Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
15 June 2011

Manyi’s adspent plan probably unconstitutional and illegal

The announcement by Mr. Jimmy Manyi, CEO of the Government Communication and Information System (GCIS), that the Cabinet has decided to consolidate all media spending by government departments — worth about R1bn a year — under the Government Communication and Information System (GCIS) to achieve economies of scale and “more bang for its buck”, has created a predictable furor in the media. Predictable, because the move would threaten the profitability of newspapers and their owners and shareholders would obviously not like this.

When making the announcement, Mr. Manyi said that the government was concerned that its message was not getting through to the populace. He insisted that as long as the media performed its function of passing on government information, as well as acting as government watchdog and critic, then there was no need to worry. Allocations of advertising would be decided on the basis of which media outlets were most effective in passing on the information about government programmes and service delivery and would be based on a segmentation of the different audiences. “We want to make sure that government information is out there,” Mr Manyi said.

The people who are going to put out our content more effectively to the public of SA are the people we are going to focus on. I can tell you this right now. To the extent that government information gets passed on, we will work with those people… We just want the truth. Government has programmes of action and would like citizens to know the truth about service delivery, opportunities in government, etc. Once you have done this, you can do what you like, you can criticise as much as you like. We want criticism. Criticism will help us improve.

The question is whether this move would be constitutional and whether it would be legal to make decisions about where to place government adverts based on the content of the particular publication. Can the government “reward” publications for reporting more comprehensively (or less critically) on its activities and “punish” publications who do not?

I suspect that it could not and that the plan is both unconstitutional and illegal.

Of course, Manyi is correct that newspapers do not always report comprehensively on what government does or what it says it is doing (which, sadly, is not always the same thing). There is a good reason for this. Most of the announcements emanating from government departments are neither sexy nor controversial while much of government communication is so boring that not even the most slavishly pro-government publication would want to carry news of it for fear of boring their readers to death. Perhaps the only reason why newspapers would carry news of these many unremarkable if worthy government initiatives were if they were “bribed” to do so.

The problem is that Mr. Manyi seems to conflate two completely different issues.

The first issue is whether newspapers report comprehensively and fairly on government initiatives.  Many newspapers probably do not. This would often be because the information is of little interest to a newspaper’s readers, who would prefer to read about Julius Malema’s latest outrageous statement aimed at making  him sound like a radical revolutionary with a Breitling watch or to read about the latest Idols racism controversy. Sometimes newspapers do not report on government initiatives and plans  because government communicators are not doing their jobs properly and are communicating the information in such an amateurish and dry fashion that it would make reports of the World Curling Championships look exciting and sexy.

If the government wishes to address this issue it would surely have to advertise in exactly those newspapers who had not reported comprehensively and fairly on its activities in the first place. If it advertised in those newspapers who had already reported comprehensively and fairly on its activities, it would be wasting taxpayers money because it would be targeting the very audience who may already be sufficiently informed  about government activities.  But Manyi seems to suggest that it might do exactly the opposite and that the government would advertise in the newspapers who had already informed its readers as a way of “punishing” those newspapers who had not.

A second issue is whether the government is getting “bang for its buck” in the sense that the advertising reaches those people at whom it is aimed. If one wants to advertise jobs at the National Treasury, say, one would obviously target the Mail & Guardian or the Sunday Times as these two publications are known for carrying these kinds of job adverts and those in the market for a job would read these publications. One would get “bang for one’s buck” only if one advertises in these publications read by job seekers and not if one advertised in the Polokwane Observer or the Atlantic Sun. If the government made decisions on where to place such advertisements based on whether a newspaper had reported comprehensively and fairly on its other activities, it would again be wasting taxpayers money because it would be advertising in publications in which the advert would not have the desired effect.

In both cases, this move would probably be unconstitutional and illegal. Section 217(1) of the Constitution states that when an organ of state – which would include the GCIS – contracts for goods or services, “it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective”. This section must be read with section 16 of the Constitution, which guarantees freedom of expression, including freedom of the press and other media.

Where the government made decisions on how to spend its advertising budget not based on considerations related to whether it was effectively targeting the intended audience, but on the content of the newspaper involved, it would, in effect, be  “punishing” newspapers for not writing what the government wishes it to write. Using its financial muscle in this way to try and influence or censor the media would amount to imposing indirect limtations on the freedom of the media. This might well be found to be unconstitutional.

This is not the end of the matter. The Public Finance Management Act, giving effect to the provisions of the Constitution, contains strict requirements for the spending of public funds and prohibits “unauthorised expenditure”, which is defined as expenditure not in accordance with the purpose for which the money was allocated, or “fruitless and wasteful expenditure”, which is defined as expenditure which was made in vain and would have been avoided had reasonable care been exercised.

If money was allocated to advertise the work done by the government, it would have to be spent in a cost effective and targeted manner for this purpose and not for the purpose of rewarding those publications who published news of a government minister opening a day care centre in Lusikisiki or visiting the Bredasdorp agricultural show. If money was allocated for a more specific purpose – say to advertise government jobs – this money once again had to be spent cost effectively to ensure that the advert would attract the widest and most qualified pool of applicants and not to “punish” or “reward” a newspaper.

Section 38 of the Act makes clear that the Director General or the head of the Department – in this case Jimmy Manyi – had a duty to maintain “an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective”. Such a person is also responsible for the “effective, efficient, economical and transparent use of the resources of the department, trading entity or constitutional institution”.

Section 86 of the Act states that an accounting officer who “willfully or in a grossly negligent way fails to comply with the provisions of section 38” is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding five years. As the punishment of newspapers for not writing about the government in a manner that the government wishes could never be a deemed to be a constitutionally valid reason for using taxpayers money, any such expenditure would by its very definition be unauthorised and wasteful and hence illegal.

I must stress that these provisions do not mean that the GCIS would not be permitted to spend money on advertising the work done by the government and its various departments. If Mr. Manyi or members of the cabinet believe that some newspapers are failing to report comprehensively and accurately on government’s activities and initiatives, it would be entirely appropriate to buy advertising space in those newspapers who are perceived as failing in their reporting, in order to inform the readers of that paper about the good work done by the government.

Ironically, it would be exactly those newspapers who are perceived not to be reporting accurately or fairly who would have to be targeted in order to ensure that the expenditure on the advertising is not viewed as unauthorised or fruitless and wasteful. The very newspapers whom the government might not like would be the one’s cashing in on the government advertising budget.

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