The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
Yesterday the Independent Communications Authority of South Africa (Icasa) ordered the SABC – allegedly a public broadcaster – to withdraw its decision no longer to broadcast footage of destruction of public property during service delivery protests. However, briefing journalists yesterday, the SABC’s board and management said Icasa was a chapter nine institution which only has the power to “give recommendations”. This claim by the board and management of the SABC is incorrect, and seems to be based on a complete misunderstanding of the law.
After Icasa ordered the SABC to revoke its unlawful policy of placing a blanket ban on the coverage of certain news events, SABC board member Aaron Tshidzuma made the following claim:
The Icasa recommends issues, Icasa also uses legal advisers in its recommending…we are the broadcaster we practice the broadcasting. That is why we are sticking to our story because our Constitution is also against violence, unrest and inciting such. This is our editorial stance.
But in terms of section 17D(3) and 17E of the Icasa Act of 2000, its Complaints and Compliance Committee (CCC) considers complaints against a broadcaster like the SABC and then makes recommendations about breaches of the Broadcasting Act or licencing conditions to Icasa itself. If Icasa accepts the recommendations of the CCC it must direct the broadcaster (in this case the SABC) to comply with its legal obligations.
If the broadcaster fails to comply with the order from Icasa, Icasa would ultimately be empowered by section 17D(2)(e) of the Icasa Act to prohibit the SABC from broadcasting for a period of up to 30 days. In other words, the SABC is not legally entitled to ignore Icasa’s orders, because if it does, it could face a 30-day suspension during which it will not be permitted to broadcast at all.
There has long been problems with political interference and politically compromised editorial decisions by the SABC news service. Back in 2011 the High Court in Freedom of Expression Institute v Chair, Complaints and Compliance Committee rejected a review of an Icasa decision declaring the blacklisting of commentators unlawful and stated:
… [The] blacklisting of commentators perceived to be critical of the government of the day, was clearly designed to silence their voices by not allowing them on air. His purpose was obviously to manipulate the SABC’s news and current affairs programmes by excluding these critical voices from them. … It is obviously impossible to point to any particular programme and say that it was a distortion of the truth because the blacklisted commentators were not on it.
However, the current trouble started when the SABC (more specifically its COO Hlaudi Motsoeneng) announced in May this year that “it will not show footage of people burning public institutions like schools in any of its news bulletins with immediate effect” because “[w]e will not cover people who are destroying public property…. we will not assist these individuals to push their agenda that seeks media attention”.
In the SABC’s legal papers defending the decision before the CCC, the policy was further explained as follows:
[w]hat is sought to be curtailed is the coverage of destructive and regressive conduct on public institutions; SABC… will not cover people who are destroying public property; SABC will not cover violent protests that are destroying public properties; respondents admit that under the Policy it will not provide ‘coverage of destruction of public institutions’.
Icasa held that this blanket ban on the coverage of the destruction of public property contravened section 10(1)(d) of the Broadcasting Act which imposes an obligation on 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”.
This provision is strengthened by section 6(8)(f) requires the SABC to develop a code of practice that ensures that the services and personnel comply with “a high standard of accuracy, fairness and impartiality in news and programmes that deal with matters of public interest”.
The SABC policy also contravened its licencing conditions which requires it to meet the highest standards of journalistic professionalism in the production of its news and current affairs programmes; and to provide fair, unbiased, impartial and balanced coverage independent from governmental, commercial or other interference; and provide a reasonable opportunity for the public to receive a variety of points of view on matters of public concern.
In this regard the SABC is different from other media outlets. Unlike private television channels, radio stations or newspapers, the SABC is not allowed to make ideologically driven decisions or decisions aimed at pleasing only a certain sector of its potential audience. It is supposed to be a public broadcaster serving all South Africans, regardless of their political views. As the High Court explained in Freedom of Expression Institute v Chair, Complaints and Compliance Committee:
The SABC is a public broadcaster funded by the taxpayer to provide the highest standards of journalism and fair, unbiased, impartial and independent news coverage. Whereas a private citizen or broadcaster may freely take political sides and promote party political objectives, a public broadcaster may not use public money to do so.
As a public broadcaster, the SABC is therefore legally held to a much higher standard of fairness, impartiality and professionalism than private media outlets. Unfortunately, the SABC is not complying (and has not been complying for a considerable time) with this mandatory legal obligation.
This is not to say that the SABC has a legal duty to report on every single event that might be of interest to the public. If the SABC failed to report on the love life of Khanyi Mbau or Kim Kardashian (I am told they are both famous for being famous) it would not be in breach of its legal obligations as set out in the Broadcasting Act and licencing conditions. What is legally required is for the SABC to report matters fairly, impartially and in the public interest.
The public interest is not determined by asking what is interesting to the public. Public interest is based on freedom of expression, as guaranteed by the Constitution. It relates to the reporting of alleged abuse or evil in society with a view to inform listeners and viewers about important issues about which individuals need to form their own opinions in order to be responsible citizens.
The SABC – as a public broadcaster – therefore has a duty to inform the public (even of shocking, violent and illegal acts) because if the public is not informed, members of the public cannot exercise their democratic rights in a responsible manner. Censorship by the SABC – by far the most influential source of news in the country – therefore impoverishes our democracy and affects the dignity of citizens who are robbed of the ability to make informed choices about important issues that may affect their lives.
The CCC quoted from the Constitutional Court judgment in SABC v National Director of Public Prosecutions & Others to affirm this important point:
This Court has also highlighted the particular role in the protection of freedom of expression in our society that the print and electronic media play. Thus everyone has the right to freedom of expression and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression.
The problem with the SABC decision to ban coverage of the destruction of public property is that it constitutes a blanket ban – in advance – of an entire category of news coverage. This is a form of self-imposed prior restraint which South African courts have held would only be permitted in truly exceptional circumstances. As the CCC explained:
In the present context, the SABC has categorically imposed an absolute restraint on its newsroom and there is nothing in the Broadcasting Act or the licences that permits this…. Such absolutism is totally foreign to our new democracy based on freedom of expression and especially, for this case, the right to receive information which is in the public interest.
In other words, the SABC has the right to decide in an impartial, unbiased and fair manner whether the broadcasting of specific images of a specific event (for example, a sex tape of some or other B grade celebrity or minor politician or sports star) would be in the public interest. What it cannot do is to order its newsroom to exclude in its entirety the broadcasting of material of a certain category of news that is potentially in the public interest.
Any absolute prohibition by the SABC of the broadcasting of certain activities – for example, the burning of public property by persons complaining about service delivery – will therefore be unlawful. As the CCC explained: “An [entire] subject, as such, may never be blocked from SABC television or radio – South Africa is not, as in the apartheid era, a dictatorship”.
The SABC may take the decision of Icasa on review to the High Court or (if the COO is to be believed) even to the Constitutional Court. Of course, like any litigant it has a right to approach a court – even if its chances of success are close to zero.
It is important to note that a review of the Icasa decision is different from an appeal on the merits of the decision. If the SABC approaches a court of law to review the decision it would have to argue that the decision must be reviewed and set aside based on narrow grounds of review. But it is hard to see how a court will find that the Icasa decision was not lawful, reasonable or procedurally fair. A review will therefore cost an enormous amount of money but is unlikely to achieve anything – except postpone the inevitable.
As the SABC is partly funded by South Africa’s 55 million taxpayers, this means that every one of us will be helping – in our own minor way – to finance such a folly.BACK TO TOP