An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
African National Congress, Presentation to the Press Freedom Commission, January 31 2012
The African National Congress (ANC) welcomes the establishment of this Press Freedom Commission. We forward to the final report.
In August 2011 a Task Team set up by the Press council of South Africa published a Review Report outlining proposed changes to the Press Code and the’ functioning of the office of the Press Ombudsman.
The Press Council said the review was undertaken “partly because the five-year term of office of the present Pres; Council is coming to an end; and partly because of criticisms directed at the print media by the ruling African National Congress”.
The ANC has fought for human dignity, free expression and by extention media freedom.
The drafters of our constitution who were on negotiating table representing the views of the ANC, ensured that these rights were enshrined in o constitution
Freedom of expression
“…Truth can be arrived at only through the untrammelled contest between and among competing opinions, in which as many viewpoint as possible are given a fair and equal hearing… Freedom of expression, of which press freedom is a crucial aspect, is among the core values of democracy that we have striven for.
“A critical, independent and investigative press is the lifeblood of any democracy. The press must be free from state interference…. It must have sufficient independence from vested interests to be bold and without fear or favour. It must enjoy the protection of the constitution that it can protect our rights as citizens.
“The tragic absence of diversity in the South African media has matter of grave concern to us over a number of years. …South African media are still largely dominated by persons drawn almost exclusively from one racial group. …While no one can object in principle to editors with such a profile, what is disturbing is the threat of one dimensionality this poses for the media of our country.
“For the past thirty odd years South Africa has sorely needed bold, probing and iconoclastic journalism. This is a tradition that has been pioneered by the handful of courageous, new publications that constitute the alternative press. Founded at a time of severe repression, when the proprietors of the mainstream newspapers preferred to accept a shameful regime of rigorous self-censorship rather than stand up to a repressive government, it was these newspapers that kept the flag of press freedom aloft.”
– President of the ANC, Nelson Mandela, 1994
Key-note address to the International Press Institute Congress
The ANC Resolution at its 52nd Congress and NGC 2010 Decision
The existing self regulatory system (Press Ombudsman and Press Council) is ineffective and needs to be strengthened to balance the rights of the media and the values enshrined in our Bill of Rights i.e. Human Dignity, Equality and Freedom.
Therefore calls on Parliament to conduct a public enquiry on.
An accountability mechanism
The resolution enjoins us to examine what regulatory mechanism can be put in place to ensure the effective balancing of rights, this may include self regulation, co regulation and independent regulation.
Accordingly, the ANC resolution states that any mechanism should be independent of commercial and party political interests should act without fear, favour and prejudice, should be empowered to impose appropriate sanctions and there must not be pre publication censorship.
The ANC believes in Independent Regulation: which is a fundamental principle that should guide all regulatory frameworks (industry codes, legal systems, etc).
Accordingly, the ANC resolution states that mechanism should be independent of commercial and party political interests should act without fear, favour and prejudice, should be empowered to impose appropriate sanctions and there must not be pre publication censorship
Regarding the Hierarchy an d balancing of Rights
In deliberating over these matters, the PFC will need to revisit what the first President of the Constitutional Court, Justice Chaskalson said, in a case Sv Makwanyane & another 1995 (3) SA 391, “The rights of life and dignity are the most important of all human rights, and the source of all other personal rights in Chapt. 3. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others.”
This is further re-enforced by Kate O’Regan, former Constitutional Court Judge who also said, in a case of NM vs Smith, “Freedom of expression…is indispensable, not only because it makes democracy possible but also because of its importance to the development of individuals, for it enables them to form and share opinions and thus enhances human dignity and autonomy. Recognising the role of freedom of expression in asserting the moral autonomy of individuals demonstrates the links between freedom of expression and other constitutional rights, such as human dignity, privacy and freedom. Underlying all these constitutional rights is the constitutional celebration of the possibility of autonomous human beings independently able to form opinions and act on them.”
The ANC is therefore saying
This process and the Parliamentary enquiry we envisage
Such a review must
We believe that the proposed establishment of a Media Appeals Tribunal will strengthen and complement the existing self regulatory system. Which is after all a media owner based and funded mechanism.
Print media weaknesses
In our view, the South African regulatory system for print media suffers from the following weaknesses:
The Mechanism we seek, must encourage professionalism in journalism, discourage irresponsible reporting, and strengthen democracy.
The ANC understands the difference between the regulatory approach to broadcasting and print media. For example, print media are mostly privately-owned commercial enterprises, small commercial and community media and differ from statutory publicly-funded bodies and even broadcast media where the issue of the spectrum as a public good applies.
Print media serve some public function by providing a public good with implications for human rights, hence the need for an independent regulation.
Our current system of public accountability by the media is restricted to broadcasters through ICASA’s complaints and compliance committee and ICASA accounts to Parliament.
The current self-regulation( BCCSA) in broadcasting is subjected to oversight by ICASA.
The self regulatory system for the print media is unaccountable to the public and is ineffective
From the scan of international experiences outlined in our submission, there are the following matters that need consideration in our country:
– the positive attributes, as in Tanzania:
They not only develop a code of practice which media (including print and broadcasting) agree must be adhered to, but also are mandated to defend freedom of the media and promote training of journalists.
Members of the Council include media owners, training institutions, professional associations press clubs and editors fora
The constitution allows all media outlets and associated members to be full members on application but also gives the Council the right to terminate membership by a publication in certain limited instances, including repeated and gross violation of the code of ethics.
Denmark has a statutory system and the council is set up under the Media Liability Act. The Act defines who can be members and does not provide for much discretion by Government for appointment.
The law states that the Chair and Deputy Chair must be members of the legal profession appointed on the recommendation of the President of the Supreme Court
Two members are appointed on the recommendation of the journalists union, two on recommendation of owners of the press and two by the Danish Council for Adult Education
The Council does not have the power to fine papers (though the media liability law provides for this through court action) but can order a paper to correct information or give a complainant the right of reply
Again, the ANC would like to emphasise that we look forward to your review report. All such initiatives will enrich the parliamentary process.
We understand that your brief is broad and look holistically at how to ensure any media accountability mechanisms act and are perceived to act independently of their sponsors, powerful commercial and other interests, political parties and government, are seen to be effective in addressing breaches of agreed upon standards, and contribute towards raising the standards they uphold.
The constitutional rights enshrined in the highest law of our land must be enjoyed by all citizens primarily to promote freedom of expression and human dignity.
The PFC report should be tabled at the Parliamentary inquiry, the ANC will seriously into account the submissions to as well as the conclusions reached by the Commission.