South Africa
| Author | Tracy Cohen, Lene Johannessen, Solange Rosa |
| Pages | 519-576 |
SOUTH
AFRICA
BY
TRACY COHEN, LENE JOHANNESSEN,
AND
SOLANGE ROSA
INTRODUCTION
ince
the
early 1990s, South
Africa
has
been undergoing radical
change
at
virtually every level
of
society. This process continues
and
has
indeed sped
up
during
the
life
of the
interim constitution
of
19931
and
after
the
1994 democratic election.
The
interim constitution
contained
a
Bill
of
Rights
and
provisions
for a
Constitutional Court
as the
final
arbiter
of
constitutional rights.
Fundamental
changes
in
South
African
law
have taken place since
the
Constitutional Court began hearing cases
in
1995. However,
of the few
cases
heard under
the
interim constitution that relate
to the
right
to
free-
dom of
expression, none
has
expressly
and
authoritatively interpreted
the
content
of
this right. This
is
also
the
case with
freedom
of
expression under
the
1996 Constitution, which came into
force
in
February
1997.2
This
means
that there
is
still uncertainty
as to the
exact constitutional parame-
ters
of the
media
and
freedom
of
expression.
[Note:
The
information
in
this report
was
accurate
as of May
1998. Changes have occurred
in the
interim
but we
were able
to
include only minimal
updating.]
Constitution
of
the
Republic
of
South
Africa
Act,
No. 200 of
1993.
The
1993 Constitution (Constitution
of
the
Republic
of
South
Africa
Act,
No. 200 of
1993),
also known
as the
Interim Constitution, came
into
force in
April 1994.
It was
intended
to
operate during
the
interim term
of the
government
of
national unity,
which lasted until
the
1999 general election. During
the
interim phase, aided
by
submissions
from
the
public, work began
on
drafting
a final
Constitution.
The final
Constitution
was
adopted
by the
Constitutional Assembly
on 8 May
1996.
It
came
into
effect
in
February 1997, when
it was
certified
by the
Constitutional Court.
All
references
to the
"Constitution"
imply
the final
Constitution, unless otherwise
specified.
519
s
1.
2.
Key
legislative matters
in the
area
of
freedom
of
expression
are
still
in
a
state
of flux
because
of the
abovementioned
situation.
This
paper
can
offer
only
a
cautious analysis
of the
issues presented,
and it
aims
to
describe
the
nature
of the
changes that
are
taking place, rather than
to
make
an
authoritative statement
of how the law is to be
interpreted. With
the
current pace
of
change, definitive statements
are
likely
to be out of
date rapidly.
A.
OWNERSHIP
AND
REGULATION
OF
THE
MASS MEDIA
i)
Locally
Owned
Mass
Media
a)
Electronic
Media
i) The
Independent Broadcasting Authority
Act
Until 1993, broadcasting
in
South
Africa
was
predominantly
the
domain
of
the
state-owned
and
controlled South
African
Broadcasting Corpora-
tion
(SABC).
Established
in
1936
as a
radio service,
the
SABC
developed
regional
services
in the
sixties and, later, ethnic language services
in
line
with apartheid policy.
The
SABC
began television broadcasting
in
1976.3
In
1985
the
first
independent television channel (M-Net)
was
launched
as a
subscription service.
A
number
of
services were also estab-
lished
in the
so-called "independent homelands,"
the
largest
of
which
were
the
television
and
radio services
of the
Bophuthatswana Broadcast-
ing
Corporation.
Independent
radio
broadcasters also
took
advantage
of the
apartheid
state's recognition
of
homeland "independence"
and
began broadcasting
from
the
homelands into
the
major metropolitan areas within
the
Repub-
lic.
In
1979
Capital Radio began broadcasting
from
the
former Transkei.
In
1980
Radio
702
started broadcasting under
a
licence issued
by the
then
Bophuthatswana
government.4
In
1994
the
Independent Broadcasting Authority
(IBA)
was
estab-
lished
to
regulate
all
state-
and
privately owned broadcasting.
The IBA was
"Broadcasting
in
South
Africa," information folder from
the
Independent
Broadcasting Authority, June 1996.
Ibid.
520
COUNTRY
REPORTS
3.
4.
South
Africa
set
up
under
the
Independent
Broadcasting
Authority
Act,5
its
primary
func-
tion
to
implement
the
provisions
of the
Act.
According
to
section
4 of the
IBA
Act,
the
members
of the
IBA
Council
are
appointed
by the
state
president
on the
advice
of
the
National
Assembly
according
to the following
principles:
participation
by the
public
in the
nomination
process;
transparency
and
openness;
and
the
publication
of a
short list
of
candidates
for
appointment.
Councillors shall, when viewed collectively,
be
persons who, inter alia,
are
committed
to
fairness,
freedom
of
expression,
the
right
of the
public
to be
informed,
and
openness
and
accountability
on the
part
of
those holding
public
office.
They shall also, when viewed collectively, represent
a
broad
cross-section
of the
population.
Section 3(3)
of the IBA Act
provides that
the IBA
shall function without
any
political
or
other bias
or
interference
and
shall
be
wholly independent
and
separate
from
the
State,
the
government
and
its
administration
or any
political party,
or
from
any
other functionary
or
body directly
or
indirectly representing
the
interests
of the
State,
the
gov-
ernment
or any
political party.
The IBA is
responsible
for
supervising
all
broadcasting,
by the
SABC
and
by
private
and
community broadcasters,
to
determine
the
proper balance
between
the
public, private,
and
community sectors
of
broadcasting.
It is
also
responsible
for
allocating licences
and
frequencies,
and it
appoints
the
Board
of the
SABC.
More
specifically,
its
duties include promoting
the
development
of
public, private,
and
community broadcasting services that
are
responsive
to the
needs
of the
public,
in
particular,
as
follows:
promoting
the
provision
of a
diverse range
of
national, regional,
and
local sound
and
television broadcasting services that collectively cater
to
No.
153
of
1993.
The IBA
Act
has
been superseded
by the
Broadcasting
Act,
No. 4 of
1999.
The
1999
Act
sets
out a new
broadcasting policy
for
South
Africa;
amends
certain provisions
of the IBA
Act,
clarifies
the
powers
of the
minister
in
regard
to
policy
formulation and the
Authority's powers with respect
to the
regulation
and
licensing
of the
broadcasting system
and to
provide
for
classes
of
broadcasting
activities
in the
public interest
and for
that purpose
to
provide
a
charter
for the
SABC;
to
establish
the
Frequency Spectrum Directorate
in the
department;
to
establish
the
South
African
Broadcasting Production Advisory Body;
and to
establish
a
human
resource capacity
in
policy development.
521
5.
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