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.
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.BACK TO TOP