SABC saga II: It's up to the courts
Despite the public clamour for the righting of the listing SABC ship, those at the helm – chief operating officer Hlaudi Motsoeneng backed by the board – remain defiant. They think nothing of spending taxpayer millions to appeal judgments that have gone against Motsoeneng; they have effectively told Icasa to take a 'jump' and they have even made it clear to the ANC that it should keep its nose out of SABC management affairs, notes Daily News. Motsoeneng seems to believe he is untouchable – and while ever he has the backing of Communications Minister Faith Muthambi, claimed by critics to be his channel to President Jacob Zuma, he probably is. It seems only the courts will be able to bring an end to his domination of the national broadcaster, and given the speed at which the wheels of justice move it's anybody's guess when that might be.
Effectively, the SABC is saying it has the right to censor the news, and the ruling this week by the broadcasting regulator Icasa that it was in breach of the Broadcasting Act ‘read with section 39(2) and 16(1)(a) and(b) of the Constitution’ by refusing to show pictures of protest violence will not stop it from continuing to decide how to tailor the news for its television audience, notes Daily News. Motsoeneng made this clear in a media briefing reacting to the Icasa order when he said ‘no one’ would tell the broadcaster what to do. ‘If we need to go to the Constitutional Court, that is where the matter will end. We are not going to change anything, people can forget it,’ he added. The SABC position deepens the political crisis around the public broadcaster, in which the ANC and its allies have become enmeshed, notes Business Day. Despite political intervention by the ANC, which last week condemned the censorship, and the decision by Icasa, SABC executives made it clear this week they would not be dictated to by ‘outsiders’. Motsoeneng accused all media of censoring in their newsrooms, saying this explained why ‘good stories’ were not shown or told. ‘There are good stories that you are not showing, you as journalists, but when it comes to the SABC, it is (called) censorship. We have taken an editorial decision like any newsroom.’
The Icasa committee addressed the issue of the SABC’s blanket ban on coverage of violence. According to an analysis of the ruling by leading legal commentator Carmel Rickard on her Trading Places site, the committee noted that Gilbert Marcus SC for the three complainants – the Media Monitoring Project, SOS Support Public Broadcasting Coalition and the Freedom of Expression Institute – stressed their complaint was not that the SABC ought to cover ‘each instance of graphic violence’ during a service delivery protest... ‘rather, this complaint is about a narrower issue: whether the SABC is empowered to adopt – in advance – a blanke t ban on covering an entire category of conduct.’ The judgment noted that our courts had repeatedly stressed the ‘pivotal role’ of the media: ‘it is the watchdog of society, keeping check over the government by keeping the public informed of all matters of public importance and, in particular, allegations regarding the government of the day’s performance’. The courts have also strongly rejected ‘thought control’ and this rejection ‘is at the heart of freedom of expression in a constitutional democracy’. One quoted judgment of the Constitutional Court in fact said that we must be ‘particularly astute to outlaw any form of thought-control, however respectably dressed’. All of this meant the public broadcaster played a critical role in empowering citizens so they could exercise their right to freedom of expression, particularly since so many people ‘receive their news primarily from t he SABC’. The judgment holds that ‘at the core of the mat ter’ lies ‘the categorical ban’ by the SABC on certain material and the committee likened this to the ‘legislative ban which was imposed on quoting persons listed in terms of the security legislation in apartheid times’. ‘The order of the SABC places an absolute ban on a subject,’ the judgment said. ‘A subject, as such, may never be blocked from SABC television or radio – SA is not, as in the apartheid era, a dictatorship. The Broadcasting Code does, indeed, place certain limits on the screening of violence, but that code may only be applied when a complaint is lodged with the relevant authority … and after a broadcast … Furthermore, the Broadcasting Code is clear as to the broadcast of violence. It does not prohibit the mere broadcasting of violence, but it depends on the manner in which it is broadcast.’
Media Monitoring Project v SABC Icasa statement
The Law Society of SA (LSSA) welcomed the judgment but urged the SABC board and management to accept the order as binding and to implement it within the given time. ‘Like the Office of the Public Protector, Icasa is a Chapter Nine institution, and as such, its orders must be implemented unless a court of law finds otherwise,’ say LSSA co-chairpersons Mvuso Notyesi and Jan van Rensburg in a statement on the LSSA site. They add: ‘If the SABC does not implement the order within the stipulated seven days, Icasa is within its rights to suspend the SABC’s broadcasting licence.’ The LSSA also commends the complaints and compliance committee and the Icasa council on ‘its well-reasoned and powerful judgment supporting the right of the public to be informed of all action … so that informed choices may be made by the public’. The Black Lawyers’ Association has also welcomed the ruling, noting the SABC’s resolution is ‘an impediment to public access to information as guaranteed in terms of section 32 of the Constitution’. It adds: 'South Africans deserve to be truthfully informed of developments in their country, both positive and negative.’ The BLA also urged the SABC to lift the suspensions of journalists who have taken a stand against the censorship.
The SABC board, however, argues that Icasa is not a court of law, but a Chapter Nine institution which only has the power to make recommendations. ‘The Icasa recommends issues. Icasa also uses legal advisers in its recommending…we are the broadcaster we practise 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,’ SABC board member Aaron Tshidzuma is quoted as saying in a Mail & Guardian Online report. Responding to the ANC’s criticism last week of the developments at the SABC, Tshidzuma said the SABC was a government company. ‘We are the broadcaster, a government company, and not politicians. That issue was directed to the political head, the Minister (Faith Muthambi), so they are handling that politically. We are appointed by Parliament… we do not deal with politicians but with our shareholder, who is the Minister,’ he said. Motsoeneng said people ‘were making noise’ outside the SABC. He said the public broadcaster was profitable, performed well was ‘and stress free’. ‘I don’t have stress. When I’m under pressure I perform very well. All this hullabaloo does not affect me,’ he said.
Full Mail & Guardian Online report
See also a Daily Maverick report
Motsoeneng also vowed to ‘deal with’ any employee disloyal to the public broadcaster. This would be carried out through ‘Operation Clean Up’, he said, according to a News24 report. 'We have realised that there are forces outside. They want to destabilise the organisation and also use internal people within the organisation and we are going to deal with them, especially with the people within the organisation.’ SABC employees were expected to be loyal to their employer, he said.
The SABC, meanwhile, has brought more charges against three of its eight suspended journalists. Trade union Solidarity CE Dirk Hermann said the broadcaster had sent a letter to Foeta Krige, the executive editor of Monitor and Spektrum, journalist Suna Venter and business editor Thandeka Gqubule accusing them of ‘further misconduct’ for informing the media about their suspensions, among other things, according to a BDlive report. The SABC suspended the three last month after they disagreed with an instruction during a diary conference not to cover the Right2Know campaign’s protest against censorship at the SABC. The SABC is also taking disciplinary steps against five other employees. Busisiwe Ntuli‚ Jacques Steenkamp and Krivani Pillay were suspended after sending a letter to Motsoeneng‚ objecting to the SABC’s editorial direction. Lukhanyo Calata was charged after writing a similar letter following the resignation of acting CEO Jimi Matthews, and Vuyo Mvoko was asked to provide reasons why his contract should not be terminated after writing in The Star newspaper about My Hell at the SABC.
Solidarity also called for the suspension of Motsoeneng. It said Motsoeneng’s ability to manage the SABC should be investigated. ‘The (Icasa) ruling proves that the SABC under the guidance of Hlaudi Motsoeneng, did not act within the framework of the Constitution,’ said Hermann. A report on the IoL site notes the union described the decision by Icasa as a victory for freedom of speech. ‘This ruling is a victory for the ethical SABC journalists who, despite unlawful instructions and intimidation, stood up for constitutional principles,’ said Hermann.
The Public Protector has again been drawn into the dispute, and had launched a preliminary investigation into the SABC. Advocate Thuli Madonsela confirmed that her office had been asked to probe the broadcaster. According to a BDlive report, she has written a letter to Muthambi and the SABC board to ‘find out what’s happening in terms of governance‚ alleged governance failures’.
Meanwhile, the SABC has its hands full, fighting fires on a number of fronts. The broadcaster has until Tuesday to respond to the Icasa ruling, points out a Business Day report, noting it has not yet formally written to Icasa to inform it of its intentions. Its financial results are also due to be tabled on Monday, amid reports of spiralling debt and looming cash-flow problems. The SABC has already missed a deadline to file opposing papers in an urgent interdict against the ban sought by the Helen Suzman Foundation. The matter is to be heard in the Gauteng High Court (Pretoria) on Tuesday. SABC spokesperson Kaizer Kganyago reportedly said the broadcaster had not yet responded to Icasa or notified the regulator formally of its i ntention to review its order. ‘We will write to them to inform them,’ he said. Earlier this week, Icasa said that if the matter was being taken up on review, the SABC would first have to get a court interdict against the order. Kganyago said he was not aware of this.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
