Chapter 5 of AfriMAP's 2010 Public Broadcasting in Africa (SA County Report)  presents an overview of the broadcasting legislation and regulation, the role and functions of the Independent Communications Authority of South Africa (ICASA), and different complaint procedures. The Report is prepared by Libby Lloyd, Prof Jane Duncan, Jeanette Minnie and Hendrik Bussiek. 

 

 

 

5. Broadcasting legislation and regulation

    1     Legislation

2 The Independent Communications Authority of South Africa

3 Licensing of broadcasters

4 Complaints procedures          

5 Conclusions and recommendations          

 

 

BROADCASTING LEGISLATION AND REGULATION

 

 

1. Legislation 

The Independent Communications Authority of South Africa (ICASA) regulates broadcasting, telecommunications (dubbed electronic communications in legislation) and postal services in South Africa. It is established in terms of the Constitution and the Independent Communications Authority of South Africa Act, No 13 of 2000, as amended (hereinafter ‘the ICASA Act’).  

 

The Constitution

Chapter Nine of the Constitution deals with “state institutions supporting constitutional democracy”. Section 192 of this chapter stipulates that:

 

National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.

Section 181 (2-5) of the Constitution details the conditions under which constitutional institutions should operate:

• These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. 

• Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. 

• No person or organ of state may interfere with the functioning of these institutions. 

• These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year. 

However, there are ongoing disputes about whether or not the above section applies to the broadcast regulator. 

Whilst the regulator is referred to in Section 192, it is not specifically mentioned in Section 181(1), which lists the institutions that “strengthen constitutional democracy”. Some have argued that this is clearly an oversight. Others, including officials of the government department responsible for broadcasting legislation, the Department of Communications, have suggested that this is intentional and means that the broadcasting regulator does not enjoy the same protections as the other listed institutions.  

The issue has not been taken to the Constitutional Court (and thus there is no final clarity on the matter). However, a range of other decisions appear to reinforce the constitutional protection of the independence of broadcasting regulation:

• The Presidency has thrice sent back bills dealing with broadcasting for reconsideration by Parliament. According to the Constitution, the President may only refer bills back if s/he is concerned about the constitutionality of the proposed law.  

In 1999, then President Nelson Mandela returned the Broadcasting Bill to Parliament. A statement released by the Presidency at the time says that the President was concerned that the bill: 

…confers an imprecise, potentially over-broad, power on the Minister to regulate even on matters which fall within the regulatory function of the Independent Broadcasting Authority. (This) unnecessarily exposes the Bill to constitutional attack…  (I)t may well be that the Minister may need to formulate policy … in the public interest … However, if this power impinges upon the independent decision-making function of the IBA it will run the risk of falling foul of section 192 of the Constitution.

In 2006, President Thabo Mbeki refused to sign the ICASA Amendment Bill - seemingly due to concerns about the constitutionality of clauses dealing with the appointment of members of the ICASA Council, the introduction of a performance management system for councillors and the removal from office of councillors.

In 2008, President Kgalema Motlanthe refused to sign the Broadcasting Amendment Bill, due to concerns about the constitutionality of provisions around the removal of the SABC Board. This followed requests from opposition parties for him not to sign the bill into law.

• A 2007 report from a parliamentary ad hoc committee established to review the provisions for the Chapter Nine Institutions and other constitutional bodies emphasises the importance of independent broadcasting regulation.  Rejecting arguments from the Department of Communications that constitutional protection of the regulator is “inappropriate”, the Committee states that this view appears to be a “misunderstanding” and essentially argues that, anyway, this position is irrelevant. The report says that in any case independence (which the report argues is justifiable) is not only provided for in the Constitution but also in the ICASA Act, and that there are other bodies which are regarded as independent even though they are not specified in Chapter Nine of the Constitution.

ICASA Act

The ICASA Act was promulgated in 2000 when the then broadcasting and telecommunications regulators (the Independent Broadcasting Authority and the South African Telecommunications Regulatory Authority) were merged in recognition of the convergence of broadcasting and telecommunications and the resultant need to streamline regulatory frameworks affecting the two industries. 

 

Section 2 of the ICASA Act states:

 

  The Object of this Act is to establish an independent Authority which is to:

a) regulate broadcasting in the public interest and to ensure fairness and a diversity of views broadly representing South African society, as required by section 192 of the Constitution;

b) regulate electronic communications in the public interest, and

c) regulate postal matters in the public interest … and

d) achieve the objects contemplated in the underlying statutes.

Section 3 stipulates that:

 

The Authority is independent, and subject only to the Constitution and the law, and must be impartial and must perform its functions without fear, favour or prejudice.

The Authority must function without any political or commercial interference.

 

Whilst the ICASA Act establishes the regulator as an independent body and sets out its powers, the Authority’s responsibilities as regards the different sectors it regulates are outlined in the underlying statutes, namely the Electronic Communications Act, No 36 of 2005 (the EC Act), the Broadcasting Act, No 4 of 1999 and the Postal Services Act, No 124 of 1998.  

 

Electronic Communications Act and Broadcasting Act

 

The Electronic Communications Act (EC Act) was promulgated in 2006. The Act is aimed at promoting convergence between broadcasting and telecommunications and ensuring that the regulatory approach to both sectors is similar.  The Broadcasting Act (introduced in 1999) sets out specific requirements for broadcasting – including particular stipulations for the public broadcaster. Many of the provisions in the Broadcasting Act regarding broadcasting are repeated in the EC Act, leading to calls for the Broadcasting Act to again be amended to focus only on the SABC.

 

The Acts provide for a three tier broadcasting system – public, commercial and community – and for both free-to-air and subscription radio and television services. They outline requirements and processes for applying for a licence and stipulate that no political party may be granted a licence (Sec 52 EC Act).

 

They further outline the guiding principles that inform ICASA’s regulation of the broadcasting industry:

 

• Diversity 

The EC Act and the Broadcasting Act emphasise the importance of diversity of content and ownership. One of the core objectives is to “promote the provision and development of a diverse range of sound and television broadcasting services on a national, regional and local level that cater for all language and cultural groups and provide entertainment, education and information” (Sec 2(s)(i) EC Act). The Act further stipulates that broadcasting services, when viewed collectively, must be provided “by persons or groups of persons from a diverse range of communities in the Republic” (Sec 2(k) EC Act) and include details of ownership limitations).   

 

• Public interest

Legislation emphasises that all broadcasting services must be “responsive to the needs of the public” (Sec 2(r) EC Act). The law specifies that broadcasting services must collectively meet public interest goals but also recognises that the public broadcaster, given its funding by the public, has greater obligations than other sectors.  Section 2(u) of the EC Act, for example, gives the public broadcaster specific obligations regarding the provision of programming in all South African languages.  

 

• Promotion of a South African cultural identity

Policies and legislation are designed to promote South African content as well as South African cultural industries (Sec 62 EC Act). ICASA’s local content policies developed in terms of legislative requirements emphasise the need to promote and showcase South African talent and facilitate the development of a vibrant independent production sector. Legislation also highlights that broadcasters must be “effectively controlled by South Africans” (Section 2(v) EC Act).

 

• Empowerment and redress

In line with the Constitution and government policy, the law emphasises the need to promote ownership and control, management and provision of programming by “historically disadvantaged groups and individuals”. This term refers to those groups and/or individuals that were disadvantaged by apartheid: black people, women and people with disabilities.  

 

• Universal access

Legislation and policies are aimed at ensuring that all South Africans have access to broadcasting services and a diverse range of information, education and entertainment (EC Act Sec 2(c) and 2(s)(i))

 

 

Broadcasting policy is further set out in a range of documents, including:

 

• The government White Paper on Broadcasting Policy published in May 1998;

• Specific government policies on, for example, convergence and digital migration; 

• The regulator’s Triple Inquiry Report into public broadcasting, cross media control of the media and South African content (1995) which was endorsed by Parliament;

• ICASA’s position papers and regulations relevant to the specific sectors (e.g. the local content regulations for television and radio).

 

Other laws

Like other public bodies, the regulator is required to abide by a number of other legislative requirements, including those laid down in:

• The Public Finance Management Act, No 1 of 1999 (the PFMA) which sets out rules on expending and accounting for public money.

• The Promotion of Access to Information Act, no 2 of 2000 (the PAIA), which stipulates rules for promoting access to information by the public and stakeholders.

• The Promotion of Administrative Justice Act, No 3 of 2000 (PAJA), which outlines mechanisms to promote the right to administrative justice. This includes the procedures to ensure a fair process and the right to be given reasons for any administrative action.

 

 

2. Independent Communications Authority of South Africa (ICASA)

2.1 Funding

 

ICASA is funded through the fiscus in terms of a budget allocation decided on by Parliament. The regulator’s budget forms part of the budget allocation for the Department of Communications.  Amendments to the ICASA Act in 2006 further provide that the regulator may receive funds through other mechanisms as determined by the Minister of Communications together with the Minister of Finance and Cabinet (Sec 15 ICASA Act). No such determination of alternative sources of funding has as yet been made.

 

This clause was added in response to concerns raised by the Authority and stakeholders about inadequate resourcing of ICASA, impacting on its capacity to fulfil its mandate effectively and therefore its credibility.  Resources have been further stretched by the introduction of the EC Act which imposes more responsibilities such as the regulation of postal services.  

 

The Parliamentary Ad Hoc Committee to review constitutional institutions endorsed concerns about inadequate funding for the regulator in its report to Parliament, stating that the funding model should be reviewed “in order to support and enhance (ICASA’s) independence and effectiveness”.

 

ICASA has suggested on many occasions that it be enabled to keep the licence fees it raises rather than hand these over to Treasury.  This, the regulator has argued, would also reinforce its independence from the executive. However, whilst government has acknowledged the need to increase funds, it has claimed that it is concerned that the retention of such fees by the Authority could result in capture by industry. 

 

Whilst this argument might be relevant if funding of the regulator by the industry was voluntary and the Authority could then be perceived as acting in the interests of its funders rather than the public, it is difficult to understand government’s reasoning when such fees are determined by regulation. Licensees are compelled to pay these fees in terms of the legislation and cannot withhold them in order to sway the regulator. 

 

In fact, inadequate funding itself potentially could lead to industry capture: With limited resources at its disposal to effectively defend its decisions and actions in court the regulator might be loath to make decisions which could be challenged in court by litigious licensees intent only on delaying implementation of new requirements. 

 

In an interview for this research, Johann Koster, the Executive Director of the National Association of Broadcasters expressed the group’s concern about the Authority’s inadequate resources:

 

We are particularly concerned about a lack of broadcasting technical expertise in the regulator at the moment. This is critical given the need for ICASA to develop regulations and allocate spectrum in order to facilitate digital migration. Limited resources and resultant staff capacity also inevitably slows ICASA down and leads to delays which negatively affect the industry.

 

 

2.2 Composition of the ICASA Council 

 

The Council of ICASA was expanded with the amendment of the ICASA Act in 2006. Whereas there were previously seven councillors (including the chairperson), all responsible for telecommunications and broadcasting regulation, the amendment provides for nine councillors (presumably to increase capacity in view of the addition of postal regulation to the ambit of ICASA in terms of the EC Act). 

 

The law states that the Council must appoint a Chief Executive Officer (CEO) and other staff necessary to fulfil its functions (Section 14 ICASA Act). 

 

The CEO is the accounting officer (Sec 15 ICASA Act) in terms of the PFMA, reinforcing the independence of the regulator. In terms of Section 36 of this Act, only government departments and constitutional institutions have their own accounting officers. These officers are solely responsible for the management of funds and accountable for fiscal discipline. ICASA is recognised as a constitutional institution in Schedule One of the PFMA. This Schedule of the Act does not only list Chapter Nine institutions, but sets out oversight requirements for all public bodies which are deemed to be independent.

2.3 Appointment and removal of Council

Criteria

Councillors are full-time appointees and in terms of legislation must be “committed to fairness, freedom of expression, openness and accountability”.  The ICASA Act stipulates that Council as a whole must have relevant expertise and experience in a wide range of fields including broadcasting policy, electronic communications, engineering, law, journalism, education and economics (Section 5, ICASA Act).

 

At the time of the merger between the broadcasting and telecommunications regulators to form ICASA, several stakeholders (including representatives of the then IBA) had expressed concerns that broadcasting might be neglected by a merged regulator – given that telecommunications is a significantly larger industry. It was suggested in several submissions that, given this, the new legislation could establish a specific broadcasting committee, or that the Act should stipulate the number of councillors with expertise in each of the relevant sectors. The legislature, however, decided against this, stating that a general clause requiring that the Council must as a whole include, for example, people with broadcasting and journalism experience was sufficient to address perceptions. 

 

The clauses in the ICASA Act dealing with criteria for appointment do limit appointment of people with either party political or industry interests. Persons cannot be appointed as councillors if, amongst other things, they are office bearers in a political party, are public servants or if they or a family member have a “direct or indirect” financial interest in broadcasting, electronic communications or the postal sector (Sec 6, ICASA Act). 

 

Procedures for appointment

The procedures for the appointment and removal of board members of independent bodies are recognised regionally and internationally as a key indicator of independence. In the case of ICASA, whilst the legislation stipulates that the Authority is independent, appointment procedures (and actual appointments made) have been the subject of ongoing tussling. 

 

Councillors on the predecessors of ICASA (the IBA and SATRA) were both appointed by the President on the recommendation of Parliament after a public nomination process. The original ICASA Act (of 2000) incorporated these appointment procedures into the new legislation. However, more recent amendments to the ICASA Act, introduced together with the EC Act in 2006, have introduced changes - removing the President from the process, reducing Parliament’s role in determining appointments and giving greater power to the Minister: 

 

• Parliament through its Portfolio Committee on Communications calls for public nominations for members of Council – as previously.

• After public interviews of short-listed candidates, Parliament no longer recommends who actually should be appointed, but rather proposes a shortlist of potential candidates to the Minister. This list must ”be at least one and a half times the number of councillors to be appointed” (so if there are four vacancies, for example, Parliament would have to recommend at least six candidates).

• The Minister then selects his/her proposed appointees from this shortlist and submits these names to Parliament for final approval. Parliament can request the Minister to review his/her decision if they are not satisfied with the proposal. Previously, the President only had the power either to appoint or to refer the list as a whole back to Parliament to review.

• If Parliament approves of the proposed candidates, then the Minister appoints them and selects the Chairperson of the Council. Previously the President appointed the Councillors and the Chair (Sec 5, ICASA Act).

 

This new appointment procedure is far more cumbersome than the previous process and has been criticised as potentially undermining the independence of the Authority. The Parliamentary Ad Hoc Committee to Review Chapter Nine Institutions stated that it regards the new procedure as “inappropriate” and has recommended that the legislation be amended again and the original appointment process be reinstated, stating that it was “dissatisfied” with the Minister’s involvement in appointments as “this may create a perception that the Authority is not an independent institution”.

 

The process for removal of Councillors was also amended in 2006 by giving the powers previously granted to the President to the Minister (Sec 8, ICASA Act).

 

In terms of the legislation, the Minister (previously the President) can only remove a Councillor from office on a resolution by Parliament to that effect. The Act states that Parliament can make such a finding on the following grounds:

 

• Misconduct;

• Inability to perform his or her functions;

• Absence from three or more consecutive meetings without the permission of Council except “on good cause shown”; 

• Accepting other work or taking up a position which would either create a conflict of interest or interfere with their ability to fulfil their responsibilities as outlined in legislation (i.e. accepting a position on a board of a licensee);

• Failure to disclose a conflict of interest by themselves or a family member or business associate; 

• Becoming disqualified in terms of the Act (i.e. be declared insolvent); or

• Refusal to enter into a performance agreement (see below).  

 

 

2.4 Functions and responsibilities of ICASA

The responsibilities of the regulator are greater for broadcasting than for telecommunications and electronic communications. This is reflective of the history of the development of the different sectors. 

 

The revoked IBA Act, in recognition of the imperatives of independent regulation of broadcasting, gave sole responsibility to the regulator to develop regulations and decide on and award licences. The powers of the then telecommunications regulator SATRA, on the other hand, were circumscribed and the regulator had to wait for the Minister to issue invitations to apply for key licences (such as those for a Second National Operator for the provision of a fixed line telephone service). Similarly the Minister had to endorse key regulations. 

 

With the dissolution of the IBA and SATRA and the introduction of a merged regulator, ICASA, this duality initially continued. The EC Act has since provided some relief, but the law still requires the Minister to issue invitations to apply for key electronic communications network licences in line with government’s “managed liberalisation policies”. While broadcasters are not regarded as electronic communications network operators (ECNS licensees) in the legislation, and are thus not directly affected by this clause, broadcasting signal distributors are classified as such. This clause thus potentially limits national broadcasters’ rights to conduct their own signal distribution as ICASA has deemed all national players to be “key” licensees.

 

In terms of the EC Act, one of the core functions of ICASA is to “promote and facilitate the convergence of telecommunications, broadcasting, information technologies and other services” (Sec 2(a) EC Act). As regards broadcasting, ICASA issues licences to public, private (commercial) and community broadcasters and develops regulatory policy. 

 

Other functions and responsibilities of ICASA related to broadcasting are outlined in Section 4 of the ICASA Act as well as in the Broadcasting Act. These include:

 

• Making recommendations to the Minister of Communications on policy matters and proposed amendments to legislation in order to promote development of the communications sector (EC Act);

• Awarding of licences in terms of the underlying legislation, issuing of licence conditions and ensuring compliance by licensees with the relevant legislation and licence conditions. This goes for all broadcasting licensees – including the public broadcaster (EC Act and Broadcasting Act);

• Monitoring compliance by the SABC with its legislative Charter (Broadcasting Act);

• Managing the radio frequency spectrum (according to Section 33 of the EC Act, the Authority drafts a national frequency plan which has to be approved by the Minister) (EC Act);

• Prescribing regulations in line with the objects of the relevant laws; and

• Ensuring free and fair coverage by broadcasters of all political parties during an election. This includes developing guidelines for election coverage as well as allocating free airtime and adjudicating complaints against broadcasters.

 

 

2.5 Oversight and accountability

ICASA is technically accountable to Parliament as its funding is approved by Parliament and it has to report to the legislature annually on implementation of programmes and expenditure of funds (Sections 15 and 16 ICASA Act). The budget is approved as part of the budget for the Department of Communications.

 

However, as identified above, several sections of the founding legislation (the ICASA Act as amended) appear to strengthen the Minister of Communication’s role as against that of the National Assembly, in particular by giving her more control over the appointment process. 

 

In addition, Section 6A introduces a performance management system for Council. Whilst it is important to ensure the efficiency of any body utilising public funds, the process outlined could be seen as impacting on the independence of the regulator. 

 

In terms of this section, the Minister must “in consultation with the National Assembly” develop a performance management system to assess the performance of councillors and the chairperson. The Act outlines standard components of any such system, including the development of indicators and targets on an annual basis and a performance agreement. Legislation states that the Minister, again in consultation with Parliament, must set up a panel to conduct annual performance assessments and report on them to the legislature. Refusal to sign a performance agreement has been added in Section 8 as one of the grounds for removing a councillor from office. 

 

The Ad Hoc Committee on Chapter Nine Institutions in its report to Parliament stated that the clauses relating to ministerial involvement in determining performance agreements should be removed.

 

The Committee also made general suggestions on strengthening the independence of ICASA and other constitutional institutions and on increasing the capacity of Parliament to oversee them (rather than ministers or government departments). Due, amongst other things, to a lack of capacity, the Committee found, Parliament’s engagement with these organisations was “wholly inadequate”.  Challenges to the independence of such institutions identified in the review include: 

 

• The location of the budgets for constitutional and associated institutions within a government department’s budget allocations. Whilst the Committee noted that departments are merely conduits for funds (and not able to change appropriations), this practice, it said, impacts negatively on perceived independence of institutions. The Committee suggested that their budgets rather be included in the Parliamentary Budget Vote.

 

• The submission of annual reports to Parliament via ministers rather than directly.

 

• “Minimum engagement” by relevant parliamentary committees with the strategic plans and budgets of independent institutions. The Committee pointed out that such engagement is “essential for effective oversight”. Similarly it noted that substantive issues raised by or about institutions are not necessarily explored by Parliament.

 

The Ad Hoc Committee made a number of recommendations aimed at increasing Parliament’s capacity to ensure effective oversight of independent institutions. It proposed that: 

• The capacity of Portfolio Committees should be enhanced through, for example, the equipping of members (and the chairperson) with specialist and technical knowledge, the appointment of specialist researchers and where necessary technical experts and the establishment of focused sub-committees. 

• Parliament should create a specific unit focused on institutions appointed by Parliament within the office of the Speaker of Parliament.  The unit should be headed by a senior person (at the level of Deputy Director-General). 

 

• Legislation dealing with accountability and standards to regulate the relationship between Parliament and independent bodies should be promulgated.

 

 

This report was tabled in Parliament and – after a lengthy delay - discussed in a meeting of the Portfolio Committee Justice and Constitutional Development in July 2009, which agreed to formulate a programme of action drawing on the recommendations of the report. By year-end no further action had been taken.

 

2.6 Division of responsibilities

In order to reinforce the independence of the regulatory Authority, it is also critical that any Act should outline clearly the different roles and responsibilities of the regulator and government as the lines between regulatory and national policy can be blurred. The EC Act does this by making ICASA solely responsible for licensing and limiting the Minister’s role (Sec 3, EC Act). 

The Act stipulates that the Minister may not be involved at all in the “granting, amendment, transfer, renewal, suspension or revocation of any licence” (Sec 3(3)). S/he can however develop national policies and issue policy directions to the Authority. The regulator, according to the Act, has to “consider” such policies or policy directions (rather than abide by them). The law outlines the conditions and process for the development of policy and issuing of policy directions as follows:

 

• The Minister “may make policies on matters of national policy applicable to the ICT sector, consistent with the objects of this Act”. S/he can make such policies in relation to international treaties/agreements, universal service and access, the radio frequency spectrum, the application of new technologies and “other policies necessary for the application of this Act …”

 

• The Minister may also, in terms of Section 3(2), issue policy directions to ICASA “consistent with the objects” of the relevant legislation after consulting with the Authority and publishing in the government gazette for public comment notice of his/her intention to make such directions. 

 

However, whilst any law can establish a framework for independence, its implementation is dependent on the commitment of government, the industry and the regulator to this principle. An old regulatory adage says that a regulator is only as independent as its latest decision and it has been suggested that the previous Minister, Dr Ivy Matsepe-Casaburri, did not fully understand or agree with the legislative limitations on her power and that ICASA itself did not always rigorously defend its legislative autonomy. 

 

Two incidents appear to confirm this:

 

• A court judgement in August 2008 declared that a 2007 Ministerial Policy Direction was ultra vires as it had usurped ICASA’s responsibility for licensing. The judge moreover implied that, given this, ICASA itself should not have considered this Direction in its decision-making. The court case related to a fairly complex telecommunications licensing issue and the details are therefore not relevant to this review - but the finding itself is pertinent. 

• In a Ministerial Policy Direction in September 2007 the Minister directed ICASA to conduct an inquiry into how the services of a particular international subscription satellite radio provider (Worldspace) could be continued and licensed. Although there has been no court decision challenging the Policy Direction, it appears to clearly usurp ICASA’s powers in determining licences independently and on its own. Worldspace had previously applied for a subscription service licence but had withdrawn its application after the Minister published a draft Policy Direction for public comment on the need to ensure the service continued to broadcast. Whilst it is unclear why Worldspace did not pursue its application, speculation abounds that the broadcaster does not meet foreign control limitations in the Act and therefore could have been refused a licence. 

 

It remains to be seen whether the new Minister, Siphiwe Nyanda, continues in the same vein, but the provisions in a Public Broadcasting Services Bill, published by the ministry in October 2009, do not inspire confidence that he will break with his predecessor’s practices. The proposed bill gives the minister wide powers over both the SABC and ICASA (see chapter ten for more information).

 

2.7 Review

 

ICASA’s decisions can be challenged in the courts. Grounds for review include evidence of bias in the decision-making, inconsistency with the law and procedural inconsistencies (in terms of the Act and the Public Administrative Justice Act).  If a court finds that the regulator has acted ultra vires or there have been procedural irregularities, it cannot decide on the merits of the case, but can refer a decision back to ICASA.

 

2.8 Protection against conflicts of interest

 

As mentioned earlier, people may not be appointed to Council if they have a financial interest in the sector to be regulated. In addition, the ICASA Act includes other provisions to guard against industry capture or conflicts of interest once a councillor is in office:

• Section 5(4) of the ICASA Act states that councillors must on appointment take an oath confirming their commitment to “fairness, freedom of expression, openness and accountability” and pledge to abide by the Constitution.

• Section 12(1)(a) precludes councillors from voting or taking part in any decision on a licence if s/he or a family member is a director, member or business partner of the applicant or any person who has made a representation about the application/matter. As noted above, councillors in breach of this clause can be removed from office.

• Section 12(1)(b) prohibits a councillor from participating or being present at a meeting if s/he “ has any interest which may preclude him or her from performing his or her functions as a councillor in a fair, unbiased and proper manner”. 

 

A councillor who defies these regulations faces a fine of up to R250 000 and/or imprisonment for up to five years (Sec 12(4)). In the history of regulation in South Africa no councillor has been charged in terms of this section.

 

2.9 Public participation

ICASA is required by law to involve the public in decision-making.

 

When developing regulations and policies, the regulator has to first publish a draft in the Government Gazette and invite the public to comment on it. The EC Act states that the draft must be published at least 30 days before any regulation is promulgated. Similarly, any application for a licence, or for the amendment or renewal of any licence, has to be published in the Gazette for public comment. 

 

ICASA has the discretion to decide whether or not it will hold public hearings to further explore representations. The regulator has in the past tended to hold hearings where there are contrasting opinions and views (for example into the development of South African content quota regulations) and/or where there is more than one applicant for a single broadcasting licence (as in the licensing of regional commercial radio services in secondary towns in 2005 and 2006). ICASA has also held hearings before refusing any licence in order to provide an applicant with an opportunity to address potential concerns (as was done in the licensing of subscription broadcasters in 2007).

 

 

3. Licensing of broadcasters

Within the three tiers of broadcasting - public, commercial and community the Broadcasting Act recognises different types of services, including free-to-air and subscription services, as well as terrestrial and satellite broadcasters (Sec 5(2) Broadcasting Act).

 

ICASA, in line with the Broadcasting White Paper of 1998 and legislation, has developed differing obligations for the different sectors. Public broadcasting, for example, has more responsibilities than commercial services, whilst community broadcasters are expected to meet the needs of the communities they serve. Similarly, free-to-air commercial broadcasters have greater public obligations than their subscription counterparts.

 

The EC Act has introduced a new licensing regime applicable to both broadcasters and electronic communications services (telecommunications services). In terms of this, there are two categories of licence:

 

• individual licences (which in relation to broadcasting apply to public and commercial broadcasting services and are granted for a maximum of 20 years, with the actual term to be determined by ICASA); and

• class licences (which apply to community and low power stations and channels and are granted for a maximum of 10 years). (Sec 5 EC Act)

 

There are different procedures outlined in the EC Act for application for the different categories of licence. However, in all licensing decisions the following issues have to be considered: 

 

• The need for the service (considering other broadcasters and the requirements of legislation to promote a diverse range of services);

• The capacity of those applying to implement their strategic plans and objectives; and

• The financial means of the applicant (not necessarily if they have the funds, but if they have shown that they will be able to raise them and that they have viable business plans).

 

3.1 Individual licences

Section 9 of the EC Act outlines the process for the granting of an individual licence. 

 

Applications for individual licences are only considered on invitation by the Authority.  Such an invitation must include the minimum requirements for the licence and the standard terms and conditions applicable, as well as set a deadline for application. 

 

Once applications are received, these must be gazetted to enable the public to make representations on the proposal/s. Applicants are given an opportunity to respond to representations (if any). After considering the applications and any submissions on these (and, if deemed necessary, holding a public hearing), the Authority must decide on the application and publish reasons for its decision. 

 

If a licence is awarded, the Authority must then issue licence conditions, including standard terms and conditions as well as special conditions reflecting undertakings made by the applicant during the application process. 

 

Similar processes (of publication, representation and decision) are followed for the amendment of any licence and the renewal of a licence (these are outlined in Sections 10 and 11 of the EC Act) – though the Authority’s powers in this regard are circumscribed in order to promote regulatory certainty.

 

For example, the regulator may only amend a licence:

 

• if the licensee has applied for the amendment (and the proposed amendment would not prejudice others and is in line with policy and legislation);

• to ensure consistency with the licence conditions of similar licensees;

• to promote fair competition;

• due to technological changes or in the interests of orderly frequency management;

• on the recommendation of the Complaints and Compliance Committee of the regulator (which, amongst other things, adjudicates complaints relating to violations of licence conditions) ;

• if it is necessary to achieve the objectives of the Act; and/or

• if it is necessary to achieve universal service and access. (Sec 9, EC Act)

 

ICASA can only refuse to renew a licence if the licensee “has materially and repeatedly” breached its terms and conditions of licence, any regulations and/or the legislation (Sec 11(7) EC Act).

 

Similarly, a licence can only be revoked or suspended on the recommendation of the Complaints and Compliance Committee after this committee has “repeatedly” found the licensee guilty of “material violations” (Sec 17 E, ICASA Act). 

 

Any applicant or licensee can have a decision by the regulator reviewed in a court.

 

3.2 Class licences

The procedure for obtaining a class licence (applicable to community and low power stations and channels) is much simpler (Sec 17 EC Act).

 

Applications for class licences can be submitted at any time (rather than only on invitation). The Act merely specifies that once such an application for registration of the licence has been received, ICASA must decide on it within 60 days (unless it has provided written reasons for any delay). If the Authority does not either grant the application or give valid reasons for a delay within the 60-day period, and the application complies with all relevant policies and regulations, it is deemed to have been granted (Sec 17 EC Act).

 

As in the case of individual licences, the licence conditions include both standard and specific conditions (Sec 8 EC Act).

 

 

3.3 Licence conditions

ICASA has since the introduction of the EC Act been laboriously converting licence conditions issued under previous law into licences in terms of the new legislation.  This is necessary as the new regime, amongst other things, sets out new categories of licence (such as class licences) and provides for ICASA to determine new licence terms. In terms of the law, the licence conversion process had to be – and was indeed - completed in January 2009 (Section 92(6) of the EC Act).

 

The regulator has finalised the terms and conditions for all broadcasters (after a public process) as well as the special conditions for each licensee, in consultation with them, and issued the licences in January 2009. Standard licence conditions are fairly generic, and underline the need to abide by the law, relevant regulations and the code of conduct for broadcasters. They further:

 

• set the term of licences as decided by ICASA (15 years for public and commercial free-to-air television and subscription services, 10 years for public and commercial radio stations and five years for community and low power stations and channels). In setting these terms ICASA gave consideration to both the financial outlay required in establishing each particular service and the need to update licences regularly through the renewal process in line with changing public needs.

• stipulate which records licensees should keep to facilitate monitoring of compliance with conditions and what information should be regularly submitted to ICASA (this includes logs of programmes, records of sponsorship and advertising and, in the case of community broadcasters, details of all funds received). Licensees are required to keep recordings of all programmes for three months but do not need to submit these to ICASA unless requested. 

• require that all broadcasting services air public service announcements for free when requested to do so either by the Authority or by the National or Provincial Commissioner of Police (in the case of a disaster or immediate grave danger); and 

• provide for fines for contravening the conditions (not exceeding either 10 per cent of the previous year’s revenue up to a total of R10m in the case of public and commercial entities or a maximum of R50 000 for community and low power services).

 

The standard conditions for class broadcasting licences (community broadcasters) further stipulate that entities must be non-profit and that any profits made must be ploughed back into the station or into community projects.

 

Specific details for each licensee are contained in the special licence conditions attached as a schedule to the standard terms and conditions. These include details of:

 

• the licence/coverage area;

• the target audience/community;

• the programming format, including the percentage of talk radio and music, the number of minutes which must be devoted to news bulletins and other public service programming, the percentage of South African content to be aired and the languages to be used; the shareholding/control structure of commercial broadcasters and the organisations that are to participate in community services; and

• any specific pledges made by the licensee during the application process.

 

The last mentioned special licence condition is designed to capture promises made by the licensee which might have given it the competitive edge over other applicants – thus binding licensees to such pledges and limiting the chance that applicants will make wild proposals merely to win the licence. During the application process, bidders often seek to show that they will exceed the minimum requirements set by regulation in areas such as black ownership, South African content and news provision. The licence granted then compels them to actually deliver on their promises. 

 

Adherence to licence conditions is monitored by ICASA through checking of all the reports submitted by licensees (including content logs). Spot checks are also conducted and at times stations and channels are required to submit recorded material in order to ensure that the written records match what was actually aired. 

 

ICASA’s capacity to regularly monitor broadcast output though is limited as it does not have the necessary equipment or staff to check what goes out on air all over the country. This limitation is in some ways mitigated as the legislation allows for complaints from the public and other broadcasters, and because competitors keep a close watch on each other and immediately report any perceived breach of licence conditions.

 

 

3.4 Regulations

In addition to their specific licence conditions, broadcasters also have to adhere to regulations developed by the regulator (through a public process). These include:

 

• Regulations specific to the type of broadcaster, outlining the minimum requirements applicable (for commercial radio stations, for commercial free-to-air television services, for subscription services and for community broadcasters). These set, for example, the number of minutes of news which must be aired daily, the maximum number of minutes of advertising per hour, other programming requirements as well as details of black economic empowerment and employment equity criteria. There are no specific criteria for the public broadcaster as these regulations are generally used to set minimum requirements for all broadcasters in a particular category. SABC’s licence conditions are instead developed in a public process similar to the finalisation of regulations.  

 

• Regulations applicable across all the different broadcasters, such as local content regulations, sports rights rules (aimed at ensuring that sports events of national importance are aired on free-to-air television) and requirements for advertising and sponsorship.

 

South African content rules

 

South African local content rules are aimed at both showcasing South African creative product as well as building the local independent production and music industries. Quotas set in regulations are reviewed regularly (roughly every five years) and, in line with legislation, require the public broadcaster to air a higher proportion of South African content than commercial stations and channels.

 

As regards South African music content, the regulations set the following minimum local music quotas to be broadcast on radio between 5am and 11pm:

 

• Public and community radio stations must air at least 40 per cent South African music.

• At least 25 per cent of the music broadcast on a commercial radio station must be South African.

 

The content regulations for television are more detailed, and set minimum quotas for the different genres of programming, as well as overall percentages for content.  They also stipulate that at least 40 per cent of any broadcaster’s South African content must be produced by independent producers.  Details of content requirements are outlined in the table below.

Table 6: Television content quotas

 

 

 

Source: ICASA, South African Television Content Regulations, Notice 154 of 2006, published in Government Gazette No 28454 on 31 January 2006

 

 

The regulations further include incentives for airing more expensive programmes (e.g. specially commissioned television films and serials rather than soap operas), neglected genres (such as arts programming) and promoting new artists (including previously unrecorded musicians). These incentives work on a points system and essentially mean that a half hour South African produced arts programme, for example, will contribute more than other, cheaper programming towards meeting the above quotas. Points are awarded for specific programmes, and 10 points is equivalent to 1 per cent of South African content – over and above the actual amount of time dedicated to it.  

 

 

4. Complaints procedures

The legislation provides for two categories of complaints by the public, other stakeholders, or ICASA: 

 

• complaints regarding breaches of licence conditions, regulations or the law; and

• complaints related to violations of the Code of Conduct.

 

There are differing approaches to handling these different sorts of complaints: 

 

• The law provides that alleged breaches of licence conditions, regulations or legislation must be adjudicated by the Complaints and Compliance Committee (CCC) established under ICASA.

• Alleged code of conduct breaches can either be considered by the CCC or by a self-regulatory body approved by the regulator. Broadcasters choose which body they will fall under (Sec 54 (3) EC Act). The SABC together with all commercial broadcasters has opted for self-regulation and established, under the auspices of the National Association of Broadcasters, the Broadcasting Complaints Commission of South Africa (BCCSA). Most community stations have chosen to fall under the CCC as they do not have to make any financial contribution to its running and say they have faith in the independent system prescribed in law.

 

4.1 The Code of Conduct

The regulatory Code of Conduct for broadcasters is developed by ICASA after consultation with the public and stakeholders (sec 54(1) EC Act). 

 

Section 54(2) stipulates that all broadcast licensees must adhere to the prescribed regulations: “subject to the provisions of sub-section 3”. Sub-section 3 states that this does not apply to those licensees who have opted for self-regulation:

 

(T)he provisions of sub-section 2 do not apply to a broadcasting service licensee who is a member of a body which has proved to the satisfaction of the Authority that its members subscribe and adhere to a code of conduct enforced by that body by means of its own disciplinary mechanisms, provided such code of conduct and disciplinary mechanisms are acceptable to the Authority.

 

The self-regulatory and the ICASA Code, however, are very similar. Both focus on protection of children and providing viewers with sufficient information through advisories (information prior to and during a programme alerting audiences to either age restrictions or content that may be offensive to some). They determine a watershed period between 9pm and 5am (or 8pm and 5am for subscription broadcasters) during which “adult” programming can be aired (including violence and sexually explicit material). 

 

Other stipulations in the ICASA Code, which was amended in June 2009, are the following:

 

• Broadcasters shall not air material which, judged within context, “contains violence which does not play an integral role in developing the plot, character or theme of the material as a whole, or sanctions, promotes or glamorises violence” including violence based on race, gender, ethnicity, sexual orientation, religion, age, mental or physical disability.  Discussion programmes “in the public interest” relating to violence or bona fide scientific, documentary or creative programmes are excluded from this ban;

• Channels shall be particularly cautious about programmes which depict violence during times when large numbers of children are likely to be watching or listening.  Violence involving real-life characters may only be depicted if it is essential to the development of a character and plot;

• Programmes for children must deal “with reasonable care” with issues that might affect the security of children (for example relating to themes of domestic violence, death or crime);

• Programmes for children must be careful about portraying acts which can be imitated such as use of plastic bags and matches;

• Offensive language, including profanity and other religiously sensitive material, must not be broadcast in children’s programmes or in excess before the watershed period;

• Broadcasters must not broadcast material which, judged within context, contains the following material: child pornography, bestiality, sexual conduct which degrades a person in the sense that it advocates a particular form of hatred based on gender and which constitutes incitement to cause harm, explicit sexual conduct, explicit extreme violence or the explicit effects thereof and explicit infliction of domestic violence;

• News must be presented in the correct context and in a fair manner, without intentional or negligent departure from the facts;

• If there is doubt about the correctness of a report and it cannot be verified, this should be highlighted;

• If a report is found to be materially incorrect, it should be corrected “without delay” and with due prominence;

• Any comment on an issue must be clearly shown as comment, not fact; and

• When dealing with controversial issues, reasonable steps should be taken to present all views and those criticised should be given a right of reply.

 

4.2 The Complaints and Compliance Committee 

 

Prior to the promulgation of the EC Act, broadcasting and telecommunications complaints were adjudicated separately. Broadcasting complaints about licence conditions, violations of regulations or the Code of Conduct (if broadcasters had not opted for self-regulation) were considered by the Broadcast Monitoring and Complaints Committee (BMCC).  

 

In 2006, however, this Committee was dissolved and, by means of an amendment to the ICASA Act, replaced with the Complaints and Compliance Committee (CCC). The CCC deals with both telecommunications and broadcasting complaints. 

 

Section 17A of the ICASA Act stipulates that the CCC must have no more than seven members, including one member of the Council. It must be chaired by a judge, magistrate or attorney with at least 10 years experience. Other members are appointed by the ICASA Council after a public nomination process.  

 

According to the Act, members of the public can lodge a complaint with ICASA about a licensee within 90 days of the alleged transgression. In terms of its procedures ICASA notifies the broadcaster of this complaint and, where possible, encourages a resolution between the parties. If no agreement is reached and the complaint is found to have merit, it is referred to the CCC for adjudication. ICASA can also lodge a complaint about alleged non-compliance with the CCC for consideration.

 

The CCC, after hearing all parties, must make a finding about the matter and recommend to Council a punishment/remedy. The Council after considering the finding must make a final decision on the action to be taken. 

 

By the end of 2009 the Committee had adjudicated complaints against nine licencees charged with non-compliance and made recommendations to Council on sanctions. Most complaints related to failure by community stations to submit reports as required, to hold Annual General Meetings, or to meet licence conditions. 

 

The Freedom of Expression Institute (FXI) had submitted a complaint accusing the SABC of violating its licence conditions and relevant legislation by allegedly blacklisting   commentators critical of the government. The complaint was based on the findings of an internal Commission of Enquiry, launched by the-then GCEO Dali Mpofu, after allegations made on-air by a staff member that the-then Managing Director of News and Current Affairs had been responsible for the blacklisting. The Commission found that commentators had indeed been excluded on grounds that were not objectively defensible in terms of basic journalistic ethics. The FXI lodged its complaint after becoming concerned about the SABC’s lack of appropriate action on the Commission’s findings, and the essence of the FXI’s complaint was that SABC news management manipulated its news and current affairs content in pursuit of a political agenda, and failed to effect corrective measures. The CCC dismissed the complaint in July 2009 on the grounds that ICASA had no jurisdiction over the SABC’s internal matters or its editorial policy, and the FXI is appealing the matter. 

 

 

 

4.3 The Broadcasting Complaints Commission of South Africa 

 

The BCCSA was recognised as a self-regulatory body by the then IBA in 1995. It is established as an independent body to adjudicate on complaints from the public about broadcasts by members of the National Association of Broadcasters (NAB) - the SABC, all commercial broadcasters and several community radio stations.

 

Its constitution states that the BCCSA shall have up to 13 commissioners (including the chairperson) appointed for five-year terms. Six of the commissioners are selected on the basis of their “interest or expertise” in broadcasting and another six because of their “interest and/or expertise in matters which relate to the interests of viewers and or listeners”. The chairperson is elected at an annual general meeting of the BCCSA and the Constitution states that s/he need not be a member of the Commission.  

 

An appointment panel chaired by an external person (who is selected by the BCCSA) appoints members to the Commission after a public nomination process. The appointment panel also includes the existing chairperson of the BCCSA, the chairperson of the NAB (or a nominee) and two other external members. 

 

All broadcasters that subscribe to the BCCSA Code have to advertise regularly how to lay a complaint with the Commission. A complaint must include details of the time of broadcast and can only be made within 30 days of the broadcast – unless there is good cause for any delay. The registrar of the BCCSA first decides whether or not the complaint complies with the Commission’s procedures and then, if necessary, forwards it to be considered by a Complaints Panel. Such a panel must include the chairperson (or an alternate) as well as one member with broadcasting expertise and another who is representing viewers or listeners.

 

Broadcasters found to have contravened the Code can be reprimanded, directed to air a correction or given a fine (not exceeding R50 000).  

 

In 2003, the BCCSA introduced an internal appeals process to enable either a complainant or broadcaster to complain against a judgement and/or penalty. The appeals panel is made up of members of the Commission other than those who heard the original complaint. 

 

According to the BCCSA’s 2008-2009 annual review, it has handled over 14 000 complaints in the sixteen years of its existence. The number of complaints received has increased steadily, and currently exceeds 1800 annually. The review states that the BCCSA has “often acted as a lightning rod for irate complainants by the mere fact that we have meticulously attended to every complaint and provided reasons for our decisions”. It further stated that, on average, 10 per cent of complaints are actually heard.

 

The review groups the main areas of complaint as those relating to the right to dignity which the Commission has held, includes the right to reputation and generally refers to the right of an individual, not the right of a group. In a large number of cases the BCCSA was called upon to decide whether gratuitous violence might be excused on the basis of the documentary nature of a particular programme. It has also handled numerous complaints about derogatory terms used to describe sections of the South African population. 

 

 

5. Conclusion and recommendations

It is important in assessing the regulatory framework in South Africa to consider it against accepted regional codes and agreements. The African Commission on Peoples’ and Human Rights Declaration of Principles on Freedom of Expression in Africa provides such guidance. 

 

Clause Five of the Declaration states:

 

• an independent regulatory body shall be responsible for issuing broadcasting licences and for ensuring observance of licence conditions;

• licensing processes shall be fair and transparent, and shall seek to promote diversity in broadcasting.

South Africa has established a regulatory body responsible for issuing broadcasting licences and the law does provide for fair and transparent processes and seeks to promote diversity in broadcasting.

 

Clause Seven of the Declaration states:

 

• Any public authority that exercises powers in the areas of broadcast or telecommunications regulation should be independent and adequately protected against interference, particularly of a political or economic nature.

• The appointments process for members of a regulatory body should be open and transparent, involve the participation of civil society, and shall not be controlled by any particular political party.

• Any public authority that exercises powers in the areas of broadcast or telecommunications should be formally accountable to the public through a multi-party body.

Again, the ICASA framework technically meets this provision, though concerns have been raised about an apparent erosion of independence through the increased role of the Minister of Communications. Most notable are the findings detailed above of the Parliamentary Ad Hoc Committee to review Constitutional Institutions. The report of this Committee reinforced the need to safeguard the independence of both broadcasting and telecommunications regulation:

 

The Committee is convinced of the necessity for the existence of an independent regulator for both the protection of free speech and the economic development of the sector. In particular, the Committee highlights the importance of an independent regulator for broadcasting as a key construct of democracy.

 

Financial and other constraints potentially inhibit ICASA’s ability to regulate the sector effectively and fairly. The regulator faces ongoing litigation from those with the means to challenge decisions and has limited funds to defend itself in protracted court battles. This inevitably favours those with resources (the established broadcasters). 

 

An additional concern arises from perceptions that the regulator does not have sufficient expertise in broadcasting and that growth of the industry is being hindered by this. 

 

Clause Nine of the Declaration deals with complaints mechanisms. It states:

 

• Any regulatory body established to hear complaints about media content, including media councils, shall be protected against political, economic or any other undue interference. Its powers shall be administrative in nature and it shall not seek to usurp the role of the courts.

• Effective self-regulation is the best system for promoting high standards in the media.

 

The regulatory framework provides for both self-regulatory and statutory processes for complaints against broadcasters.  It is up to broadcasters to decide which adjudicatory system they will adhere to. Both options provide for public participation in the selection of adjudicators of complaints and public processes for adoption of codes.  

 

Recommendations

• All stakeholders need to be vigilant about potential breaches of the independence of the regulator by government, political parties or vested interests. Any breaches must be publicised and challenged.

 

• The recommendations made by the Parliamentary ad hoc committee on enhancing the independence of constitutional and parliamentary bodies should be adopted and, where necessary, amendments made to legislation and practice. This includes removal of the Minister’s role in appointment and dismissal of ICASA councillors and recommendations regarding the funding and oversight of the regulator.

 

• The composition of the ICASA council should in any review of the broadcasting framework be reconsidered to determine if it is necessary to specifically stipulate that a certain proportion of councillors must have broadcasting experience and expertise.

 

• The adequate resourcing of the regulator needs to be addressed. This has been acknowledged in many government and civil society forums, but alternative mechanisms for funding have not yet been put in place. The arguments of government that financing the Authority through fees paid by industry would compromise its independence seem baseless. These fees are determined through regulation and not arbitrarily. Licensees are required to pay fees as prescribed regardless of the popularity or otherwise of the Authority’s decisions.

 

 

• Adequate financing would assist ICASA to properly monitor compliance with provisions to ensure diversity and public interest requirements. This is essential if the regulator is to be effective in ensuring that the principles and objectives of broadcasting are met.

 

• The process of reviewing ICASA decisions should further be debated. Court processes are slow and costly and inevitably favour those with more resources. It may be worth considering alternative review processes which could be used to resolve disputes before people resort to the courts.

 

• ICASA should investigate making more use of civil society organisations to undertake monitoring work on compliance with licence conditions. Sector-wide assessments – such as whether, for example, community radio is actually delivering on content obligations, or private broadcasters are delivering on public service obligations - could be commissioned.