in during
the IBA’s existence. The IBA’s budget was approved
as a line item in the general budget of the
Department of Communications and was subjected
to the same procedures as other Departmental
budgets in the overall budget drafting process. In
April of each financial year, the IBA motivated to
the Department of Communications for a particular
budget in a meeting where the Department of
Finance was present. In terms of the Medium Term
Expenditure Framework, budgets were drawn up
on a three-year cycle. Re-budgeting could then take
place on the basis of interaction between the IBA
and these Departments. The trend was for the IBA
to approach the Department with a ‘wish-list’
budget, which the Department would invariably
instruct the IBA to cut. The IBA could not go to
Finance directly to motivate for its own budget.
Discussion then ensued between the Departments
of Communications and Finance, and a budget
allocation was arrived at and presented to the
National Budget Committee. The Director-General
then consulted with the Minister about the budget,
which was then discussed in Parliament, approved,
and spent according to the line items.106 The IBA
was represented as a line item in this budget.
Icasa’s budget is still administered as a line item in
the Department’s budget, but Icasa can argue for
its budget in Parliament, through the Portfolio
Committee on Communications. However, this may
not be sufficient to guarantee the financial
independence of Icasa. The ad-hoc Committee on
the review of Chapter 9 and associated institutions
has recommended that the budgets of all Chapter
9 institutions, including Icasa, should be included in
Parliament’s budget vote. This means that these
institutions will not be compromised by
involvement of the Executive in the budgetary
process.
• The potential for underfunding
Icasa has been underfunded, which has affected its
financial independence negatively. This problem
The Broadcasting Independence Handbook: Lessons from the South African experience
19
dates back to the times of the IBA in the late 1990s,
when cutbacks to its budget were precipitated
partly by an attempt to reign in overspending by
the IBA in the first few years of its existence. These
cutbacks dealt one of the most serious blows to
Icasa’s independence as they prevented the
Authority from pursuing its mandate. What
follows are practical examples of how this
underfunding has impacted on the IBA’s and Icasa’s
mandates.
In 1998, the IBA rationalised its operations to
reduce its costs. It closed its provincial offices and
retrenched staff. Councillors were made to share
personal assistants and the secretariat was
downsized. The Licensing and Monitoring and
Complaints Departments were merged into one
department and the Legal and Communications
Departments were closed. Other departments,
such as Human Resources, Administration, Library,
IT and Records were merged into a single Support
Services Department. Also, the Finance and
Technical Departments were rationalised. Yet, the
savings were not sufficient to prevent the cuts
from eating into the IBA’s core mandate.
In its presentation to Parliament on its budget in
March 1999, the IBA noted that it would be unable
to fulfil its mandate in light of the budget cuts. It
would not be able to pursue its Monitoring and
Complaints Department mandate. Also, it would
not be able to monitor the SABC, e.tv and M-Net,
as well as satellite radio and television, effectively.
Its budget for hearings into amendments of
broadcasting licences was insufficient, which
meant that broadcasters would have to put up
with delays. The regulator also complained of a
lack of expertise for policy enquiries, which made
it especially difficult for the Authority to keep up
with technological developments. The technical
department also found that it was making
insufficient technical input into the industry.
With respect to the four-year community radio
licensing process, the IBA decided to confine itself
to single venues in each province and to use
skeleton staff for hearings outside Gauteng. It also
acknowledged a ‘lack of due diligence to licensing
and policy-making processes’ as a result of the
financial constraints. The Authority also found its
ability to outsource legal work impaired, and
expressed concern about the outflow of skills from
the human resources department owing to salary
freezes, and no training and development budget
was available. Capital expenditure had all but
ceased; as a result, monitoring and computer
equipment was ageing and was not being replaced
20
and the Authority did not have a budget to ensure
Y2K compliance.108 The ability of the IBA to licence
and monitor community radio was especially hardhit.
The impact of reduced budgets also impacted on
Icasa once it was established. The problem was
exacerbated by an increased workload resulting
from the merger of the IBA and South African
Telecommunications Regulatory Authority (Satra)
into Icasa and a reduced council. The Broadcasting
Licensing Department was affected far more by
the budget cuts than by the merger. The lack of
provincial offices, coupled with cutbacks to the
Communications Department, led to all licensing
related enquiries being referred to the
understaffed Licensing Department,. The lack of
staff and resources meant that the ability of the
unit to deal with applications for amendments to
licences was also curtailed, leading to a slowing
down in the processing of applications. These are
some of the ways in which the underfunding of
Icasa impacted on its mandate.
Icasa has also argued that it is unable to offer
competitive salaries, so there is a high staff
turnover as staff are poached by industry. Also,
Icasa’s institutional memory is lost easily; in one
Parliamentary submission, Icasa admitted that its
institutional memory ranged from a mere two
months to seven years.109 These factors, which
could be attributed to the underfunding of Icasa,
contribute to a weak regulator, which can easily be
subject to industry or governmental capture.
In an attempt to address these problems, Icasa has
urged the government to allow it to retain a
portion of its licence fees to fund it activities, a
proposal that was initially accepted in an earlier
draft of the Electronic Communications Act, but
later rejected. The advantage of this arrangement
would be that Icasa would be financially
independent from government and it would be
empowered financially to respond to a fastchanging industry. The disadvantages are that
Icasa may experience high fluctuations in cashflow,
as licence fees may be undercollected for a
particular year. Also, Icasa may accumulate excess
funds, which may impact negatively on its financial
accountability – tempting it to overspend. The last
disadvantage is that Icasa may lose its
independence in relation to its licensees, who may
attempt to exercise greater control over its
activities given that it is funded from their money.
• The potential for manipulation of the drawdown
As noted earlier, the Department of Communi-
The Broadcasting Independence Handbook: Lessons from the South African experience
cations administers Icasa’s budget through a
quarterly drawdown once Parliament has
approved its appropriation level. This process
requires the Department to evaluate the use of the
previous quarter’s funds before releasing the next
tranche.
This accounting and administration system blurs
the distinction between accounting to Parliament
and accounting to the Department, as the quarterly
activity of accounting to the Department is possibly
even more important for the survival of the
institution than the annual formality of accounting
to Parliament.
directives. In line with these statutes, the 1998
White Paper on Broadcasting Policy states that,
‘The Government should have the right to issue
policy directives to the IBA on policy matters.’ It
notes that the policy directives should not be
retroactive and should be of a broad policy nature.
The IBA should then ‘enjoy the independence to
implement these broad policy directives in its
regulatory activities in accordance with a public
process’. A formula is laid down for the issuing of
these directives, which involves the Minister
canvassing the opinion of the IBA, publishing them
in a government gazette, and informing Parliament
of the policy changes and directives.110
Arguably, if Icasa is to be considered a Chapter 9
institution, it would need to operate in a position
of equality with the executive structures of
government (including the Department of
Communications) as they had the same status in
terms of the Constitution. The other Chapter 9
institutions experienced a similar problem, as their
budgets were also administered by government
departments. Increasingly, it became apparent that
this arrangement was inappropriate, even if the
departments
concerned
were
ultimately
accountable to Parliament.
The Broadcasting Act gave effect to these powers in
an amendment to S.13A of the IBA Act, provided
that the policy directives were consistent with the
objectives of the Act. In addition to the above
procedures, the Minister was required to canvass
opinion on the directive. While the IBA was
required to consider the directive, it was not
obliged to act on it, and the provision also stated
that no directive may be issued that interfered with
the independence of the IBA. As the IBA Act
remained in force for broadcasting after Icasa was
established, these provisions also applied to Icasa.
Does Icasa have administrative
independence?
More problematic, though, was that the Minister
could direct Icasa to determine priorities for the
development of the broadcasting sector, and to
consider any matter put before it by the Minister
for urgent consideration. However, the Minister
also had a broader and less qualified power to issue
directions to undertake special investigations into
any matter within Icasa’s mandate, and to report to
the Minister. According to Justine White, this
provision contained the potential for the Minister
to interfere with the regulation of broadcasting.111
Administrative independence implies there will be
control over those matters directly connected with
the functions which the Chapter 9 institution has to
perform under the Constitution and its founding
statute. Controversies have emerged over whether
Icasa has administrative independence, especially in
relation to its regulation- and policy-making
powers. A number of these controversies flow from
the fact that Icasa resulted from a merger between
two previously separate bodies – the IBA and Satra
– whose levels of independence differed. Given the
sensitivities around the independence of
broadcasting, the IBA’s independence was higher
than Satra’s and, in any event, the Constitution
requires independence for broadcasting regulation
only, not for telecommunications regulation. This,
in turn, created a lack of clarity around the extent
of the independence of the merged regulator.
The following are some ways in which the
administrative independence of Icasa has become a
concern:
• Policy directives
A provision has been made in some international
statutes for the Minister concerned to issue policy
This danger has been mitigated somewhat in the
Electronic Communications Act (ECA), which was
promulgated in 2005. The Act says Icasa needs only
to consider these directions and not to act on them.
Arguably, this power does not necessarily interfere
with the independence of Icasa, as Icasa is not
obliged to act on these directives. This issue emerged
again when an amendment to the ECA was
proposed in September 2007. The objective of the
intervention was to enable the government to make
strategic interventions in infrastructure investments
whenever it deemed necessary; such intervention
was needed given the high cost of broadband, which
meant that government needed to intervene to
provide infrastructure at wholesale rates to other
operators. In terms of the amendment, the Minister
would be allowed to issue policy direction, after
The Broadcasting Independence Handbook: Lessons from the South African experience
21
having obtained Cabinet approval, to provide a
policy framework for licencing a public entity. The
amendment would have granted the Executive
direct power to deal with licencing issues, which
would have been a direct infringement of the
independence of Icasa, in relation to broadcasting.
Also, this amendment cut across the provision
disallowing the Minister to issue a directive in
relation to licensing. At the time of writing, this
matter was still being debated in Parliament.
• The power to issue licences
Before the IBA- Satra merger, the IBA enjoyed the
independence to decide who to award licences to.
This was not the case in the telecommunications
sector, though, as section 30(3)(a) of the
Telecommunications Act gave the Minister of
Communications the authority to issue Telkom’s
licence. Also, the Minister must invite applications
for licences for a public switched telecommunication service, a mobile cellular telecommunication
service, a national long-distance telecommunication
service or an international telecommunication
service. Satra had the power only to recommend
who should receive the licence; the power to
actually grant the licence rested with the Minister.
In terms of the ECA, Icasa may grant class licences
for electronic communications network services,
broadcasting services and electronic communications services. However, Icasa may grant
individual electronic communications network
service licences only in terms of a policy direction
issued by the Minister. The retention of control over
infrastructure licences therefore remains a standing
feature of communications legislation .
• Granting licences by legislative fiat
Other concerns relate to Parliament’s tendency to
legislate licences into being through legislative fiat
in the process undermining Icasa’s role in deciding
who gets licences and on what basis. This has
happened twice; once in relation to the national
signal distributor, Sentech, which Parliament
decided should be granted a multimedia licence
and again in relation to the SABC, when it decided
that two new regional stations broadcasting in
African languages, SABC 4 and 5, should be
established. In the latter case, Icasa’s role was
reduced merely to writing the licences.112
In the latter case, both the Department of
Communications and the Portfolio Committee on
Communications felt that the existing television
dispensation was not serving all South African
language speakers sufficiently, as English and
22
Afrikaans dominated the airwaves. This opened the
government to a Constitutional challenge on the
basis of language discrimination. Originally, the
Department intended to establish the stations as
broadcasters controlled directly by the state and
independent of the SABC; but after a public furore
about the media freedom implications of this
decision, the Department backtracked and agreed
to their being run by the SABC as an independent
public broadcaster. While the decision to establish
SABC 4 and 5 was important in terms of increasing
television access, the decision to establish them
should rightfully have been taken by Icasa, after a
public enquiry. These events have further
undermined the independence of Icasa.
• Radio frequency plan
In terms of the ECA, the Minister must approve the
radio frequency plan developed by Icasa. Apart
from the fact that this interferes with Icasa’s ability
to develop and adopt its own plan, it entrenches
the player/referee problem, where the Minister
may tilt the playing field in favour of her portfolio
organisations to enhance profitability.113 Icasa
alone should develop and approve the plan, as it
does not have a financial interest in the outcome.
Does Icasa have institutional
independence?
Institutional independence is a crucial aspect of
independence, and refers to systems and structures
that are in place to protect the institution against
external interference. These systems include
procedures governing appointment, tenure and
dismissal of Council members.
• The appointment and dismissal procedures of
Councillors
There has been some controversy about whether
the provisions in the Constitution around the
appointment and dismissal of councillors/
commissioners of Chapter 9 institutions refer to
Icasa as well, given that it is not named explicitly as
one of the affected institutions. It has been argued
that the relevance of these provisions can be
inferred from the presence of the guarantee for an
independent regulator in Chapter 9, but there is
disagreement about this reading, notably from the
Department of Communications. In 2005, the
Department of Communications made proposals to
give the Minister of Communications greater
power in the appointment and dismissal
procedures for the Icasa Council.
The Icasa Amendment Bill made the Minister rather
The Broadcasting Independence Handbook: Lessons from the South African experience
than Parliament responsible for these procedures,
on advice of a panel of experts. The notion of the
panel was a good one, in that it allowed for greater
public representation in the appointment process.
The panel was supposed to consist of
representatives from business, labour, industry and
civil society. However, the process was deeply
flawed in that the panel would recommend an
initial list of one and a half times the number of
Councillors, from which the Minister would select
the final list, a process that gave the Minister far
too much power to pick and choose candidates that
s/he would find acceptable politically.
In spite of the fact that Icasa is not named explicitly
as a Chapter 9 institution, what can be inferred
from the Constitution is that Parliament - as a
multiparty and representative body - must play a
role in the appointment process of the Icasa
Councillors. To remove Parliament's role and to
make the Minister of Communications responsible
for appointments, based on a shortlist developed
by a panel, would ensure that the Minister
controlled the appointment process. This could not
possibly be Constitutional.
Also, according to the Bill, the performance
management system would have involved
Councillors signing a performance agreement with
the Chairperson, and the Chairperson signing an
agreement with the Minister. Failure to sign an
agreement would be a ground for removal from
office. This provision was included in the Bill in spite
of the fact that, in terms of the Constitution, Icasa
and its Councillors are required to account to
Parliament for its their performance, and not to the
Minister.
Taken together, all these provisions would have
turned Icasa into an extension of the Department
of Communications; as a result, the Authority
would not be 'independent, and subject only to the
Constitution and the law', as it would effectively be
subject to Ministerial and Departmental control.
These changes would have destroyed the
constitutionally guaranteed independence from
the Ministry that Icasa enjoyed.
The President refused to sign the Bill into law as he
too had reservations about its Constitutionality. An
uncomfortable compromise was arrived at, where
the Minister appoints the Councillors upon
approval by the National Assembly of one and a
half times the number of Councillors to be
appointed. The National Assembly may invite
technical experts to assist in the selection,
evaluation and appointment processes of
Councillors. The Minister then recommends a final
list to the National Assembly. If the National
Assembly is not satisfied with the people selected,
it may request the Minister to review the list. The
National Assembly must approve the final list, and
the Minister then appoints the Chairperson.
With respect to the Performance Management
System, the Minister must establish a system in
consultation with the National Assembly. The
evaluation of the Chairperson’s performance must
be conducted by a panel constituted by the
Minister in consultation with the National
Assembly. After this evaluation, a report must be
sent to the National Assembly.
This arrangement is convoluted and it remains to
be seen whether it is workable. It is also uncomfortable from an independence point of view, in that
these provisions do not remove the role of the
Minister entirely, even though control of these
processes rests largely with the National Assembly.
For this reason, it is possible that these provisions
could be considered Constitutional, although their
Constitutionality may be tested at some stage in
the future if it is found that the Executive has too
much power in the process.
The ad-hoc Committee on the status of Chapter 9
institutions disagrees that any involvement of the
Minister is warranted. They have recommended
that the Minister’s role be removed entirely.
If the Constitutional status of Icasa was clarified,
the scope for confusion about key questions – such
as the appointment and dismissal of Icasa
Councillors – would be narrowed considerably.
Discussion points
• There is real value in constitutionally
guaranteeing the independence of the broadcasting regulator, as it prevents incursions on its
independence. However, its constitutional status
must be clear. What is the best way of achieving
this clarity?
• Closely related to the previous question is the
question of how to guarantee the independence
of a regulator responsible for two industries
whose levels of independence have differed
historically. Generally, it is more important to
protect the independence of broadcasting than
of telecommunications, given the politically
sensitive nature of the media. Yet both industries
are converging. Is it satisfactory, as a transitional
measure, to guarantee the independence of the
broadcasting activities of a regulator only (as was
the case and, to an extent, still is, in South Africa),
The Broadcasting Independence Handbook: Lessons from the South African experience
23
or should the independence of both sectors be
guaranteed while they are in the process of
converging?
• The South African regulator has largely been
underfunded, which has contributed to its
weakness as a regulator. Its total dependence on
government grants has meant it cannot make up
for funding shortfalls through other means (such
as retaining a portion of its licence fees). Yet there
have also been real questions over its ability to
spend prudently, which implies the need for
greater oversight of its spending. Parliament does
not necessarily have the capacity to play this role.
What funding model is the most appropriate to
guarantee that the regulator has sufficient
resources to discharge its mandate?
• Icasa finds it difficult to reach out to the public;
this can partly be attributed to its underfunding.
It has also been unable to build its presence in the
country’s provinces. How should a regulator build
accessibility to ensure that it does not simply serve
elite interests?
• The term ‘independence’ is difficult to define, but
24
there has been some guidance in this respect
from the Constitutional Court. Crucial factors to
consider include administrative independence,
financial independence and institutional
independence. How are all these factors to be
realised in setting up a communications regulator,
while ensuring that it is not so independent that
it is unaccountable?
• Related to the independence question is the
question of how far the powers of the regulator
should stretch. In South Africa, it was argued a
few years after the transition that the regulator
should not retain policy making powers, as these
powers belonged to the Executive in a democracy.
Clarifying the scope of the regulator’s mandate is
crucial to prevent tussles around its role and, by
extension, its independence further down the
line. Should the regulator merely regulate the
industry or should it also have policy-making
powers? If it is given policy making powers,
should it be given the power to make macropolicy or micro-policy?
The Broadcasting Independence Handbook: Lessons from the South African experience
3
PART
Post apartheid public broadcasting:
An overview of the independence of the SABC
The previous section focussed on the extent of
independence of the communications regulators in
the post-apartheid period. This section focuses on
the extent to which the objective of the CIB to
establish an independent public broadcaster was
achieved in post-apartheid South Africa. Drawing
on the definition of independence arrived at in the
previous section, this section addresses the
question of whether the South African public
broadcaster, the South African Broadcasting
Corporation (SABC), is independent enough, and
also considers the lessons to be drawn from
attempts to establish an independent public
broadcaster.
What is meant by independence in
relation to public broadcasting?
While broadcasting legislation in South Africa
allows for public broadcasters other than the SABC
to be set up, this has not been done. The SABC’s
founding statute, the Broadcasting Act, protects
the broadcaster’s editorial independence. In terms
of s.6(2) of the Act, 'the Corporation will, in pursuit
of its objectives and in exercise of its powers, enjoy
freedom of expression and journalistic, creative
and programming independence.’ However, the
Act does not mention the SABC’s institutional,
administrative or financial independence.
The nature of the SABC’s independence is not clear,
since the broadcaster is not established in terms of
the Constitution in the same way that Icasa is. Its
independence can only be inferred from Section 16
of the Constitution, which guarantees freedom of
expression and media freedom. It can be inferred
that Section 16 precludes the state from
controlling the affairs of the public broadcaster,
particularly its policies, because this threatens the
diversity of views essential to freedom of
expression. Second, account must be taken of the
broadcasting environment in South Africa. The
dominant market position the SABC enjoys in radio
and television creates a danger of State control of
the SABC. Such control would reduce the diversity
of views in a far more acute manner than would
otherwise be the case.
The uncertain nature of the SABC’s independence
has led to several skirmishes over the extent of this
independence. While the SABC is protected against
external interference in its editorial decisionmaking, other institutional arrangements that may
erode the SABC's independence in subtler ways,
and on a longer-term basis, are not addressed in
the Act.
In this section, the test set out by the
Constitutional Court will be applied to the SABC, as
it proves a useful yardstick to measure the
Corporation’s independence.
Does the SABC have financial
independence?
As mentioned in the previous section, financial
independence has two dimensions: the institution
needs sufficient resources to discharge its mandate
and its finances should not be controlled unduly by
an external body, especially the government. The
extent of the SABC’s financial independence shall
be examined on both levels.
As a public broadcaster, the SABC is an anomaly in
that it receives most of its funding from
commercial sources, especially advertising and
sponsorship. In the 2005/2006 financial year, 77
percent of the SABC’s revenue came from
commercial sources, 19 percent from licence fees
and only two percent from government grants.114
This funding model skews SABC services towards
servicing audiences that advertisers consider to be
attractive and forces SABC services to chase
audience ratings, at the expense of broadcasting
genres that may be crucial to the public mandate
The Broadcasting Independence Handbook: Lessons from the South African experience
25
but may not deliver large economically well-off
audiences (such as religious programmes targeting
minority faith groups or children’s programmes).
For the purposes of marketers, South African
audiences are defined according to a market
segmentation tool called the Living Standards
Measure (LSM). This tool segments the South
African market according to individuals’ living
standards, using criteria such as salary levels,
degrees of urbanisation and ownership of cars and
major appliances. Marketers use the LSM to target
particular markets according to their LS profile,
with LSM 10 being the highest, and LSM 1 the
lowest. The higher the LSM, the more attractive
the audience is to advertisers.115 South African
audiences are skewed towards the lower LSMs,
with 63 percent of the population falling into the
lower LSMs (that is, LSM 1-5). LSM 1-4 is the largest
population segment in all provinces except the
Western Cape.
The impact of the prioritisation of higher LSMs is
more evident in television than in radio. All
television stations derive the bulk of their
advertising revenue from LSM 3 to 7 with the
subscription services M-Net and DSTV being
targeted at LSM 8-10. This reality of advertising
spend has an impact on prioritisation of audiences
by television owners. Thus, SABC 1 identifies LSM
5.1 as its target audience, SABC 2 targets LSM 5.7
and SABC 3 targets LSM 6.3. Radio, by contrast, has
a wide range of LSM targets, ranging from 3.6 to
8.6, with the majority of advertising spend being
targeted at LSM 6. This means that these services do
not really consider the majority of South Africa’s
population to be target audiences for economic
reasons: hardly an ideal situation for a broadcaster
that is supposed to offer universal programming.116
To the extent that the public service mandate of
the SABC is compromised, commercial forms of
funding could compromise the financial
independence of the broadcaster.
At the time of South Africa’s transition to
democracy
in
1994,
the
SABC
relied
overwhelmingly on commercial sources of
revenue. Licence fees accounted for 20 percent of
all revenue, while advertising accounted for 74
percent, and other sources accounted for 6
percent.117 Early in the SABC’s post-apartheid
transformation, the IBA took a policy decision after a public enquiry - that the broadcaster would
operate on a mixed funding model. The SABC
should therefore derive its income from
advertising and sponsorship, licence fees, a
26
government grant and other income from
activities such as the merchandising of its products
and leasing facilities. The IBA argued that
Parliament should provide funding for particular
activities, such as provincial programming on
radio, more African language and local content
programming and educational programming.118
While the report was important in that it
recognised that public funding was necessary for
the fulfilment of the SABC’s mandate, it also
marked a significant retreat from the call for
ongoing government funding for the SABC as a
whole, and an acceptance of the ‘reality’ of
advertising as a significant source of revenue. This
important concession provided the government
with the space to grant funding for ‘special
projects’ (which could be phased out after the
completion of the project), while continuing to shy
away from funding the Corporation as an entity.
This meant that the policy choice of a mixed
funding model was really a disguised endorsement
of the SABC’s funding model as inherited from
apartheid, especially since the nature of the mix
was not specified.
The Broadcasting Act of 1999 endorsed the idea of
a mixed funding model for the SABC. It also set the
legal framework for the incorporation of the SABC
as a public company (or ‘corporatisation’), and the
separation of the SABC’s services into two entities:
public commercial services and public services. The
former is meant to cross-subsidise the latter:
another source of income for the SABC’s public
services. The separation was motivated, in part, by
a desire on the part of the Department of
Communications to give the SABC’s public service
component ‘scope and room to flourish
unhindered by commercial considerations’.119 The
cross-subsidisation arrangement would also,
supposedly, decrease the need for public funding,
as the broadcaster could cross-subsidise its public
services from its public commercial services.
However, what actually happened was that both
services (public and public commercial) were
commercialised, as both relied overwhelmingly on
advertising for income. If adspend decreases, as it
did in the 1999/2000 financial year, the public
services stand to lose as there will be insufficient
funds from the public commercial services to fund
their operations. At the time, this forced the public
services, especially public service radio, to
reposition themselves to achieve financial selfsufficiency, which led to stations prioritising young,
urban, upwardly mobile listeners and deprioritising
the rural, the elderly and women. This led to calls
The Broadcasting Independence Handbook: Lessons from the South African experience
for the SABC to show greater accountability,
especially towards poor listeners and viewers.120
These problems led the Department of
Communications to argue for the establishment of
two regional television stations to be funded by
the state. These stations were created by legislative
fiat (itself a problem for the independence of Icasa,
as mentioned in the previous Chapter), as their
establishment was decreed by the Broadcasting
Amendment Act of 2003. This argument was
supported by the ruling ANC, which argued at its
National Congress in 2002 that South Africa
needed a publicly funded media system. The
system, was to be established by 2012 as the media
was dominated too heavily by commercial media.
This model was necessary ‘in order for public and
community media to serve as vehicles to articulate
the needs of the poor, rural people, women,
labour and other marginalised constituencies.’121
After controversies about the independence of the
two regional stations (they were to be wholly
owned and controlled by the state), Parliament
decided to incorporate them into the SABC,
effectively creating SABC 4 and 5. These stations
would broadcast in South African languages other
than English and Afrikaans and would focus
especially on the provinces that consisted of
audiences that were too poor to attract advertiserdriven media (like the Eastern Cape and Limpopo).
However, in spite of Icasa having granted the SABC
licences to establish these stations, the process of
their establishment has ground to a halt owing to
the fact that the state Treasury has not agreed to
give them funding, which has led to the
Department of Communications exploring the
possibility of establishing them as public-private
partnerships.
Thirteen years down the line, then, South Africa is
still grappling with the same issues around the
SABC’s funding base: its overwhelming reliance on
commercial sources of income, especially
advertising, skews its content towards high income
earners and prevents it from fulfilling its public
service mandate. So, while the SABC could be said
to enjoy financial independence from government
because it does not rely on government for its
income, it does not enjoy financial independence
from commercial sources as it does not have
funding to the extent that is necessary to fulfil its
mandate.
Other factors also impact negatively on the
financial independence of the SABC. In terms of
the Broadcasting Act, the Minister of Communi-
cations has an extraordinary degree of control over
the SABC’s finances. According to the Act, financial
regulations are to be approved by the Minister in
consultation with the Minister of Finance, and the
Minister must also approve the investment of
surplus funds. The Minister also has the power to
veto the amount set aside by the Board for crosssubsidisation.
Does the SABC have institutional
independence?
The SABC Board consists of nine non-Executive
Directors and three Executive Directors (the Group
Chief Executive Officer, the Chief Financial Officer
and the Chief Operating Officer). According to the
Broadcasting Act, the President of the country
appoints the non-Executive Directors of the Board
on advice from the National Assembly. According
to S.13(4)(a), the Board, when viewed collectively,
should consist of persons who are suited to
serve on the Board by virtue of their
qualifications, expertise and experience in the
fields of broadcasting policy and technology,
broadcasting regulation, media law, frequency
planning, business practice and finance,
marketing, journalism, entertainment and
education, and social and labour issues.
Also, members of the Board “should be persons
who are committed to fairness, freedom of
expression, the right of the public to be informed,
and openness and accountability on the part of
those holding public office”.
This process differs from the one used to appoint
the first independent SABC Board in 1993 in that
the selection process is run through Parliament,
not through a panel selected by judges. The
process was changed after the appointment of the
first Board on the basis that, in a democratic
society, Parliament as a multi-party body should
rightfully be responsible for the selection process,
and to continue to use a panel to select the Board
would
undermine
Parliament’s
role
as
representative of the will of the people. Clearly,
selection of the Board by the Minister is not
appropriate, as this would risk control of the Board
by the Minister.
In practice, the process works as follows: the
Portfolio
Committee
on
Communications
advertises for public nominations for the Board.
From these nominees, the Committee shortlists
candidates and conducts public interviews. Each
political party then compiles its chosen list and,
through a process of negotiation, the final list is
The Broadcasting Independence Handbook: Lessons from the South African experience
27
arrived at. The list is then sent to the National
Assembly for debate and approval and then on to
the President for signing.
While the insertion of Parliament into the
appointment process is, on the surface of things, a
perfectly reasonable step that does not pose any
inherent threats to the independence of the SABC,
the reality is somewhat different. The first problem
with this process is that it lends itself to political
horse-trading: one political party may concede a
candidate chosen by another party not because of
the candidate’s suitability for the Board, but
because it wants one of its candidates to be
accepted by other parties. This process can unduly
politicise the process.
More problems creep in when Parliament is
dominated by one political party, especially if the
party holds an outright majority. This is the case in
relation to the ANC which, in 2007, used its
majority to push through a list of candidates for
the Board that opposition parties were opposed to
(at least five of the twelve candidates were
regarded as controversial by opposition parties).
The process also lends itself to lists being imposed
from the ruling party to ensure the appointment
of political sycophants, irrespective of how they
actually performed in interviews and their general
suitability for office. The Parliamentary process of
selection is, thus, no guarantee of the
independence of the process; in fact, it can hold
out as many dangers for the independence of the
broadcaster as appointment by the Minister.
An additional problem with Parliamentary
appointment is that more and more people are
refraining from voting for Parliamentary parties,
which means that public institutions that have
their Boards selected through Parliament are less
likely to represent the broad public. According to
Schulz-Herzenberg,122 South African voting
patterns are shifting away from the major electoral
parties, a process she has termed ‘dealignment’.
However, a realignment of voting patterns
towards opposition parties is not necessarily taking
place, and newer parties are not necessarily
absorbing voters who have become disillusioned
with the ANC. While the ANC’s electoral margin
has increased, if one takes the number of eligible
voters, its percentage of actual support has
decreased from 53 to 39 percent, and the
opposition has lost approximately half of its voting
share.123 The result is declining participation in
elections, with ‘voter apathy’ increasing: that is,
there is growing evidence of people not being sure
where to cast their votes or feeling marginalised by
28
the political system and, as a result, abstaining
from voting. This is especially so amongst the
unemployed, whereas partisanship amongst the
wealthier middle classes appears to be on the
incline, especially since 1999.124
The absence of a Parliamentary voice for the
growing layer of the disaffected poor is reflected in
the composition of the latest SABC Board. There is
a clear bias towards business figures and away from
labour and civil society organisations. Also, the
Board does not include any journalists.
Does the SABC have administrative
independence?
Like financial and institutional independence,
there are also a number of ways in which the
administrative independence of the SABC is
compromised. Once the SABC was incorporated as
a public company, a memorandum and Articles of
Association were concluded between the SABC
and the Minister of Communications. The
corporatisation of the SABC has had perverse
outcomes for the independence of the SABC in
that the Minister, as the sole shareholder, now has
certain rights and responsibilities over the Board
that she did not previously.
In terms of S.13(11) of the Broadcasting Act, the
Board controls the affairs of the Corporation. This
creates a statutory imperative for the broadest
possible powers to be placed in the hands of the
Board, to the exclusion of its shareholder. This fits
logically with the many provisions and general
scheme of the Act which places obvious emphasis
on the independence of the SABC as public
broadcaster. As a result, the Act permits little (if
any) of the SABC’s affairs to be controlled by the
shareholders.
At present, the State, represented by the Minister
of Communications, is the sole shareholder of the
SABC. In terms of Clause 12.1 of the Articles of
Association, the Minister is effectively given a veto
over the appointment of any of the three
executive directors, who are the three top
managers at the SABC. This violates the ability of
the Board to control the affairs of the Corporation
in that it does not have final decision making
powers over the process of appointing the
executive directors. By being given the veto, the
Minister is effectively given control over that
particular power of appointment.
Thus, in terms of the Articles, the Minister as the
shareholder is given the power to appoint the
SABC’s Group Chief Executive Officer and is
The Broadcasting Independence Handbook: Lessons from the South African experience
empowered to approve his or her employment
contract. These constitute part of the central
“affairs” of the Corporation which rightfully
should fall under the control of the Board.
More problematic, however, are the powers
afforded to the Minister in terms of Article 15.2 of
the Articles, which provides for powers of veto
over any business plan, training programme,
annual budget, strategic objectives or the
formation of any subsidiary or joint venture. These
powers remove from the Board of Directors its
“control of the affairs of the Corporation” in some
of the most fundamental areas – namely, those
relating to the formulation by the SABC of its
business plan and its “strategic objectives”.
Does the SABC have editorial
independence?
The editorial independence of the SABC is
protected by the Broadcasting Act. This protection
is against external interference in the editorial
decision making at the SABC. However, most
controversies have focussed on the internal
decision making processes in the SABC, and the
extent to which journalistic decisions are taken by
journalists or managers, who may well be political
appointees.
The SABC’s Editorial Policies, which guide editorial
decision-making, were adopted by the Board in
2004, and are subject to review every five years.
However, certain attempts have been made to
downgrade the editorial independence of the
SABC. When the Broadcasting Amendment Bill was
introduced in 2002, it proposed that the Minister
should approve the final version of the Editorial
Policies. After public protests, this requirement was
changed, giving the Board final decision making
powers over the Policies, but requiring it to notify
Icasa.
The Policies spell out the process of editorial
decision making in the SABC. The onus is on
individual producers and commissioning editors to
control editorial content. If difficulties arise, the
producer or commissioning editor would consult a
supervisor for guidance, a process termed
‘voluntary upward referral’. This process could
extend as far as the Group Chief Executive Officer,
who is also Editor-in-Chief. However, there are
instances where upward referral to the relevant
Head of Programming is mandatory, such as when
reporting concerns national security matters, or
where normal ethical practices must be breached
in the public interest.125
The difficulty is that the GCEO, as mentioned
earlier, is appointed by the Minister of
Communications. This means that a direct line can
be drawn between the Minister and the content of
the Corporation. It is inappropriate for the SABC’s
most controversial editorial decisions to be taken
by a Ministerial appointee as these decisions will
inevitably be tainted with government control,
even if upward referral is not mandatory.
Another difficulty is that journalistic staff and
management do not necessarily share the same
values, as the former are (or should be) motivated
purely by editorial considerations. Managers,
however, may well be influenced by a range of
internal and external factors in making decisions
that may not be appropriate to consider in the
journalistic decision-making process. Also, the
GCEO may not have the journalistic training to
make tough calls on editorial matters, and may
therefore make a management decision to protect
the Corporation or its relationship to powerful
interests, rather than a journalistic decision.
While it could be argued that upward referral on
most matters is voluntary, there is an implication
that controversial content should be reported in
advance to senior news and programming
executives. If a journalist does not do so, s/he will
be held responsible. This implies that the process is
not as voluntary as it seems, as action could be
taken against journalists who do not report on
controversial content to management (including
the Editor-in-Chief). This could make journalists err
in favour of caution out of fear for their jobs.
Editorial decision making must rest with editorial
staff.
More recently, there have been controversies
about the SABC exercising self-censorship. These
controversies have underscored the fact that there
is no distinction between editorial and
management. In 2006, allegations surfaced that
the Managing Director of News and Current
Affairs, Snuki Zikalala, had blacklisted certain
political commentators who were critical of the
government. The SABC appointed a Commission of
Enquiry to investigate the matter. The Commission
found that Zikalala had excluded certain
commentators on grounds that were not
objectively defensible. The Commission also found
that the extent of delegation of editorial control
was not clear, leading to a situation where Zikalala
intervened in the day-to-day business of editorial
decision making in a seemingly ad-hoc and
inconsistent manner, whereas his role was
primarily a management one.126 These incidents
The Broadcasting Independence Handbook: Lessons from the South African experience
29
point to the ongoing problem of the lines between
editorial and management functions being
blurred, leading to confusion and demoralisation
in the newsroom.
Lessons
• Many problems related to the SABC could have
been checked if civil society continued to
organise around public broadcasting. The CIB
tended to focus on the appointment of the new
SABC Board, with little attention being paid to
how the appointment process would work after
the first independent Board, and also how other
aspects of the SABC could be transformed. Also,
the CIB ceased operating after the 1994
elections, and there has been little mobilisation
around public broadcasting since. How does civil
society maintain a momentum after the political
transition, because failure to do so can see some
of the gains being eroded?
• A difficult problem of the SABC’s transformation
is that its funding base remains essentially the
same as it was under apartheid. As a result, its
universality mandate has been compromised.
This means that the arguments made about the
necessity of public funding have not been made
adequately. Even though the ANC passed a
resolution arguing for public funding, it has not
been taken seriously by the Ministry of Finance.
How do advocacy organisations win the
argument for public funding in climates where
there are competing demands for public funds
from other basic services, such as water and
housing?
• The SABC experience showed that one can have
a public broadcaster with nominal but not
substantial independence. The extent of the
SABC’s independence has been unclear, leading
to a situation where it has been eroded in
significant ways. Much of this can be attributed
to the fact that the Broadcasting Act protects
30
editorial independence only. This can pave the
way for a pro-government bias to creep in
insidiously in other ways (such as through
government influence on senior management
appointments, budgets or strategic plans. These
manipulations can set the basis for internal
censorship that is not covered by the guarantee
of editorial independence, as this relates mainly
to external interference in editorial content. Yet
the argument may be made that Executive
oversight of these areas is necessary to ensure
proper management. How does one guarantee
the independence of the broadcaster on all the
levels discussed above, while ensuring that the
broadcaster is held accountable? This question
becomes especially important if the broadcaster
receives public funding.
• A crucial feature of independence is the
separation of internal decision making
structures: policy making needs to be separated
from management, which in turn needs to be
separated from the editorial function. This is
especially important to ensure that there is a
bulwark against interference by politicallyappointed managers. Where should the line be
drawn between editorial and management, and
how should the separation between the two be
institutionalised?
• Just because Parliament and not the Minister is
involved in the appointment process of the
Board, this does not make the Board
independent. This is especially so in a Parliament
dominated by one party, which can use its
majority to impose Boards irrespective of what
opposition parties think. The Parliamentary
process, therefore, also lends itself to
politicisation of the appointment process. What
appointment procedure is appropriate to ensure
that the best Board is appointed and that
political affiliation does not dominate the
process as an unspoken criterion?
The Broadcasting Independence Handbook: Lessons from the South African experience
Endnotes
1
See for example, van Zyl, J. Civil Society and
Broadcasting in South Africa: Protecting the right
to communicate. In Communicatio 20(2).
Available online: <http:www.unisa.ac.za>. Van
Zyl draws attention to the fact that the Viljoen
Commission lacked a clearly stated policy.
2
See Tomaselli and Tomaselli (2001:123).
3
The IBA Act was one of four statutes enacted by
Parliament in order to level the political playing
field and create a framework for free and fair
electioneering. The three other pieces of
legislation promulgated that month were the
Independent Electoral Commission Act, 150 of
1993, the Transitional Executive Council Act, 151
of 1993 and the Independent Media Commission
Act, 148 of 1993. See also Steyner N., Murphy, J.,
de Vos P., and Rwelamira, M. (Eds). 1994.
Postscript – The legal framework of South Africa’s
first democratic election. Free and Fair Elections.
Cape Town: Juta and Co.
4
5
Tomaselli and Louw (1991:pp7-13) identify eleven
broad categories of the press in the 1980s. The
social democrat press titles included the Weekly
Mail, Vrye Weekblad, Indicator and SuidAfrikaan. These journalists were characterised by
their political and financial independence.
Although situated within the anti-Apartheid
media camp, they resisted co-optation by more
politically active groups. Their position thus
allowed them to pass critique on government
activities and policies as well as the liberation
movements. Tomaselli and Louw point out that
“in the process, questions of press autonomy
were placed on the agenda as far as a postapartheid media was to be concerned.”
Following the 1976 uprisings, the 1980s marked a
period in South Africa’s history that was
characterised by a militaristic strategy, referred to
as the ‘total strategy.’ During President PW
Botha’s ‘securocrat era,’ the state sought to
mobilise the press in support of what it perceived
as an internal war raging in the country. This
period was marked by the declaration of several
states of emergency and the government’s
introduction of restrictive legislation and forms of
censorship against the press in an attempt to curb
the flow of subversive or anti-government
information that posed a security threat to the
state. The states of emergency sanctioned the
banning of certain newspapers and the
intimidation and detention of journalists.
(Tomaselli and Louw,1991: pp 77-92). There
existed, in total, over 100 repressive laws against
free media activity.
6
The legislation would, in effect, have sanctioned
the state to strike any journalist’s name from the
register if that journalist had published
information that was deemed to be
‘detrimental’ to the state. The plan back-fired
due to the generic definition of news agencies,
which included all newspapers in the country as
well as some commercial corporations with
public
relations
departments.
The
‘establishment’ papers, through the Media
Council, persuaded the government to
withdraw the legislation as it would have
unintended consequences.
7
A pressing issue at the time was the threat of a
three-month suspension of the New Nation to
which members of the Save the Press Committee
responded with a written request to meet with
the then State President, F.W. de Klerk.
8
Campaign for Open Media, Minutes, January
1990.
9
FAWO, a progressive organisation representing
the interests of the film and television sector,
was formed in the late 1980s. It was
instrumental in informing the legislative aspects
of broadcasting in transition debates and
established a Broadcasting Commission to
campaign around the issue of the control and
regulation of broadcasting in a democratic
South Africa. According to Michael Markowitz, a
former FAWO Broadcasting Committee member,
the Broadcasting Commission was set up
because there was a lack of a legal broadcasting
regulation framework. FAWO often acted as
legal advisor to the ANC’s DIP. (Interview, 10
December 2002).
10
Speech delivered by Raymond Louw at the
launch of the Campaign for Open Media, 1990.
It is instructive to note the emphasis the
conference placed on the South African public’s
right to access information. In as much as this
was linked to journalistic demands to unblock
the logical flows of information, it is also
indicative of the new ideological space that was
The Broadcasting Independence Handbook: Lessons from the South African experience
31
being created for public participation in the
decision-making process.
11
12
Official statistics vary from between 1000 to
2000 people. Willie Curry, former FAWO
Transvaal Secretary-General, puts the figure
closer to 2000 in his insightful analysis of the
South African broadcasting transition process “The People Shall Broadcast!: The Battle for the
Airwaves” in Louw. E., South African Media
Policy: Debates of the 1990s. Legally the number
of marchers was limited to 1000 by magisterial
decree.
The Viljoen Task Group on Broadcasting in
South and Southern Africa was appointed in
March 1990 by Home Affairs Minister, Gene
Louw. According to its Terms of Reference, the
Viljoen Task Group was mandated by the NP
government to, inter alia, investigate and make
recommendations regarding:
• The entire broadcasting field and a
comprehensive broadcasting policy and
broadcasting strategy for South and Southern
Africa with specific reference to technical
aspects of broadcasting. This should serve as a
guideline for the orderly development of the
broadcasting industry;
• Future broadcasting needs, international
trends in broadcasting, the application and
effects of new technology, commercialisation
and regulation, the resources involved in
broadcasting such as frequencies, sources of
finances, manpower and other relevant
aspects;
• A controlling structure for broadcasting
matters;
• The evaluation of existing legislation dealing
with broadcasting and/or new broadcasting
legislation;
• Any other aspect considered relevant by the
Task Group.
Some media analysts, such as Horwitz (2001:131)
and Louw (1993:21) acknowledge certain parts
of the Viljoen report as progressive and farsighted. The report, which was published more
than a year later, in August 1991, made
recommendations on the need for local content
obligations for all broadcasters, the need to
diversify the broadcasting landscape, the need
to
establish
the
signal
distributor’s
independence from the SABC, the need to
establish an independent regulator and
highlighted the challenge of funding for public
service broadcasters.
32
See also South Africa. 1991. Report of the Task
Group on Broadcasting in South and Southern
Africa: Viljoen Commission Report. (No. ISBN
0621141917). Pretoria: Government Printer.
13
See Appendix A. Campaign for Open Media,
March on the SABC. Memorandum on the
Broadcast Sector in South Africa. August 1990.
14
The Viljoen Task Group was comprised
exclusively white male Afrikaners, all of whom
were government functionaries with one
exception. More than half had links to the
national defence force or intelligence agency
and were known to be members of the
Broederbond.
15
Ibid., Section B (6.1).
16
Ibid., Section C.
17
Viljoen, C. Letter to COM. 29 August 1990.
18
Ibid.
19
Louw, R. Letter to SABC. 05 September 1990.
20
FAWO was the only affiliate to present a
submission to the panel.
21
The appointment of Sowetan editor, Aggrey
Klaaste, the only black Task Group member, was
regarded as nothing more than ‘token
representation‘ by many critics. COM also felt
that the inclusion of Professor JP de Lange,
Chairman of the Broederbond and Ton Vosloo
of M-NET was highly questionable.
22
Most
political
organisations
sent
representatives; the ANC and PAC failed to
attend.
23
See Appendix B. The Shape and the Role of the
Media in a new South Africa. 1990. COM/IDASA.
24
SABC Chair, Christo Viljoen was invited to
address the conference on the last day; he was
subjected to a cross-examination by COM Chair,
Raymond Louw and FAWO representatives,
Michael Markowitz and Solly Rasebotsa.
25
See Appendix C. Jabulani! Freedom of the
Airwaves: Towards Democratic Broadcasting in
South Africa. 1991. Conference Report.
Amsterdam: African European Institute.
26
See Horwitz (2001:133).
27
See Appendix D. Resolutions adopted at the
ANC DIP National Media Seminar: Towards a
Media Charter. 1991.
28
Louw (1993) suggests that the articulation of
the ANC’s views on an independent media
The Broadcasting Independence Handbook: Lessons from the South African experience
marked a turning point in the party’s approach
towards the notion of ‘democratising’ the
media. Prior to the conference, policy
discussions had centred solely around wresting
control of the airwaves from the NP to make
broadcasting services more accessible to
opposition parties.
29
Resolutions adopted at the ANC DIP National
Media Seminar. 1991. Clause 3.
30
Ibid. Clause 6.
31
See for example, The CODESA File. Durban:
Madiba Publishers.
32
COM Letter to Minister of Home Affairs. 1991.
33
Submission of the African National Congress to
CODESA Working Group 1: Sub-group 3.
Working Group 1, Sub-group 3, Internal
submissions, January – February 1992, Vol. 1.
Source: National Archives of South Africa,
Pretoria.
34
Submission by the National Party on items (f), (l)
and (o). to CODESA Working Group 1: Subgroup 3. Working Group 1, Sub-group 3,
Internal submissions, January – February 1992,
Vol. 1. Source: National Archives of South Africa,
Pretoria.
35
36
37
The Viljoen Report had been published in
August 1991 and the Task Group was due to
present its recommendation to Parliament;
there was a need to act expeditiously to ensure
that broadcasting issues would be included in
the multi-lateral discussions around the creation
of enabling mechanisms for a new South Africa.
The conference was attended by representatives
of the major trade union federations, media
trade unions, media organisations, media
lawyers, academics, and a host of other
interested parties.
See Appendix E. Free, Fair and Open – South
African Media in the Transition to Democracy.
1992. Cape Town: COM/UWC Centre for
Development Studies.
38
See Appendix F. Free, Fair and Open – South
African Media in the Transition to Democracy:
Conference Resolutions. 1992. Cape Town:
COM/UWC Centre for Development Studies.
39
See Appendix G. COM Submission to CODESA
Working Group 1. 05 February 1992.
40
See also Appendix M. Rapporteurs report on
points of consensus and disagreement in
WG1SG3. WG1SG3 Internal submissions, April
1992, Vol. 4. Source: National Archives of South
Africa, Pretoria.
41
Minnie, J. Schedule D: Processes adopted in the
“new South Africa” for the promotion of
broadcast media freedom and the development
of pluralistic and independent media. In Louw,
R. Press Freedom and the Media in South Africa.
1994.
42
Horwitz maintains that the ANC negotiators
were relatively uninformed on media policy and
ran the risk of agreeing on issues they did not
fully appreciate.
43
COM’s monitoring exercise of SABC news
coverage indicated a clear bias towards the
National Party government. There was growing
confirmation that the NP could not be trusted to
honour the commitment to the creation of a
‘new’ South Africa. The NP, for example, was
offering to include five ‘democratically’
appointed members to the existing board; an
offer that was rejected by the ANC.
44
Although the workshop, ironically enough,
commenced with a speech delivered by ANC
Secretary-General, Cyril Ramaphosa.
45
Raymond Louw and Marcel Golding were
elected Co-chairpersons.
46
See Appendix H. Campaign for Independent
Broadcasting Declaration. 1992. The declaration
was widely circulated and signed by
representatives
from
more
than
50
organisations.
47
SABC letter to COM, 13 November 1992.
48
The resort to mass action campaigning was an
important tactic employed by the MDM.
MWASA had, in May that year, engaged in
protest action that resulted in a wage increase.
49
See Appendix I. CIB Draft Proposal for SABC
Board. 1992.
50
Jeanette Minnie refers to the eminent persons
as the ‘wise and wonderful.’ The CIB wanted the
process to be overseen by a group of wise and
wonderful respected media and human rights
practitioners who would uphold the principles
of open media irrespective of their political
persuasions.
51
Van der Merwe, for example, insisted on
delaying the appointment of a new board, a
suggestion that was dismissed by the CIB.
52
The Minister denied ever having agreed to a
meeting on that day. The CIB claimed that
The Broadcasting Independence Handbook: Lessons from the South African experience
33
Pienaar was trying to cause political dissent
around the issue by hinting that the government
was negotiating a secret deal with the ANC.
63
The board’s term of office was extended by two
months, until 31 May 1993, by which time it was
envisaged, a new board would be in place.
53
See Appendix J. SABC Board Nominations Form.
64
54
Office of the State President, letter to CIB, 05
February 1993.
55
Also known as “Peter Mayibuye”, Netshithenze
was Deputy Head of the ANC’s Department of
Information Policy and asserts that the party
entered into negotiations with a view to:
• Ensuring a transparent process of appointing
an independent SABC Board; and
• Establishing legislation with respect to the
ownership and control of broadcasting
services.
See Appendix K. Guidelines for the appointment
of the new SABC board. The final agreement did
not differ substantively from the draft CIB
agreement except for the powers extended to
the President to refer back nominees.
65
The panel’s proposed was composed as follows:
Professor Njabulo Ndebele (Chairperson),
Vice- Rector of the University of the Western
Cape.
Dr Ivy Matsepe-Casaburri (Deputy-Chairperson),
Executive Director of the Education
Development Trust.
Brigalia Bam, SACC assistant Secretary-General.
Advocate Fikile Bam, Advocate.
Anna Boshoff, SA Vroue Landbou-unie
Vice-President.
Johnny Ernstzen, SAMWU General Secretary.
Dr Antoine Gildenhuys, National Peace
Secretariat Chairperson.
Professor Jakes Gerwel, Rector of the University
of the Western Cape.
Colin Hickling, former SABC Board member and
Managing Director of Bloemfontein Board of
Executors.
Tsepo Khumbane, a rural development
practitioner.
Moeletsi Mbeki, ANC media consultant.
Professor Fatima Meer, University of Natal
lecturer.
Khaba Mkhize, former deputy editor of
Natal Witness.
Billy Modise, educationist and Executive
Director of Matla Trust.
Phila Ndlovu, a rural affairs expert.
Bishop Canon Ndungane, Anglican Church
priest.
Professor Abram Nkabinde, Rector and
Vice-chancellor of the University of Zululand.
Professor Pieter Potgieter, Ned Geref Kerk
moderator.
William Rowland, Chairman of the National
Council for the Blind.
Sheila Sisulu, Director of the Joint Enrichment
Programme.
Allister Sparks, former Rand Daily Mail editor.
Dr Ruth Tomasseli, University of Natal media
academic.
Professor Alex Thembela, Vice-Rector of the
University of Zululand.
Dr Frederik van Zyl Slabbert, political consultant
and Metropolitan Chamber President.
56
Minutes of CIB Steering Committee Meeting,
21st January 1993. The outcome of the ANC/NP
bi-lateral was that the closing date for
nomination was extended from 22nd February
to the 26th; the deadline for the shortlist to be
made public was extended by a week and the
final selection date was extended from 22nd
March to 25th March.
57
The CIB called on the services of David Niddrie
and Michael Markowitz to draft the criteria for
the selection panel and SABC board. The
proposal made recommendations on the
collective character of the panel and Board, and
individual positive and negative criteria for
being a panel and Board member. For example,
the panel and SABC board were required to be
representative of South African society.
Individual positive criteria included openness
and accountability and a commitment to
freedom of expression and the free and
unrestricted flow of information. Persons
precluded from holding positions as panel
members or board members were people who
had financial interests in the broadcast media,
political representatives and civil servants.
58
The government proposed that a judicial panel
be appointed to draw up a short-list from which
the President would appoint a board.
59
Maivha, M. Letter to CIB re: Mandating ANC on
CIB demands over SABC board. 02 March 1993.
60
CIB response to NACTU, 02 March 1993.
61
CIB correspondence to steering committee
members, 12 March 1993.
62
CIB Letter to ANC Secretary-General. 18 March
1993.
34
The Broadcasting Independence Handbook: Lessons from the South African experience
was a longer-term issue that would be addressed
by an elected government.
Professor Christo Viljoen, academic and former
SABC Board Chairperson.
66
67
68
“Man at the centre of the row,” The Star, June 1,
1993.
According to Louw (1993:67), de Klerk’s official
objection to Ndebele was based on the
requirement that the Chair needed to be “fully
bi-lingual” and politically neutral.
76
Ibid., Section 9.1, Basic principles.
77
Ibid., Section 9.3, Proposed mission and goals for
the IBA.
78
Statement by Campaign for Independent
Broadcasting on the appointment of new board
for the SA Broadcasting Corporation, May 31,
1993.
Jabulani! Freedom of the Airwaves: Towards
Democratic Broadcasting in South Africa. 1991.
Conference Report. Amsterdam: African
European Institute.
79
Ibid., The resolutions adopted at the ANC DIP
National Media Seminar in November that year
are indicative of the influential role that cultural
organisations such as FAWO and COM played in
mainstream broadcasting policy development.
The ANC’s recommendations on an IBA mirrored
those adopted at Jabulani!
80
See Markowitz, M. Broadcasting and the Law in
South Africa. In Jabulani! Freedom of the
Airwaves: Towards Democratic Broadcasting in
South Africa. 1991. Conference Report.
Amsterdam: African European Institute.
Markowitz proposes an amendment to section 3
of the Radio Act which would provide for an
acceptable interim broadcasting mechanism.
81
The working group would later become Working
Group 1 which was tasked with the responsibility
of ensuring the creation of a climate for free
political activity.
82
The nominations criteria were similar to those
being proposed for an independent SABC Board.
83
See COM, Views on Broadcasting Task Group’s
Report. 01 December 1991.
84
See Broadcasting and the public broadcaster in
South Africa. Available online:
<http://fxi.org.za/campaign/pubroadc.htm>
The IMC’s task was to promote freedom of
expression in order to create a favourable
climate for free and fair elections. This meant
that the IMC set the terms for the election
campaign on the broadcast media, ensured that
state media reported on events in a fair and
unbiased manner, monitored broadcasts and
ensured that there was equitable access for all
political parties.
85
Golding M. Addressing the CIB Cape Town
Consultative meeting. 17 February 1993. The CIB
felt that the question of a regulatory authority
See Appendix L. Briefing of
Committees. Minutes of the
Committee. 01 June 1993.
86
Representatives were: A. Armstrong, M.
Markowitz, A. Tredoux, D.C. van Zyl, C.F. Noffke,
CIB Submission to the board of the South African
Broadcasting Corporation, 24 June 1993.
70
The CIB did, however, criticise the new Board for
extending CEO Wynand Harmse’s contract for
another year. They said in a press statement that
Harmse’s employment at the SABC “sends a
disturbing signal to the public and SABC
employees who were hoping to see a real break
with the SABC’s propagandist past.” CIB Media
Statement, 5 August 1993.
72
South Africa. 1991. Report of the Task Group on
Broadcasting in South and Southern Africa:
Viljoen Commission Report. (No. ISBN
0621141917). Pretoria: Government Printer.
The ousted seven were Johnny Ernstzen,
Professor Jakes Gerwel, Moeletsi Mbeki, Khaba
Mkhize, Phila Ndlovu, William Rowland and
Allister Sparks.
69
71
75
There was also a fear that lack of certainty
around the Board would enable de Klerk to
unilaterally appoint a new Board. According to
Horwitz (2001:144), the decision not to challenge
the Board’s was a politically motivated one on
the ANC’s part; broadcasting was but one of
many areas under negotiation and it was felt
that challenging de Klerk on this issue would
jeopardise other deals.
See Minnie, J. 1994. In her opinion the new
Board seemed not to know or care about the
history and processes of the negotiated Board.
It became apparent that the new Board began to
view the CIB as imposing and interfering. Former
Chair Van Zyl Slabbert was paraphrased in one
newspaper as having told the CIB to “go to hell.”
Tsedu, M. Focus on SABC Board. Sowetan. 7 June
1993.
73
74
The Broadcasting Independence Handbook: Lessons from the South African experience
Technical
Planning
35
E.J. Mabuza, P. Pretorius, D. Dison and C. Khoza
(secretary).
87
Dison, D. Interview. 10 April 2003.
88
The IBA Act came into legal effect in March 1994
with the appointment of the first Council.
89
See Horwitz (2001:146).
90
Interview, 10 December 2002. He also notes the
fact that the IBA Act, unlike other statutes at the
time, was the only draft legislation that was not
transitional in nature.
91
The Authority is currently reviewing its crossmedia
ownership
rules.
Independent
Broadcasting Authority Act (153 of 1993). Cape
Town: Government Printer.
92
Gevisser, M. “Wrangles behind the broadcast
names”. Weekly Mail. March 18 to 24 1994.
93
Ibid.
94
Problems were later to arise in terms of the IBA’s
policy-making and regulatory functions which
were later limited and curtailed, relegating the
Authority to the position of regulator/
implementer without the political muscle to
influence policy directives. For an analysis of the
challenges facing the IBA within the South
African economic and political context, see
Duncan, J. 2001. The expansion and contraction
of
broadcasting:
from
Independent
Broadcasting Authority to South Africa
Telecommunications Regulatory Authority. In
Broadcasting and the National Question: South
African broadcast media in an age of neoliberalism.
95
96
97
98
36
Kupe, T. 2002. Experiences of Public Service
Broadcasting Reform and Restructuring in
Southern Africa.
Section 6 of the Broadcasting Act requires the
SABC to develop policies that are intended to
ensure compliance with the Authority’s Code of
Conduct, the SABC’s licence conditions, and the
provisions of the Act. The policies, to be
submitted to ICASA, include news editorial
policy, and policies on programming, local
content, education, universal service and access,
language and religion. See also SABC: Draft
Editorial Policies, 2003. Available online:
http://www.sabc.co.za
S. 182, Chapter 9, South African Constitution,
1996.
S. 15(2), Constitution of the Republic of South
Africa Act 200 of 1993.
99
Ex Parte Chairperson of the Constitutional
Assembly: In re Certification of the Constitution
of the Republic of South Africa, 1996 and Ex
parte Chairperson of the Constitutional
Assembly: in re Certification of the Amended
text of the Constitution of the Republic of South
Africa, 1996
100
Constitutional Court decision of Justice Langa,
New National Party of South Africa v
Government of the Republic of South Africa
and Others, 1999.
101
Ibid.
102
Ibid. Also see Ex Parte Chairperson of the
Constitutional Assembly: In re Certification of
the Constitution of the Republic of South Africa
1996 (4) SA 744 (CC), 1996 (10) BCLR 1453
CC)(‘First Certification Judgement’).
103
Parliament of the Republic of South Africa,
Report of the ad hoc committee on the review
of Chapter 9 and associated institutions, 31 July
2007, xi.
104
Ibid, xi.
105
Xi-xii.
106
Communications Portfolio Committee, Budget
Briefing, 1 March 1999, Parliamentary
Monitoring Group (minutes).
107
Communications Portfolio Committee, Budget
Briefing, 1 March 1999, Parliamentary
Monitoring Group (minutes).
108
Communications Portfolio Committee, Budget
Briefing. Submission by the Independent
Broadcasting Authority. 1 March 1999.
109
Minutes of meeting of ad-hoc committee on the
review of state institutions supporting
constitutional democracy, 20 February 2007. 11.
110
White Paper 1998, 17.
111
White, J. ‘Independent Communications
Authority of South Africa’, in Woolman, S.,
Roux, T., Klaaren, J., Stein, A., and Chaskelson,
M. 2006. Constitutional Law of South Africa. 2nd
edition. Cape Town: Juta and Centre for Human
Rights, University of Pretoria. 24E-10.
112
Ibid, 24E-10-11.
113
Ibid, 24E-10-11.
114
Nicholson, R. ‘The South African Broadcasting
Corporation’s funding challenges in context’, a
presentation to the 2nd PBS colloquium, Robin
Nicholson, Chief Financial Officer of the SABC, 24
The Broadcasting Independence Handbook: Lessons from the South African experience
March 2006, 6.
115
116
Tleane, C. and Duncan, J. 2003. Public
Broadcasting in the Era of Cost Recovery: A
Critique of the South African Broadcasting
Corporation’s
Crisis
of
Accountability.
Johannesburg: Freedom of Expression Institute.
14.
Draft solution options analysis report,
Department of Communications (undated), 6899.
117
SABC Annual report, 1994.
118
IBA triple enquiry report, September 1995.
119
Representations by the Department of
Communications on the implications of the
Broadcasting Bill, 1998, for language equity on
SABC services’, January 1999, 23.
120
The SABC’s attempts to stabilize its finances
following the deficit it posted in the 1999/2000
financial year, is documented in Tleane, C. and
Duncan, J. 2003. Public Broadcasting in the Era
of Cost Recovery: A Critique of the South
African Broadcasting Corporation’s Crisis of
Accountability. Johannesburg: Freedom of
Expression Institute.
121
ANC, ‘Media in a democratic society’, Umrabulo
Number 16, August 2002.
122
Schulz-Herzenberg, C. ‘A silent revolution:
South African voters, 1994-2006’, in Buhlungu,
S. Daniel, J. Southall, J and Lutchman, J. State of
the Nation: South Africa 2007. Pretoria: HSRC
Press: 114-145.
123
Ibid, 117.
124
Ibid, 120.
125
SABC Editorial Policies, 2003, 5-6.
126
‘Commission of Enquiry into blacklisting and
related matters: report’, South African
Broadcasting Corporation, published on the
Mail and Guardian website, 14/10/2006.
The Broadcasting Independence Handbook: Lessons from the South African experience
37
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