CHAIRPERSONS ANNUAL REPORT 1998 - 1999 by monkey6

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									CHAIRPERSON’S ANNUAL REPORT 1998 - 1999
INTRODUCTION 1998 was a year of dramatic moments. Not only did the commission have to deal with several instances where complainants were not prepared to waiver their rights to take civil action in the courts against the broadcaster, but some matters were also quite sensational. Dr Louis Luyt filed two complaints against the SABC for biased reporting; a previous member of BOSS complained that he was implicated by the SABC in the training of gangs in the Cape; and Ferdie Barnard, who was later in the year found guilty of the murder of Dr David Webster, complained that he had been treated unfairly by the SABC. Other complaints concerning alleged obscene jokes on early morning radio, the taking in vain of the Lord's name in TV sitcoms and feature films were reaching the Commission weekly. In two instances the question arose as to whether the Commission could decide upon a matter while a High Court case was pending and our finding might have a bearing on the merits of that case. THE WAIVER CLAUSE The Rules of Procedure of the BCCSA provide that where the Chair is of the opinion that it is in the interest of fairness that a complainant waive his or her rights to take civil action in the courts on the same matter, the Chair shall require the complainant to waive his or her rights. Naturally complainants have not always been happy with this requirement. In the case where Mr Slang Van Zyl complained that he had been implicated unjustifiably by the SABC in the training of Cape gangs, he was not prepared to sign the waiver clause. The Chair motivated his requirement by explaining that the elements of this complaint were almost identical to those which formed part of a claim based on defamation and that it would be unfair to ask the SABC to answer the same case twice. On the other hand, Mr Ferdie Barnard who complained that the SABC had not given him a fair opportunity to answer certain allegations made against him about the murder of Dr David Webster, was prepared to accept the waiver. When Mrs Elna Boesak, wife of Dr Allan Boesak, who was one of the accused in a prosecution in the Cape, complained about omissions by the SABC in its coverage of the case, she was also asked to sign a waiver. She objected and her objection was sustained on the grounds that a waiver by her would be meaningless since, if Dr Boesak himself were to sue, a waiver by

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her would be irrelevant. I shall return to this matter in the paragraph which deals with court reporting. Dr Loius Luyt, then Chair of the South African Rugby Football Union, complained that the SABC had unjustifiably and incorrectly stated that he was in control of Ellis Park. He was willing to sign the waiver if a proper apology was broadcast. The apology was broadcast, but in a further programme, an interview with a financial journalist, the accusations were made once again. Dr Luyt filed a further complaint. When he was asked whether he would be prepared to sign a waiver, he said that he would Rather pursue the matter in the courts. The waiver clause is controversial, is therefore abundantly clear. On the other hand, the Constitution of the Republic guarantees that a person has a right to take a matter to court or, where appropriate, to have a matter settled by an alternative tribunal or forum. The BCCSA is such a tribunal and it is felt that it would be unfair to broadcasters to allow them to be put through similar procedures twice. As appears from the Boesak case, such a waiver is not necessarily required. In many cases the waiver clause is not even discussed. The matter only becomes relevant when the procedure before the BCCSA has substantially the same elements as those which a procedure before a court would have. COMMENTS ON CASES WHICH ARE BEING HEARD IN THE HIGH COURT It has often been said that reportage of the proceedings of our courts requires experienced journalists. The matter could become quite technical and involved and when the evidence from the State is led, the witnesses are cross-examined, the defence leads its witnesses who are once again cross-examined, it becomes quite difficult for a journalist to sum up that case in such a way that viewers get a true and balanced report. Mrs Elna Boesak felt that much publicity was given to the charges against her husband but that the subsequent cross-examination of many of those witnesses was not reported. The SABC's case was that once the defence calls its witnesses, they would be the focus of reportage. The BCCSA held that it was impossible at that stage to decide whether the matters were dealt with in a balanced manner or not Save in exceptional circumstances, the BCCSA would have to wait until the whole matter was concluded and then only would it be in a position to deal with a complaint on balance. On the other hand a statement made in an SABC broadcast on the High Court challenge by a Christian society on the constitutional validity of the latest legislation on abortion, and which gives choice to the mother if certain conditions are met - was adjudicated by the BCCSA. The statement was that the legal team which challenged the legislation consisted of men, whilst women defended the right to "choice" in the legislation. Tested against the facts, this was not true. Allowing some leeway for sensationalism, the BCCSA held that the SABC's statement was substantially correct. Viewers of that news programme would fall within a category which would know that the gender of a particular team is entirely irrelevant to a judge. It was accordingly held that the omission was not substantial and therefore did not amount to a contravention of the Code.

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"APARTHEID DID NOT DIE" The broadcast of the documentary "Apartheid Did Not Die" on the SABC, led to some controversy. The theme of the programme was that, in spite of the new dispensation, "apartheid" between the rich and poor had now substituted the previous dispensation where the segregation had been between Black and White people. The complainant felt that the programme was not balanced insofar as interviews were not conducted with a representative group and that the research had not been done in a satisfactory manner. After the hearing, complaints were received from the producer, John Pilger, who said he had not been afforded the opportunity of putting his case. The Commission pointed out to him that the SABC was subject to the jurisdiction of the BCCSA and that only the SABC could decide whether it would call him to testify. Pilger complained that the hearing was reminiscent of a Franz Kafka novel "The Trial", and that a finding against the programme would prove that an injustice had been committed against him. As matters turned out, the Commission had at that stage already decided that, in the light of freedom of expression and debate, the likely audience would have had the necessary insight to know which opinions in the programme were well founded and which were not. The complaint was therefore not justified. The complaint that the panel, which discussed the programme afterwards, consisted only of men, was also rejected by the Commission. Although mixed gender representation is preferable, it was felt that it would be wrong to work with a fixed formula. The question was not who was on the panel but what was said. In the result is appeared that the Commission did not regard the panel discussion as necessary and that it would have come to the same decision even without subsequent discussion. This judgment can be regarded as an important milestone in the "freedom of speech" thinking of the Commission.

RUDE JOKES AND PROGRAMMES

INDECENT

LANGUAGE

IN EARLY MORNING

The Commission has received numerous complaints from parents concerning rude jokes and indecent or obscene language during early morning programmes on radio. The Commission has taken into consideration that some of these programmes are directed at open minded people who would find this trend to be in accord with an open and democratic society. On the other hand it is true that some children might be exposed to this kind of language and to rude jokes. The Commission has decided to strike a balance between these conflicting interests. Where there is a blatant disregard of good taste, or where there is degradation, a finding of indecency or obscenity will follow. The matter is, however, far from resolved and further evidence, argument and discussion could possibly lead to more certainty. The fact that many broadcasting authorities have a similar problem illustrates that a simple solution will not bring the matter to a close. To follow procedure which has been followed by the US Supreme Court, to ban certain words, could also seem to be absolutist and not in conformity with the freedom of speech

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guarantee and the rules of natural justice, which are required by the Constitution of the Republic.

THE EFFECT OF THE CONSTITUTION ON THE CODE OF THE COMMISSION Since 4 February 1997, when the new Constitution came into operation, it has become clear that the Code of the Commission can only be interpreted properly if the Bill of Rights is taken into consideration. This because the new Constitution is also substantially horizontal in its application. This means that whilst the interim Constitution concentrated on the relationship between State and citizen, the present Constitution, where appropriate, also draws society itself into the Bill of Rights. This Commission has no doubt that whilst its Code limits the freedom of expression guaranteed in the Bill of Rights, it should function within the spirit of the Constitution. In fact, section 39(2) of the Constitution provides that when interpreting any legislation, and when developing the common law or customary law, every court, tribunal forum must promote the spirit, purpose and objects of the Bill of Rights. Since the Constitution to a great extent protects the rights of individuals, the Commission has been particularly sensitive in regard to these rights.

THE WATERSHED On the other hand, the Constitution also protects the rights of children and special steps have been introduced by the Commission to guarantee this protection. This has been especially so in the case of feature films Publicity, timing and classification have become the foundations of broadcasting control in films. We have discussed this matter in depth with SABS-TV and M-Net and they have complied with our requests in this regard. The public should continuously be kept informed. It should also be conveyed to them that after 21:00 more explicit matter may be shown but, once again with due publicity, age restriction, classification and warning. We have also taken note of the parental mechanism supplied by M-Net and that parents, therefore, have control of age-restricted television films. We hope that the V-Chip for public broadcasting will eventually also be introduced in South Africa. We are aware of problems in this regard, but the concept is a good one and should be supported by the broadcasting industry.

THE WORLD BROADCASTING SUMMIT FOR CHILDREN The Chairperson and the Alternate Chairperson, Ms Lauren Jacobsen, attended the World Broadcast Summit for children in London during March 1998. Much was learnt in this regard and contacts have been established with researchers in this field. Our broadcasters were well represented at this conference and, we believe, have brought new ideas home. The need for greater contact within Africa surfaced at this conference and a conference for Africa regulators should be organized as a matter of urgency in the near future.

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MEMBERS OF THE COMMISSION During 1998 four new commissioners joined the Commission. They are Ms Melani Chait, who has wide experience of broadcasting and broadcasting codes; Prof Sunette Lotter, who is an expert on law and morality; Ms Windsor Leroke, who has wide experience in sociology and the needs of listeners and viewers; and Adv Lindi Nkosi-Thoma, who has substantial experience in the conducting of hearings within the rules of natural justice. Mr Justice Trengove and Ms Pearl Mashabela assisted the Chair in these appointments. The Commission also appointed Mrs Shouneez Martin as the new Registrar. Mrs Martin has thorough experience in the administration of the BCCSA and was sits secretary for four years. Ms Angelique Hargreaves has been appointed secretary. The Chair's secretary in Pretoria was Mrs A Rosslee. Mr Yolandie de Waard acted as a research assistant. Mr Alwyn Schutte, the accountant, has managed our budget.

THE ROLE OF COMMISSION We are often asked whether the Commission has a direct influence on the content of broadcasts. A further question is whether some form of censorship could be exercised in regard to broadcasts. The answer to this is that the BCCSA is not authorized to act on any complaint before a broadcast and is also not authorized to initiate a complaint itself. Only after a complaint has been received and the complaint makes out a case that a broadcast has contravened the Code of the Commission may the complaint be adjudicated by one of the commissioners or, in more serious cases, by a panel of the Commission. The panel represents both listener and viewer interests and the interests of the broadcasters. The fourteen members of the Commission were appointed by an independent panel chaired by Mr Justice Trengove. The Commission, although funded by the member broadcasters, is entirely independent from them and the National Association of Broadcasters. This independence has been obtained by way of a contract according to which the National Association of Broadcasters is obliged to pay the reasonable costs of the Commission. The Commission has experienced excellent co-operation from its broadcasters and all hearing and adjudication's have been conducted in a spirit of "coproduction". Ultimately, in the last five years, having dealt with more that 130 complaints by way of full panel hearings, adjudicated or mediated more than 250 complaints and answered more than 4 000 complaints, we have come to the conclusion that indirectly we have influenced broadcasters in relation to balanced programmes, publicity, classification of warnings and a realisation of sensitivities. On the other hand, within a "freedom of expression" era, it would be unacceptable for this Commission to adopt a hard line. Therefore it has become characteristic of this Commission that prefers the "light touch",

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where the aim is rather to inspire its broadcasters to greater quality than to subject them to rigorous control. Kobus van Rooyen S.C. Chairperson

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