These provisions constitute the essence of a ‘public’ broadcaster as opposed to a ‘state’ broadcaster. The contentious Broadcasting Amendment Bill (the Bill) which was tabled in Parliament in late 2015 would change all this by placing the most powerful communication media in the country firmly under the control of the Minister and the President. As such, it would constitute yet another step in the government’s capture of state institutions that are supposed to be independent.

The key criticism against the Bill is that it confers excessive powers upon the Minister of Communications and that it will bring the public broadcaster, the South African Broadcasting Corporation (SABC) even more firmly under the control of the Executive. 

The Bill starts by deleting the definition of ‘appointing body’ and establishes a new process for the appointment of non-executive board members for the SABC Board. Whereas the current Broadcasting Act provides for this appointment to be made by the President on the advice of the National Assembly, the Bill states that the non-executive members will be appointed by the President on the advice of the Minister. This eliminates the role of Parliament in the appointment process.

Furthermore, the Minister is responsible for the appointment of a nomination committee. The Committee is mandated to make recommendations to the Minister for the appointment of board members. This arrangement leaves no room for transparency and independence. The Act currently includes the important element of public participation in relation to the nominees. Public participation plays an important role in ensuring transparency, both in actual fact, as well as in appearance. The removal of public participation affects the extent to which the state can be held accountable and detracts from an open society, which is a key foundational value in the Constitution.

The number of non-executive board members has been reduced from 12 to nine. The Bill states that the reduction serves to strengthen the Board (the proverbial too many cooks) and streamline its operations. This suggests that fewer votes will be needed to reach a majority decision on matters of importance, which may affect the functioning of the public broadcaster.

Clause 4 removes all the executive members from the Board, save for the Group Chief Executive Officer, Chief Operations Officer and the Chief Financial Officer.

The SABC has a long history of maladministration which culminated in 2014 in a report by the Public Protector entitled ‘When Governance and Ethics Fail’. The Public Protector made damning findings against the SABC and its COO Mr Hlaudi Motsoeneng – which were ignored by both the Minister and the SABC. This culminated in the matter coming before the Supreme Court of Appeal where the broadcaster was instructed to implement the recommendations made by the Public Protector. 

The Bill will also give the President effective control over the dismissal of board members. He will be able to fire board members on the findings of a three-person panel that he, himself, would appoint in consultation with the Minister. The same panel would also be responsible for an inquiry and recommendations to the President regarding the dissolution of the entire Board. Once again, the process would be controlled by the President, because it is he who would appoint the panel.

This amendment comes under the guise of remedying the current turmoil within the SABC board. Its purported aim is to bring stability and sustainability to the SABC. However, it comes at a time of growing state interference in the media. It follows the 2013 purchase of Independent News & Media SA (INMSA) by Sekunjalo – which has close ties with the government – with massive assistance from the Public Investment Corporation. It also coincides with the effective state subsidy to the Gupta-owned New Age. 

The SABC, as the largest broadcaster in the country, reaches more South Africans through TV and radio than any other media. The Broadcasting Amendment Bill will further consolidate the state’s control of the media and will once and for all confirm the SABC’s role as a state broadcaster, rather the public broadcaster envisaged in the Constitution. In so-doing it will constitute a serious blow to the freedom of expression guaranteed by section 16 of the Constitution by seriously undermining “the freedom of the press and other media” and by attempting to limit the public’s “freedom to receive or impart information or ideas”. 

By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights