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.
The South African Broadcasting Corporation (SABC) and its Board have again been plunged into turmoil after the Minister of Communications, Stella Ndabeni-Abrahams, clashed with the Board about plans by the Board to retrench 981 permanent employees and 1,200 freelancers as part of the public broadcaster’s urgent “turnaround” strategy. Some Board members are alleged to have resigned while the Minister reportedly now refuses to engage with the Board. At the heart of this clash, is a refusal by the Minister to respect the legally guaranteed independence of the SABC.
The SABC is by far the most powerful media outlet in South Africa. As the High Court noted last year in SOS Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation, the SABC reaches a vast number of people thus rendering “it a powerful tool that potentially could impact on the quality of democracy if it is not independent and pluralistic”.
The majority of South Africans receive their news and information primarily through the SABC’s radio and television broadcasts. According to its annual report, the SABC has an average of 38.29 million adult listeners weekly, across its 18 radio stations. It has 19.925 million adult weekly viewers across its three free-to-air television stations and subscription news channel. According to the High Court in the SOS Support Public Broadcasting Coalition judgment:
The SABC has a unique role and responsibility to play as the public service broadcaster. The high rates of illiteracy in the country, the limited distribution and cost of newspapers and the cost of subscription television makes SABC be the primary source of information for the majority of South Africans.
This view was affirmed by the Supreme Court of Appeal (SCA) back in 2016 in its judgment in SABC v Democratic Alliance (at a time when a more pliant board and an even more interfering minister oversaw the disastrous reign of Hlaudi Motsoeneng at the broadcaster). In that judgment the SCA noted that the SABC is a:
public broadcaster that millions of South Africans rely on for news and information about their country and the world at large and for as long as it remains dysfunctional, it will be unable to fulfil its statutory mandate. The public interest should thus be its overarching theme and objective. Sadly, that has not always been the case.
After the High Court last year handed down judgment in the SOS Support Public Broadcasting Coalition it is no longer in doubt that the SABC and its Board is independent from government. The word “independent” occurs 17 times in that judgment which explains in great detail why an independent SABC is important for South Africa’s constitutional democracy.
Because the SABC is supposed to be a public broadcaster (not a state or party broadcaster) and because it is by far the most powerful and influential media source in South Africa – its ability to act in a manner that is independent from government and impartial vis-à-vis various political, business and civil society actors is directly linked to the right of everyone to freedom of expression.
This is because the SABC’s independence and impartiality is a prerequisite for the SABC to deliver news in a fair and impartial manner. In this regard, it is important to note that the right to freedom of expression guaranteed in section 16 of the Bill of Rights includes not only the right to impart information, but also the right of everyone to receive information that is diverse and varied and reported in a fair manner.
The problem with most accounts of freedom of expression emanating from the United States is exactly that it does not take account of the fact that (in the absence of a public broadcaster) the media landscape is skewed in favour of corporate and political interests – which means that there is a real risk that people will only receive limited information based on the commercial and political interests of those who control the commercial media.
This is why the SABC – as a public broadcaster – is supposed to play such an important role in safeguarding the right to freedom of expression in South Africa. As the High Court stated in the SOS Support Public Broadcasting Coalition judgment:
Section 16 of the Constitution enshrines the right of the public, the SABC’s audience, to be able to access information and ideas so that they can enjoy their rights. The freedom to receive or impart information or ideas relates to the right of the SABC to communicate without interference, but also the right of the broader public to have access to the broadcast media.
This independence of the SABC is further secured through the provisions of the Broadcasting Act. Section 1(2) of the Act provides that “Any interpretation of the provisions of this Act must be construed and applied in a manner which is consistent with freedom of expression and the journalistic, creative and programming independence of the broadcasters guaranteed by the Constitution”.
Section 6(2) provides that the SABC “in pursuit of its objectives and exercise of its powers, shall enjoy the freedom of expression and journalistic, creative and programming independence.” Section 3(5) of the Act enjoins the SABC to ensure that members of the public have access to accurate, neutral and pluralistic information. It provides that the programming provided by the South African broadcasting system must-
(a) be varied and comprehensive, providing a balance of information, education and entertainment meeting the broadcasting needs of the entire South African population in terms of age, race, gender, interests, and backgrounds;
(b) be varied and offer a range of South African content and analysis from a South African perspective;
(c) must be drawn from local, regional, national and international sources;
(d) provide a reasonable, balanced opportunity for the public to receive a variety of points of view on matters of public concern.
Section 10(1)(d) of the Act further obliges the SABC to 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”.
But the independent and pluralistic broadcaster is not only crucial to guarantee the right to freedom of expression and access to information. It is also vital to the citizen’s right to vote and the right to free and fair elections in terms of section 19 of the Bill of Rights.
As noted above, for most South Africans the SABC is the primary source of political information. They cannot exercise their right to vote meaningfully without access to independent and pluralistic information and opinion. As the High Court noted in this regard:
Without access to information about the conduct, opinions and relationships of political parties and the representatives, it is impossible for citizens to decide how to exercise their right to vote. If political or private interests govern the media, it cannot provide South Africans with the accurate, neutral and pluralistic information they require to make the right to vote meaningful.
For all these reasons, the independence of the SABC and its Board is protected in law. Section 13(11) stipulates: “The Board controls the affairs of the Corporation and must protect the matters referred to in section 6 of this Act”. Section 13(11) must be read with section 6(2) which reads “[t]he Authority must monitor and enforce compliance with the Charter by the Corporation”.
These two sections require the Board to control the affairs of the SABC and to ensure SABC’s compliance with the Charter. The High Court affirmed that the Minister cannot get involved in operational aspects of the running of the SABC:
The Minister, as the representative of the sole shareholder and not a member of the Board, does not have the right to act on behalf of SABC or to manage its business or affairs… The ultimate decision-making power is that of the Board and not the Minister as a sole shareholder save where the MOI provides otherwise.
The Court also rejected the argument that the Minister represents the public interest in her interaction with the Board. It is correct that in her engagement with the Board, the Minister represents the sole shareholder of the SABC – the Government of the Republic of South Africa. However, it is Parliament, not the Minister that represents the public interest and performs an oversight role on behalf of the public regarding the SABC.
This approach is understandable and sensible because the National Assembly is made up of multiple political parties who appoint members who are acceptable to all parties. As the High Court noted the effect of various provisions of the Broadcasting Act is:
to confer on the Board the exclusive power to control the affairs of the SABC. The Minister is accordingly precluded from exercising any powers by which she may control the Directors in how they control the affairs of the SABC.
This does not mean that the Minister can walk away from her responsibilities towards the SABC. As there is a constitutional imperative on the government of the day to take steps to ensure that an independent and impartial SABC continues to deliver on its mandate, the Minister has a constitutional duty to work with the Board of the SABC – without interfering in the operational and other decisions taken by the Board.
I have no idea whether the decision by the Board to embark on a major retrenchment is sound or not and I express no opinion on the matter. But if the Minister (and more importantly the National Assembly) believe that the Board is making a mistake (based not on party political considerations but on operational grounds) it has a duty to engage constructively with the Board without ever interfering with the operational decisions of the Board. But to the extent that the Minister might have failed to respect the independence of the SABC and its board and may have attempted to meddle in operational decisions taken by the SABC, she may be acting both unwisely and unlawfully.BACK TO TOP