A few months ago Die Burger and Beeld carried a remarkable series of articles written by Riaan “Koedoe” Eksteen, who used to be the director general of the SABC back in the apartheid days when PW Botha was the State President of South Africa. With an astonishing lack of insight or remorse, Eksteen wrote about his rule at the SABC (which was in effect a mouth-piece of the National party) and the stormy relationship between himself and the then State President.
Old finger-wagging PW (also known as “Die Groot Krokodil” – The Big Crocodile) used to call Eksteen regularly to complain about the SABC – especially the news programmes – and on one occasion even ordered Eksteen to “correct” the news bulletin while it was still in progress – something Eksteen happily did.
Botha also complained to Eksteen (he claimed on instructions of the State Security Council) about the broadcasting by the SABC of the science fiction programme called “V”. This series chronicled the arrival on Earth of a technologically advanced alien race who ostensibly come in peace but actually have sinister motives.
PW Botha complained that in the programme the ostensibly human-like aliens turned into crocodiles at night and ate the humans. He saw it as a personal attack on him (being called Die Groot Krokodil” and all) and when Eksteen agreed to move the programme to a later slot and to broadcast the episodes nightly to speed up its completion, Botha apparently remarked: “You can obviously not wait to see the country go up in flames.”
Since those dark days the SABC has come a long way. Although it has recently been in the news because of mismanagement and corruption and although the news programmes are far from independent (it clearly had a pro-Mbeki bias before the Polokwane conference), there has not been the same kind of scandalous direct interference by politicians as during the Botha era.
This might all change if the Public Service Broadcasting Bill, hastily published for comment last week, becomes law. The Bill has the look and feel of an apartheid era piece of legislation, and contains phrases right out of the Christian Nationalist playbook. For example it states that the South African Broadcasting System must, inter alia, strengthen “the spiritual and moral fibre of society”. The last time I read about the “moral fibre of society” was during the reign of “Die Groot Krokodil” and to see this reactionary phrase repeated in draft legislation prepared by the ANC government comes as quite a shock.
The Bill is also, bizarrely, littered with typographical and other errors and in places reads like something cobbled together by Julius Malema and his dyslexic woodwork teacher. For example section 22 states that the affairs of a community broadcaster shall be “controlled by the Governing Council Governing Counsel (sic)” while section 25 states that Community Broadcasting Service “…shall be partnership (sic) with municipalities…” and this partnership shall include “availability of information about development to by (sic) local municipalities”. Section 33(b) states that the “powers and actions contained in subsection 30(a) shall occur (sic) in cases where….”, but section 30(a) contains no powers and actions so the section on its face make no sense – even if one thinks that powers can “occur”. Section 35(3) states that “[i]n case of case (sic) the fine shall be paid into the PSB fund…”
But these are really minor if embarrassing problems compared to the other aspects of the Bill. Section 4 proposes the establishment of a Public Service Broadcasting Fund which shall be financed by raising no more than 1% from all us through a personal income tax levy. This makes the Bill a Money Bill as it purports to impose “national taxes, levies, duties or surcharges”, but section 77(2) of the Constitution makes clear that ordinarily a money Bill can only deal with money issues, which means this Bill dealing with broadcasting cannot impose any taxes.
Section 73(2) states that only the Minister of Finance can introduce a Money Bill in Parliament. The person who included these provisions in the Bill clearly did not pay attention during his or her Constitutional law class and did not bother to read the relevant sections of the Constitution before releasing the Bill for comment.
The Bill also proposes that the money raised by the 1% income tax will be disbursed by the Public Service Broadcasting Fund according to criteria developed by it but approved by the Minister and those who receive money must be subject to the Public Finance Management Act (PFMA). Anyone who has ever read the PFMA would have been able to tell you that if community broadcasters were subject to the provisions of the PFMA, they would – as Anton Harber stated earlier this week – have to close down within weeks because they would not be able to meet the onerous obligations imposed by this act.
Large parts of the Bill might also be unconstitutional because it infringes on section 192 of the Constitution which states that “[n]ational legislation must establish an independent authority [ICASA] to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”.
The power of ICASA as guaranteed by the Constitution is severely limited by this Bill while the powers of the Minister to interfere in the SABC is enhanced. The Bill states that the minister (and not ICASA as required by the Constitution) “is ultimately responsible for the effective monitoring of the implementation of the act”. Thus the Minister is empowered to direct any of the entities mentioned in the Act (including ICASA and the SABC Board) to take any action in regard the act if that entity is unable to perform its function in terms of the act.
The Minister may also instruct the SABC board to take any action specified by the Minister if the SABC has failed to follow the instructions of the Minister in terms of the Act or has acted unfairly towards any person to whom it owns a duty in terms of the act. This means if the Minister thinks the SABC has acted unfairly towards any employee of the SABC or any member of the public (maybe by not providing sufficient coverage of ANC or government events or by firing a corrupt SABC staffer!), he could instruct the SABC board to “correct” its “mistake” and if the board fails to do this, he will have the power to recommend the firing of the the board to Parliament.
The Bill is not a model of clarity, to say the least, but it is clear that the intent of its drafters was to give the Minister a decisive say in the running of the SABC and to empower him to interfere with the day to day running of the SABC.
This is scary stuff.
I wonder what Koedoe Eksteen would make of this Bill.
Prof: Thank you for the Dr. Mamphela Ramphele lecture. Ever since i’ve been living in South Africa, a decade now, I’m been fascinated with the label: “Die Groot Krokodil”. Has such a ring to it. He must have been one evil dude. Not that I have anything against crocodiles apart from not wanting to be lunch.
I’ve posted before that there are easily recognized and defined steps which take place when moving from Democracy to fascism. If one has followed the Zimbabwean fiasco these last many years, one can most definately list the political steps taken; and they apply to every case where this scenario has unfolded.
I love your quotes of the week by the way, but wish they were more often. I suppose daily is too much to ask.
Annonymouse, nice to read you posting again. You’ve been absent for a while.
I’m going to check and hang out on your Democracy blog/post for the possibility of continued discussion.
Excellent heads-up!
However.
One can see the tell-tale signs of a government that has neglected its duty of spiritual and moral governance all around us. The problem is exactly that we never read about the “moral fibre of society” anymore except when the godless, shameless ANC tries to finesse criticism about corruption within the organisation hypocritically by appointing some ‘moral rejuvenation’ taskforce.
It is simply unbelievable that we have not seen a President call a referendum ito S84 of the Constitution once in 15 years. Apart from wanting Gospel music to be made mandatory if any bureaucrat wants to listen to a radio in a state building I would like to see referendums on things like reinstituting Sunday Observance.
Sorry. ‘Referenda’.
Are we surprised?
I don’t want to be cynical about the Zuma dynasty (you read this term first right here), but if one examines both how it was formed, and how it rose to power in South Africa (the subject of so many of Prof’s excellent posts and subsequent debates), then this is not a new thought.
I have said before that one of the defining characteristics of Mr Mugabe’s rule was the patina of legality that overlaid what were always pre-dtermined outcomes. In this, Mugabe was a genius. But no hnest observer could ever conclude that his regime was in any respect subject to law or to democracy. Both have been used for as long as they have suited his own personal ends, but cast aside when the need has arisen.
And so with the Zuma regime, with all of his charm and desire to please, and with the great fact (great as in large or significant) that he is not Mr Mbeki (a bit like Mr Obama is not Mr Bush), and with whatever good intentions that may be there, this regime is still rooted in a comprehensive disdain for the law as an external authority that measures, weighs and governs.
“The Bill is also, bizarrely, littered with typographical and other errors and in places reads like something cobbled together by Julius Malema and his dyslexic woodwork teacher”.
That’s because, er, hmm, ok ask Dworky!
Hey Dworky what’s the Pedi word for “typographical”?
Mike Atkins says:
November 5, 2009 at 21:49 pm
“this regime is still rooted in a comprehensive disdain for the law as an external authority that measures, weighs and governs”
How so?
I looked in the Pedi dictionary and there’s no word for typo…. never mind.
I havn’t seen a well written Bill in ages. And it seems that the mistakes make it into the Acts, and then we end up with lots of court cases about the interpretation and the meaning of the Act and and and.
It seems that few people can put their thoughts on paper clearly and logically, and none of those few work for the state…
Maggs,
“comprehensive disdainfor the law as an extenal authority” – how so?
I am not talking about anything that has not been discussed at length in these blogs. By an “external authority”, I refer to the law as an authority that exists outside of ourselves, and to which we are all bound. This is no more than another means of referring to “the rule of law”.
Minimally, the Rule of Law means that in all areas described by law, actions are taken (particularly by elected representatives and state officials) i obedience to and consistently with the law. But I would argue that the idea goes deeper in the sense of recognising that “law” as opposed to a particular law) carries an authority in and of itself, and that no person is exempt from the provisions of the law.
This is really kindergarten stuff, but my feeling is that this is slipping away from us not only in SA, but around the world. Rurtherford’s “Lex Rex” is the clearest expression of this. Like I said, this is the basics of the basics.
When we get a Julius Malema who asks the traffic policeman, “Don’t you know who I am? (like Mr Selebi when he swore at a female police officer”), he is placing himself as the “authority”. This is “Rex Lex” – the King is Law.
In practice, this means that when the chips are down, will the Zuma regime submit itself to the due processes of law, or won’t they. With Mr Mugabe, the case is clear – he will not. When the election went against him, he stalled and fudged. It is logically inconceivable the Mr Tsnagirai received less than 50 % of the vote in a genuine count (if he had, there would have been no need for the six-week delay in announcing the results). As I have said, Mr Mugabe USES the law for as long as it suits his purpose, but then flouts, overrides or violatyes it when the law does not favour him. We all know this, and this is why I referred to his “genius”
So, does any of this apply here? Well, we all know of the “Stalingrad” legal tactics used to delay Mr Zuma’s trial. These are loudly proclaimed to be within his rights (“law” is appealed to when it suits his cause). But then Mr Mbeki is removed because of comments made by a judge tha had no force of law. Certainly, the ANC had the legal “right” to ask Mr Mbeki to step down. But where was the right of reply, where was “innocent until proven guilty” (and all appeals exhausted)? No law was broken with that, but the spirit of “law” and justice was.
But then, Mr Mbeki’s removal was necessary. Under his executive leadership, it would not have been possible to have the charges against Mr. Zuma withdrawn (although, in theory, he ought not to have ahd the capacity to influence this in any way).
And then we have Mr Mpshe’s law-less “decision” to withdraw charges. We have debated this at length, but nobody could advance, on the basis of the documentation available to us, that the decision was lawful. I challenge anyone to construct a scenario for the decision that logically creates some reasonable doubt that Mr Mpshe acted out of either “fear” or “favour”. I contend that any such attempt would be mere sophistry.
Mr Shak’s release was, as Prof has so clearly shown is, utterly unlawful.
In both of these cases, it is clear upon reflection that the outcomes were pre-determined. By interests, not law. therefore, we are back to the situation of “Rex Lex”. Our “king”, Mr Zuma IS the law. Like Mr Mugabe, where he can achieve what he wants to achieve within the confines of the law, he will. Why not. But where he cannot do so, the law will be overlooked, bypassed, or, as Zapiro so graphically depicted, violated.
I was interested to hear MR Vavi questioned ont he After 8 Debate on SAfm about what his response would be if Mr Zuma was convicted. he repeatedly refused to reply. I infer that he “knew” that this eventuality would not (and could not) come to pass.. Julius Malema was less coy – he declared that Mr Zuma would be the President, even in prison garb.
My contention is that the issue highlighted by Prof here is merely the flowering of the “roots” that I describe.
Mike Atkins says:
November 6, 2009 at 11:47 am
Interesting perspective even though mine is opposite that.
Mbeki was all powerful, yet he succumbed to due democratic process.
Zuma followed all the legal processes (he had smart counsel) and the DA is challenging some or other aspect – that’s the rule of law for you.
I think Pierre said that Shaiky Shaik’s medical pardon was unwise, not unlawful.
Re Vavi and Malema – what makes them so scary?
They have views and, like the rest of us, are entitled to express it, provided that it does not exceed, or get close to, the legal bounds (as Malema has discovered with the matter now before the Equality Court).
If they are accused of crimes then they must face the law – I read a comment by the Dep Minister of Transport Jeremy Cronin that the Malema traffic matter is or will be fully investigated.
But really the sky is not falling on our heads!
p.s. Florida, Zimbabwe, Afghanistan are matters for debate elsewhere – but certainly does not impact on the rule of law here.
Maggs,
I hear you (and it is good to sharpen one’s perspective againstt he critical position of others).
However, “some or other aspect” hardly describes the role of one of the few people whose responsibilities are described directly in the Constitution. Regarding Shaik, I think that you will find that Prof has described the idea of a “pardon” as unwise, whereas the “parole” was unlawful.
What scares me, and not exclusively from Vavi and Malema, is the expression that certain things just “will” happen, and that we had better get used to it. Yes, this can be rhetoric. And yes, when listening to a second language speaker, one can make allowances for the nuances of language (I really have no intention of being “superior” or patronising here – I speak two languages well, while most black people speak at least three or four passably well), but what if the rhetoric mirrors the inner intentions? What actual evidence do we have of anyone in a position of power submitting respectfully to the rule of law?
Regarding Mr Cronin’s promise, don’t hold your breath … I would happily be proved wrong, and buy you a box of chocolates (if that is not an offensively sexist gesture – I mean no insult).
Mike Atkins says:
November 6, 2009 at 13:17 pm
I’ll take the chocolates (even if you’re right) – it would have been sexist if i were a woman in which case two boxes would have solved that.
“What actual evidence do we have of anyone in a position of power submitting respectfully to the rule of law?” – former President Mandela, Zuma, Selebi, Pikoli, Yengeni, Winnie Madikizela-Mandela, Hlophe, Motata, the travelgate gangsters….
I think that people get unnecessarily overwhelmed if loud noises are made by people in leadership positions.
“Sorry. ‘Referenda’.”
Brett, it’s quite OK to say ‘referendums’.