Media Development and Diversity Agency Bill: deliberations

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE

Media Development and Diversity Agency Bill [B2-2002]
Proposed amendments arising from this meeting and made available on 13/3/02
Public Submissions on the MDDA draft legislation

SUMMARY
The State Law Advisors addressed the committee on its findings regarding the independence of a body whose members have been appointed by the executive, and the following concerns were raised:
- the representivity of the board;
- whether the Government Communication and Information Service should be represented on the
board; and
- the findings of the State Law Advisor were discussed.

The Committee engaged in discussions on the Media Development and Diversity Agency Bill aimed at arriving at possible alternative formulations of its provisions. The following matter arose from the deliberations:
- Clause 1: possible definitions were discussed;
- Clause 2: "editorial content" is to be included in this provision;
- Clause 3: the reformulated provision proposed by the ANC was discussed;
- Clauses 4 and 5: four different formulations of these provisions were devised and discussed;
- Clause 6: separate headings dealing with incompetence, incapacity and misconduct will be
inserted; and
- Clause 7: subclause 3 must be deleted

MINUTES
The Chair requested the State Law Advisors (SLA), Mr Theo Hercules and Mr Sivhaga Netshitombani, to take this committee through the issues raised during its previous session. An important issue highlighted is the representation of the board, and clarification on this matter was needed from the SLA.

Mr Hercules stated that Clause 5 of the Media Development and Diversity Agency Bill [B2-2002] (the Bill) entrenches the doctrine of the separation of powers in this Bill, and its formulation is compatible with page 303 of the Certification Judgment. It makes it clear that the mere fact that the executive arm of government appoints a judge does not necessarily negate this doctrine, but what is vital to the doctrine in that context is that each functions independently of the other.

Secondly, Sections 50(3)(a) and 55(1) of the South African Police Service Act establishes an independent complaints directorate, and the Minister of Safety and Security himself appoints members to this body. This example further emphasises the point that the mere fact that the Minister, a member of the executive, makes such appointments in no way detracts from the independence of such bodies.

Thirdly, Part 2 of the Financial and Fiscal Commission Act has a similar structure for appointment, and Section 220(2) of the Constitution specifically provides that this commission has to be impartial despite its appointment procedure.

Ms M Smuts (DP) agreed with the relevance of the first and second examples provided, as they both deal with the appointment by a member of the executive. Yet the third example "is a different animal from the first two examples". The Certification Judgment stipulates that the specific nature of a particular body first has to be understood to understand the scope of its functions, and the Financial and Fiscal Commission deals with finances. It is thus, by its very nature, dissimilar to the Media Development and Diversity Agency established by the Bill.

The Chair reminded Ms Smuts that this issue had been answered in the previous session of this committee, yet proceeded to inform her that the SLA is referring to "functions and powers". Until such time as the Constitutional Court clarifies the position with regard to "independence" in this context, these discussions will continue to "move around the issue". The "functions and powers" are relevant to the Certification Judgment because they should be exercised free from interference in whatever form, but the problem here lies with the "grey areas" in which this distinction cannot easily be drawn.

The issue regarding the appointment of members of the board by GCIS was discussed during the previous session, and in this case it is a governmental department that makes the appointment, not the executive itself. There is a fundamental distinction between the two, and once this distinction is understood, there does not seem to be any problem with the Minister appointing members to the board. The SLA was requested to clarify this matter.

Mr Hercules responded that the Certification Judgment was relied on in discussing the issue of independence and the role of the Minister. The general public perception of South African courts is that the judiciary functions independently, and this is not in any way affected by the fact that the Minister of Justice and Constitutional Development appoints judges to the bench.

It was suggested that the "functions and powers" be left to the Minister to determine via regulations.

Mr R Pieterse (ANC) stated that the Bill relies on contributions from various donors to properly execute its mandate, and in this regard it is not desirable nor is it intended that potential donors be excluded from this group. It is thus not clear why it has been suggested that the Government Communication and Information Service (GCIS) be excluded from the board.

Secondly, membership of the board should be structured in such a way that the Minister of Communications can appoint just one member to the board. These members have to act impartially and independent from any external influence, and any conflict of interest or untoward interference has to be avoided.

Ms Smuts replied that guidance is to be found in part 4 on page 11 of the Bill, which provides that government has already made its full contribution to this initiative. This seems to be the position despite the fact that the Independent Communications Authority of South Africa (ICASA) "desperately needs money" to properly effect transformation. Furthermore, GCIS cannot be regarded as a donor, because the money involved here is tax money, and does therefore not originate in the Department itself. It is thus revenue funding that would be allocated to the agency.

Furthermore, it is the executive that ultimately makes the appointment and this has, to date, been done by the State President. The current framework in the Bill provides that this committee would submit recommendations to the National Assembly, and it would then choose the appointments. This dispensation thus does not function like the Chapter 9 institutions, as it is the committee itself which makes those appointments. The primary danger here is that by allowing GCIS membership, the Department could effectively function via the GCIS on the agency board.

Mr J Dowry (NNP) requested clarity on this matter, and questioned whether it is indeed wise to allow GCIS representivity on the board, as it seems that media development and diversity should be dealt with by the private sector alone. In this regard, GCIS should not be allowed representivity on the board. Furthermore, it appears that the South African media has shown no signs of transformation since the 1994, and it is thus imperative that government now take active steps to address this issue.

Ms Smuts responded that this statement "is so untrue" because the South African media has changed significantly, and it has been reported to this committee that no less than 40% of editors are now black. Drastic change has also occurred in the private media sector.

The aim of this Bill is to assist the small radio and television stations, and only the private sector has shown transformation here, as well as promising signs of further transformation.

Mr A Maziya (ANC) requested the Department to explain the reason for its decision to include GCIS on the board. Also clarity was requested on the reasons for the exclusion of "other funders" of this initiative.

Mr S Abram (UDM) suggested that the central issue here is that when a body or institution is created, especially in an "imperfect democracy such as ours", a "massive imbalance" is built into the fabric of this body. It is evident that the independent media has failed to take the necessary steps in the past 8 years to become truly representative, and for this reason a new Bill is needed to rectify this. A certain amount of "driving by the state" is also needed to ensure the involvement of all role-players.

Of further importance is the issue whether it is at all appropriate for the Department, via GCIS, to make such appointments to the board, and whether this serves the purpose and aims of the Bill. Uncertainty has also been raised as to whether appointments are to be made by the Department or by the Minister herself. Consequently, it is unclear whether this decision by the Minister would be regarded as an appointment or whether it would amount to nothing more than a recommendation to this portfolio committee, who would then have the final say on the matter. The SLA was requested to offer guidance on this matter.

The Chair reminded Mr Abram of the reference made in the previous meeting to the nominees from various sources in clause 5(1)(a) of the Bill, and suggested that the donors insist on participation at the highest level, i.e. board level. Yet the board consists of a number of partnerships between government and industry players, and to remove one of these from the equation would upset the balance.

It should be remembered that the Independent Communications Commission was established during the election period, but this has served its purpose and has since become redundant. It is hoped that the agency would follow suit, and that it would meet its objectives if it effects transformation in the foreseeable future. Indeed, funding for the small radio and television stations could be acquired from another source, and there would be no further need for the agency. This issue would be revisited at a later stage.

Mr F T Maserumule (ANC) failed to see the problem if the appointment process is truly open and transparent, and public participation is enlisted.

The Chair stated that the transformation of the South African media is an ongoing process, but the progress made to date is "far from satisfactory". Merely "putting black faces on editors" is not the solution, nor are matters of mere equity and shares in relation to black ownership adequately effecting transformation. Indeed, transformation, in the true sense of the word, "goes beyond these easy things". Those who insist that blacks are in control of South African media fail to recognise the fact that they used bank loans to acquire their stakeholding, which does not amount to true control. The attitude of the media to the democratic process in South Africa has to be addressed.

The Chair informed members that a clause-by-clause analysis of the Bill will now be undertaken, and various formulations and options will be explored. The contentious issues will be "parked" for further discussion at a later stage.

Ms Smuts expressed concern at the fast pace of the deliberations, and questioned whether it might not yet be too early to begin the formal stage of deliberations.

Mr Pieterse agreed, as some issues have not been properly clarified yet.

The Chair failed to see the problem, and informed members that the contentious issues would be discussed further at a later stage, but the process has to proceed as not much time is left for the processing of this Bill.

Clause 1 : Definitions
"Community media"
The Chair requested the SLA to formulate a definition that would apply to both broadcast and print media.

Mr Pieterse suggested that this definition should be amended to read "media projects that are owned and controlled by the community where any financial surplus generated is reinvested into the community and other media projects".

The Committee agreed, and requested the SLA to formulate a definition along those lines.

"Diversity"
Ms Smuts suggested that the second half of the definition after "opinion" be deleted, as the Employment Equity Act deals with issues of "equitable representation", not the agency.

The Chair contended that "diversity" does not necessarily mean plurality, and vice versa. This is the case in South Africa, as there are many media enterprises, but they are owned by a few. The SLA was requested to formulate a definition that incorporates these concerns.

"GCIS"
The Chair inquired as to when GCIS became a "system", as reflected in the definition in Clause 1 of the Bill, because the National Community Radio Forum (NCRF) refers to GCIS as a "service" in its presentation. It is suggested that "service" be used.

Mr Trew (GCIS) informed the Chair that it has always considered itself a service, not a system.

"Media"
The Chair noted that members agreed to this definition.

"Media development"
Ms Smuts inquired as to the meaning of "marginalised" in this definition.

The Chair questioned whether this is in fact the actual definition of "media development".

Ms Smuts contended that it is not, as the agency does not regulate the general "media environment".

Mr C Morkel (NNP) suggested that the term "marginilised" be replaced with "unrepresented".

Dr Devan Pillay, Policy Director of GCIS, stated that the phrase "historically disadvantaged" should be used, so that this definition may be consistent with the objectives of the Bill.

Mr Morkel responded that the problem with this phrase is that there are unrepresented communities that are not "historically disadvantaged", and these need protection as well.

Ms Smuts agreed, and to effect pluralism in its true sense here the agency has to accommodate the rural white communities, who are also in need of protection.

Mr Pieterse urged for the inclusion of "historically disadvantaged" because the definition of this term is readily ascertainable. The agency might very well be biased towards these in exercising its functions, but it would not unlawfully prejudice the other communities referred to.

The Chair agreed that "historically disadvantaged" be used, and questioned whether the Constitution could provide some assistance as to the precise meaning of this phrase.

Ms Smuts agreed, and informed him that Section 9(2) is useful here.

The Chair stated that the references to "historically" and "disadvantaged" in Sections 6 and 9(2) of the Constitution respectively, should be incorporated in this definition to be consistent with the objectives of this Bill.

Ms Smuts suggested that the inclusion of "infrastructure" is undesirable as it creates too wide a scope for this definition.

"Media industry"
Ms Smuts contended that this definition is no longer needed, as the problems with Clause 3 of the Bill have been resolved. Furthermore, "monitoring" is not part of the media industry and should thus be excluded. Also, the precise meaning of "content provision" is unclear.

The Chair agreed, and called for the definition to be amended accordingly.

"Small commercial media"
The Chair noted that no objections were raised to this definition.

Clause 2 : Establishment of Agency
Mr Pieterse stated that in the previous meeting concerns had been constantly raised around the interference of the agency in media content, and it was thus proposed that a provision be included to the effect that "the Bill may not interfere in editorial content". Alternatively, is Subclause 4 sufficiently clear on this interference?

Mr Maziya agreed with the proposal.

Mr Dowry contended that Subclause 2 provides that the agency "acts only through the board", whereas Subclause 4 states that the agency "is independent". These two provisions seems to contradict each other.

The Chair replied that the term "agency" in those provisions relates to the staff, whereas the "board" refers to the people actually responsible for the agency.

The Chair consequently called for the last portion of Subclause 2 after the comma to be deleted. Also, the word "Board" in Subclause 3 must be replaced by "Agency". The phrase "section 47(2) of" to be removed from Subclause 3, so that the entire Public Finance Management Act is now applicable to the functioning of the board. Mr Pieterse's concern with editorial content has to be included in a new Subclause 5, and the SLA has to formulate an appropriate provision here.

Ms Smuts suggested that the editorial content concern be addressed under Clause 3 instead. Clause 3 would also be appropriate to house the revised version of Clause 17 of the Bill.

The Chair replied that the question of the location of Clause 17 is a separate matter altogether, and Clause 3 is a general statement of the functions of the board, and is not meant as a detailed list of its day-to-day functions. The SLA was requested to clarify the position if this matter were to be placed under the new Clause 2(5), and the effects of this on the remainder of the Bill.

Mr Netshitombani stated that if it were placed under Clause 2 the position would be made clear immediately, but more time is needed to consider whether it might not be better placed under Clause 3.

The Chair suggested that, in principle, Clause 3 might be desirable, and the SLA was requested to submit written proposals and formulations on this.

Clause 3 : Objective of Agency
The Chair asked if the formulation of this clause proposed by the ANC had been drafted yet.

Mr Maziya replied that copies had not yet been made for members, but he would read his own copy to the committee:

Objectives of Agency

3. The objectives of the Agency is to promote development and diversity in the South African media industry throughout the country, consistent with the right to freedom of expression as entrenched in section 16(1) of the Constitution, in particular-
(a) freedom of the press and other media; and
(b) freedom to receive and impart information or ideas,
and for that purpose to-
(i) encourage ownership and control of, and access to, media by historically disadvantaged communities as well as by historically diminished language and cultural groups;
(ii) encourage the development of human resources and training, and capacity building, within the media industry, especially amongst historically disadvantaged groups;
(iii) encourage investment in the community media and small commercial media sectors;
(iv) raise public awareness with regard to media development and diversity issues;
(v) support initiatives which promote literacy and a culture of reading;
(vi) encourage research regarding media development and diversity;
(vii) liaise with other statutory bodies working in the field.

Ms Smuts referred to the proposed Clause 3(a)(vii) here, and suggested that the phrase "other statutory bodies" has to include "ICASA, in ensuring a diversity of views in South African society", because ICASA itself made this point. Thus its relationship here has to be defined in this provision.

The Chair agreed to Mr Pieterse suggestion that concerns with placing of this provision could be addressed later.

Ms Smuts noted that the concerns she had raised earlier about Clause 17 have now been covered by this version of Clause 3. The Department of Education had wanted to set up literacy programmes because approximately 3,5 million South Africans are illiterate, yet it was not able to follow through with this project. The above proposed Clause 3(a)(v) seeks to do the same thing, but this portfolio committee does not have sufficient resources to do this.

The Chair informed Ms Smuts that the phrase "support initiatives" does not mean those projects have to be sponsored or funded completely by the agency, rather merely offering support and assistance.

Ms Smuts understood.

Clause 4 : Constitution of Board and Clause 5 : Nomination and appointment of members
Ms Smuts suggested that the word "other" be removed from Clause 4(4)(b) as proposed by MNET, so that this provision would mimic the corresponding provision in the ICASA Act. The current formulation implies that "other laws of the Republic" may be consulted, but not this Bill.

Secondly, it seemed that the list of qualifications under Clause 4(3)(b) seems too lengthy and offers too broad a scope. It was questionable whether all these qualifications are in fact needed in the board.

Mr Maziya agreed that the current formulation is "too meaty", as this list is far too specific especially if the board will only consist of nine members. This provision would be raising expectations that may not be met.

Mr Abram suggested that the version of Clause 3(a) and (b) proposed by the ANC above sufficiently covers these requirements, and the list provides mere guidelines when appointing members. The provision does not direct the appointee to elect a representative from each of these fields, only that these are some of the fields from which the appointment can be made. This is confirmed by the use of the phrase "such as" at the beginning of Clause 4(3)(b).

The Chair noted that there are no objections to Clauses 5(2) and (4), which provide that the President himself must appoint members.

Mr Maziya suggested that Clause 4(2) be amended to now provide that nominees should be from:
- GCIS;
- the donors from the print media;
- the broadcast media; and
- six members chosen by the general public.

Ms Smuts asked at what stage the shortlisting process would begin in Clause 5. Further, it was suggested that "GCIS" be deleted from Clause 5(1)(a)(i), and be replaced with "public broadcaster". The phrase "on the recommendation or advice of" could also be inserted here.

Mr Dowry suggested that the ideal situation would be for 50% of the board to be appointed by the private sector, and the remaining 50% by this committee. The position stated by Ms Smuts with regard to the inclusion of GCIS is supported.

The Chair reminded members that the different proposals being raised would be discussed during the formal stage of deliberations. The current wording of Clause 5(1) deals with the different media "sectors", and the problem is that it not at all clear who exactly the nominees are. It cannot be the sector generally, and clarity was needed here.

Ms Smuts agreed that this is a "vital" concern, as it effectively destroys the illusion created by the provision that a partnership exists between government and the South African media industry. The reality of the matter is that it would probably not be the entire sector but the specific body alone, which would in practice be MNET and Print Media SA for example, that would negotiate funding with GCIS. In the same way, there is no such thing as "business", but a variety of independent corporations and companies. This provision should be rephrased.

Mr Maserumule inquired as to the need for the inclusion of GCIS in this Bill via a partnership.

Mr T Trew, from GCIS, informed the member that the objective here is to arrive at a process that establishes an independent board. It also has to be informed by a partnership with government and industry players, and the beneficiaries have to contribute to the board. It is thus proposed that this committee invite submissions from those sectors on this issue.

Furthermore, much of the discussions have focussed on the concerns with the procedure for the appointment of board members, and if an alternative procedure may be devised that still accommodates the abovementioned concerns, the ultimate objectives of the Bill would be satisfied. It is, however, important that the partnership be retained.

Dr Pillay suggested that the alternative phrasing of Clause 5(1)(a) could include a reference to "donors".

Ms Smuts disagreed, because in one year M-Net could be the donor, and in the next this position could be filled by Johnnic Publishing etc. Thus the inclusion of "donors" here would not be desirable, because some may indeed be donors, but others not, and this would eventually cause avoidable conflict within the South African media industry.

The Chair inquired whether "donors" could at all be identified.

Dr Pillay informed members that it is envisaged that the donors would conclude a memorandum of understanding with the board, which would clearly establish the commitments of each party. It is anticipated that the donors would commit themselves for a fixed period of 5 years, this would remove the problem with uncertainty raised by Ms Smuts.

Ms Smuts maintained that these contracts are not "signed and sealed".

Dr Pillay stated that they would be once the board is established.

The Chair stated that the donors identified by GCIS would "buy in" if they are included on the board, but the current formulation of Clause 5(1)(a) does not make this clear. Furthermore, the circular problem here is that the donors will only be recognised until the agreement under Clause 20 is concluded, but the board cannot convene until the donors have been identified. The problem mentioned earlier regarding the identity of the "sector" is also relevant here, and a further concern is created should one body be involved in Clause 5(1)(a)(i) to (iv).

Ms Smuts preferred the current formulation of Clause 5(1)(a), as the inclusion of "donors" would amount to Parliament becoming involved in the deal-making process, which cannot be allowed. Furthermore, this committee cannot pass a law that provides for agreements which may or may not be concluded, or whose content and terms may vary from time to time.

Mr Maziya contended that the only problem here is identification of the relevant institutions, but the ANC does not have any problems with this at the moment. It is suggested that the "name tags" attached to "donors" and "sectors" be removed, and that the particular number of members be focused on and spelt out in the provision.

Mr Pieterse suggested that a process could perhaps be devised whereby "the sectors sort themselves out", and the present formulation directs this committee to consider their nominees.

The Chair reminded Mr Pieterse that each sector has its own unique dynamics, and the full spectrum may not be adequately captured in the Bill if the proposed route is followed.

The Chair stated that too many organisations are covered under point 3.1, and inquired as to the reason for each submitting an opinion on the Bill if it is supposed to be an independent body.

Ms Smuts reserved her opinion on this position because if her proposal is adopted, then Clause 6(h) would also have to be amended. In this regard it is strongly argued that GCIS should not be allowed representivity on the board, as this would violate Section 16 of the Constitution. This is further confirmed by Clause 10, as GCIS involvement at this level would clearly amount to a "conflict of interests".

The Chair replied that he was under the impression that Clause 6(h) dealt solely with the remuneration of public servants, and avoids paying them a double salary. It does therefore not relate to the current provision that deals with the independence of the board. Furthermore, GCIS was requested to explain whether it intends nominating a member of the GCIS staff, or a person not affiliated to GCIS.

Mr Trew responded that it does not intend nominating a GCIS official.

Mr Maziya expressed his confusion with the number of institutions involved here. On the other hand, the provision cannot be too prescriptive either, because if GCIS were to nominate a member "in good cause" the nomination will have to be considered further by this committee, rather than simply dismissing it outright. Furthermore, the discussion creates the impression that this one person nominated by GCIS "will be able to change the whole board" when this is simply not the case, especially as members have to serve the best interests of the board.

The Chair requested the SLA to explain the need for Clause 6(h).

Mr Netshitombani informed members that the current formulation disqualifies public servants from serving on the board, but provides that a public servant could still serve on the board if appointed in terms of Clause 5(1)(a). It is, however, not desirable for a public servant to serve on the board in view of the specific nature of the work done by this board.

The Chair stated that it is uncertain whether these members should be allowed to serve on this board that operated on a part-time basis only, especially as these would not receive proper remuneration, but merely a subsistence and travelling allowance. This matter has to be considered further, as there is no logic in having a board member already employed by the state.

Ms Smuts suggested that the phrase "executive organ of state" be inserted here as in Section 239 of the Constitution, which creates the distinction between an organ of state and an executive organ of state.

The Chair summarised the four proposed amendments to Clause 4 and 5 of the Bill, resulting in the new Clause 4, as follows:

Option 1
The current formulation of Clause 4.

Option 2
The current Clause 4(3)(a) will now contain Clause 5(1)(a), but "the Public Broadcaster" has to be included in this provision. The remainder of the current Clause 5 will then form the rest of the new Clause 4.

Option 3
The current Clause 4(2) will be amended to provide that the board consists of one nominee each from GCIS, the donors of the print media sector and the broadcast media sector, and six from the general public. The current Clause 4(3) will then provide for the six nominees recommended by this committee, and the remainder of Clause 4 would be the current Clause 5, beginning at Subclause 5(1)(b).

Option 4
The new Clause 4 would provide that the board must consist of no more than nine members, with six nominated by the general public and three appointed by the State President. The current Clause 5, beginning at Subclause 5(1)(b) would form the remainder of this revised provision.

Mr Maziya requested the SLA to provide members with written copies of these proposed amendments.

Clause 6 : Disqualification
Mr Pieterse reiterated the concern he raised during the previous meeting regarding the fact that failure to pay maintenance is not covered by Clause 6(1)(f), as the current penalty for defaulting on maintenance payments is only a six month sentence. In fact, the sentence should be more than just six months. This is not a "soft crime", and persons who contravene this law should not be allowed to become board members.

The Chair replied that schedule 1 of the Criminal Procedure Act only deals with the most serious crimes, and the fact of the matter is that crimes like failure to pay maintenance are regarded as less serious offences under South African law, irrespective of how strongly members may feel about it. In fact, it seems that Clause 6(1)(e) would cure this concern, under the general rubric of "dishonesty".

Ms Smuts stated that there has to be a better formulation of the provisions relating to removal from office, and the model adopted by the ICASA Act is useful here. Clause 6(2)(c) of the Bill refers to "mental health", whereas the ICASA Act contains no such reference. It is suggested that short clauses dealing with misconduct, incompetence and incapacity rather be inserted, and the concern with "mental health" could then be easily included under the clause entitled "incapacity".

Further, Clause 6(2)(e) provides that the President may withdraw an appointment made, but this provision does not list the procedure to be followed here. Surely the Public Service Act or another piece of legislation provides the requisite procedure here?

The Chair agreed.

Ms Smuts inquired whether the Bill contains a mechanism for removal.

The Chair replied that this would be comply with other laws regulating appointing bodies, as these have clearly formulated appointment criteria.

Mr Pieterse suggested that the Chair would compile a report detailing the shortcomings of the derelict member and make recommendations regarding his/her continued position on the board, and the President would then make a decision based on these recommendations.

Mr Maziya added that the board would have to submit its own report on the matter to this committee.

The Chair agreed.

Clause 7 : Term of office of members
The Chair suggested that Clause 7(3) should be deleted, as a lot system is preferred here.

The Chair requested the SLA to draft all the amendments raised during this meeting and make them available to members in the morning.

There were no further questions or comments, and the Chair adjourned the meeting.