DEPARTMENT OF COMMUNICATIONS

DEPARTMENT OF COMMUNICATIONS
PARLIAMENT PORTFOLIO COMMITTEE ON COMMUNICATIONS PUBLIC HEARINGS ON THE BROADCASTING AMENDMENT BILL SUBMISSION BY ANDILE NGCABA DIRECTOR GENERAL DEPARTMENT OF COMMUNICATIONS SOUTH AFRICA 16 SEPTEMBER 2002

INTRODUCTION... FOCUS OF THE BILL LICENSING OF BROADCASTING OPERATORS LEVELING THE PLAYING FIELDS THE SPLIT OF THE SABC INTO THE PUBLIC BROADCASTING AND COMMERCIAL BROADCASTING DIVISIONS EXPANDING AND OPENING THE BROADCASTING SECTOR

PROPOSED AMENDMENTS... SECTION 1 The Broadcasting amendment bill (amendment bill) proposes to amend Section 1 of the Broadcasting Act (the Act) by introducing new definitions and repeals some existing definitions in accordance with amendments introduced.

... PROPOSED AMENDMENTS... SECTION 4… Providing a requirement that all broadcasting and signal distribution services, whether by satellite or terrestrial transmitters, must hold a licence prior to commencement of their operations. This requirement is extended to apply also to those services that are not covered by the Act in its current form and provides for a mechanism for the licensing of such operators.

... PROPOSED AMENDMENTS... …SECTION 4… Enables ICASA to authorize the carrying of all channels and/or radio stations carried by a broadcasting and/or distribution service before rendering a particular service. The Authority must make regulations prescribing the terms of and procedures for authorisation of all channels and stations carried by broadcasting or distribution services.

... PROPOSED AMENDMENTS... MOTIVATION FOR SECTION 4… These provisions extend the requirement to hold a licence to be applicable also to multi channel distribution services and are included to ensure that: All broadcasting and distribution undertakings are licensed, and operate under the same conditions; That the South African local content requirement is included in the license conditions of all operators; and

…MOTIVATION FOR SECTION 4
... PROPOSED AMENDMENTS... …MOTIVATION FOR SECTION 4 Access to distribution services by South African broadcasting entities is promoted. Provisions are made for the regulation prescribing the terms of and procedures for the authorization of individual channels and stations .

... PROPOSED AMENDMENTS... SECTION 5 Deletes some of the classes of licences so as to streamline them. Those that are deleted are not sufficiently different as to warrant a separate categorization. Introduces Section 5(3) which provides for these procedures and processes stipulated in the IBA Act to be applicable in any application for a broadcasting or a distribution licence in terms of Section 5 of the Act. In this way the Broadcasting and IBA acts are hamornized in terms of licensing.

... PROPOSED AMENDMENTS... MOTIVATION FOR SECTION 5 To streamline the classes of licenses and eliminate duplication. The provision also closes any loophole that may exist as a result of the gaps between the IBA Act and the Broadcasting Act by requiring the provisions of both legislations to be applicable in any application for an operation licence by a service provider.

... PROPOSED AMENDMENTS... SECTION 6 Requires the operations of the SABC to be within the terms of the Charter, and that the Board must develop policies and ensure accurate, balanced and fair reporting by the corporation. Introduces provisions that require the Board to develop policies in order to give effect and clarity to the powers of the SABC.

... PROPOSED AMENDMENTS... SECTION 6 Requires SABC to provide programmes that is accurate, fair and accountable that advances national interests of the republic of South Africa. In complying with these requirements the SABC is required to provide programming that adheres to the founding provisions contained in chapter 1 Constitution of the Republic.

... PROPOSED AMENDMENTS... SECTION 6 It not only places a responsibility on the SABC through its management only but further subject individual journalists of the SABC to the requirement of ensuring that they provide accurate, balanced and fair reporting that advances national and public interests of the Republic in line with the provisions of chapter 1 of the Constitution of the Republic.

... PROPOSED AMENDMENTS... MOTIVATION FOR SECTION 6… Focuses on the development of polices to give effect to the provisions of the Constitution and according to which the SABC and its employees would be judged. Explicit in that it is the Board through the powers vested in it that must take actions to ensure accurate, balanced and fair reporting. Accountability in terms of reporting is to the Board.

... PROPOSED AMENDMENTS... …MOTIVATION FOR SECTION 6 Directs the Board to prepare much needed policies to govern the exercise of accurate, balanced and fair reporting. . To insert the old section dealing with freedom of expression etc.

SECTION 7… ... PROPOSED AMENDMENTS...
Provides the restructuring of the Act such that transitional provisions are separated as Schedule 2. Schedule 2 provides for the provides for the procedures for the incorporation of the SABC Ltd, with effect from a date to be determined by the Minister by notice in the Gazette.

It also provides for the following:
... PROPOSED AMENDMENTS... …SECTION 7… It also provides for the following: Continued corporate existence of the SABC, despite the repeal of the Broadcasting Act no 73 of 1976. Any Assets, rights, liabilities or obligations acquired or incurred by the old corporation, or on the old corporation’s behalf despite the repeal of the Broadcasting Act 1976 (Act no.73 of 1976) will not be affected by the repeal of the 1976 Act; and

... PROPOSED AMENDMENTS... …SECTION 7 The conversion of the old corporation. The terms and conditions of service of employees will similarly continue as if the Broadcasting Act of 1976 had not been repealed.

MOTIVATION FOR SECTION 7
... PROPOSED AMENDMENTS... MOTIVATION FOR SECTION 7 The Act does not have a clear procedure to be followed in the incorporation of SABC. This has created various interpretations The Amendment Bill contains clear and precise steps to be followed in the restructuring of the SABC to ensure that the splitting of SABC into two operational divisions and objectives as contained in the Act are achieved.

... PROPOSED AMENDMENTS... SECTION 9 The amendments to Section 9 provide for the SABC to consist of two separate operational divisions (instead of entities), namely the Public and Commercial service divisions

... PROPOSED AMENDMENTS... MOTIVATION FOR SECTION 9 The Amendment Bill amends Section 9 by deletion of the word “entities” and substitutes it with the words “divisions” as the legal interpretation of the word “entity” means a separate existing company. Section 9 does not envisage SABC Ltd to have two companies being the public services and commercial services. It envisages two divisions under one company being SABC Ltd. It is on these basis that the word “entities” is substituted for the word “divisions”

…PROPOSED AMENDMENTS…
SECTION 10 & 11… The amendment to Section 10 provides for the Board to submit to the Minister a proposed budget in respect of the public service division showing revenues, expenditure and borrowings for the ensuing financial year following the date of conversion.(PFMA) The amendment to Section 10 further requires the SABC to submit a three year business plan containing operational plans and policies prepared in compliance with the objectives of the Public Broadcasting service of the Corporations and general objectives of the Act covering public service obligations in respect of conduct of the business.

…SECTION 10 & 11… The same Section (10) requires the SABC to produce a set of policies to guide the operations of the public service division with respect to news editorial content, language, universal access to services, local content and programming policies.

…SECTION 10 & 11… The Amendment Bill further sets standards to be achieved by the policies mentioned above to include a code of conduct of the SABC services and Personnel that:- reflect the Constitutional principles of fairness, equality, and equitable treatment of all segments of the South African population. reflect the principle of equality and equitable treatment of all South African official languages as enshrined in the Constitution.

…SECTION 10 & 11… reflect the right of all South Africans to both receive and impart information. reflect a full range of audience interests, beliefs and perspectives in its services. reflect the standards of accuracy and impartiality in news and programming that deal with matters of public interest. The Amendment Bill also provides for the SABC to prepare its financial reports in compliance with the Public Finance Management Act.

MOTIVATION TO SECTION 10 & 11… To provide for a mechanism to ensure that objectives contained in those Sections are achieved and that the SABC is held accountable for the delivery of its services. Reporting mechanisms for the SABC are brought in line with the Reporting mechanisms of the PFMA Act.

… MOTIVATION TO SECTION 10 & 11… This is another mechanism of ensuring that the SABC delivers on its mandate to the people of South Africa and is also accountable to them in the way it is managed. The Amendment Bill contains a requirement that a report on Public broadcasting and its activities is separately prepared. Similar accounting provisions are included for the Commercial Division.

SECTION 13 The Amendment Bill amends Section 13 of the Act and provides for the establishment of two Committees of the Board, and requires the two Committees to ensure that mandates and policies with respect to the public broadcasting and commercial services are achieved. The amendment also makes it clear that the Chief Operating Officer is a member of the Board.

MOTIVATION FOR SECTION 13 Section 13 is amended to achieve the requirement contained in Section 9 (2) for separate administration of the public and commercial services.

SECTION 19 The Amendment Bill repeals Section 19, which deals with the provisions of Section 32 of the Companies Act.

MOTIVATION FOR SECTION 19 This repeal is necessitated by the provisions of Section 7 of the Amendment Bill dealing with all sections of the Companies Act that do not apply to the corporatised SABC including Section 32 which requires that members of a Public Company may not be less than seven members.

SECTION 22 The amendment provides for the transfer of the Broadcasting licenses of the Corporation The SABC is required to apply to the Authority for the requisite broadcasting licenses. The Authority may impose such conditions as are necessary to achieve the objectives of the Broadcasting and IBA Acts.

MOTIVATION FOR SECTION 22 This Section is amended to exclude the use of the word “assets” as provisions dealing with the assets of the SABC are contained in Section 7 of the Bill. Section 22 deals with the transfer of broadcasting licences

SECTION 27… The amendment makes detailed provisions for the television licence fee collection. It provides detailed mechanisms as regards the collection of licence fees. It further imposes penalties for failure to adhere to the stipulations of the Act. The Amendment Bill further proposes the appointment of television licence inspectors to assist in the process of ensuring that all television users have a television licence. The Amendment Bill also empowers the Minister to issue policy directions on the collection and use of the licence fees.

…SECTION 27 With effect from 2004 fiscal year, a National database containing details of all purchases of television sets, either for personal or business use, will be developed to ensure that accurate collection and payment of television licence fees is achieved. This will also help Statistics South Africa to obtain information, which is of economic importance.

MOTIVATION FOR SECTION 27… The Bill recognizes that there are weaknesses in the current Act in terms of licence fee collection procedures and processes. The Bill also empowers the Minister to ensure that television licence fees are utilized in a proper manner and in discharging public service.

SECTION 30 The amendment includes religion as one of the issues that must be reflected by the commercial services. The amendment also provides for the subscription television services to carry original South African programming and diversity in the types of service and content.

MOTIVATION FOR SECTION 30 The Act in its current form does not contain provisions of this nature and the Amendment. The Amendment provides for the inclusion of South African religious practices. More importantly it seeks to ensure that subscription television plays a role in promoting South African content through its display.

SECTION 31 This amendment allows ICASA to implement the provisions of section 31 to conduct a licensing process for all licences classified in Section 5, which includes subscription television services, as soon as reasonably possible. The amendment also provides for the authority to make recommendations to the Minister on cross media ownership rules for multichannel services.

MOTIVATION FOR SECTION 31 The amendment is aimed at fast tracking the licensing of additional operators. It removes the barriers which prevent the authority from carrying out the broadening of the industry as soon as reasonable possible. The potential operators must conduct their own feasibility studies prior to application to the Authority. This is aimed at opening up the sector.

SECTION 32 Section 32 is amended in order to ensure that programming provided by the Community sector is also spiritually enriching in as much as it is educational, informational and entertaining.

SECTION 32A The Amendment Bill provides for the establishment of two (2) regional television services in the Republic to be divided into the Northern Region television service and the Southern Region television service. To insert the two channels will be subsidaries of SABC

…SECTION 32A The Southern Region television service shall broadcast programming mainly in the official languages of IsiXhosa, IsiZulu, iSindebele, IsiSwati and Afrikaans. The Northern Region television shall broadcast programming mainly in the official languages of Sesotho, SeTswana, Sepedi, Xitsonga and Tshivenda The Bill is clear: the Authority must license such entities.

MOTIVATION FOR SECTION 32… The amendment recognizes the role played by religion and spirituality in the community life. All studies conducted so far on the programming provided have shown that television broadcasting services in the Republic covers mainly English. The current situation in turn, is in conflict with the Constitution, the Broadcasting Act and the White Paper on broadcasting policy, which provides for eleven official languages to be equally catered for in service delivery.

…MOTIVATION FOR SECTION 32 The Amendment Bill therefore, in recognition of this shortfall, proposes a mechanism to supplement the rolling-out of all official languages by the public Broadcaster and in doing so establishes two regional television services.

SECTION 34 The Amendment Bill introduces an amendment to Section 34 of the Act, which deals with the licensing of signal distribution services by the addition of Subsection 34 (4)(a) and (b) which contain provisions relating to the licensing process for all signal distribution services that currently do not have licenses.

MOTIVATION FOR SECTION 34 The Amendment recognizes that there are existing signal distribution and multi-channel distribution services that are outside the regulatory regime. The Bill therefore aims to bring all the existing services within the licensing regime with such conditions as may be prescribed by ICASA.

SECTION 40 Section 40 is amended by the addition of Section 40 (1)(c), which empowers the Minister to promulgate regulations for the payment and collection of television licence fees. These regulations are necessary for the collection of television license fees.

MOTIVATION FOR SECTION 40 This is a procedural or administrative matter

SECTIONS 21 & 30 OF THE IBA ACT & SECTION 17 OF THE ICASA ACT The Amendment Bill introduces an amendment to Section 21 and 30 of the IBA Act and to Section 17 of the ICASA Act, by repealing, in these sections, all provisions that refer to Broadcasting Technical Committee.

MOTIVATION FOR SECTIONS 21 & 30 OF THE IBA ACT & SECTION 17 OF THE ICASA ACT The Amendment is necessitated by the fact that the sections in the mentioned laws, refer to the Broadcasting Technical Committee, which was never established. This provision in the mentioned Acts is therefore repealed, as the committee is no longer necessary due to the merger between SATRA and the IBA that resulted in the establishment of ICASA.

SECTION 56 & SCHEDULE 1 OF THE IBA ACT The IBA Act is amended to empower the promulgation of the code in the form of regulations under Section 78 of the IBA Act.

MOTIVATION FOR SECTION 56 & SCHEDULE 1 OF THE IBA ACT It is no longer necessary to provide for the code in the Act, as amendments to it in future would require a lengthy and time consuming legislative process. The amendment empowers ICASA to promulgate the Code in the from of regulations.

SECTION 69 OF THE IBA ACT, 1993 The `absolute prohibition’ under subsection (4) has been removed. Subsections (1)(c) and (d) are deleted. Under Subsection (4), it is proposed that references to Sections 16, 18, 21, 23, 26, 56(2), 59, 60, 61, 66 and 78 of the IBA Act be deleted. It is also proposed, in an amended Subsection (4), that the power to make regulations should not be delegated.

MOTIVATION FOR SECTION 69 OF THE IBA ACT, 1993 The Amendment Bill amends this section to allow the Council discretion with regards to delegation and will bring the IBA Act on par with Section 91 of the Telecommunications Act. With discretionary powers being envisaged under ‘absolute prohibition’ – subsection (4), it is no longer necessary to specifically refer to the delegation of the power to “grant, renew, amend or transfer any licence”. Such subsection is therefore deleted.

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