Oral submissions on the Broadcasting Amendment Act
Centre for Constitutional Rights > Constitutional developments > Constitutional developments: Legislation
By N de Havilland
MR Chairperson, honourable members of the committee:
The Centre is primarily concerned that the control which is proposed to be given to the National Assembly and the President will violate two fundamental values contained in the Constitution and will also will offend against the purpose of the Act. In particular the Centre is concerned that sections 16(1)(a) & (b) and 192 0f the Constitution will be violated and section 3 of the existing Broadcasting Act No 4 of 1999 in so far as they will not contribute to democracy; that they will not strengthen the political fabric of South Africa and that they will not ensure plurality of news, views and information.
Section 192 prescribes that:
“broadcasting must be in the public interest, and must ensure fairness and a diversity of views broadly representing South African society.”
In the context of sections 16(1) (e) and 192 it is essential that members of the SABC Board should be able to act without fear of retaliation for any bona fide decisions that they might take - including decisions that might bring them into disfavour with the political party that commands a majority in parliament.
In granting the National Assembly the power to dismiss individual members of the board - and indeed the whole board - the danger will exist that Board members will only take decisions that are favourable to the majority of the members of the House. What this effectively means is that the Board will be subservient to the Government of the day.
It is essential that the SABC Board should operate within the spirit of sections 16(1)(e) and 192 to ensure the protection of freedom of expression and the corresponding right of the public to be informed of all matters of public interest, which requires not favouring or protecting any one view. This is particularly so at election time , for without being fully informed of all the different views, the public will not be able to participate properly in the democratic process.
Under the circumstances the Centre believes that no change should be made to the present situation where members of the Board may be removed from office only on account of misconduct or inability to perform their duties efficiently after due enquiry and only upon the recommendation of the Board.
The Centre is also concerned with the proposed amendment which empowers the President to appoint an interim Board in the event of the National Assembly dismissing the entire Board. No provision is made for public participation in the appointment of this interim Board, and no procedure is prescribed. No provision is either made regarding any qualifications of these board members and no time frame is given regarding the replacement of the interim Board with a permanent Board. These aspects should be clearly defined in any proposed amendments to ensure independence of any interim Board.
The proposed amendments will undermine the requirements of sections 16(1)(e) and 192 and will negatively affect freedom of expression and the Board’s ability to “ensure fairness and a diversity of views broadly representing South African society” and to pursue the objects set out in section 3 of the Act. In compromising the individual independence of the Board members and in granting such unfettered powers to the President, the proposed amendments do not pass constitutional muster.
I thank you.
N de Havilland
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Published in: Centre for Constitutional Rights > Constitutional developments > Constitutional developments: Legislation