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Assessing and promoting civil and minority rights in South Africa.

SAM Ayisafani[Source: by Ed Herbst.]

If the SABC is to be regarded as the watchdog and disciplinarian, then who disciplines the SABC? Surely the intention of the legislature was to answer this question: the CCC (Complaints and Compliance Committee of ICASA) of course” – Judge Neels Claassen in the South Gauteng High Court on 24/1/2011.

If you are utterly guilty, the evidence of your guilt is overwhelming, the prosecution’s case against you is damning and you are facing a humiliating verdict, what can you do?
Well, if you have deep pockets you buy time by getting rid of your lawyers and asking for a postponement of the case so that you can brief your new legal team.
The SABC has deep pockets – yours and mine if you are a taxpayer or purchase a TV licence – and so having been dropped head first and neck-deep in the ordure by the censorious but not very bright Hlaudi Motsoeneng when he unilaterally banned the Democratic Alliance Ayisafani advertisement, the state broadcaster threw in the towel on 16 April.
At an ICASA hearing on that date, the SABC said that it had appointed a new team of lawyers and requested a postponement so that they could examine the ramifications of Hlaudi Motsoeneng’s reckless idiocy.
In a media release announcing the abject failure of the SABC to provide any legal or ethical justification for yet another example of brazen pro-ANC censorship by the Matric-less Motsoeneng, DA leader  Helen Zille said: “The SABC’s newly-appointed legal team wrote a letter to our legal representatives today requesting more time to prepare an affidavit so that it could answer the case at a mutually agreed date. The DA accepted this on the basis that it would mean the immediate resumption of our advertisements on the public broadcaster.
Implosive defeat
That will be the end of the matter. Nothing further will be heard about Ayisafani from the SABC. It was a catastrophically implosive defeat for the SABC and its Luthuli House masters. Instead of protecting, his political patron, President Jacob Zuma, and hushing up the Nkandla scandal as was his misguided intention, Motsoeneng drew world-wide attention to the advertisement, the ANC’s systemic corruption, and South African’s waning media freedom.
By the time this article is posted, more than half a million social media users will have viewed the Ayisafani video on YouTube and will have exponentially spread the message throughout the world with their tweets, Facebook posts and emails – in substantial measure because of Motsoeneng’s stupid action.
The Ayisafani video
In his eNCA programme, “The Justice Factor” on Monday April 21, Justice Malala dubbed the SABC “The Losers of the Week” for their grossly inept and, once again, utterly corrupt attempt to prevent the corporation’s millions of  television viewers and radio listeners from assessing for themselves the truth or otherwise of the advertisement.
But the SABC’s hasty settlement of Motsoeneng’s hasty decision to ban the Ayisafani advertisement when eNCA was happy to flight it and collect the advertising revenue was a godsend to the embattled ICASA. To its increasing discomfort, it was being pushed into a corner by its own increasingly desperate attempts to protect the ANC and the SABC from Motsoeneng’s folly through its delaying tactics.
A useful background study on the failure of ICASA to monitor and regulate the SABC’s abuses is the MA thesis of Wits University student, Pronolo Govenden, which was submitted in 2009: “Toothless regulator?A critical analysis of Icasa’s regulation of the SABC so that it functions as a public service broadcaster.
Cadre deployment
My two-word summary of her research is fairly obvious – cadre deployment. She found that ICASA is beholden to the government of the day and its political appointees will do anything not to offend their political masters.
Technically speaking, Ayisafani is an advertisement and should thus theoretically fall outside the purview of news and this was the sophistry, which, predictably, the SABC tried to use in defence of its censorship. But the advertisement was being flighted in news bulletins and its banning, like so much else, came from those who have turned the SABC news department into an ANC propaganda department and it is in the context of news that the state broadcaster’s latest attempts at censorship must be seen. The advertisement is, without question, news.
Section 10(1)(d)  of the Broadcasting Act fundamentally and profoundly determines what the SABC may or may not do in its broadcast news coverage, how it must go about determining what is newsworthy and how it collects and disseminates that information.
Here is how Judge Claassen summed up that linkage on page 41 and 42 of his judgment:
Section 10(1)(d) of the Broadcasting Act
(91) Section 10(1)(d)  of the Broadcasting Act is in the first place a final product specification which lays down standards with which the SABC’s news and public affairs programmes must comply. But it also has pre-broadcast implications for the way in which the SABC presents its news and public affairs programmes:
91.1 It says that the SABC’s news and public affairs programmes must “meet the highest standards of journalism”. Those standards speak in the first place to the conduct of journalists (as referred to previously in this judgment) and only in the second place to the qualities of their product.
91.2 It says that the SABC must provide “fair and unbiased coverage”. This is in the first place a final product specification but it inevitably also has pre-broadcast implications. A broadcaster, who deliberately skews and distorts the production in the pre-broadcast stage of its programmes in pursuit of an illegitimate ulterior purpose, inevitably produces an end-product which is biased.
91.3 The section lastly requires “impartiality, balance and independence from government, commercial and other interests”. These are again mixed pre-broadcast and final broadcast requirements. The requirements of “impartiality” and “balance” are in the first place concerned with the end-product. The requirement of “independence” on the other hand, is clearly a pre-broadcast requirement.
Legal obfuscation
At the time ICASA resorted to desperate legal obfuscation to cover up its failure to act against the SABC after the damning findings of the Corporation’s own 2006 commission of inquiry into Snuki Zikalala’s blacklisting scandal which was led by  the late Zwelakhe Sisulu and distinguished human rights lawyer, Gilbert Marcus. This failure was condemned by Judge Claassen. He said that Icasa’s suggestion that it had no jurisdiction over the SABC’s news bias was fundamentally flawed.
The essence of his argument can be found in section 76 (page 33) of his judgement: “In my view, the aforesaid reasoning is fundamentally flawed. If correct, it would mean that the SABC may with impunity manipulate and distort the preparation of its news and current affairs coverage and publicly lie about it when they are caught out having done so. It is the lying about such pre-screening shenanigans and the shameful protection of the SABC of the personnel responsible, that needed to be investigated and rectified if found proven. Surely, no one can confidently suggest that such rectifying and disciplinary actions were to be performed by the wrongdoer itself? It amounts to the SABC being accuser and judge in its own cause, a concept which is anathema to basic legal and constitutional principles. If the SABC is to be regarded as the watchdog and disciplinarian, then who disciplines the SABC? Surely, the intention of the legislature was to answer this question: the CCC of course. The contention that the SABC was expected to deal with the type of complaints lodged by FXI in terms of its disciplinary rules is, in effect, to equate the complaint with an internal labour dispute, which it clearly was not.
But the big question that ICASA needs to answer now is why, in a subsequent and far more grievously corrupt breach of section 10(1)(d) of the Broadcasting Act, it remained silent and did not discipline the state broadcaster. I refer to December 10 and 11 last year when the Motsoeneng cabal censored the booing of Jacob Zuma at the Nelson Mandela memorial service and did not interview Thamsanqa Jantjie – something that was picked up by the world’s major news agencies and broadcast into hundreds of millions of homes across the globe to the immense detriment of our national image.
As Makhudu Sefara, editor of the Star, has pointed out, such acts bring the Struggle into disrepute.
Obvious distress
The damage that the Motsoeneng cabal is doing to the credibility of the ANC at the behest of the Zuma faction and to the evident relish of opposition parties like the Democratic Alliance is self-evident but to the obvious distress of Communications Minister Yunus Carrim there seems to be little he can do about it.
Announcing that the SABC would not meet the deadline imposed by Public Protector Thuli Madonsela in her damning report, “When Governance and Ethics Fail”, on Motsoeneng’s corrupt practices, Carrim, in an interview with City Press, said he had referred all complaints about Motsoeneng to SABC board chair Ellen Tshabalala, and that there was little more that he could do.
I am constantly accosted by both people who want me to dismiss or retain Mr Motsoeneng. But I have no such arbitrary powers. It is for the board to make any such decision and then refer it to us,” he said.
Given that Tshabalala knows nothing about broadcasting and was only appointed because of close ties to her political patron, Jacob Zuma, and given – if that is feasible – she seems even more politically biased and even less intelligent than Motsoeneng, politicians on the opposition benches will be getting a lot more anti-ANC ammunition in the months to come.
For William Bird and his Media Monitoring Africa team, which is assessing the SABC’s coverage on the election for bias or lack of it, everything pivots on section 10(1)(d)of the Broadcasting Act which obliges the public broadcaster to provide news and current affairs broadcasting which “meets the highest standards of journalism”.
The SABC’s failed attempt at banning the Ayisafani advertisement was symptomatic of the way in which the ANC has, through cadre deployment, suborned and is continuing to suborn South African media to meet not the “highest standards of journalism” but the narrow needs of the Luthuli House elite who influence the lives and destinies of millions.
Accordingly, the decision by the Democratic Alliance to “fight back” was a laudable one.
PS: As I was proof-reading this article, the news broke that the ANC’s Auckland Park branch, undeterred and in no way shamed by the Ayisafani setback, had rejected an advertisement by another opposition party – the victim this time being the EFF.
Ed Herbst is an author and a prize-winning reporter. He worked for SABC television news for 28 years but left in 2005 without other employment in prospect because of the pervasive news and other corruption at all levels of the corporation. He is also a fly fishing enthusiast.
South Africa at a Glance
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