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.
When the debate about the advisability of instituting a Media Appeals Tribunal (MAT) was raging last year, the honourable Minister of Higher Education Blade Nzimande made a dramatic intervention in favour of MAT by warning that the print media in South Africa was the greatest threat to our democracy. “We have a huge liberal offensive against our democracy,” he is quoted as saying. “The print media is the biggest perpetrator of this liberal thinking.” He reportedly said that the proposed MAT was necessary to protect the future of socialism in South Africa.
In retrospect, comrade Nzimande was perhaps slightly over-exuberant when he made these comments. It is easy to understand why he might have felt that the print media was a threat to “democracy” (if not democracy) and to “socialism” (if not socialism). It was, after all, the liberal print media who first reported that comrade Nzimande had stayed at the Mount Nelson Hotel at taxpayers expense for more than two weeks at a cost of more than R40 000. This same, untransformed, liberal print media also first reported that comrade Nzimande had acquired two rather un-revolutionary Ministerial cars which cost us tax payers more than R2 million. Still, in retrospect the statement made by comrade Nzimande might be considered to have been slightly over the top.
If one assumes that honest and fair reporting and the free flow of information is the friend of socialism and democracy (which one imagines is a sentiment that would be endorsed by comrade Nzimande) and if one asumes that dishonest, twisted and unfair reporting is the enemy of socialism and democracy (as comrade Nzimande surely does), then one would have to concede that the print media might not be the biggest enemy of socialism and democracy in South Africa.
It turns out that comrade Nzimande should rather have turned his guns on the SABC.
After all, the vast majority of South Africans get their news from SABC television and radio stations – not from the rather struggling print media who caters to bourgeois, liberal elites who live in metropolitan areas. And this week we were reminded again of what a cesspit of dishonesty, lies and manipulation of news the SABC has become. As comrade Nzimande will surely concede, the SABC – captured by a faction within the ANC – probably poses a far greater threat to our democracy (and presumably to socialism) than the print media ever did or will.
In a remarkable judgment in Freedom of Expression Institute v Chair, Complaints and Compliance Committee and Others the South Gauteng High Court reminded us just how utterly discredited and dishonest the SABC news reporting became under the direction of that staunch Thabo Mbeki apologist, Dr Snuki Zikalala, who also moonlighted as the SABC’s Director of News when he was not acting as an informal spin-doctor for Mbeki. If this was not reported in a court judgment one might easily have thought that it was all made up.
As the judgment points out, Dr Zikalala (PhD Bulgaria) had been accused in papers before the Complaints and Compliance Committee (CCC) of Icasa and then before the High Court of “crass manipulation of the SABC’s news and current affairs” during his tenure as its Director of News. Yet he never responded to these allegations when they were first made to the CCC and it was left up to a person in the legal department of the SABC to make statements based on “double hearsay” to deny these serious allegations of dishonesty and dereliction of duty by Zikalala. As the court remarked:
His failure to respond to the accusations against him, could only mean that he did not deny them or that the SABC and its lawyers had concluded that his denials would not withstand cross-examination. Either way, the only reasonable inference is that Dr Zikalala could not honestly deny the accusations against him.
Similarly the then SABC Board had been accused “of serious dereliction of its duties”. Its failure to explain itself gave rise to the same inference. It either did not deny the accusations against it or its lawyers had concluded that its denials would not withstand cross-examination. The only reasonable inference that could be drawn from this, said the Court, was again that the SABC’s Board could not honestly deny the accusations against it.
And what were these allegations which the High Court accepted as true? Well there were a number of incidents in which the SABC’s News Management and Dr Zikalala in particular, manipulated its news and current affairs, where they dishonestly tried to cover up this manipulation when it was publicly revealed and where the SABC’s Board subsequently failed to take any action when the manipulation and dishonest cover-up was exposed by its own Commission of Enquiry.
The Court takes up a few of these cases. One such case is that of poor Mandla Zembe who was almost fired for doing his job. I quote:
Mr Mandla Zembe was a young and highly talented SABC reporter who covered an ANC rally at a stadium in KwaMashu on the outskirts of Durban on 16 June 2005.’ Drama was expected because it was two days after President Mbeki had dismissed Deputy President Zuma from his cabinet. The Kwazulu-Natal Premier Mr S’bu Ndebele addressed the rally but was booed and pelted with plastic bottles and other objects. He found it hard to complete his speech. At the end he had to be escorted from the podium by his bodyguards who held a metal table over him to protect him against the missiles pelted at him. Mr Zembe filed stories on this incident throughout the day. Just after the 6 p.m. news bulletin, Dr Zikalala called Ms [Pippa] Green and instructed her to institute disciplinary proceedings against Mr Zembe the following day. When she asked why, he replied that he was in the TV “visuals room” and there was no evidence that the Premier had been booed or pelted. Ms Green called Mr Zembe to check the story and he confirmed that it was accurate.
Only a few seconds of the mayhem was shown on the 7 p.m. English television news bulletin. The Premier arrived at the SABC and demanded to be given airtime to deny that he had been pelted. He was allowed to do so on a current affairs show and was again given “considerable airtime” on the 10 p.m. television news bulletin despite the fact that his denials were manifestly false. When Mr Zembe returned to his newsroom, he found the Premier’s armed bodyguards walking around the newsroom in intimidating fashion. Ms Green says that this incident violated the SABC’s Editorial Code in that its reporter Mr Zembe “was intimidated not only by the Premier’s bodyguards but by the MD of news himself who threatened him with a disciplinary hearing for reporting the truth.” The substantial airtime given to the Premier “also served to distort the truth of what happened”. In my view this uncontroverted evidence establishes that Dr Zikalala also interfered with the news coverage of this incident.
Then there was the banning of several analysts and pundits who, SABC journalists were told, could not be used by the SABC. When the Sowetan broke this story and it became a big scandal the SABC, under the direction of Dr Zikalala, did what it knew best how to do: it lied. Once again the judge takes up the story. Faced with these rather embarrassing allegations, the SABC issued a statement which said:
“The SABC would like to state that the News Division has not imposed any blanket bans on the use of individual commentators by our current affairs programmes as reported by the Sowetan today.”
Mr Perlman says that this statement was “blatantly false and a deliberate attempt to mislead the South African public on an issue of critical importance”. That was indeed so. Dr Zikalala had by then blacklisted many individual commentators including Ms Elinor Sisulu, Mr Moeletsi Mbeki, Mr Trevor Ncube, Archbishop Pius Ncube, Ms Paula Slier, Ms Karima Brown and Mr Aubrey Matshiqi.
“After a number of problems experienced with experts and analysts, and some public feedback received by the SABC, a proposal was taken at a News Management meeting to devise policy guidelines on the use of commentators. These problems did not relate to commentators’ views on the succession debate or any specific topic or person, but to occasions where it was clear that commentators were sometimes ill-informed, providing viewers and listeners with analyses based on facts that were either incorrect or out of date”. (Emphasis added)
These statements were also false. It was not true that there was no more than a “proposal’. Dr Zikalala had already blacklisted many people for which he had advanced diverse excuses. The only thing these blacklisted individuals had in common was that they were all perceived to be less than friendly to the governing party under the leadership of President Mbeki.
“A discussion document was drafted by News Management, which would assist in establishing what kind of analysts was appropriate, in terms of expertise and experience to comment on a relevant topic to be discussed on a current affairs programme.” (Emphasis added)
This statement was also false in two respects. It was firstly not true that the issue had not proceeded beyond a mere “discussion document”. Dr Zikalala had already blacklisted a number of people. It was secondly not true that there was a discussion document at all. Mr Perlman says that he had never seen such a document and neither had his producers Mr Lang and Ms Dlamini. He points to further evidence which makes it clear that the statement that there was a discussion document was devoid of any truth. Mr Perlman categorically stated that two senior managers in the News Department, Mr Lang and Ms Dlamini, “openly said they had not seen them (discussion documents) either.” It is significant that the SABC has made no attempt to produce such a document in these proceedings.
Of course, Dr Zikalala has been fired and a new Director of News has (again, rather controversially – don’t these people learn!) been appointed who seem to represent another faction within the ANC. The SABC Board has since then also been changed but we all know that it is not the most well-functioning corporate entity in South Africa. Despite these changes, I am not sure that many reasonable people find the SABC news credible or the management fair, honest and impartial. It might well be that the whole atmosphere at the SABC has improved since the bad old days of Snuki Zikalala, but it would take a lot to restore the credibility of the SABC after this fiasco. (One is not even talking about many other SABC fiasco’s including the non-broadcast of a Bafana Bafana game due to sheer incompetence.)
Reading this judgment, one gets the impression that the problems at the SABC are deeply entrenched and that in order to fix it one would have to change the entire culture within the organisation. This culture, which eschews fair and honest reporting and fair and honest dealings with the world and revels in intrigue, serving political factions and general politicisation of every aspect of the Broadcaster, has poisoned the SABC.
What those who are now considering appointments to the SABC Board should keep in mind is that political circumstances change. While a certain faction might be in the ascendancy in the ANC today, this might change tomorrow. When one makes Board appointments purely on the basis of political loyalty, one creates potential problems for the future. Better to have an SABC Board that is progressive but not in the pockets of one political clique or the other. One never knows when the shoe is on the other foot and then one does not want a Snuki Zikalala like character at the SABC who might lie and cheat in order to discredit those factions to whom he does not belong (but to whom one might well belong oneself).
Maybe comrade Nzimande could say a few words on this matter in the coming days to warn his comrades against the selection of SABC Board members who might serve a small clique inside the ANC (the tenderpreneurs, the Heynas, the Youth League, Cosatu?) who happens to be in power or in the ascendancy. While doing so, comrade Nzimande might then also reflect on his previous statement that the print media posed the biggest threat to our democracy in South Africa. He might ponder the fact that no-one in the print media has yet been exposed as the most disgustingly dishonest and double dealing crook in the same manner in which some SABC bosses have been in this judgment and he may then ask whether the print media is really as bad as he had argued.BACK TO TOP