Broadcasting Amendment Bill: finalisation

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
18 October 2002
BROADCASTING AMENDMENT BILL: FINALISATION

Chairperson:

Broadcast Amendment Bill [B34-2002]
Committee Amendments Agreed To
DA Proposed Amendments (Appendix 1)
FXI/COSATU Amendments to Clause 6 (Appendix 2)
ICASA/Department Amendment to Clause 24 (Appendix 3)
DA Amendments to Clause 8 (Appendix 4)

SUMMARY
The Committee passed the Broadcasting Amendment Bill with the most of the amendments contained in the "Committee Amendments Agreed To" (though there were some minor changes). Although the DP generally agreed with the Bill, it objected to certain clauses and abstained from supporting the Committee Report - saying it would explain its position during the National Assembly debate.

Prior to voting, the Committee effected a few minor amendments to the definitions in Clause 2. The NNP and ANC opposed the proposal by the DP and IFP that considerations of the "national interest" in deciding the SABC programming policy be deleted from Clause 6(4)(d), and Subclause 3 was amended to make it expressly subject to the Constitution. The DP proposed that Clause 8(3) be amended to require the Minister to invite and consider public comments on the Memorandum and Articles of Association of the SABC in deciding the matter, but the ANC opposed this amendment and it was not passed. Members sought to arrive at a technologically-neutral, discrimination-free and all-inclusive formulation of Clause 9, and it was decided that this would best be achieved by making the SABC responsive to the needs of "the deaf and the blind". It was decided that the fine to be imposed in television repairers and technicians who repair television sets without requiring proof of a valid television licence would range from R3 000 to R10 000. The Committee decided that the regional television services under Clause 26 would not be able to draw revenue from advertising, but would be able to receive funds from "appropriations by Parliament".

MINUTES
The Chair informed Members that the Committee will be working from the document entitled "Amendments Agreed To" (see document attached).

Clause 1
Preamble
The Chair noted that Members agreed to the Preamble, as amended.

Clause 2
'authorised inspector'
The Chair noted that Members agreed to this definition, as currently contained in the Bill.

Amendment 1
Mr Michael Markowitz, Advisor to the ICASA Chairperson, proposed that the term read "Authority", and not "authority".

Ms Amanda Armstrong, MNET/Multichoice Legal Advisor, suggested that a definition of the term "this Act" has to be inserted in the Bill, to mean "the Broadcasting Act of 1999".

'Board' and 'broadcaster'
The Chair noted that Members agreed to these definitions, as currently contained in the Bill.

Amendment 2
The Chair noted that Members agreed to this amendment.

'broadcasting licence'
Amendment 3
The Chair sought clarity on the proposed inclusion of this amendment as the new definition of 'broadcasting signal distribution licence', because the Bill already contains a definition.

Mr Markowitz stated that this amendment is needed because the reference to "in terms of this Act" in the Bill should have been deleted.

Ms M Smuts (DP) proposed that "or" simply be inserted before "this Act" under the proposed Amendment 2.

The Chair noted that Members agreed to this amendment, and to this definition as amended.

'business'
Ms Smuts proposed that a new part (e) be added to this definition to include "and a lessor".

The Chair noted that Members agreed to this amendment and to the definition, as amended.

'channel'
The Chair noted that Members agreed to this definition.

'commercial broadcasting service division'
Amendment 4
The Chair noted that Members agreed to this amendment, and proposed that the word "broadcasting" also be deleted from the term itself. He noted that Members agreed to this definition, as amended.

'Corporation' and 'date of conversion'
The Chair noted that Members agreed to these definitions, as presently contained in the Bill.

'direct to home broadcasting'
The Chair noted that Members agreed to the deletion of this term.

'distribution licence'
Amendment 5
The Chair noted that Members agreed to this amendment.

'distribution service'
Amendment 6
The Chair noted that Members agreed to this amendment, and to the definition as amended.

Mr V Gore (DP) stated that the new term "broadcasting signal distribution service" would then have to be moved up and placed after the definition of "broadcasting licence" in Clause 1.

The Chair stated that the State Law Advisors would effect these consequential changes.

'due diligence report'
Amendment 7
The Chair noted that Members agreed to this amendment and to this definition, as amended.

'free-to-air service'
Amendment 8
The Chair proposed that this amendment be changed slightly to read "payment of a subscription fee" and thus phrased in the singular, so that a singular infringement is not excluded. He noted that Members agreed to this amendment and to this definition, as amended.

'incorporation date'
The Chair noted that Members agreed to the definition of this term.

'inventory'
Amendment 9
The Chair noted that Members agreed to this amendment and to the definition, as amended.

'lessor'
The Chair noted that Members agreed to the definitions of these terms as currently contained in the Bill.

'licence'
Amendment 10
The Chair noted that Members agreed to this amendment and to the definition, as amended.

'licensee'
Amendments 11 and 12
The Chair noted that Members agreed to these amendments and to the definition, as amended.

'local service delivery'
The Chair noted that Members agreed to the deletion of this definition.

'multi-channel distribution service'
The Chair noted that Members agreed to the definition of this term as currently contained in the Bill.

'national interest' and 'national sporting event'
The Chair noted that Members agreed to the deletion of these definitions from the Bill.

'person'
The Chair noted that Members agreed to the definition of this term as currently contained in the Bill.

'public broadcasting service division'
Amendment 13
The Chair noted that Members agreed to this amendment, and to the definition as amended.

'Public Finance Management Act'
The Chair noted that Members agreed to the definition of this term as currently contained in the Bill.

'radio station'
Amendment 14
The Chair noted that Members agreed to the deletion of this definition from the Bill.

'Registrar' and 'regulation'
The Chair noted that Members agreed to these definitions as currently contained in the Bill.

'subscription television'
The Chair questioned the decision to define this term, because it seems to be merely a subscription broadcast.

Mr Markowitz agreed with the Chair, and stated that the definition of the term "subscription broadcasting service" in the principal Act should then be amended to include "a subscription fee", as this would distinguish it from a "licence fee".

Mr Mjware, Deputy Director-General in the Department of Communications, stated that such an amendment could be effected.

The Chair noted that Members agreed to these amendments.

'television licence'; 'television licence fee' and 'use'
The Chair noted that Members agreed to these definitions as currently contained in the Bill.

The Chair noted that Members agreed to Clause 1 as amended.

Clause 3
Amendments 1 and 2
The Chair noted that Members agreed to this clause, as amended.

Clause 4Ms S Vos (IFP) suggested that "Licenses" in the title be changed to "Licences".

The Chair noted that Members agreed to this amendment, as well as to the new Clause 4, as amended.

Clause 5
The Chair noted that Members agreed to this clause, as amended.

Clause 6
The Chair suggested that the word "and" should be inserted after the semi-colon at the end of Subclause 5(a)(vi) and Subclause 8(iv), and the word "such" has to be added after "comment on" in Subclause 6.

Ms Smuts proposed that the word "the" be inserted before "exercise" in Subclause 3, and the phrase "the national and" has to be deleted from Subclause 4(d)

The Chair noted that the ANC and NNP oppose the removal of "national interest", and the IFP and DP support the removal, and Ms Smut's proposal was not effected.

Ms Smuts stated that she remembered Members agreeing to the deletion of "and the equitable treatment of all segments of the South African population" in Subclause 8(i), yet this change is not reflected in the amendments. This phrase has to be removed because, unlike the first portion of the provision, it is not a constitutional principle.

The Chair agreed.

Mr S Abram (UDM) contended that if this would change the understanding of the provision, then these concerns should instead be contained in two stand-alone principles.

Ms Smuts agreed with Mr Abram.

The Chair stated that the phrase "the equitable treatment of all segments of the South African population" would then become the new Subclause 8(ii), and the consequential amendments to the numbering of this provision will be effected by the State Law Advisors. He noted that Members agreed to this amendment.

Ms Vos suggested that Subclause 5(a) has to be made to refer specifically to the SABC, and should state "with the Corporation's licence conditions and with the objectives contained in this Act".

The Chair stated that this would then clearly separate the two.

Ms Vos submitted that the word "its" has to be inserted before "services" at the beginning of Subclause 8.

Ms Smuts disagreed and stated that the Code of Practice details "how the SABC runs the whole show" and can therefore not be limited to the Code of Practice alone, but should rather be of general application.

Mr A Maziya (ANC) proposed that the phrase "in terms of the rights and other rights enshrined in the Constitution" be inserted at the end of Subclause 3, because the current formulation provides an "open blanket". This phrase is aimed at addressing certain journalistic creativity and individual journalistic expression which is not in line with the Bill of Rights, or which may not be received in the same way by the public.

The Chair stated that the aim of this proposal is to subject "freedom of expression and journalistic, creative and programming independence" to the Constitution, and a concrete formulation is needed here.

Ms Smuts suggested that the phrase "as enshrined in the Constitution" be inserted here, because the freedom of expression is in any event subject to the Constitution.

Ms Pipa Rayburn, the SABC Legal Advisor, stated that this proposal is not needed, because the Constitution provides this in any event.

Mr De Klerk, Special Advisor to the Minister of Communications, suggested that the phrase "in terms of the Bill of Rights" or "in terms of Section 16 of the Constitution" be inserted.

The Chair stated that "as enshrined in the Constitution" will be inserted, and this would accommodate the concerns raised by Mr Maziya. The FXI/COSATU proposed amendment (Appendix 2) is at a disadvantage, because Members have not yet been able to apply their minds to the amendments, and the Committee would thus not be able to agree to the amendments.

He noted the abstention of the DP due to the inclusion of the inclusion of "national interest", but Members agreed to the clause, as amended.

Clause 7The Chair noted that Members do not agree with the current formulation contained in the Bill, because the "objectives" of the Corporation have to be included as Part 1 of the Charter in the Broadcasting Act of 1999 (the principal Act), and Part 2 would deal with the reorganisation of the Corporation. Thus Clauses 6 and 8 of the Bill should be consolidated.

Ms Vos moved to insert, after Clause 6 in the Bill, Section of the principal Act as the new Clause 7 in the Bill.

Clause 8
Ms Smuts proposed that the DP proposed amendments (Appendix 4) that are based on the COSATU submission be inserted here as a new Subclause 3, because the Minister of Communications (the Minister) cannot be allowed to include anything she likes in the Corporation's Articles of Association, as is allowed by the current version of Clause 8. Instead a new Subclause 3(a) would require the Minister to publish a notice in the Gazette and interested parties would then be invited to submit written comments and, in terms of the new Subclause 3(b), the Minister would have to table the final memorandum before Parliament once she has considered the comments received. The Minister could still ultimately do "what she wants", but these amendments ensure accountability and consultation.

The Chair noted that the ANC opposed the DP proposed amendment, and it was not accepted by the Committee. The version of Clause 8 contained in the amendments was agreed to by Members.

Clause 9Ms Smuts suggested that "including the closed captioning" in the proposed Subclause (e) should be deleted, as the Bill cannot refer to specific technology to be used.

Ms W Newhoudt-Druchen (ANC) proposed that the phrase "visually impaired" be replaced with "the blind", because the former is considered to denote some for of psychological disability or impairment.

 

Mr R Pieterse (ANC) contended that understands the term "the blind" to mean those persons who have no sight at all, and the phrasing in Subsection (e) in the amendments is aimed at including the visually impaired as well.

Ms Newhoudt-Druchen proposed that "the visually disabled" be inserted instead.

Mr Gore suggested that "the partially sighted" be inserted, as this term moves away from the sort of discrimination referred to by Ms Newhoudt-Druchen.

The Chair stated that Members are erring here because they are attempting to cover every possible degree of visual impairment in this clause. Yet the provision cannot be allowed to make a distinction here, because the provision does not offer such facilities to the deaf.

Mr Maziya suggested that Ms Newhoudt-Druchen's proposal is sufficient here.

The Chair proposed that the provision simply state "the deaf and the blind".

Ms Newhoudt-Druchen suggested that it instead read "a deaf person and a blind person", because an individual could be both deaf and blind.

Ms Hala Sangoni, State Law Advisor, stated that "deaf and blind" would include person with both.

The Chair noted that Members agreed to the inclusion of "the deaf and the blind", and Members have agreed to Clause 9 as amended. This clause would now become the new Section 8 in the principal Act.

Ms Sangoni proposed that the conversion of the Corporation be placed in Part 1, and the Charter and its objectives should then be placed in Part 2.

The Chair disagreed because the principal Act itself provides Parts 1 and 2, and Section 8 under Part 2 as currently in the principal Act has to be placed under Part 1, and the remainder of Part 2 would then deal with the reorganisation and conversion of the Corporation. In fact, this amendment should have been effected in 1999 when this Committee dealt with the Broadcasting Act.

Clause 10
Amendments 1 to 4
The Chair noted that Members agreed to these amendments and to the clause, as amended.

Clause 11
Amendments 1 to 4
The Chair noted that Members agreed to these amendments.

Amendment 5
The Chair stated that the wording of this amendment is incorrect, and it should simply read "to delete lines 39 to 59.

Ms Smuts suggested that it state "delete" and not "reject".

The Chair noted that Members agreed to this amendment, as amended.

Amendment 6
The Chair noted that Members agreed to this amendment, but the term "broadcasting" also has to be deleted from Subclause (b)(5) as well.

The Chair noted that Members agreed to the whole of Clause 11, as amended.

Clause 12
Amendments 1 to 4
The Chair noted that Members agreed to these amendments.

Amendment 5
The Chair stated that here as well the amendment should simply state "delete from lines 41 to 45".

The Chair noted that Members agreed to this amendment, as amended.

Amendment 6
The Chair stated that here as well all the references to "broadcasting" in Subclause 3 has to be deleted, and noted that Members agreed to Clause 6, as amended.

Clause 13
The Chair noted that Members agreed to the formulation currently contained in the Bill.

Clause 14
Ms Armstrong suggested that should Section 13(11) in the principal Act be retained the cross-referencing in the amendments would be incorrect, because Amendment 1 seeks to delete Clause 14(b). This would then not make any sense.

The Chair stated that this amendment deletes Clause 14(b) of the Bill, yet Section 13(11) of the principal Act remains at it currently stands.

Ms K Booysen, State Law Advisor, stated that Section 13 in the principal Act as amended should now become Section 12, and Section 13 as amended by the Committee should become the new Section 12.

The Chair noted that Members agreed to this amendment, and also to the entire clause, as amended.

Clause 15
The Chair noted that Members agreed to the rejection of this clause.

Clause 16
The Chair proposed that the phrase "Group Chief Operating Office and the Group Chief Financial Officer" be added in the proposed Section 14(1).

Mr De Klerk stated that it is only the Chief Financial Officer and Chief Operating Officer, and "Group" should not be included.

The Chair accepted this point, and stated that the new proposed Section 14(2) should stipulate "the Board is the accounting authority of the Corporation", and the current Section 14(2) in the amendments will become Section14(3), and Section 14(3) will become Section 14(4). He noted that Members agreed to Clause 16 as amended, and this would then become the new Clause 15 of the Bill.

Clause 17
The Chair noted that Members agreed to the version contained in the Bill.

Clause 18
Ms Smuts contended that the new proposed Section 32A of the principal Act properly belongs in this clause because it deals with public service at the SABC, and not with community broadcasting where it is currently placed in the Bill.

The Chair agreed that the proposed Section 32A is in the wrong place, but was not certain were it would be properly placed in the Bill. Ms Smuts is suggesting that it be placed in Section 22 of the principal Act under this clause.

He noted that Members agreed to the version of Clause 18 contained in the amendments, as well as to the insertion of Clause 18 as the new Section 22A in the principal Act.

Clauses 19 and 20
The Chair noted that Members agreed to this clauses, as amended.

Clause 21
Mr Maziya suggested that the penalties imposed on dealers contained in the proposed Subclause 4 be amended to "R3000 per set or other amount as may be prescribed in terms of each television set sold or alienated to such person". The aim here is to impose a stiff penalty of those television repairers or technicians who violate the law by repairing television sets that are not properly licensed, and this amendment will enforce payment of television licenses.

An SABC representative contended that this is provided for in the wording of the amendment.

Ms Booysen stated that this amount has to be limited, unless the intention is to grant the Minister unfettered powers to determine this amount, and it should perhaps read "or any such higher amount as may be prescribed, which amount may not exceed R10 000".

The Chair noted that Members agreed to this amendment.

Mr Gore asked who would be responsible for prescribing the amount referred to by Mr Maziya.

The Chair replied that this would be done by the Minister, and not by ICASA.

Mr Mjware requested clarity on the inclusion of "administration and functions" at the end of Subclause 8.

The Chair stated that a full stop has to be placed after "provided by the Corporation", and noted that Members agreed to this clause as amended.

Clauses 22 and 23
The Chair noted that Members agreed to this clause, as amended.

Clause 24
The Chair noted that Members agreed to this clause, as amended by the amendments proposed by the Department of Communications and ICASA (Appendix 3).

Clause 25
The Chair noted that Members agreed to the deletion of this clause.

Clause 26
The Chair stated that the phrase "and appropriations by Parliament" has to be inserted after "sponsorships" in the proposed Subclause 2.

Mr Maziya proposed that that provision be amended to deal with financial systems, and should perhaps read "the Corporation must draw up proper financial regulations for these services consistent with Section 18 of the Act".

Ms Smuts noted that the new proposed formulation of Subclause 1 now includes a reference to "Section 13A... of the IBA Act", and asked for the reason for this inclusion.

The Chair stated that it was included to grant authority for the monies appropriated.

Mr Mjware stated that he had no objections to its inclusion.

Ms Smuts suggested that Subclause 2 be amended to reflect the wording of Section 10(2) of the IBA Act, as the provision has to allow money to be appropriated from Parliament. The DP proposed amendments (Appendix 1) enables safeguarding or arms-length transactions, because this provision now allows direct public funding of the SABC.

Mr Maziya stated that "it is funny" that it is only when funding by government is involved that such amendments are proposed, as the same concern does not arise when monies are to be appropriated from Parliament. It is proposed that this amendment not be accepted by the Committee, and this matter should thus be left to the regional television stations to decide. Should Ms Smuts' proposal be included in this law, it would "demonstrate such fears to the public".

Ms Smuts proposed that the phrase "must be financed through appropriations by Parliament and may draw revenues from advertising, grants, donations and sponsorships".

The Chair disagreed with the insertion of revenues drawn from advertising here.

Mr Michael Markowitz, advisor to the ICASA chairperson, suggested that the phrase "may draw revenues from grants, donations and sponsorships" be included, and proposed that "isiSwati" in Subclause 1(c) be changed to "siSwati", as this is the wording in the Constitution itself.

The Chair agreed with the second amendment, as this provision has to accord with the Constitution.

Mr S Mokoetle, SABC Chief Operating Officer, expressed concern with the time frame stipulated in Subclause 1.

The Chair stated that the SABC's concern here is that should the President assent to this law in December 2002, the SABC would need three more months to implement the regional television services. The time frame will thus be extended to "nine months" as proposed by the SABC, as extending the time period will not be "a train smash". He noted that Members agreed to this amendment, and also to the entire Clause 26, as amended.

Clause 27

Amendment 1
The Chair noted that Members agreed to this amendment.

Amendment 2
The Chair stated that this amendment cannot be effected.

He noted that Members agreed to this clause, as amended.

Clause 28
The Chair noted that Members agreed to the current version of this clause as contained in the Bill.

Clause 29
The Chair noted that Members agreed to the rejection of this clause.

Clauses 30 and 31
The Chair noted that Members agreed to the current version of these clauses as contained in the Bill.

Schedule
Mr Maziya proposed that the phrase "notwithstanding the provisions of this section any committee delegated with the power to grant, amend, revoke, transfer and renew a license in terms of this Act must report its finding to the Council" has to be inserted as Section 69(5) in Item 1 of the Schedule.

Mr Markowitz suggested that it read "or renew" and not "and renew", as proposed by Mr Maziya.

The Chair noted Members agreed to the Schedule, as amended.

Ms Rayburn proposed that Sections 26(3) to (7) of the principal Act be deleted, because those provisions refer to the transfer date.

The Chair noted that Members agreed to the deletion of these provisions.

The Chair noted that the Committee agrees to the Bill as amended. He read the Motion of Desirability and the Committee Report on the Bill, and noted that the DP supports the Bill but wishes to abstain "at this point".

He concluded proceedings by stating that the SABC has to define "South African expression" and the South African point of view, and in this regard it is important for it to continue broadcasting an African perspective of issues. If this is achieved other African countries will look towards South Africa as a workable model of a public broadcaster that it important for democracy. The Committee has played its part in ensuring this by producing a dynamic document that will unite all South Africans.

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

Appendix 1
DEMOCRATIC ALLIANCE AMENDMENTS TO SECTION 32A
- Section 32A should be moved to public broadcasting. It is not a community broadcasting service.
- Should logically become part of Section 22.

New Subsection
Regional services licenced pursuant to Subsection (1) must be finalised through appropriations by Parliament provided that such funding must not limit the freedom of expression on the journalistic, creative and programming independence enjoyed by the Corporation.

- The existing Section 10(2) does not cover public funding through transfers. It reads "may receive grants from the State" as an afterthought.

Appendix 2
FXI/COSATU Proposed Formulation on Public Access to the SABC, 17 October
2002
Deliberations on the Broadcasting Amendment Bill
Portfolio Committee on Communications

6(4) it is the duty of the board:
(a) ...... (c)

(d) to ensure constant review of the corporation's compliance with its objectives and policies, through public consultation and direct access, which includes-
(i) the holding of quarterly report back meetings in each province on a rotational basis;
(ii) meeting with any party upon request if such request is supported by a minimum of 100
signatures; and
(iii) public education on the charter
(e) to consider and report to parliament on all public comments and complaints received and the extent to which comments have been taken into account and complaints addressed.

Appendix 3

ICASA AND DOC AGREED VERSION

AMENDMENTS TO SECTIONS 31 AND 33 OF THE PRINCIPAL ACT

Amendment of Clause 24 of the Bill and section 33 of the principal act.

Delete existing proposed 24(c) of the Bill and replace it with a new 24(c) using the wording of section 33 (2) and (3) of the Broadcasting Act, except that the words in 33(2) "subject to subsection (1)" should be replaced with the words "Pursuant to an inquiry in terms of section 28 of the IBA act" and in sub(4) the following phrase "submitted to the Minister for tabling in the National Assembly" is added as follows:

24(c) Section 31 of the principal Act is hereby amended by the addition of the following subsections:

(3) Pursuant to an inquiry in terms of section 28 of the IBA Act, the Authority must issue recommendations as to whether sections 49 and 50 of the IBA Act are applicable to broadcasting services carrying more than one channel and the extent and terms upon which such sections must apply;

(4) Sections 49 and 50 of the IBA Act must not apply to such broadcasting services until the Authority has issued such a recommendation and that recommendation has been submitted to the Minister for tabling in the National Assembly and has been adopted by the National Assembly.

Consequential amendment to section 33 of the principal Act

Delete subsections (2) and (3).

Appendix 4

Democratic Party Amendments to Clause 8, Substituting Section 7
18 October 2002

'' [Incorporation] Conversion

1. publish a notice in the Gazette-

1. together with the text of the draft memorandum and articles of association;
2. inviting interested persons to submit written comments thereon before a specified date, which may not be earlier than 60 days after the publication of such notice; and

1. having considered all comments received, table the final memorandum and articles of association in Parliament for approval.

 

1. alteration of the share capital; or

    

    

2. redemption, sale or other means of disposal or transfer of shares

    

7. (3) Before the registration of the memorandum and articles of association of the Corporation the Minister must-