As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
One may well ask why some ANC leaders think it is worth attacking the media or even censoring the media, by which they mean the print media. Why are some ANC leaders mooting a Media Appeals Tribunal, for example (we will leave aside for the moment whether they envisage an independent body or not) when the combined sales of daily newspapers that carry serious political reporting probably does not top 500 000, while daily more than twenty million people either watch news on one of the government’s TV news programmes or listen to news programmes on one of the 18 government radio stations.
Any political party or faction in a political party who captures the SABC has a huge propaganda advantage over its opponents. No offense to the Times with its 100 000 daily circulation, but it is really not that important that the Times told me this morning of all the shocking revelations made yesterday against crime intelligence boss Richard Mdluli at an inquest hearing into the murder of his ex-girlfriends husband. Unless these allegations are accurately reported on the vernacular radio stations and on the isiZulu TV news, it is almost as if the inquest hearing did not really happen.
No wonder then that the SABC has placed its group chief executive of news, Phil Molefe, on “special leave” (whatever that may mean), allegedly after he defied his senior executives’ orders to stop giving too much air time to the ANC’s enfant terrible, Julius Malema. The Star reports that Molefe allegedly refused to obey orders given to him by SABC CEO Lulama Mokhobo and the acting chief operating officer, Hlaudi Motsoeneng, this week and that the root of the conflict was Molefe’s decision to give full coverage to rallies which were addressed by the expelled ANC Youth League president Malema. (Whether this report is entirely correct, is not clear – except for the bit about Molefe being on “special leave”, which is definitely true.)
The SABC is supposed to be a public broadcaster that serves all South Africans and reports news as fairly and impartially as is possible. This is not always the case. Sometimes the SABC acts more like a state broadcaster or like the mouthpiece of the government or of a faction within the ruling party than like a public broadcaster. It must be said that is not nearly as bad as it used to be during the apartheid years when the SABC was a slavish National Party propaganda tool. Commercial considerations now prevent the SABC from turning into a full-on propaganda machine.
(Koedoe Eksteen, a slavish Nationalist who served as the CEO of the SABC during the nineteen eighties tells the bizarre story of how then State President PW Botha phoned him up demanding that the SABC immediately stop broadcasting the science fiction series called “V”. The series told the story of a group of aliens who came to earth and revealed themselves at night as horrible reptile like creatures. These aliens look like humans (but need to wear dark glasses against the sun) but they later reveal themselves as carnivorous reptilian humanoids. As PW Botha’s nickname was “Die Groot Krokodil” (The Big Crocodile) he believed the programme was meant to mock and humiliate him. Eksteen then arranged for the screening of all the “V” episodes in one go to placate the State President.)
Interestingly enough, the ANC negotiators at the Constitutional Assembly made sure that the Constitution avoided any mention of the SABC or of an independent public broadcaster, despite the insistence of the National Party and other smaller parties that the independence of the public broadcaster be protected in the Constitution. Instead, negotiators agreed on section 192 of the Constitution which states that:
National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.
Nevertheless, on paper, the 1999 Broadcasting Act provides some guidelines supposed to ensure that the SABC will provide a vibrant, fair and impartial news service. Thus section 6 of the Act states that the SABC must encourage the development of South African expression by providing, in South African official languages, a wide range of programming that:
(a) reflects South African attitudes, opinions, ideas, values and artistic creativity;
(b) displays South African talent in education and entertainment programmes;
(c) offers a plurality of views and a variety of news, information and analysis from a South African point of view;
(d) advances the national and public interest.
Moreover, as part of its mandate as a public broadcaster the SABC is required by section 10(1)(d) of that Act to “provide 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”.
However, this happens in line with policies developed by the SABC Board, which (in terms of section 13 of the Act) is selected by members of the National Assembly (by a simple majority vote) after which they are appointed by the President who also selects one of the Board members as the Chairperson of the Board.
The Act provides wide powers to the National Assembly to fire individual Board members on account of misconduct or inability to perform his or her duties efficiently. This last criterion for removal is so vague that, in effect, the majority of members of the National Assembly can remove any member of the Board which it has lost faith in. The National Assembly can also dissolve the Board if it fails to discharge its fiduciary duties; fails to adhere to the Charter; or fails to carry out its duty to control the affairs of the Corporation and enforce compliance with the Charter of the SABC.
In effect, this means that the SABC is governed by a group of people selected by the majority party in the National Assembly. If the majority party does not like what the Board is doing or if it thinks the SABC is not adhering to its mandate, it can fire the Board. The Board therefore has a very strong incentive to please the governing party, a failure of which would mean that the members of the Board might well be fired. Sometimes these members see the writing on the wall and then they resign, creating the atmosphere of permanent crisis at the SABC which we have become used to.
It is no wonder that instability inside the ANC, with various factions vying for leadership positions and access to tenders, have led to instability at the SABC. This instability, along with reported nepotism and corruption which created a huge cash flow problem as the Broadcaster was haemorrhaging money, have led to a legitimacy crisis for the SABC. This means that more and more people are watching or listening to the SABC with a slightly jaundiced attitude. If one happens to be in, say, the Jacob Zuma faction inside the ANC, one will recall how the SABC favoured then President Thabo Mbeki in its coverage and censoring embarrassing events affected the President or those in his inner circle and one will know that one should not believe everything one hears or sees on TV. (Not that one should believe everything one reads in the newspapers, but that is another story.)
In my view the only way to fix the SABC is to change the way the SABC Board (and the senior managers at the SABC) is appointed. As long as the Board is beholden to the majority party in the National Assembly and as long as party loyalists are appointed to key positions inside the SABC, the SABC will not be able to fulfil its mandate as public broadcaster.
There is obviously no political will to detoxify the SABC and to rid it of factionalism and the narrow party politics which is currently bedevilling the Broadcaster. But if there were such political will, there are several ways in which the Board could be appointed to ensure that it remains at arms length from direct party politics. The Board can be appointed by a super majority of members of the National Assembly to try and prevent the selection of a Board that only represents the interests of one faction of the dominant political party. Or the Board could be appointed on the basis of suitable consensus being reached, with horse-trading between various political parties to ensure that the different constituencies are represented.
Another innovative way to appoint an independent body can be found in the Electoral Act which governs the selection of the Electoral Commission. The Electoral Act requires a panel of eminent persons to select a list of three more people than the number of members to be appointed for recommendation to the National Assembly. The body of eminent persons is composed of the Chief Justice as chairperson; a representative of the Human Rights Commission; a representative of the Commission on Gender Equality; and the Public Protector. A committee of the National Assembly then selects the appointees from this list.
Until this happens, the SABC is likely to continue making news instead of reporting it fairly and impartially.BACK TO TOP