CHAPTER SIX: THE SOUTH AFRICAN BROADCASTING CORPORATION (SABC) 

The South African Broadcasting Corporation (SABC) is by far the largest and most influential broadcaster in South Africa – in terms of reach, size, overall audience figures, number of channels, and share of the advertising market. Nearly 20 million of the 29 million radio listeners in South Africa tune into one of the SABC’s 18 radio stations and SABC’s three free-to-air television channels attract more than 17 million adult viewers each day.

In some areas in South Africa, the SABC is the only source of news and information – and in many others the only media in the community’s home language. As such it plays an important (and special) role in people’s lives. A recent survey of public confidence in key institutions found that the public broadcaster is the second most trusted institution in South Africa – beaten only by churches. 

A Human Sciences Research Council (HSRC) study (Between TRUST and SCEPTICISM: public confidence in institutions) released in March 2008 showed that the SABC since 2003 was consistently ranked the second most trusted institution – with 72 per cent of those surveyed stating that they trusted or strongly trusted the broadcaster. This compared with churches, which were trusted by 82 per cent of respondents, while 68 per cent of those surveyed expressed confidence in the Independent Electoral Commission (IEC) and 59 per cent in national government.

At the same time, the Corporation has over the years been dogged by controversies – and has often been the subject of the news rather than just a producer.  As media analyst and academic from the University of the Witwatersrand, Tawana Kupe, said at a seminar in 2005: 

…The SABC comes across a reluctant and lumbering giant …It seems to be in defensive mode unable to convincingly ride out controversies. Instead controversies often consume its energies.   

1. Legislation

1.1 The Constitution

The SABC is not specifically mentioned in the 1996 Constitution of the Republic of South Africa, though freedom of expression is enshrined, including the right to freedom of the media (Section 16). The Constitution also stipulates that an independent broadcasting regulator must be established (section 192).

The clauses related to an independent regulator replaced sections in the Interim Constitution (1993), which specifically referred to media owned by the State. The right to freedom of expression in this earlier version of the Constitution stated that: 

All media financed by or under the control of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion. (Section 15(2))

As noted below, the Broadcasting Act (no 4 of 1999) specifically entrenches the SABC’s independence in order to enhance its right to freedom of expression.

1.2 Broadcasting legislation

The process of transforming the South African Broadcasting Corporation (SABC) from a state broadcaster into a public broadcaster began in the early 1990s following the unbanning of liberation movements, the release of political prisoners by the then ruling National Party and the start of talks between the two opposing sides on a new political order.

The transformation of the Corporation into a public broadcaster was identified as one of the critical precursors for a free and fair election, and thus discussions on this started well before to the first elections in April 1994 – involving civil society as well as political parties. The need to change the SABC was agreed in principle by all sides, not least the liberation movements and the then ruling party, even if for very different reasons: the National Party did not want a new party to assume the control it had held over broadcasting and the African National Congress (ANC) did not want the apartheid government to control broadcasting over elections.  In line with this, a publicly nominated SABC Board was appointed in 1993 – (largely) outside of the existing legal framework and through negotiation – a year before the 1994 elections.

Development of public broadcasting, however, is a process and not an event. In the case of the SABC, this involved not only asserting independence from government and establishing accountability to the public (rather than the ruling party), but also attempting to change the authoritarian culture of the broadcaster and redressing the skewed allocation of resources in the Corporation to ensure that the needs of all South Africans were met. 

This process began with the appointment of a new board and a new management (led by veteran media activist Zwelakhe Sisulu) and with the establishment within the Corporation of a transformation unit. An intensive programme of training new journalists, production staff and management commenced, with the assistance of a range of international public broadcasters (including the Australian Broadcasting Corporation, the British Broadcasting Corporation and the Canadian Broadcasting Corporation).

The promulgation of the Independent Broadcasting Authority Act (IBA Act) in 1993 further advanced the transformation process. This law emphasised the need for the regulator to conduct a study into the protection and viability of public broadcasting, universal access and South African content – dubbed the Triple Inquiry Report (see chapter 5). This study was finalised in 1995 and debated in Parliament in 1996.

In 1997, Government asserted its right to be involved in developing broadcasting policy (rather than just the regulator) and began reviewing the existing Broadcasting Act (of 1976) and developing what it termed an overarching broadcasting policy. This culminated in the publication of the White Paper on Broadcasting in 1998 and the promulgation of the Broadcasting Act, No 4 of 1999.  

This legislation, while dealing with all tiers of broadcasting, predominantly focuses on public broadcasting. Among other things, the Act introduced a Charter for the SABC and provided for the division of the Corporation into public and public commercial wings (purportedly to address funding constraints). The law further provided for the corporatisation of the SABC (the conversion of the organisation into a public company – SABC Ltd). 

The SABC – which previously had balked at direct oversight by the regulator stating that, like the then IBA, it was answerable to Parliament – now had to report to the Authority on compliance with its Charter and adhere to new licence conditions determined by the regulator. 

The Broadcasting Act was amended in 2002. The amendment further strengthened the Charter and required the SABC to develop editorial policies through a public process.

During 2008 the Department of Communications indicated its intention to review the existing law, with a view to evaluating the need for a separate SABC Act. This review resulted in the release of a Public Service Broadcasting Discussion Document in July 2009 and Public Service Broadcasting Bill in October 2009.  The bill does not focus separately on the SABC and instead proposes a number of fundamental policy changes in relation to broadcasting overall (see chapter ten for more information).

As can be seen from the following analysis, obligations relating to public broadcasting are spread through different sections of three laws (the Broadcasting Act, the Electronic Communications Act and the ICASA Act).  Sections in the Broadcasting Act dealing with broadcasting in South Africa as a whole, or focusing specifically on the commercial or community sectors, are for example often repeated in the Electronic Communications Act (No 36 of 2005).  ICASA policies on broadcasting and the license conditions it specifies for all the SABC’s channels very significantly affect its conduct and operations. 

The need for improved law was also emphasised by the fact that the SABC was embroiled in a series of crises throughout 2008 and much of 2009. The roots of what has been dubbed ‘a fiasco’ (dealt with in more detail in the substance of this chapter) go back to late 2007, when African National Congress (ANC) parliamentarians told journalists that they had been forced by government to support the Presidency’s favoured candidates for appointment to the board of the SABC. From then on, newspaper reports on the SABC often read like scripts for soap opera instalments – with intrigues, personal vendettas and power games between board and management, suspension of top personnel (including the GCEO himself) by either side, appeals to the courts and calls for a vote of no confidence against the board as a whole in Parliament. 

This led to the Minister of Communications calling for a review of the law, including the board appointment process and a clear delimitation of functions between board and management, and ruling party MPs proposing a Members’ Bill to give them stronger powers to remove the board as a whole (and not just individual members). The Broadcasting Amendment Bill – giving Parliament the powers to recommend the removal of the whole Board – was introduced into Parliament in July 2008, and brought into effect in March 2009. The board was removed shortly after and replaced by an interim board (generally credited with having brought much needed stability to the institution and drawing up a financial plan to overcome its serious debt burden). A new permanent board was elected by Parliament and appointed by the President at the end of 2009.

2.  Definition of public broadcasting

The Broadcasting Act defines public broadcasting as:

• Any broadcasting service provided by the South African Broadcasting Corporation;

• A broadcasting service provided by any other statutory body; or

• A broadcasting service provided by a person who receives his or her revenue, either wholly or partly, from licence fees levied in relation to sound radio sets and in relation to television sets, or from the State, and must include a commercially operated broadcasting service …

This is a technical definition, and the distinctive role for public broadcasting in South Africa is detailed rather in the SABC’s Charter. The definition could be strengthened by reference to the Charter and/or other relevant sections of the law. It is also unclear why it would have been necessary in the definition to stipulate the inclusion of a commercial division.  

2.1 The Charter and Mandate

Section 6 of the Broadcasting Act (as amended) sets out the Charter of the SABC, whilst Section 7 outlines the objectives of the broadcaster. Other responsibilities relating to specific obligations of the different divisions of the SABC (public and public commercial) are contained in a range of different sections. Any new legislation would be strengthened through collating all such requirements into a distinct remit.

Charter

Section 6(1) compels the SABC to abide by the Charter, whilst Section 6(2) impels ICASA to monitor and “enforce compliance” with the Charter. 

While there has been general agreement that the introduction of a Charter strengthens public broadcasting by clearly outlining its mandate, some critics have pointed out that the current remit is not uniquely South African but rather based substantially on mandates for public broadcasters in other countries. The Freedom of Expression Institute (FXI), for example, has argued that ten of the 16 objectives for the SABC are “taken virtually verbatim from the British Broadcasting Corporation’s (BBC) Charter”.

As societal needs change, it would be worth considering that any new law should call for a regular review of the Charter. This could also provide a forum for ongoing public involvement in defining exactly what public broadcasting means in South Africa. 

The different requirements of the Charter are: 

• Section 6(3) describes the status of the SABC – emphasising the independence of the Corporation and the right to freedom of expression:

In terms of this Charter, the Corporation, in pursuit of its objectives, and in the exercise of its powers, enjoys freedom of expression and journalistic, creative and programming independence as enshrined in the Constitution.

Thus, whilst the SABC is not specifically mentioned in the Constitution of South Africa, its law gives it constitutional protection in relation to its core business – programming.

• Sub-section 4 states that:

The Corporation 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) provides 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.

• Section 6(5) requires the Board of the SABC to develop a range of policies through a process of public consultation. These include a news policy, a programming policy, a local content policy, an educational programming policy, a policy on universal service, a language policy and a religious policy. The policies, according to legislation, have to be updated regularly through a public process and be submitted to the regulator. 

The Act is not clear on what the regulator’s role is in regard to the policies. It merely stipulates that the SABC Board lodge such policies with the Independent Communications Authority of South Africa (ICASA) but does not spell out whether the regulator has to monitor compliance with these, or incorporate them into licence conditions. It should be highlighted though that in any case this was an improvement on the original Bill, which proposed that such policies should be submitted to the Minister of Communications. There was an outcry about the impact of this on the independence of the SABC, and Parliament rejected the proposal. 

• A distinction is made in the Act between the editorial policies and “a Code of Practice”. Section 6(8) of the legislation states that the SABC must also develop a Code of Practice that ensures the Corporation and its personnel comply with:

• the constitutional principle of equality;

• the equitable treatment of all segments of the South African population;

• the constitutional requirement of equitable treatment of all South African official languages;

• the rights of all South Africans to receive and impart information and ideas;

• the mandate to provide for a wide range of audience interests, beliefs and perspectives; and

• a high standard of accuracy, fairness and impartiality in news and programmes that deal with matters of public interest.

2.2 Objectives

Section 8 of the Act outlines the “objectives” of the SABC. This section includes both mandatory obligations and powers of the Corporation (for example the power to set up archives and acquire intellectual property rights). Separating the two and ensuring all objectives are given equal weight by collating them into a specific section could strengthen the mandate. 

Key responsibilities for the SABC outlined in this section are the following:

• It must make its services available throughout South Africa (Sec 8(a)).

• It must provide sound and television services and programmes that educate, inform and entertain (Sec 8(b) and (d)).

• It must be responsive to the needs of all South Africans “including the needs of the deaf and the blind and account on how to meet those needs” (Sec 8(e)).

• The SABC must “nurture South African talent and train people in production skills” (Sec 8(n)).  

2.3 Responsibilities specific to public or commercial wings

As mentioned above, the SABC is, in terms of legislation, divided into a public and a public commercial division. The legislation imposes specific obligations on the public wing of the Corporation. 

Television licence fees paid by the public can only be allocated to the public division and the Act specifies that there must be an “arms length commercial arrangement” between the public and commercial wings of the SABC. This is emphasised in a range of sections in the Act, including Sec 8A(15)(a) and Section 9(2) which state that the two divisions must be administered and accounted for separately and that assets must be registered with either the public or commercial division and use of such assets by the other wing must be accounted for.  

The responsibilities of the public wing are outlined in Section 10 of the Act, which states that the public stations and channels must:

• Make services available to South Africans in all the official languages;

• Reflect both the unity and diverse cultural and linguistic of South Africa and all its cultures and regions to audiences;

• Strive to be of high quality in all the languages served;

• Provide significant news and current 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;

• Include significant amounts of educational programming, both curriculum based and informal educative topics from a wide range of social, political and economic issues, including, but not limited to, human rights, health, early childhood development, agriculture, culture, religion, justice and commerce and contributing to a shared South African consciousness and identity;

• Enrich the cultural heritage of South Africa by providing support for traditional and contemporary artistic expression; 

• Strive to offer a broad range of services targeting, particularly, children, women, the youth and the disabled;

• Include programmes made by the Corporation as well as those commissioned from the independent production sector; and

• Include national sports programming as well as developmental and minority sports.

Commercial services are dealt with in Section 11 and have to comply with the same legal and regulatory standards of privately owned commercial services whilst adhering to “the values of the public broadcasting service in the provision of programmes and service”.

In terms of Section 10(3) and 11(1), the SABC submits budgets and business plans for the public division and the commercial division separately to the Minister.

3. The legal status of the SABC

As outlined previously, the Broadcasting Act also provided for the conversion of the SABC into a “public company incorporated in terms of the Company Act, to be known as the South African Broadcasting Corporation Limited”. The SABC was converted into a public company in 2004.

The law emphasises that the State is the sole shareholder of the SABC – and does not stipulate (as argued during parliamentary hearings into the Bill) that this is on behalf of the public. In line with this, the Minister of Communications determines the memorandum and articles of association and there is no injunction for public involvement in the determination of these.  

The corporate model was linked to the division of the SABC into the public and public commercial divisions.  According to the White Paper and the Broadcasting Act, this division was aimed at ensuring financial viability, as the commercial wing would have fewer obligations (similar to those of private broadcasters) and therefore supposedly be able to maximise profits, which would be used to cross-subsidise the public wing. The effectiveness of this will be dealt with in chapter 7 of this report.

The corporatisation of the SABC has been criticised. At the time of discussion of the Bill in Parliament, both the Congress of South African Trade Unions (Cosatu) and the Freedom of Expression Institute (FXI) voiced their objections and expressed the fear that this was a precursor to the privatisation of sections of the public broadcaster (the commercial division or parts of it). 

The SABC in terms of the Broadcasting Act (and in line with provisions in the Public Finance Management Act - PFMA) is listed as a Schedule 2 public entity (“Major National Public Entities’”) rather than a constitutional institution (a body established by the constitution). According to Treasury guidelines the boards of public entities are appointed by the executive of government rather than the legislature. 

The SABC, given the requirements of independence and legislative rather than executive oversight as stipulated by law, should be defined as a constitutional institution rather than a public entity.

3.1 Role of ‘shareholder’

The role of the Minister (on behalf of the State as shareholder) is outlined in the Memorandum and Articles of Association (‘the Articles’). It is further elaborated on in the annually signed Shareholder Compact. 

Memorandum and Articles of Association

The Articles, in line with company law, set out the relationship between the SABC and its shareholder (the Minister of Communications on behalf of the Government). As noted above, the Minister of Communications has determined the Articles, and there has been no public involvement in this process. The document moreover is not easily accessible, as it is not, for example, posted on the web sites of either the Department of Communications or the SABC.

Before dealing with the specifics of the SABC Articles of Association, it is important to highlight that the Articles, as they are currently written, do not in any way recognise the special nature of SABC as an institution set up by law – or its right to independence. They rather just import requirements and rights of private companies onto the SABC – with no recognition, for example, that the SABC’s board represents the public of South Africa rather than the shareholder (directors in commercial companies, for example, are direct nominees of the individual shareholder/s and thus shareholders have the right to give them instructions). 

Given this, a thorough legal analysis is necessary to determine whether or not company law in South Africa is appropriate for bodies set up by law, and, if so, how some of its requirements can be adapted to reflect the realities of bodies such as the SABC.

The Articles of the SABC state the main business of the SABC - broadcasting to the public - and note that the Corporation cannot, for example, dispose of any significant part of the SABC or wind up the broadcaster without permission from the Ministers of Communications and Finance. They further outline the requirements of the Public Finance Management Act, No 1 of 1999 (PFMA) and stipulate that the Board “controls the affairs of the Corporation”, in line with relevant legislation. (Article 12.1)

The Articles do not say that the State holds the shares on behalf of the public of South Africa. Whilst reference is made to the Broadcasting Act, there is no word at all on the “journalistic, creative and programming independence” of the SABC. 

Stakeholders have raised major concerns about the potential for these Articles to entrench a measure of state control of the SABC.

Critically, one of the key clauses effectively gives the Minister the right to determine the appointments of the three executive members of the Board - the Group Chief Executive Officer (CEO), Chief Financial Officer (CFO) and Chief Operating Officer (COO).  Article 11.1.2 states:

The non-executive Directors shall, after they have conducted interviews and compiled a short list for preferred candidates, recommend to … (the Minister) … the appointment of the preferred candidate to fill any position as the executive Directors of the Corporation.

The Articles further require that the Minister approve of the CEO’s employment contract (Article 19.1(a)) and the remuneration of all three executive board members (Article 11.4.2).This is particularly concerning given the designation of the CEO as Editor-in-Chief (see below) – resulting in the Minister being effectively responsible for appointing the editor of the SABC, in contradiction with the stipulation in the Charter that the SABC shall have journalistic independence.  

Such clauses appear to contravene the legally enshrined independence of the SABC and should be challenged accordingly. If necessary, it would be of value to raise this with the Constitutional Court for its judgement in the matter. 

In addition, the clauses potentially breach the labour and common law principle that ‘those that hear decide’.

In an interview on 12 June 2008, the then Chairperson of the Board, Khanyisiwe Mkonza, said that concerns had been raised in this regard: 

I know there have been criticism of this and suggestions that it disempowers us as the board. The board does, however, get involved in the process by recruiting and doing the short-listing and interviewing. The board then has to make a recommendation to the Minister and motivate why we are suggesting a particular candidate. In this way the Minister would not consider a candidate not preferred by the board anyway.

South Africa is not necessarily completely unique in this involvement (of the government) and maybe the exception here is the appointment of all top three executive directors. This argument though is linked to the debate around having senior management as members of the board. This is one part of the Broadcasting Act that would have to be reconsidered. 

It is worth noting though that consultation with government before appointing executive management had been the practice even before finalisation of the Articles – as shown by the following excerpt from minutes of a Parliamentary meeting in 2000 with the SABC: 

Ms Vos (IFP) asked about the vacancies in the SABC and about recruitment. She referred to Dr Maphai's (then Board Chairperson) earlier statement that a list of candidates for the senior positions had to be submitted to Cabinet for approval. She asked why this had to be done when the SABC was not a state broadcaster. 

Reply: Dr Maphai replied that the Broadcasting Act did not address the matter. In terms of the corporate governance of parastatals they were required to get Cabinet's approval.
Ms Vos wondered if the Board did not have a problem with this in terms of their independence. What would happen if Cabinet rejected a proposal that the Board made?
Reply: Dr Maphai replied that they would have no choice but to abide by Cabinet's decision but they hoped that it would never come to such a situation.  

Other articles that potentially limit the SABC’s autonomy and/or could be seen as contrary to the Broadcasting Act/PFMA include:

• Article 13 which deals with “vacation of office” of Board members. These clauses go further than the removal clauses in the Act (to be dealt with below);

• Sections dealing with the development of a three-year strategic plan (corporate plan) and submission of the annual report and financial statements to the Minister with no mention of the oversight role of the legislature in this regard (Articles 14.2.1, Article 32). The clauses on the corporate plan/business plan (the two terms are used interchangeably in the document) state that the SABC must “consider” any comments on the plans made by the Minister/State.

• A requirement that the SABC send the Minister monthly management accounts (Article 26.4), whilst Treasury Regulations issued in terms of the PFMA only require quarterly reporting by public entities.

Shareholder compact

In terms of Treasury regulations, all public entities listed in Schedule 2 of the PFMA have to sign an annual shareholder compact with the executive authority (Minister). 

If, as suggested above, the SABC were listed as a constitutional institution in terms of the PFMA it would not be required to enter into such an agreement. Constitutional institutions are governed by specific Treasury Regulations giving them administrative independence from the executive of government in recognition of their status. The Broadcasting Act recognises that the SABC is overseen and accountable to Parliament rather than the executive.

By June 2008 the Minister had not signed the compact with the SABC for the year ending March 2008. The previous annual compact according to the SABC 2007 Annual Report was also not signed. According to the SABC 2008 Annual Report, the shareholder compact was still not signed as it was dependent on the finalisation of a Corporate Plan, the contents of which were under discussion with Treasury and the Department of Communications. The 2009 Annual Report was silent on the matter.

According to the Treasury regulations, a shareholder compact “must document the mandated key performance measures and indicators to be attained by the public entity as agreed between the accounting authority and the executive authority”. (Note that this ignores Parliament’s role in the finalisation of strategies for the SABC).

Key points in the 2007/2008 Compact confirm the assertion that it is inappropriate (and possibly ultra vires) for the SABC to be required to enter into such an agreement with the Minister:

• In outlining the relationship between the parties the compact says that each party should have “sufficient freedom of action…to enable … them to achieve their … objectives and to carry out their … functions”, but also states that the Shareholder is accountable to Parliament whilst the Board is accountable to the Shareholder “for compliance with the obligations imposed on it in terms of the PFMA”. This ignores the role of Parliament.

• The compact “acknowledges” the role of ICASA in regulating the SABC, and states that the Shareholder will “consult” the regulator on any matter relevant to the applicable framework of the SABC. This does not appear to sufficiently recognise ICASA’s independence.

• The compact states that if the “Shareholder intends to issue recommendations, policy directives or instructions that while not being contrary to the objectives of the relevant applicable framework of the SABC, will impact on the Corporate Plan” the Minister must “give sufficient notice of the new or additional requirements”. The SABC must then give an amended corporate plan to the Minister within 14 days for her consideration and “the SABC shall abide by the decision of the Shareholder”. If the SABC refuses to approve the amended plan, this must be noted but the agreement states that the SABC must “still implement the Shareholder’s decision or instruction”. 

These clauses are alarming and ignore the status given to the SABC in the Broadcasting Act. They also appear to be in breach of clauses of the Electronic Communications Act, which outline a public process for the development of any national policy by government

4. The Board

The SABC is governed by a Board made up of 12 non-executive members and three executive members (the CEO, Chief Operating Officer (COO) and Chief Financial Officer (CFO) “or their equivalents”) (Sec 12 Broadcasting Act).

Nine members of the Board, including either the Chairperson or his/her deputy, constitute a quorum of the Board. (Sec 13(10) Broadcasting Act). 

Potential problems/gaps in the legislation around composition of the Board became evident in a 2008 court case between the CEO and the Board over his suspension from duties for alleged non-performance. 

The Court found that the meeting of the Board where the decision to suspend him had been taken was invalid, as executive members had not been informed timeously in writing of the meeting as required by the law. As it is clearly necessary for executive members to be absent from any meetings dealing with, for example, their performance or their conditions of employment, the legislation should be amended either to exclude management from membership of the Board, or to provide for non-executive meetings in certain circumstances. The Australian Broadcasting Corporation Act for example stipulates that the managing director (although a full member of the board) should not be present at certain meetings.   

4.1 Appointment

The President, on the “advice” of Parliament, appoints non-executive members of the Board after a process of public nomination. 

The legislation specifies that the process adopted by Parliament must:

• ensure participation by the public in the process, 

• be fair and transparent, and 

• that the legislature must publish its shortlist of candidates to be interviewed (Sec 13 (2)). 

In practice, the Parliamentary Portfolio Committee on Communications has handled this process on behalf of the National Assembly. It has published an advertisement in newspapers calling for nominations. The short-listing, interviewing and decision-making meetings are all public Recommendations are then forwarded to the National Assembly for approval before being submitted to the President.

The President decides on the chairperson and deputy chairperson from amongst those recommended by the legislature (Sec13 (3) Broadcasting Act) and sets the term of office for members, though the Act states this may not exceed five years.  Board members can serve a maximum of two terms. 

The Parliamentary Ad Hoc Committee established to review the independence and oversight of constitutional entities recommended in its report that Parliament and not the President should decide on who would chair such bodies. Whilst the Committee did not include the SABC in its detailed review of such institutions, it does highlight in its appendices that the SABC (amongst other entities) is also given Constitutional protection. Its recommendations should be considered in any drafting of new policies and laws. 

Unlike in the case of governing bodies established subsequently, the Act does not provide for continuity, and the terms of all Board members end concurrently. The ICASA Council for example has overlapping terms so that not all councillors leave at the same time.  

The Act makes no mention of appointment of executive members of the Board (CEO, COO and CFO). The practice outlined in the Memorandum and Articles of Association is thus not provided for in legislation. In any amendment of the legislation, a clause stipulating that the Board is solely responsible for appointment of the executive management should be inserted. 

The appointment process came under scrutiny in the second half of 2007 after members of the ruling party in the Parliamentary Portfolio Committee reportedly complained about being “ordered” by the ANC headquarters whom to select for the board.  The newspaper article further revealed that a staff member in the Presidency had nominated one of the new board members. The country’s major trade union federation, the Congress of South African Trade Unions (COSATU), together with the Freedom of Expression Institute (FXI) considered challenging the appointment process in court, but decided not to proceed as they were unable to persuade key protagonists to provide affidavits proving political interference. 

As a result of the reports of political and government interference in the board appointment process, alongside concerns about public battles between the board and management of the SABC, there were calls for a review of the legislation. Minister of Communications, Ivy Matsepe-Casaburri, endorsed the need for this in her 2008 budget speech:

It is evident that both the Executive and Parliament will have to review the legislation and appointing processes to ascertain whether this legislation, drawn up at a particular historical time, is relevant for our current historical conjuncture.

The powers given to the appointing authority, the processes of appointing and removing board members, the Public Broadcaster's Charter, and the role of the executive and/or Parliament, clearly need reviewing, without sacrificing the broadcaster's independence but clarifying the nature, content and form of that independence. 

Others have suggested alternative procedures. Commenting in the Mail & Guardian newspaper, Wits University journalism professor Anton Harber, for example, said:

Parliament may not be the best way to select a board. The best way I have heard of is the way the first SABC board was selected … by a panel of ‘the good and greatest’ chaired by a judge. We need to remove it from party politics.

Ex editor and journalist, Allister Sparks, in a column in the Business Day went further and detailed suggestions for the composition of what he called an Independent Broadcasting Commission, established not only to appoint SABC board members but also, for example, councillors on the regulator:

The precise composition of such a commission should be a matter for public discussion, but to give the gist of my proposal let me suggest the following: a body of 13, chaired by a retired Constitutional Court judge; two practising editors nominated by the South African National Editors’ Forum; two teachers of journalism; one representative of the filmmaking industry; the minister of broadcasting; four MPs, at least two representing opposition parties; and two trade unionists.

4.2 Criteria for appointment

Section 13(4) of the Broadcasting Act sets out the criteria for the appointment of non-executive members of the Board. It states that Board members when viewed collectively must:

• be persons suited to serve on the Board by virtue of their qualifications, expertise and experience in the fields of broadcasting policy and technology, broadcasting regulation, media law, frequency planning, business practice and finance, marketing, journalism, entertainment and education, social and labour issues;

• be persons who are committed to fairness, freedom of expression, the right of the public to be informed, and openness and accountability on the part of those holding public office; 

• represent a broad cross-section of the population of South Africa; (and)

• be persons who are committed to the objects and principles as enunciated in the Charter.

The first clause of this Section is vague and has led to questions being asked about whether or not, for example, a particular Board does indeed include all the identified expertise or experience. 

The clause sets out a finite list of skills required (rather than indicating that the Board should include certain expertise), thus raising questions about why, for example, an understanding of gender or language issues in South Africa would not enhance the Board. It requires on one hand for the Board to include people with specific qualifications in an area such as frequency planning (though it is unclear why the Board would need qualifications in this area, rather than an understanding of universal access), whilst emphasising the need for qualifications and experience in broad areas such as social and labour issues (but not development, for example). 

4.3 Disqualification

The clauses dealing with disqualification of Board members are vague – and therefore do not necessarily safeguard the SABC from potential conflicts of interest. 

Whilst it is clearly stated that only citizens of South Africa can be appointed, and that no person who has been convicted and sentenced for a crime, or found guilty of corruption or dishonesty can sit on the governing structure, the legislation merely requires disclosure of potential conflicts. Section 17 of the relevant legislation states that a person cannot be appointed unless “the necessary disclosure has been made”.  Disclosures specified relate to financial or other involvement in the broadcasting, telecommunications and print media industries. Unlike the ICASA Act, the Broadcasting Act does not prohibit public officials or party political office bearers from sitting on the Board.  Board members have to recuse themselves from discussions on any matter if they have a conflict of interest.

It is critical that the Board includes people with experience of broadcasting and a commitment to public broadcasting, and thus it would be foolhardy to exclude all those involved in media or communication. However, the legislation could be strengthened through defining clearly who should be precluded from participating in order to protect the SABC from perceptions or accusations of bias (either political or economic). 

Concerns in this regard have previously been raised:  

• Ex Board member Cecil Msomi was, while still serving on the SABC, employed as the chief spokesperson of the Premier in KwaZulu Natal – sparking allegations by opposition parties of a conflict of interest. Msomi argued that he was not precluded from sitting on the Board in terms of the legislation. However, when he sought reappointment towards the end of 2007, Parliament declined to appoint him after raising concern in his interview about his position in government. 

• New Board member, Bheki Khumalo, was in 2008 appointed on a contract to provide communication services to one of the government Ministries. He argued that this was only a short-term consultancy and therefore did not affect his membership of the Board. However, according to newspapers, the ANC whip in the parliamentary communications committee disputed this. Khotso Khumalo reportedly stated that there is a potential for a conflict of interest as the Board member could “influence or be perceived as influencing coverage of the (Department) and the ministry”. 

• Concerns were also raised in the media about the participation of a previous chairperson of the SABC, Eddie Funde, in a technology company. The Financial Mail for example stated in an editorial: “It cannot be right that Funde and Mpofu (then CEO of the SABC) have commercial interests in technology companies while being in positions to determine what new technology will be suitable for the SABC”.

4.4 Removal

The clauses on removal of members of the board were extremely vague in the Broadcasting Act of 1999 and made it difficult to ensure accountability of the board.  According to the legislation, board members could be removed by the “appointing body” for “misconduct or inability to perform his or her duties efficiently after due inquiry and upon recommendation of the Board”. The Act did not define what would constitute misconduct or inability to perform efficiently. It further did not clearly define the term ”appointing body”, which could arguably refer to both the President and Parliament. Further confusion was brought by the condition that a removal could only be on the board’s recommendation – making it impossible, for example, for Parliament to insist on the resignation or removal of a board member who, after appointment, joins the public service, if the board itself perceives no conflict over this.

As mentioned above, the Articles of Association also deal with removal from office. Whilst the clauses in the Articles seem rather to define what would constitute “misconduct or inability to perform his or her duties efficiently”, and do not seem to introduce new motives for removal, it is inappropriate that these should be expanded on in the Articles of Association of a body set up by law (rather than a company).  The Articles state that a member of the Board will “cease to hold office” if:

• She or he misses three consecutive meetings of the Board without leave;

• She or he “knowingly is interested in any contract or proposed contract with the Corporation and fails to declare his or her interest as required by the Broadcasting Act”; and

• If her or his estate is sequestrated.

The unworkability of these clauses came under the spotlight in 2008. In April, the ruling party members of the Portfolio Committee on Communications in Parliament passed a “vote of no confidence” in the entire board of the SABC.  Minutes of the meeting state that the ANC said it “was convinced that the Board was not in a position to execute its fiduciary responsibilities” following concerns about an apparent rift between the Board and SABC management. ANC members of the Committee had earlier stated in the media that they wished certain members of the board would resign.  As the board had been in office for about four months only at the time of the vote, it seemed premature to take such a hard line, and the move was attributed rather to political battles within the ruling party. The decision by Committee members was noted by the full National Assembly rather than adopted – presumably because the implications of such a declaration were unclear. 

The process of amending the Broadcasting Act to give Parliament the powers to recommend the removal of the board was then initiated. The resulting Act retained the original grounds for removing the board, but in addition gave the appointing body the powers to remove a board member after due enquiry and a finding calling for removal by the National Assembly. The grounds for removal are failure to disclose a conflict of interest (which brought this provision into line with those of the Chapter Nine institutions), failure to discharge fiduciary duties, failure to adhere to the Charter, and failure to carry out the duties outlined in the Act. The Act also provides for the suspension of board members during an enquiry, and the appointment of an interim board. The Act also retains the definition of “appointing body” as referring to the President. In the first version of the bill, the “appointing body” was meant to be the President in consultation with the Speaker of the National Assembly; however, the ANC in the Portfolio Committee backed down on this proposed amendment after opposition parties objected to its implications for the separation of powers between the legislature and the executive. 

4.5 Roles and responsibilities

The Board, in terms of the Broadcasting Act, “controls the affairs of the Corporation” and is specifically instructed to protect the freedom of expression of the SABC and its journalistic, creative and programming independence. It is entrusted with compliance with the Charter and ensuring the broadcaster meets the objectives for public broadcasting in South Africa. In terms of Section 6 of the Act, the Board must also determine a range of editorial policies for the SABC. These are developed through a public process and subject to regular review.

As the SABC is listed as a public entity, the Board is the accounting authority of the SABC and thus responsible for financial management in terms of the Public Finance Management Act, No 1 of 1999 (PFMA) under the guidance of the “designated accounting officer” (the Director General of the Department of Communications). This is notably different from constitutional institutions such as ICASA, which is treated as a Government Department and thus has its own accounting officer (the CEO). 

Treasury regulations further define the “executive authority” of a constitutional body as the chairperson of the board of such an institution, rather than the relevant Minister. In practice this means that whilst, for example, a constitutional entity has to submit quarterly financial reports to its board who submits these to Treasury, the SABC would provide such reports to these bodies through the “designated accounting officer” (the Director General of the Department of Communications). The arrangement for constitutional bodies reinforces perceptions of independence from government officials. 

In terms of the Broadcasting Act (Sec 10(4)), the Board is responsible for ensuring that annual reports, including audited financial statements, are submitted to the Minister of Communications for tabling in Parliament.  Whilst the Minister in this instance appears to act as a conduit as the SABC itself has to report to Parliament on the annual report and financial statements, that role could be perceived as limiting independence and the SABC should be charged with submitting its annual report to Parliament itself through the Speaker of the House. 

The legislation provides for an Executive Committee (which is accountable to the Board and responsible for administration) made up of the three executive members of the Board and up to 11 others.  

The distinction between oversight and operations is sometimes a fine one, and can be a source of conflict between boards and management. It is necessary for a board to determine strategies and ensure their efficient and effective implementation, whilst not compromising its oversight role by being too involved in operational decisions. 

Different boards of the SABC have in the past been accused of meddling in management, though it appears there has not been an in-depth evaluation of the validity of such assertions. The number of Board meetings held however could indicate an over-involvement of the governance structure in operations.  According to the 2006/2007 annual report, there were 46 meetings of the Board and its sub-committees during the financial year. This compares with media company Naspers (a multi-national company including print, subscription television and internet divisions), which held 15 board and sub-committee meetings in 2006 according to the company’s annual report for that year. According to the 2007/2008 annual report, the number of meetings increased to 50 (including sub-committee meetings). 

Whilst the SABC has approved a Board Charter and a delegation of authority framework (outlining for example that the CEO can only approve spending up to R15 million), the distinction between strategy and implementation is not always clear, with conflict emerging between the board and senior management over these issues in 2008. 

Obviously legislation would be strengthened by outlining more clearly the role of the board versus that of management.  It is also evident that the blurring of the different roles is exacerbated by making the board the accounting authority (rather than declaring that the CEO should be the accounting officer). This determination gives the board particular financial responsibilities and makes them directly accountable for any mismanagement. Constitutional entities however (as noted earlier) have their own accounting officer (normally the CEO of the institution). 

4.6 Sub-committees

The Act stipulates that the Board must establish a public service sub-committee as well as a commercial service sub-committee – presumably to ensure separate administration of the two divisions. These sub-committees are responsible for reporting on the achievements of the two divisions of their mandate/s and operational plans (Sec 14(12)(a)).

No other sub-committees are mandatory, and the Board can decide on establishment as necessary. According to the 2008/2009 annual report, the SABC Board has established nine other committees including an audit committee, finance committee, news committee, risk committee, technology committee, human resources committee, remuneration committee, 2010 committee (FIFA World Cup) and procurement committee. 

4.7 Oversight 

The Parliamentary Ad Hoc Committee to review constitutional and related institutions explored the nature of oversight of such entities. Its findings are pertinent when reviewing institutional structures of the SABC given the specific protection of its editorial and programming independence in line with the Constitution. 

The Committee noted that oversight is critical to ensuring that any public institution fulfils its legislative mandate effectively but that “due consideration must be given to ensure that the oversight role … and mechanisms … do not infringe on …independence”.  Citing various Constitutional Court judgements on the issue of independence, the report stresses that a “sharp distinction” needs to be drawn between such institutions and the Executive (i.e. Cabinet members or public officials). Parliament, it notes, should be responsible for such oversight. 

As pointed out previously, government is the sole shareholder of the SABC. The relationship between the shareholder and the broadcaster is therefore governed not only by the Act, but also by the Memorandum and Articles of Association. Certain clauses of the Articles give the Minister a role in the administration of the broadcaster, and thus potentially impinge on the SABC’s operational independence. 

In terms of the Broadcasting Act and the Public Finance Management Act the SABC Board is accountable to Parliament (as the appointing body) as well as to the regulator, ICASA. The legislation further specifies certain powers for the Minister of Communications.

ICASA is responsible for issuing the SABC’s licence conditions and thus its oversight role is mainly to monitor the Corporation’s compliance with these. In addition, the regulator must monitor and ensure compliance by the SABC with its Charter. The editorial policies of the broadcaster also have to be lodged with ICASA.

SABC presents its three-year plan and annual budget for approval to Parliament. The Portfolio Committee on Communications holds hearings to discuss plans and budgets, which fall under the Department of Communications. The SABC then accounts to Parliament on meeting its mandate and expenditure of budget allocations.  However, the Corporation does not submit its annual report and audited financial statements to Parliament directly but through the Minister, who has to table these within seven days of receiving them if Parliament is in session, or within seven days of Parliament reconvening if it is not in session  (Sec 28 Broadcasting Act).

While the legislation asserts the SABC’s independence from political, commercial and other pressures, the Broadcasting Act also ascribes a number of other roles to the Minister:

• The Minister determines the Memorandum and Articles of Association for submission to the Registrar of Companies (Sec 8A(2));

• The Minister sets the television licence fees (Sec 40) by regulation;

• The Corporation must draw up financial regulations for approval by the Minister after consultation with the Minister of Finance (Sec 18);

• The Minister has to approve of investments of any surplus of the SABC (Sec 18(5)); 

• The Minister has to approve of the extent of the subsidy of the public division by the commercial wing, on the recommendation of the Board (Sec 11(d)).

It is important in this context to highlight that the Constitutional Court has ruled on the issue of independence of institutions and their funding. In a 1999 judgement (New National Party vs Government of the Republic of South Africa and Others), the Court found that independence does not mean that institutions can set their own budgets but that it is for Parliament and not the executive arm of government to provide for funding “reasonably sufficient” to enable such entities to fulfil their mandates.

In light of such findings, any review of the law will have to evaluate whether or not such roles of the Minister in any way limit, or can be perceived to infringe on, the SABC’s  “journalistic, creative and programming independence” as required by Section 6(3) of the Broadcasting Act. 

Perhaps though what is potentially more problematic, as it may be difficult to prove, is the way a board interprets its relationship with and obligations to government versus its responsibility to ensure independence and to serve and represent the public.  As this is not detailed in any public documents, this may vary from board to board.

It is concerning, for example, that any board of the SABC should have consented to the clauses outlined above contained in the Shareholder Compact. Other issues also emerged during the course of 2008. In court papers challenging his suspension, Group CEO Dali Mpofu alleged that the action taken against him by the board was as a result of an instruction from the Minister in the Presidency, Essop Pahad, to “get rid of the CEO”. After months of legal tussling, Mpofu won his reinstatement in June 2009, although his allegations of political interference were never proved in court. Mpofu has since reached a settlement with the SABC and left the employ of the broadcaster.

There were at the time – repeated though unsubstantiated - allegations that the 2008 SABC Board members were allied to the government (led by President Thabo Mbeki), whilst some senior managers were supportive rather of the ruling party (headed by ANC President Jacob Zuma who defeated Mbeki in party elections in December 2007), and that conflict at the broadcaster was based on such divisions. Following the politically charged controversies around this board and its eventual removal, there have been no consistent allegations of political bias levelled against the interim board, which has gone quietly and efficiently about addressing the multiplicity of problems at the broadcaster. 

However, the interim board attracted controversy in its last days in December 2009, when it appointed a new CEO, former Chief Operating Officer Solly Mokoetle. According to a newspaper report, members of the new SABC Board objected to having this choice imposed on them and asked why it should not have been their responsibility to appoint the CEO who will work under their supervision. 

4.8 Accountability and transparency

Members of the public can submit complaints about non-compliance with the licence conditions or Charter to ICASA for further investigation. The SABC also has to draft its editorial policies through public consultation, and ICASA procedures encourage and facilitate public involvement in the finalisation of licence conditions. 

Whilst such mechanisms do provide for public participation and (to some degree) oversight by the public of the public broadcaster, the legislation does not detail mandatory mechanisms to ensure that the SABC consults listeners and viewers or is directly accountable to them. 

The SABC itself conducts regular research and analysis into listener and viewer needs and responses to programmes. Its Editorial Code furthermore lists transparency as one of the core editorial values, stating that the “SABC ensures that the principles of honesty, openness and transparency are core to every aspect of its relationships with shareholder, stakeholders, suppliers and the public” (though the order of listing these relationships is possibly instructive). 

Despite this commitment, the SABC has been accused of covering up and hiding issues from the public. It refused, for example, in 2006 to release the full findings of an internal Commission of Inquiry into alleged blacklisting by the SABC of commentators and tried (unsuccessfully) to interdict the Mail & Guardian from placing a leaked copy of the report on its web-site. 

This, amongst other things, has prompted calls for specific mechanisms to be put in place to ensure accountability to the public. The Freedom of Expression Institute (FXI), for example, in a Memorandum for SABC Management submitted in 2006 demanded that the “SABC must work with our organisations to establish forums for regular consultation of our communities by the SABC. This will allow for our communities to be consulted and for the SABC to be able to fulfil its objective of citizenship empowerment”.

There are several possible mechanisms to ensure more transparency and accountability to the public. The British Broadcasting Corporation’s 2006 Royal Charter and Agreement, for example, have put in place specific measures:

• The Charter specifically states that the BBC’s governance structure (the Trust) is accountable to licence fee payers. 

• The document specifies that the Trust must “carefully and appropriately assess the views of licence fee payers”. The Charter states that a protocol for public engagement must be developed through a consultative process which must, amongst other things, detail how the Trust will “actively seek the views of, and engage with, licence fee payers”.

• The Charter sets out six Public Purpose Remits and the Trust is required annually to publicly outline what measures it proposes taking to meet these Remits and how it will measure and assess performance.

• Before any significant changes are made to any service (or a new service is introduced) a Public Value Test must be conducted. This includes an assessment of the public value of the change and a market impact study – the results of which must be published.  

• There are also specific requirements on transparency and openness that state that the Trust must ensure “that the principal points of its proceedings and the reasons and key considerations behind important decisions … are made public”.

• In addition the Trust has to establish Audience Councils to ensure that “the diverse perspectives of licence fee payers” are brought to bear on the work of the BBC. The Charter specifies that four such audience councils must be established in the different geographical areas the broadcaster covers and that the purpose of these bodies is to “engage with licence fee payers”.  The Trust has to consult with the Councils. 

• The BBC has also previously been bound by certain formats for reporting to the public. It has been required to make an annual public statement of account setting out, amongst other things, how it has met its objectives, details of research and consultation undertaken and the amount of money spent on each genre of programming as well as on programming for the different regions that it broadcasts to. 

5. Profile of the SABC

5.1 Stations and channels

The SABC runs 18 radio stations (15 of which fall under the public broadcasting division) and three television channels (one of which is licensed as a public commercial service). A further two regional channels have been licensed but are not on air – pending financing for these.  Provision has been made for these channels on the digital multiplex reserved for the SABC.

ICASA does not specifically define the target audience of any of the SABC stations and channels in their licence conditions – unlike in the case of private and community players. The conditions are fairly generic (with some differences in Schedule B relating to coverage area and Schedule C of the licence relating to Special Conditions). The only reference to target audience in the licences (for both public and public commercial services) is contained in Schedule C of the individual conditions entitled “General Requirements”. This states:

The Licensee shall, during the South African performance period, provide programme material that caters for all sectors of South African society and shall provide information on and relevant to the following:

4.7.1 people living with disabilities; 

4.7.2 health-related issues;

4.7.3 gender issues; and

4.7.4 all age groups.

The licence conditions further do not specify the breakdown between speech and music for public radio services – again unlike conditions for community and commercial radio stations.

5.1.1 Public service broadcasters

The SABC public wing comprises 15 radio stations, including 11 full-spectrum services broadcasting in each of the official languages, a station broadcasting in the Northern Cape in !Xu and Khwe, a service for the Indian community and one targeting the Eastern Cape. Two of the three national television channels also fall under the public wing – as well as the two regional television services which are yet to broadcast. 

Public radio stations

The following list is in alphabetical order. The stations are described both in terms of SABC’s promotional material and in relation to their licence conditions. 

Ikwekwezi FM

Ikwekwezi broadcasts in isiNdebele. SABC states on its web-site that the station is “positioned to improve the lives of its listeners by keeping them in touch with current issues while catering for the needs and tastes of the Ndebele people”. There are apparent discrepancies between the station’s promotional material and branding and licence conditions issued by ICASA.  Whilst ICASA’s documents and policies suggest that all public service stations shall be full spectrum and target all sectors of the defined audience, SABC states that the station “targets 25-49 year olds in LSM 4-8” (the economically active middle class).  

Lesedi FM

Lesedi FM broadcasts in seSotho to the Free State and other provinces. SABC states that the station “strives to reconcile traditional values with the freedom to express cultural roots whilst fusing these into the modern world”. The station offers news, information, talk and drama amongst other programmes.

Ligwalagwala FM

Ligwalagwala FM is the siSwati service of the SABC. The Corporation describes the station as speaking to “young, aspirational, upwardly mobile black people living in Mpumalanga … its listeners are progressive and brand-conscious”. This again seems to contradict ICASA licence conditions, which stipulate that the station should target all members of the community. 

Lotus FM

Lotus FM targets the Indian community in KwaZulu Natal, Gauteng, the Western Cape and Port Elizabeth. It broadcasts predominantly in English, but according to licence conditions, must also provide programming in Hindi, Tamil, Urdu, Gujurati and Telegu. Whilst ICASA specifies as with others that the station must cater for all sectors of society, SABC describes Lotus FM as catering “for the needs of the progressive South African Indian community … between the ages of 25-34 (core) and 35-49 (secondary) in the LSM 7-10 segment”. 

Motsweding FM

Motsweding FM broadcasts in Setswana. SABC brands the station as offering “a highly interactive environment with its listeners, providing a perfect mix of news, music, current affairs, talk shows, education, sport, weather and traffic.”

Munghana Lonene FM

Munghana Lonene broadcasts in xiTsonga. The SABC again describes the station as focusing on a particular segment of the xiTsonga speaking population rather than all members of this community. It states that the “station has been positioned to reach audiences within the LSM 4-8, 25-49 year-old market living in metropolitan and rural African communities. The programme mix is to “edutain”. The station format offers an equal split between music and talk”.  

PhalaPhala FM

The station broadcasts in Tshivenda. There are again apparent contradictions between the branding for the station and ICASA requirements. SABC states that the station “talks to young aspirational and upwardly mobile black people living mainly in the Northern Province and broadcasts in Tshivenda. It is mostly a music station with a small degree of talk: 80% of the music being South African, with a fair amount of R&B and Hip-Hop”.

Radio Sonder Grense (RSG)

RSG is a national Afrikaans language station. The SABC states that the station “targets the modern, progressive Afrikaans-speaking community regardless of colour and race. It seeks to attract forward-thinking Afrikaans-speaking people between the ages of 25 and 49 years from the upper LSM’s (7-10)”. This indicates that the station is focusing on the wealthy economically active Afrikaans population, rather than all Afrikaans speakers - a significant proportion of whom are not white and/or wealthy. 

Radio 2000 

The station is licensed as a “facility service” and has to include education, sport, and religious programming as well as music in a range of genres in all official languages. It broadcasts nationally from Johannesburg.  As a facility service it airs live important events – such as the President’s State of the Nation Address.

SAfm

SAfm is the SABC’s national English language public radio station. The Corporation says that the station “draws its audience from LSM's 7-10.  Its core listeners fall into the age bracket 30-49. The station has also actively sought a 'diverse' audience (currently 61% black vs 39% white”). 

Thobela FM

Thobela FM is a Sepedi radio station broadcasting in Gauteng, Limpopo Province and Mpumalanga.   SABC states that the station’s “core target market fits into the 25-49 year age group in LSM 4-8”.

tru FM

SABC describes tru FM  as “the gateway to regional consumers in the Eastern Cape”. It says that the station broadcasts in English (60 per cent of the time) and isiXhosa (40 per cent). Whilst ICASA says the station broadcasts to all South Africans of all ages in its target area, SABC describes the station as the SABC’s only youth service (ages 16-24).  Licence conditions specify that the station must include programming for children as well as current affairs programmes, educational programmes and informal knowledge building programmes.

Ukhozi FM

The station broadcasts in isiZulu. SABC states that the station “keeps its Zulu speaking audiences connected to their cultural identity in a modern world-context”. It has the largest audience of any station in South Africa (see audience figures below) and the SABC claims that it is the second biggest radio station in the world and the largest radio station in Africa. 

Umhlobo Wenene FM

The station broadcasts in isiXhosa. Most of its audience is in the Eastern Cape though it also broadcasts in the Western Cape, Gauteng, and Eastern Cape. Umhlobo Wenene FM is the second largest station in South Africa. 

X-K FM

X-K FM is described by the SABC as a community station. It broadcasts for 12 hours a day in the KhoiSan languages of !Xu and Khwe. The station focuses on the community surrounding Platfontein in the Northern Cape and first started broadcasting in February 2004.

Public television

The two national public television channels are SABC 1 and SABC 2. 

The SABC defines SABC 1 as “the reflector of issues that impact on the youth and youthful at heart”. ICASA does not define a particular target audience (such as the youth), but requires that the channel broadcast in Nguni languages and English. 

SABC 2 is licensed to broadcast in Afrikaans, the SeSotho languages, XiTsonga, Tshivenda and English. SABC describes the station as the “family channel”.

The SABC has been licensed to provide a further two regional television services (SABC 4 and SABC 5) – though licences for these two language services covering the North and South of the country respectively will only be issued once the broadcaster has assured funding for these from Treasury. 

The public commercial services are subject to the same terms and conditions as private commercial stations and channels – but have to adhere to the values of public broadcasting (Sec 11 Broadcasting Act).

5.1.2 Public commercial services

There are three public commercial radio stations:

• 5fm is a national music station broadcasting predominantly in English. It is licensed as a contemporary hit radio station. 

• Metro FM also broadcasts in all major cities of South Africa in English and is licensed as an Urban Contemporary music station.   SABC describes the station as

the largest National Urban Commercial station in South Africa … The station’s core genre, R&B, is the most popular music genre amongst South Africans between 16 and 34. It epitomises Black success and leadership with attitude. Its listeners are high achievers with a lot of style, confidence, potential and the enviable ability to feel at home in a non-racial South Africa.

• Good Hope FM broadcasts in English and Afrikaans in the Western Cape and is licensed as a Contemporary Hit Radio Rhythmic service. 

SABC 3 (which broadcasts in English) is the designated public commercial television channel. According to the SABC, the channel’s footprint is largely in the metropolitan areas of South Africa. Its core target audience is defined by the Corporation as LSM 7-10 (the wealthy), ”with LSM 5-6 being the secondary target audience”. 

6. Organisation

According to section 14 of the Broadcasting Act the affairs of the Corporation are administered by an Executive Committee (Exco) which includes the Group Chief Executive Officer (CEO), Chief Operating Officer (COO), Chief Financial Officer (CFO) and a maximum of 11 other members. The Exco is accountable to the Board. 

There are 4 353 positions at the SABC though according to the 2008/2009 annual report and a total staff complement of 4 098 (3 542 permanent and 574 fixed-term contracts). 

It was not possible to investigate in depth the ratio of management to staff at the SABC, but in informal discussions concerns were raised that the SABC might be too top heavy. There are also perceptions that the ratio of managers to staff is lowest for departments dealing with administration as against those related to programming or individual stations and channels. Information contained in annual reports seems to confirm the validity of such concerns. The 2005 annual report, for example, listed 15 members of Exco, while the 2007 report indicated there were 20 members, and this figure dropped to 16 members according to the 2007/2008 report, while the 2008/2009 report listed 20 members (noting that seven of these are invitees to Group Executive meetings). 

The SABC has gone a long way towards transforming the profile of the staff to make it more representative of the population. In its 2007/2008 annual report it notes that the percentage of black staff in the corporation increased from 58.2 per cent in 2001 to 74 per cent in 2008, and that in March 2008, 66 per cent of all managers were black (compared to 41.4 per cent in 2001).

South Africa has also set itself a target for employment of people with disabilities within the public service. SABC however falls short of this target (2 per cent of all employees by 2010) and looks unlikely to achieve it. Its statistics state that as of March 2007, 0.58 per cent of its employees had disabilities (compared to 0.44 per cent the previous year). The annual report does not disaggregate this data in terms of gender or management. No figures are provided in its 2008/2009 annual report.

SABC boasts that its news and current affairs department is “the biggest news gathering organisation in Africa”. The news division (which services the public and public commercial wings) has13 editorial offices around the country, a staff of 972 people and a network of correspondents around South Africa. 

By 2008, there were 13 news bureaus around the world, and the-then head of news Snuki Zikalala told newspapers in 2008 that the broadcaster planned to have a total of 20 international bureaus by 2010. However, these offices proved to be a significant drain on the broadcaster’s resources, and by 2009 eight of them had been closed down.  

6.1 The role of the Group Chief Executive Officer

The Group Chief Executive Officer is, in terms of the editorial policies of the SABC, also the editor-in-chief of the broadcaster. The policy document entitled The SABC’s Mandate: Powers, Functions, Rights and Obligations, spells out a process of what it calls “voluntary upward referral”.  The policy gives responsibility to individual producers and commissioning editors for editorial control, but states that if necessary (if “any difficulty arises” or if they are “unsure of anything”) they should “consult” their direct supervisor. The document states that this “process of voluntary upward referral could extend as far as the Group Chief Executive Officer”.

The policy also requires that “even when specific editorial advice is not asked for, programmes or news items that are controversial, or likely to have an extraordinary impact, should be reported in advance to the senior news and programming executives”. 

They may in turn report the matter to top management. If a producer or editor does not do this, the policy document specifies that they will be held responsible for the editorial decision made.

The mandate document further clarifies the role of the GCEO in this regard:

The role of editor-in-chief … should not be confused with the functions of the Heads of Radio, Television, News, Sport and Education or of the other editors and station and channel managers employed by the SABC. The GCEO’s role is not to make day-to-day programming or newsroom decisions. However, the Board of the SABC delegates responsibility, and holds accountable the GCEO for the performance of all news and other programmes …

The SABC states that this policy should be a “mutually empowering, nurturing and developmental approach for all the staff involved. It is not meant to shift editorial decision-making upwards; it is intended … to underpin collective decision-making”.

This policy was developed through extensive public consultation before finalisation by the Board. The designation of the CEO as Editor-in-Chief was criticised in a number of submissions on the draft policies.  The South African National Editors’ Forum (SANEF), for example, stated:

The … larger concern of Sanef is that the GCEO of the SABC has, arguably, as his (sic) core responsibility, the business wellbeing of the corporation. This duty does not sit easily with editorial responsibilities ... Sanef is aware that (other public broadcasters) operate with their Director Generals also being Editor-in-chief …  (However such broadcasters) … have a different business model to SABC, meaning that there is far less potential conflict of interests between their business and editorial operations than could be the case in our country … (T)he SABC is faced with earning the vast bulk of its revenue in the marketplace. Even the public service stations and channels are expected to bring in some advertising. (This) means … that there are huge pressures on the GCEO to ensure that advertising targets are met …

Despite such inputs the Board confirmed this delegation of responsibility for editorial decisions to the CEO in the final policy. They did however amend the upward referral clauses. The draft described such referrals as mandatory, for example, while upward referral is voluntary in terms of the final policy.

Nevertheless, there is potential given this structure for commercial (or other) rather than editorial considerations to be given priority. This concern is heightened by the fact that the CEO is effectively appointed by the Minister – which impacts negatively at the very least on perceptions of independence. Even if sole responsibility for his/her appointment was given to the Board though, the inevitable link that the CEO has to both the executive of government and Parliament suggests that in order to ensure that the SABC adheres to the imperative of journalistic independence (both in reality and in terms of perceptions), final decision making powers related to any news issues should vest in the head of news. 

6.2 Salaries

The salaries of executives at the SABC are published in the annual reports – as required by the PFMA. According to the 2008 Annual Report, the CEO earned just under R4.58 million for the financial year ending 31 March 2008. This includes a basic salary of R1.8 million and a performance bonus of R2.14 million, as well as pension fund contributions and allowances. 

In order to assess this, it is important to benchmark the salary against those of others in government or public entities (including bonuses).  During that year the President of the country earned just under R1.2 million, the Governor of the Reserve Bank R2.83m and the Director General of a government department just under R1m. CEOs of other parastatals earned between R1m (Lottery Board) to just under R7m (Transnet and SAA).  

According to a study published by the South African National Editors Forum and Gender Links in 2007, SABC newsroom salaries are the second highest of all media companies surveyed. The survey (conducted in 2006 and 2007) found that the average newsroom annual salary is R210 798 (R17 566.50 per month) and that SABC pays above this average.

This average media salary is slightly below the average professional monthly salary across all industries of R18 096, according to an online salary survey conducted by careers24.com. Media salaries are higher though than those of teachers and educators (R13 787), but lower than salaries paid in Information and Communication Technology (R21 062).

6.3 Training

The SABC has its own training department and has developed links with a range of external training organisations to increase skills - including Big Fish film and television school, the National Electronic Media Institute of South Africa (established by government) and Rhodes University. 

6.4 Skills challenges

The SABC – like other media organisations in South Africa – faces challenges in recruiting and retaining skilled staff at all levels of the organisation. Unlike others, however, staff concerns, alleged management abuses and details of supposed intrigues are regularly scrutinised and featured in the pages of newspapers. While the print media have suggested that what they term “an exodus” from the newsroom is due to bad management and/or political interference, the public broadcaster has denied this and described it as a natural movement to “greener pastures”. Both have acknowledged that the SABC is the obvious poaching ground for new broadcasters, and that, for example, the licensing of new subscription television channels has resulted in staff leaving. 

What is clear is that the SABC is a complex organisation, difficult to describe accurately and concisely. In some areas the broadcaster excels, regularly winning international and local awards for its programming. On the other hand there appear to be legitimate organisational concerns that need to be addressed. The following summary of successes and challenges perhaps provides some insight into this complexity:

Skills shortages were a major challenge in transforming the SABC from a state into a public broadcaster. There were few other radio broadcasters and only two other television channels prior to the re-regulation of broadcasting in 1994. None of the other television channels produced news and there were limited skills in production of television in languages other than English and Afrikaans. There was virtually no experience in public broadcasting. The broadcaster has managed to some extent to make up for these shortcomings – and to develop new broadcasting talent. 

• Despite stories of mass resignations, SABC’s turnover is lower than the national average. SABC states in its 2008 Annual Report that staff turnover for the financial year ending 31 March 2008 was 7.5 per cent. A Deloitte and Touche National Remuneration Guide for 2007 based on data gathered from approximately 300 South African companies reportedly found that the average turnover for 2006 was 12.3 per cent. The SABC figures do not provide a breakdown of turnover per department or region.

• There has been little stability at a senior management level. No Chairperson of the Board of the SABC has ever stood for a second term and since 1993 there have been six different chairs of the SABC Changes in the board seem to precipitate a change-over of the executive leadership. Since 1994 the broadcaster has had five different CEOs and a range of acting chief executives as managers have resigned prior to the end of their contracts. This gives a perception of different eras at the SABC – with concomitant changes in emphasis and strategy (as well as consultants guiding the vision). 

• Similarly, the list of journalists and editors who have been at and left the SABC is long and illustrious.  These include current press ombudsman Joe Thloloe, ex-editor, commentator and writer Allister Sparks, editor of the Financial Mail, Barney Mthombothi, former City Press editor Mathatha Tsedu, Mail & Guardian editor Ferial Haffajee, senior journalist and award winning investigative journalist Jacques Pauw, current events commentator Max du Preez, morning radio talk show host Tim Modise, respected journalist John Perlman, award winning presenter Nikiwe Bikitsha, journalist and researcher Pippa Green, head of Telkom Media’s news Jimi Matthews and Business Day political editor Karima Brown. Many of these left amidst speculation that the environment was not conducive to “good journalism”.

• There have been accusations that with the departure of experienced staff, standards have dropped.  Former television editor Charles Leonard (now news editor at Business Day), for example, has written a stinging attack on the impact such resignations have had on the SABC:

(T)here was nobody senior on the input side to ensure journalistic and technical quality. With some exceptions, the standards dropped radically, with blue pictures, jump cuts, fuzzy pictures, poor audio and irrelevant washed-out file pictures the order of the day … The journalism became even worse.

Internal SABC investigations suggest that the public broadcaster needs to address issues, amongst other things, around management and skills in the newsroom:

• In 2006, newspapers in South Africa, citing sources and quoting from leaked documents, stated that the SABC blacklisted certain commentators on the basis of their political views. The SABC appointed a Commission (including ex SABC CEO, Zwelakhe Sisulu and leading media advocate Gilbert Marcus) to investigate these allegations. Whilst the substance of the findings of the Commission will be dealt with in Chapter 8, it should be mentioned here that the Commissioners also (very diplomatically) highlighted concerns about management style in the newsroom.

The report found, amongst other things, that the then head of news, Snuki Zikalala (whose contract with the SABC has since come to an end), “appears to intervene at a micro-level inappropriate to his level of management”.  Whilst acknowledging that there were differing opinions amongst witnesses on morale in the news department, the Commission recommended that the Board “take close cognisance” of concerns raised about management style and issues of communication. The Commission pointed out that micro-management seemed to stem from a lack of trust by senior management in staff, but suggested that this be addressed through ongoing training.  The report further said that a number of concerns had been raised about the Cape Town news office, and suggested that these be investigated further. 

According to a report by the Board and management to the relevant Parliamentary Portfolio Committee in February 2008, the head of news was given a verbal warning and counselling to address concerns about his management style. Members of the Portfolio Committee voiced doubt over the appropriateness of this censure given the severity of the allegations. 

• An earlier internal probe (led by advocate Thlaresang Mkhwanazi and Head of the School of Journalism and Media Studies at Rhodes University, Guy Berger) dealt with the failure by the SABC to include footage of the Deputy President being booed at a rally in 2005. Whilst the final report cleared the SABC of political bias, it highlighted structural weaknesses in the news department, poor news judgement and bad journalism as some of the reasons for the non-coverage of the booing. The report further raised issues of corporate governance, alleging that a Board member had instructed the spokesperson of the organisation to make a false statement. 

7. Conclusions and recommendations

In many ways the SABC is a microcosm of policies and politics in South Africa. As the first institution to be democratised after the end of apartheid, the experiences of the public broadcaster offered insights for others into the complexity of transformation of state entities into public institutions. 

The African Commission on Peoples’ and Human Rights Declaration of Principles on Freedom of Expression states in Article 6 that:

State and government controlled broadcasters should be transformed into public service broadcasters, accountable to the public through the legislature rather than the government, in accordance with the following principles:

• Public broadcasters should be governed by a board which is protected against interference, particularly of a political or economic nature;
• The editorial independence of public service broadcasters should be guaranteed.

The SABC is, in terms of law, accountable to the public through the legislature rather than government. Non-executive members of the Board are appointed by Parliament and the legislation provides for the SABC to account on how it is meeting its mandate to the legislature. 

Its editorial independence is guaranteed in its Charter, which clearly stipulates that the broadcaster enjoys freedom of expression “and journalistic, creative and programming independence as enshrined in the Constitution”. The board is charged with protecting this autonomy. 

However, whilst the SABC is governed by a Board, which in theory is both protected against interference through the above injunctions, and acts as the guardian of such independence, the power given to the shareholder (the Minister of Communications) through the Articles of Association to, for example, effectively appoint the executive management, impinges on and limits this freedom.  As outlined in detail in the subsequent chapter, the public broadcaster’s dependence on advertising revenue further potentially impacts on its autonomy from commercial interests.   

Finally, the experience of the SABC shows that legal safeguards alone do not ensure dynamic public broadcasting responsive only to the needs of viewers and listeners. As noted, even before the introduction of the Articles of the Association, the board of the SABC “consulted” government about appointment of the CEO. It is critical therefore to build in effective mechanisms for accountability and transparency and ensure that the leadership of the broadcaster is committed to the principles of public broadcasting. 

Recommendations

The SABC plays an important role in South Africans’ lives. The following recommendations will assist in ensuring that the public broadcaster meets the public’s expectations:

• There is a need to review the White Paper on broadcasting through a participatory process involving the public in debate about what exactly they want from a public broadcaster. 

• This should include a review of the legal status of the SABC (including an evaluation of whether or not a Pty Ltd is the appropriate structure for such a statutory body) and of the division of the Corporation into public and public commercial wings. In the event that the current corporatised structure is found to be appropriate, the necessary adjustments must be made to legislation (specifying, for example, that the shareholders are the public of South Africa). The aim should be to protect the SABC’s independence and reflect its statutory status.

• In line with this, an SABC Act should be drafted, capturing the decisions in the White Paper. Sections of the current Broadcasting Act dealing generally with broadcasting or with the community or commercial sectors, should be incorporated into the Electronic Communications Act (if not already captured).

• As an important cornerstone of democracy, the SABC should be given the same status and protections in the Act as those awarded to constitutional entities and should be listed as a constitutional institution (rather than a public entity). The necessary changes should also be made to the Public Finance Management Act and Broadcasting Act. 

• The SABC Charter should be reviewed in order to capture the objectives for public broadcasting determined through the consultative process. It should be decided whether or not the Charter should be separated out from the law and be made subject to regular review.

• The appropriate oversight provisions should be evaluated taking into consideration the need for the SABC to be accountable and its independence. Provisions such as those suggested by the Parliamentary Ad Hoc Committee to review constitutional institutions could be considered to enhance the SABC’s independence. Such measures would include strengthening the oversight role of Parliament rather than the executive.

• In the review of the White Paper and in drafting a new Act, the following issues, amongst others, should also be explored extensively:

o The appointments procedure of the Board must be reviewed in order to ensure its credibility and legitimacy and to protect the process from political interference. A range of different options should be considered in order to enhance such credibility – including the establishment of an independent appointment panel.

o The ideal composition of the Board should be evaluated in relation to its defined role and be broadly discussed and debated. This should include decisions on whether or not executive members should be included as full members of the Board, and if so how.

o The option of staggered terms of office for Board members should be considered to provide for continuity.

o The clauses on disqualification should be reviewed to protect the SABC from actual and perceived conflicts of interest as well as from accusations of political bias.

o Legislation should specify that the Board is solely responsible for appointment of the CEO and other senior managers.

o The distinct roles of the Board and the executive should be clarified in order to ensure that the Board does not get involved in the day-to-day running of the SABC (or be perceived to be involved in it). 

o Specific and feasible mechanisms binding the SABC to transparency, openness and accountability to the public should be considered. These could include specific clauses detailing the SABC’s obligations to television licence holders as detailed above.  

In relation to the internal structure of the SABC:

o A review/evaluation of why CEOs and Chairs of the Board change so regularly should be conducted in order to address any issues faced and ensure stable leadership of the SABC.

o A proper audit of the structure and organogram should be undertaken in order to determine the appropriate staffing of the SABC and address concerns of centralisation of management.

o This should include a review of how best to structurally protect programming from commercial or political pressures (whether real or perceived). The decision to make the CEO the editor-in-chief should be reviewed in consideration of these imperatives.

• There needs also to be an organisational audit to determine the reasons for alleged low morale and resignations of key staff members in order to develop plans to address these. The SABC should ideally be the preferred employer of news and production staff.

• There should be ongoing assessment of the training needs of staff at the SABC to ensure members are equipped to deal with the challenges in delivering on the broadcaster’s mandate.