Icasa rules against FXI over SABC blacklist report

The Independent Communications Authority of South Africa (Icasa) on Thursday dismissed an application by the Freedom of Expression Institute (FXI) to get the full record of the blacklisting inquiry at the South African Broadcasting Corporation (SABC).

The FXI had asked Icasa to subpoena the record to help it defend its complaint that the public broadcaster had violated its licensing conditions, and the Broadcasting Act, by excluding certain political commentators and not telling the public what it planned to do about the recommendations in the report.

After hearing argument on whether the contents of the record and the report could be considered hearsay, Icasa also ruled that the evidence contained in the record, which the SABC considers an internal document, and the final report, now in the public domain after it was leaked to the Mail & Guardian, was inadmissible in future proceedings at Icasa.

This meant that new representations and evidence had to be presented to Icasa, Icasa complaints compliance commission (CCC) chairperson Kealeboga Moloto-Stofile said after announcing the findings.

In a statement afterwards that it was happy with the outcome, the SABC said: “This was an internal inquiry for internal consumption only and its leakage was mischievous, illegal and intended only for commercial gain.

“We are keenly looking forward to the conclusion of this matter as we remain convinced that there has been no imbalance or biased coverage in the SABC’s news and current-affairs content, as is being inferred in the complaint by the FXI.”

The FXI’s attorney, Simon Delaney, said, “I feel disappointed and disempowered. Not simply as a member of the FXI, but as a viewer, listener and as a citizen to whom Icasa is accountable.”

During the hearing, the panel heard that as the SABC had rejected some of the report on the grounds of flawed methodology, the FXI would not be able to respond unless it saw the original record.

“It’s not that we don’t trust them,” said FXI lawyer Muzi Sikhakhane. “We just think it would help all of us to read the document.”

He said the SABC may well be correct in its contention that the commission was flawed, but there was no way of knowing unless it could see the report.

In a statement later on Thursday, the FXI said it would ask the complaints compliance commission for the reason for its decision in writing and consider its legal options thereafter.

The institute also expressed its disappointment at the ruling, which it said denied South Africans the right to an explanation from the SABC about what it was doing to address “blacklisting and other abuses” exposed by the commission’s findings.

In its heads of argument, the SABC submitted that it had not accepted all the findings of fact by the commission as correct because the commission based its findings on cross-examination and certain witnesses tested on the basis of anonymity.

It said the CCC needed to hear evidence itself when considering the FXI complaint.

In June 2006, SABC CEO Dali Mpofu instituted an inquiry into whether there were limitations in the news and current-affairs division on the use of analysts, commentators and experts by the general executive of news and current affairs, Snuki Zikalala, following media reports and a statement by then SAfm presenter John Perlman.

The report found that while the SABC denied actual blacklisting, it acknowledged that it had produced a discussion document on commentators, which included concerns raised about the quality of some of the commentary.

The recommendations included that decisions to exclude certain commentators should be made in writing and that this be incorporated into editorial policies by the board.

The FXI complaint alleges that, by excluding certain commentators, the actions of Zikalala had violated the Broadcasting Act’s requirement for its public services to provide independent and unbiased news and current affairs programming.

It also alleges that by limiting the diversity of opinion the public has access to, the SABC had violated the provision of its licence conditions that require it to “provide a reasonable opportunity for the public to receive a variety of points of view on matters of public concern”.—Sapa

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