The refusal of the SABC to abide by a ruling of the Broadcasting Complaints Commission of South Africa (BCCSA) in favour of the Mail & Guardian is unprecedented and could threaten the system of statutory self-regulation in the broadcast sector.
That is one thing all the parties seem to agree on.
In March the SABC was ordered to broadcast during prime time television news a summary of the BCCSA’s finding that it contravened the Broadcast Code of Conduct when it made unsubstantiated allegations of corruption against the M&G reporter Sam Sole and failed to provide an adequate right of reply.
Having lost an internal appeal at the BCCSA appeals tribunal, the SABC now insists it has a right to have the ruling reviewed by the complaints and compliance committee of the Independent Communications Authority of South Africa (Icasa).
On the face of it, the SABC’s position seems reasonable — it doesn’t like the outcome it got at the BCCSA and is now taking the fight to a higher level. The true position, however, is more complex and more disturbing.
The SABC and the Mail & Guardian locked horns on Thursday at a hearing before the Broadcasting Complaints Commission of South Africa (BCCSA). The hearing was held to address an M&G complaint against the SABC concerning a news report last year, in which businessman Robert Gumede accused investigative reporter Sam Sole of corruption and racism.
“This is the first time a broadcaster has done something like this”, Kobus van Rooyen, who chairs the BCCSA, said at the latest hearing on the saga on Wednesday. He was speaking before hearing argument from the SABC on why the original order should be suspended pending review and the M&G‘s contention that the order must stand.
The BCCSA is the creation of a self-regulatory deal agreed to by all broadcasters, captured in the regulations that flow from the Electronic Communications Act.
If any broadcaster (let alone the one with the public service mandate and the public billions) defies it, the whole system could collapse. The result could bring the regulation of broadcast content much more directly under the sway of Icasa councillors, who are appointed by Parliament.
The SABC is well aware of this and its counsel, Vas Soni, was quietly threatening as he articulated it to Van Rooyen.
“The proper approach in this is not to look at it strictly as a legal dispute as to the exercise of public power but rather to see it as a situation in which you have a broad agreement in which all broadcasters are involved,” Soni said.
“How do you implement it? If one of the broadcasters were to withdraw, all that would happen is that the BCCSA would have no jurisdiction — sometimes it is a duty to make things work, to extract the best of human nature rather than the worst.”
He seemed to be suggesting that if the BCCSA did not conduct itself in a fashion congenial to broadcasting’s 800-pound gorilla, it would shortly find itself irrelevant. If the SABC’s approach to Icasa is justified by the regulations, we would have no problem with the order being held in abeyance. Unfortunately it is not. A review can be justified on very narrow grounds: lack of jurisdiction, gross procedural irregularity, bias or a failure of natural justice.
The SABC has not offered even the slenderest prima facie case on any of these, nor did it do so earlier the process.
Instead, at the heart of its case is the fact that it objects to being ordered to broadcast a statement drafted by the BCCSA rather than its own version.
“The principle of editorial independence is jealously guarded at the SABC,” Soni told the hearing, without a trace of irony. “It would be doing the fight for freedom of expression a disservice if it broadcast the order in this form.”
That is nonsense, as lawyer Matthew Chaskalson pointed out on the M&G‘s behalf. “We are not talking about editorial independence, we are talking about remedying wrongs.
“The public is not to understand that the [summary] is the view of the SABC. It says at the outset ‘the BCCSA has ordered’. In other words, it is clearly framed as a judgment by the BCCSA which the broadcaster is compelled, in terms of the very rules it agreed should govern its conduct, to air.”
If the order is not suspended by Van Rooyen or following High Court action by the SABC, the broadcaster will essentially be operating outside the law.
But the system of broadcast self-regulation will have been thrown into crisis by this effort to give the Icasa’s complaints body broad review powers that it does not have. Some will see similarities between this case and my handling of a complaint to the press ombud by Robert Gumede, who made the corruption claims at the heart of the SABC’s false report.
We published an apology to Gumede as ordered but had serious misgivings about the wording that the Press Appeals Panel asked us to adopt as our own, and I wrote an accompanying note saying so.
We were trying to show respect for the self-regulatory process while ensuring that our concerns were ventilated.
I have since accepted that this was a mistake and apologised a second time. In short, the non-statutory system of press self-regulation was tested and prevailed. The facts in this case are different in too many ways to enumerate. But the crisp point is that the SABC seems deliberately to be targeting the authority of the BCCSA.
Whether it is doing that out of pique and embarrassment or as part of a larger political assault on self-regulation as the ANC continues to push for a media tribunal remains to be seen. Either way, serious efforts in the SABC newsroom to repair its credibility battered by the blacklisting saga matter are being threatened by management’s unyielding line.