PROBLEMS WITH THE PUBLIC BROADCASTERS ARTICLES OF ASSOCIATION

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PROBLEMS WITH THE PUBLIC BROADCASTERS
ARTICLES OF ASSOCIATION

• Presented by Melissa Moore
• at the SOS Workshop
• on 29 January 2009
• Tel [phone] . Fax [phone]
• E-mail melissa_at_fxi.org.za

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Principal Objective

• The creation of an independent and accountable
  public broadcaster that provides fair and
  unbiased information to the public as a whole.

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SABCs Constitutional Mandate Explained..

• Section 192 of the Constitution provides as
  follows
• 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 emphasis added

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SABCs Mandate Cont

• The public broadcasters mandate is set out in
  the Broadcasting Act 4 of 1999 (Act). Section
  10(1)(d) provides as follows
• 10 (1) The public service provided by the
  corporation must
• ..
• (d) 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

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Khumalo and Others v Holomisa 2002 (5) SA 401
(CC) at para 22-24

• The print, broadcast and electronic media have a
  particular role in the protection of freedom of
  expression in our society. Every citizen has the
  right to freedom of the press and the media and
  the right to receive information and ideas. The
  media are key agents in ensuring that these
  aspects of the rights 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 our constitutional mandate

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Khumalo Continued..

• 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.. . .
• In a democratic society, then, the mass media
  play a role of undeniable importance. They bear
  an obligation to provide citizens both with
  information and with a platform for the exchange
  of ideas which is crucial to the development of a
  democratic culture. As primary agents of the
  dissemination of information and ideas, they are,
  inevitably, extremely powerful institutions in a
  democracy and they have a constitutional duty to
  act with vigour, courage, integrity and
  responsibility.

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National Media Ltd v Bogoshi 1998 (4) SA 1195
(SCA) 1209

• We must not forget that it is the right, and
  indeed a vital function, of the press to make
  available to the community information and
  criticism about every aspect of public,
  political, social and economic activity and thus
  to contribute to the formation of public opinion
  . The press and the rest of the media provide
  the means by which useful, and sometimes vital,
  information about the daily affairs of the nation
  is conveyed to its citizens

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Independence

• In the matter of New National Party of South
  Africa vs The Government of the Republic of South
  Arica and Others, the Constitutional Court gave
  content to the meaning of independence.
• Elements of the basic definition of
  independence
• Independence from Government
• Financial independence
• Administrative independence.

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Independence of SABC

• What we should be striving for is a public
  broadcaster which does not act as the mouthpiece
  of the government of the day, since this would
  simply be a regression to the apartheid era in
  which P.W Botha was able to demand that the SABC
  should not screen on prime time news - certain
  footage which he deemed unsuitable.

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What is Required?

• What is required is a cast iron process to ensure
  that those who are given the responsibility of
  administering these bodies measure up to the
  highest standards. This in itself indicates that
  there is a strong argument for the utilisation of
  a non- politically based selection authority
  which has to abide by stringent and objective
  criteria when appointing these offices.

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SABCs Articles of Association

• An undue amount of control is afforded to the
  Executive over the SABC via the articles of
  association.
• Section 13(11) of the Broadcasting Act states
  that the Board shall control the affairs of the
  SABC.
• Our analysis of the Articles, both the 2003 and
  2006 versions, has concluded that the Articles
  are unconstitutional and unlawful, in that they
  violate the requirement contained in section
  13(11).

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The Articles Cont

• The Articles give too much power to the
  Executive, through the Minister of
  Communications, to control aspects of the Boards
  affairs, which strips the Board of its ability to
  act independently on crucial issues.
• According to our advice, if a court were to be
  approached for a declarator on the matter, the
  Articles would almost certainly be declared
  unlawful and unconstitutional.

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Problem 1 (Clause 11)

• The non-executive Directors shall, after they
  have conducted interviews and compiled a short
  list of preferred candidates, recommend to the
  Member the appointment of the preferred candidate
  to fill any position as the executive Directors
  of the Corporation.
• In terms of the above the Minister has a power of
  veto over the appointment of the executive
  directors of the SABC.

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Problem 2 (Clause 19)

• Any Group Executive Officer appointed in terms
  of the Broadcasting Act and of these Articles
  shall
• (a) be appointed by the board after the due
  process described in article 11.1.2 above and
  shall have her or his contract of employment
  approved by the Minister (emphasis added)
• In terms of this the Minister has the power to
  appoint the GCEO and to approve the terms of
  his/her employment.

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Problem 3 (Clause 14)

• ...The Directors shall at all times ensure that
  any decision taken and any exercise of management
  powers is not inconsistent with the Statutes or
  the Articles and complies with the Statutes or
  any resolution passed by a General Meeting.
  (emphasis added).
• This provides for direct control of the SABC by
  the Executive and direct intervention in the
  day-to-day affairs of the SABC, due to the fact
  that the Minister, as the sole shareholder, is
  automatically a quorum and can theoretically
  exercise shareholders rights at any stage. This
  allows for unfettered interference, by the
  Executive.

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Problem 4 (Clause 32

• Approval of corporate and business plans by the
  Minister of Communications.
• This may invite censorship and threaten the
  independence of the Board.

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What must happen?

• To the extent that the Articles are illegal and
  unconstitutional, they must be amended to ensure
  that the Board enjoys the necessary levels if
  independence from government.

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What must we ask ourselves?

• How do we protect an institution whose role it is
  to protect the democracy and to foster the
  objectives of the Constitution?