Mental floss for the discerning
23 November 2017 00:18 (South Africa)
Opinionista Pierre de Vos

High Court judgment limits government interference of SABC, strikes a blow for independence

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

The South African Broadcasting Corporation is by far the most influential and dominant news source in South Africa. Any political party (or faction of a political party) who gains control of the SABC would be able to manipulate public opinion through the broadcaster. In such circumstances it would be impossible to conduct a free and fair election. It is therefore surprising that the judgment handed down last week, in which the High Court struck down efforts by the government to interfere in the management of the SABC, did not attract more attention.

If one is wedded to facts, it is not easy to understand why defenders of corruption and State Capture continue to claim that “the media” in South Africa (by which they mean privately owned media) is “biased”, because it is “white-owned” and “white-controlled”.

A study conducted last year by Intellidex found that four of the biggest private media operators in South Africa are black-controlled. These include eTV, Multichoice, Times Media Group (recently renamed Tiso Blackstar Group) and Independent Newspapers. Several smaller operators also have a substantial black shareholding including Kagiso Media, Cape Town Radio and MSG Afrika.

Leaving aside the claim of “bias” (I know from experience that many South Africans accuse you of “bias” whenever they do not like what you have written, and congratulate you for your “objectivity” when they agree with you), the fact is that the SABC (until recently firmly controlled by a corrupt cabal associated with President Jacob Zuma and those who support State Capture) is by far the most influential news source in South Africa. The private media thus have far less influence on public opinion than defenders of corruption and the status quo claim.

In any event, the reach of these media houses is negligible compared to that of the SABC. According to the latest circulation figures the largest daily newspaper is the Daily Sun (164,923 copies), followed by Isolezwe (85,491 copies), The Star (80,345 copies) and Sowetan (73,610 copies). The largest weekly newspapers (excluding free giveaways) are the Sunday Times (262,715 copies), Soccer Laduma (260,950 copies), the Daily Sun (164,923 copies) and Rapport (124,306 copies).

In contrast, the SABC has an average of 38.29-million adult listeners weekly across its 18 radio stations and millions more adult weekly viewers across its three free-to-air television stations and subscription news channels. So, as the High Court noted in its judgment last week, “limited distribution and cost of newspapers and the cost of subscription television makes [the] SABC the primary source of information for the majority of South Africans”.

Of course, for various reasons, the quality of journalism (both at the SABC and in the private media) varies wildly. While there are pockets of excellence within the South African media, the sensationalism and herd mentality in parts of the media can get rather irksome. For my taste, there is also a lack of sufficient in-depth and informed reporting and analysis at both the SABC and in the private media. You are also not likely to see much criticism by either the SABC or by the private media of large advertisers: money talks and often buys silence.

In this environment (in which the interests of advertisers, as well as the concerns, obsessions, interests and ideological preferences of the wealthy or middle-class consumers of media products will influence what the private media will report and on the opinions they will legitimise), a well-functioning public broadcaster (which the SABC is supposed to be) is of fundamental importance. In a capitalist state without a well-functioning public broadcaster, the right to freedom of expression and to free and fair elections will remain an empty and unreachable promise. As the Constitutional Court noted in Khumalo and Others v Holomisa:

“The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate.”

Last week the Gauteng Local Division of the High Court in the case of S.O.S. Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation and Others confirmed the importance of the SABC in fulfilling this role. In a ringing judgment (written by Matojane J) the court held that the right of everyone to freedom of expression and the right to vote (read with the Broadcasting Act and the SABC Charter) means the SABC is required “to ensure that members of the public have access to accurate, neutral and pluralistic information”.

The SABC must also provide “coverage of significant news and public affairs programming which meets the highest standards of journalism, as well as fair and unbiased coverage, impartiality, balance and independence from government, commercial and other interests”. Moreover:

“The SABC as a public service broadcaster must promote alternative views to encourage debate that is vital to the functioning of democracy. A healthy democracy requires that the public be able to discuss, share and receive information relating to political, social and cultural matters affecting their lives. The public broadcaster plays a crucial role in strengthening democracy and democratic governance by ensuring that the general public, in particular, those with neither political nor economic influence or power, have access to a broad spectrum of views on issues of public concern.”

The judgment also confirms that the SABC performs a watchdog function “by investigating and reporting on the maladministration, abuses of power and corruption as these are matters of [public interest”. Unlike ANN7 or The New Age (who will avoid talking about corruption if it involves President Zuma, the Guptas, or anyone associated with them), and unlike the private media (who will sometimes underplay wrongdoing by the private sector), the SABC is constitutionally required to be a watchdog over all those who wield economic, political and social power.

This, held the court, means that the SABC “must be free from executive control and influence”. It is for this reason that the SABC has an independent board to govern it. This board “does not report to the Minister [of Communications or to anyone in the executive], but to the National Assembly. The board is meant to be strictly independent and does not have to work with other government agencies.”

It is for this reason that the President’s power to appoint the non-executive members of the SABC “is a purely formal power as the National Assembly is the appointing authority” and the President “has no discretion” in the matter. This is sensible as the National Assembly is made up of multiple political parties representing the entire South Africa, while the executive usually represents only one party and its interests. The process followed by the National Assembly to make appointments is also far more transparent than the process that the President would follow. (The court thus confirmed the obvious legal point I made last week in this column.)

These important general principles about the independence of the SABC are not likely to find favour with the current government (or, for that matter, any future government). A government – no matter how much it claims to value free expression – will always try to control and/or bully the media into silence to try to evade accountability. (On more than one occasion representatives from the DA-led government in Cape Town and the Western Cape phoned me to try to intimidate me into silence after I wrote something critical about the DA governments in the city and the province.)

Few would have gone as far in trying to control the SABC as the Zuma faction within the government had done in the previous five years. In 2014, then Communications Minister, Faith Muthambi, amended the SABC’s Memorandum of Incorporation (MOI), giving her extensive powers over the appointment, terms and conditions of appointment, discipline and suspension of the executive directors of the SABC (these are the Group Chief Executive Officer, the Chief Operations Officer and the Chief Financial Officer).

After these changes the minister suddenly had the power to veto the appointment of executive directors and was also permitted to “manipulate the board’s interviews with candidates to ensure that her preferred candidates were appointed”. (This manipulation led to the appointment of the infamous Hlaudi Motsoeneng as Chief Operating Officer of the SABC.)

The amendments (too many to list here) in effect moved final administrative and operational control over the SABC away from the SABC board to the Minister of Communications. It went so far as requiring the board to seek approval from the minister should it wish to make any rules relating to the governance of the SABC. In effect, the minister took over control of the SABC, rendering the board no more than a paper tiger.

The High Court found that these amendments to the MOI were unconstitutional as they directly limited the constitutionally guaranteed independence of the SABC. It also contravened section 13(11) of the Broadcasting Act which conferred the exclusive power to control the affairs of the SABC on the SABC board.

In this period, the minister also removed members of the board with whom she disagreed. This was in conflict with the section 15 of the Broadcasting Act which requires the National Assembly to have an inquiry, and also allows removal on recommendations of the National Assembly if the inquiry found a board member guilty of misconduct. This the minister did by claiming that she was entitled to do so in terms of the Companies Act.

But the High Court found the Companies Act cannot prevail over the Broadcasting Act as the latter was specifically enacted to govern the SABC and should prevail. In any event, the court held, if the provisions of the Companies Act had applied to the SABC, these provisions would have been unconstitutional as they would have undermined the independence of the SABC board.

The judgment restores the power of the SABC board to create a truly public broadcaster that serves all the people of South Africa, a broadcaster not influenced by political factions or by the interests of private companies or wealthy individuals. This is not an easy task. There will be attempts by politicians from various political parties, big corporations, and the rich and famous to intimidate the SABC management and to silence its journalists. Hopefully the newly appointed board is up to the task. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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