SABC off the hook on 'blacklist' complaint

The South African Broadcasting Corporation (SABC) is off the hook following a complaint by the Freedom of Expression Institute (FXI) to an Independent Communications Authority of South Africa (Icasa) committee over its “blacklisting” controversy.

Icasa’s complaints and compliance committee (CCC) ruled it had no jurisdiction over the public broadcaster’s journalistic independence and internal functions, according to a judgment released by the SABC on Monday.

The committee also found that the SABC’s board, at the time of the controversy in 2006, had no duty to publish an internal report on alleged journalistic malpractice.

“The board is not a court or a quasi-judicial body where there is, generally, a duty to publish a judgment or a report for public consumption.”

The commission’s finding came after the FXI complained that the SABC had contravened sections of the Broadcasting Act, its licensing conditions, its internal policy and its code regarding programming when it “blacklisted” certain political commentators.

Business Day journalist Karima Brown, political analyst Aubrey Matshiqi and journalist Paula Slier were among those that then-head of news Snuki Zikalala allegedly did not want used on its programmes.

An inquiry was held to investigate these allegations, producing the Sisulu “blacklist” report, which was not published by the SABC, but which made its way on to the Mail & Guardian Online.

The CCC said the issue boiled down to whether the SABC should have published the inquiry report, and that it had not informed the public what steps it had taken to prevent a recurrence.

The CCC found that section 6(3) of the Broadcasting Act guarantees journalistic independence to the SABC.
It “does not grant the CCC the authority to adjudicate a complaint as to blacklisting, which is an internal journalistic matter”.

The CCC said this was a matter for the SABC board. It would not be permissible for the CCC to subpoena Zikalala to testify on what his intention with the list was.

It found it could only intervene if the complaint was about the final product, and did not have the power to intervene in production processes. The material supplied by the FXI to back up its complaint also did not prove its claims, the CCC said.

“Accordingly, even if the CCC were to accept that the views expressed by two members of the news team are correct, it would not take the matter any further: blacklisting is a journalistic, internal, activity.

“Deplorable as it is, it fell within the ambit of the 2006 SABC board to deal with, which it did by appointing a commission of inquiry.”

No jurisdiction
However, the CCC said the SABC, in terms of section 28 of the Broadcasting Act, must give the communications minister a report on the work and financial affairs of the SABC. It would then be tabled in Parliament and become public.

The CCC said it wasn’t clear what this “work” is, and it is for the SABC to decide what “work” is included in the report.

At the time, if there was no “blacklisting” report given to the minister (the late Ivy Matsepe-Casaburri), she could have asked for it.

“There is also no legal duty on the board to inform the public on how it reacted in a specific case where the internal code or policy had been contravened. Once again, the minister could have instructed the board to have included this in its annual report.”

“The complaint by the FXI was thus not upheld by the CCC. The matter is, accordingly, not referred to the council of Icasa for the consideration of a sanction.”

The commission’s conclusion did not mean it approved of a blacklist based on a political agenda, or a policy where a political agenda was applied in regard to what was broadcast.

“However, as decided above, the CCC does not have jurisdiction over alleged internal journalistic malpractices and the omission to report to the public on it.”

It also made a finding on former SAfm host John Perlman, who got into trouble for contradicting the SABC’s spokesperson, Kaizer Kganyago, on air over the existence of the report.

They said giving him a warning for this was an internal matter, with labour remedies available to him.

The Broadcasting Complaints Commission was the appropriate authority to complain to about an on-air inaccuracy.

The SABC had also been entitled to take the Mail & Guardian to court over publishing the document, and that the courts would have the final say.

The SABC said it “accepts and welcomes the judgment”.

Last week a parliamentary committee asked that the board be dissolved. Zikalala’s contract was recently not renewed.

An FXI spokesperson was not immediately available to comment.—Sapa

Read the blacklisting report

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