MMA calls on the BCCSA to stand its ground in the face of pressure from the SABC

Self regulation of the media is an important aspect of our democracy. It is for this reason that institutions that promote and protect the self regulatory aspect of our media are respected and protected. Media Monitoring Africa (MMA) is concerned by the manner in which the South African Broadcasting Corporation (SABC) has chosen to react to the ruling by the Broadcasting Complains Commission of South Africa (BCCSA) in the case of the SABC and the Mail and Guardian (M&G).

MMA respects the right of the SABC to pursue all available legal avenues to their fullest extent. However, we urge the BCCSA not to yield to the pressure and threats of the SABC. The reported threat made by the SABC to withdraw from the BCCSA is, in MMA’s view, not only churlish but also has other consequences that threaten the credibility of the SABC as well as the BCCSA.

How did we get here?

In November 2010 the SABC broadcast allegations by Robert Gumede (a high profile businessman) against Sam Sole (a journalist for M&G), accusing him of corruption and racism. The M&G claim to have not received a chance to respond to the allegations. Hence it lodged a complaint with the BCCSA.

During this time MMA did an analysis of the news item and found that indeed the SABC was clearly biased in favouring Mr Robert Gumede. For the full analysis click here

In the first ruling, the BCCSA said claims made against Sole were unsubstantiated and the M&G was not given the chance to respond. The BCCSA ordered the SABC to broadcast a summary of the judgment during the SABC 3 7pm news bulletin on the 30^th of March 2011. The SABC applied for leave to appeal the decision.  The BCCSA dismissed the application for leave to appeal.  The SABC has since argued that the refusal for leave to appeal itself constituted a gross procedural error.

The SABC threat to our self regulation

The SABC has since stated that it intends taking the matter on review to the Complaints and Compliance Committee (CCC) which is a committee of the Independent Communication Authority of South Africa (ICASA) set up in terms of the ICASA Act.  MMA understands that the SABC is entitled to pursue all legal avenues available to it and does not deny the SABC’s right to take the matter to the CCC.

A matter of this kind can be taken to the CCC only if there is evidence that there was lack of jurisdiction, gross procedural irregularity, bias or a failure of natural justice. It would appear from the SABC that they are arguing in the main that because the Chairperson of the BCCSA had decided the original complaint he was not able to then refuse grounds for an appeal.  (Click here for the SABC’s application for suspension of the BCCSA ruling)  In its response the M&G has argued that the Chairperson had applied his mind and came to reasonable conclusion and  further that they would oppose an application for the decision to be taken on review.  (Click here for The M&G’s answering affidavit)  While the outcome is still to be decided this is an important test for the BCCSA specifically and self regulation more broadly.

Our plea to the BCCSA

The M&G has reported that during the hearing on Wednesday the SABC counsel said:

“If any broadcaster (let alone the public service mandate and the public billions) defies it [BCCSA], the whole system could collapse. The result could bring the regulation of broadcast content much more directly under the sway of ICASA councilors, who are appointed by parliament. The SABC is well aware of this and its counsel”.

This is a significant threat, and while the SABC is perfectly entitled to withdraw from the BCCSA, it would be churlish in the extreme for it to do so, on the basis of a single ruling.  That the SABC should even make such a threat should be of grave concern to the SABC Board as well as senior SABC management. Such behaviour is reminiscent of the SABC as Apartheid bully not a transformed public service broadcaster.

It must also be noted that the strength of self regulation relies to a significant degree on all key members subscribing to it.  Accordingly, were the SABC to leave it would be a significant blow not only to the BCCSA but self regulation in general. While significant, it would not be fatal as there is no indication that any of the other broadcasters would leave the BCCSA. In view of this threat, MMA calls on all broadcasters to reaffirm their support of the BCCSA specifically and self regulation in general.

Were the SABC to follow through on its threat it would also have to resign from the industry body, the National Association of Broadcasters (NAB).  Not only would this weaken the SABC’s ability to promote its interests with other broadcasters it would also reduce the NAB’s interest in promoting public service broadcasting. The biggest losers in this case would be ordinary citizens who rely on public service broadcasting interests to be promoted so their needs as audiences can be met. A further direct consequence would be that SABC would be subject to the rulings of the CCC and the ICASA code of conduct and no longer that of the BCCSA.  In this regard there is no indication that, on the original complaint, the CCC would come to a different conclusion.

More problematic however with such a threat is that the BCCSA may be tempted to withdraw or change its judgment given the SABC’s power and dominance. MMA believes that it is absolutely critical that the BCCSA does not yield to the threat; and if the SABC does not make a formal application to the CCC and continues to defy the BCCSA, the BCCSA must take the SABC to court to ensure compliance..

The real test for self regulation is not when it is running smoothly, which by all accounts the BCCSA generally does, but when it is put under pressure from its members or from outside interests.  The best outcome from the current challenge is for the BCCSA to hold firm, resist threats and stick to its mandate and for due process to be followed. If the CCC upholds the BCCSA’s ruling then we call on the SABC to apologise for the threat it made and to recommit itself to the BCCSA.

The way forward

William Bird Director of MMA said, “There is far more at stake than whether the SABC will abide by the ruling of the BCCSA or not.  If the BCCSA yields to the threats and pressure not only will it demonstrate an absence of principle, it will also bring the entire BCCSA into a crisis of credibility.  A crisis I am not sure it and the National Association of Broadcasters along with it would be able to survive.”