The battle for the soul of the SABC News will continue for as long as the public broadcaster remains the dominant news player in the country. In terms of the Electronic Communications Act, the SABC holds the only public broadcasting service licence duly issued by the Independent Communications Authority of South Africa (ICASA).
The South African broadcasting system consists of three tiers, those being public, commercial and community. The SABC comprises at least 19 radio stations and three television channels. Most of the public broadcaster's stations have a national footprint.
And it is this national footprint that has made it almost impossible for the SABC to have a stable management and leadership, as control of the news and current affairs content has become the battleground by different factions within the political spectrum.
It is therefore not surprising that the South Gauteng High Court recently concluded that the SABC news has been "manipulated" prior to the ruling party conference at Polokwane. The critical issue to unpack, though, is what would cause the news editors at Auckland Park to manipulate the news content.
Having asked that, don't other newsrooms outside the SABC also manipulate their news bulletins? It is widely acknowledged that control of news media is critical for political organisations to disseminate their political and economic ideologies to their constituencies.
SABC News plays a critical role in informing the public about government service delivery programmes and the ruling party's economic and political thinking. However, the opposition political parties have also realised since after the dawn of democracy that, in order for them to increase their support base and to "dislodge" the ruling party, the SABC remains a strategic and useful media to discredit Luthuli House. More than 15 million South Africans rely on daily SABC news bulletins and current affairs programmes to be able to understand the variety of political and socio-economic matters that continue to shape SA's fragile democracy.
Difficult to foresee
Even though the courts may pronounce that the SABC has been in the pockets of politicians, it is quite difficult to foresee a scenario where the different political role players shall be able to agree on the public broadcaster public mandate, specifically news content strategy.
The SABC has licence conditions which the Claassen High Court judgement indicated have been violated. Unfortunately, ICASA has not been very pro-active in monitoring SABC compliance with its licence conditions. In terms of ICASA rules, SABC is required to exercise editorial control and independence over its news content. In doing so, the broadcaster's news editors are not supposed to allow their editorial decisions to be influenced by external political powers.
It will be tricky for the ICASA Compliance and Complaints Committee to reconsider the Freedom of Expression (FXI) complaint as ordered, due to the fact that the court has already made a pronouncement that the SABC has violated its licence conditions. It would have been ideal for the court to make an order that ICASA must consider the complaint without necessarily making any pronouncement on the violation of SABC licence conditions. It is not clear from the court judgement who will have the onus to prove that the SABC has violated its licence conditions with respect to the editorial independence.
Complaint now academic?
In referring the FXI complaint back to ICASA, one may argue that the FXI must prove how the SABC manipulated its news content and ultimately violated its licence conditions. However, FXI may argue that the complaint is now academic as the court has already made a ruling on the merits of the complaint. The difficulty is that, as required in terms of the principles of natural justice, SABC must submit its defence to ICASA to say it did not manipulate its news contents and did not therefore violate its licence conditions.
The implication of the court judgement is that, if the SABC does not appeal the ruling, ICASA must penalise the public broadcaster with a fine or any other appropriate "punishment". The trick is that the basis for the judge to say that the SABC has violated its licence conditions and has manipulated its news content seems to be reliant on one party, without the SABC having made a submission to rebut the allegations. Therefore, on appeal, the judgment may be dismissed.
Avhasei Mukoma is chairman of Mukoma Attorneys (www.mukomaattorneys.co.za). He is writing a book on competition in broadcasting and telecommunications industries in South Africa. Email him at . He writes in his personal capacity.
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