REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT (JOHANNESBURG)

Case No: 2009/51933
DATE: 24/01/2011
In the matter between:

and
CHAIR, COMPLAINTS AND COMPLIANCE

INDEPENDENT COMMUNICATION AUTHORITY

JUDGMENT

[1] This is a review application. The applicant is the Freedom of Expression Institute ("FXI"). The first respondent is the Chair of the Complaints and Compliance Committee ("the CCC"). This is a committee established by the second respondent, the Independent Communications Authority of South Africa ("ICASA"), a juristic person incorporated in terms of section 3 of the Independent Communications Authority of South Africa Act 13 of 2000 ("the ICASA Act"). The complaint was laid by FXI against the third respondent, the South African Broadcasting Corporation ("the SABC"), in terms of section 17C of the ICASA Act, which reads as follows:

The "Authority" referred to in the section quoted above is defined as meaning ICASA, established by section 3(1) of the aforesaid Act which provides:

(1) There is hereby established a juristic person to be known as the Independent Communications Authority of South Africa."

[5] Accordingly, FXI based its application for the review of the CCC's decision on the provisions of section 6(2)(d) of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA") in that it "was materially influenced by an error of law".

THE FACTS
[6] The complaints had their origin in events inside the SABC's news department The SABC had first-hand knowledge of all the facts. The public generally and the FXI in particular, had no first-hand knowledge thereof. The initial complaint was, therefore, unsubstantiated by evidence. However, the chief executive officer of the SABC, Adv. Mpofu, had simultaneously appointed a Commission of Enquiry to investigate these events. This commission was chaired by the former chief executive officer of the SABC Mr Zwelakhe Sisulu who was assisted by Adv Gilbert Marcus SC and Prof Guy Berger. This Commission of Enquiry heard, recorded and transcribed extensive evidence and rendered a lengthy and comprehensive report to the SABC Board. The SABC, however, attempted to keep this report secret and has never released the original report.

2

456

7
8

[11] The aforesaid ruling has further consequences. The SABC's failure to adduce any admissible evidence also gives rise to certain inferences to be drawn against it:
11.1 The FXTs supplementary complaint and evidence were principally directed at the conduct of Dr Snuki Zikalala, the SABC's Director of News. He stood accused of crass manipulation of the SABC's news and current affairs. His failure to respond to the accusations against him, could only mean that he did not deny them or that the SABC and its lawyers had concluded that his denials would not withstand cross-examination. Either way, the only reasonable inference is that Dr Zikalala could not honestly deny the accusations against him.
11.2 The SABC Board also stood accused of serious dereliction of its duties. Its failure to explain itself gave rise to the same inference. It either did not deny the accusations against it or its lawyers had concluded that its denials would not withstand cross-examination. The only reasonable inference is again that the SABC's Board could not honestly deny the accusations against it.

[12] The SABC's failure to file any admissible evidence had the following implications:
12.1 This matter must be determined on the basis of the FXTs evidence alone; and
12.2 The FXTs evidence is reinforced by irresistible inferences that neither Dr Zikalala nor the SABC can honestly deny the accusations against them.

The Evidence
[13] The evidence reveals a number of incidents in which the SABC's News Management and Dr Zikalala in particular, manipulated its news and current affairs, that they dishonestly tried to cover up this manipulation when it was publicly revealed and that the SABC's Board subsequently failed to take any action when the manipulation and dishonest cover-up was exposed by its own Commission of Enquiry.

9

The Zimbabwe Elections 2005
[15] The first incident concerns the SABC's coverage of the Zimbabwe elections in April 2005. The normal way in which the SABC Radio News covers elections in neighbouring SADC countries, is as follows:

10
11
12

131415

16

17

18
19
20
21

22
20.1 She recorded that Dr Zikalala had threatened to take action against her and the National Bulletin Editor, Vusi Sithole, for any "opinion" reported on Zimbabwe;
20.2 She recorded that Dr Zikalala had "expressly forbade the views of members of civil society on the situation in Zimbabwe, naming two specific individuals: Elinor Sisulu and Moeletsi Mbeki. She protested and explained why both these people were important voices on Zimbabwe;

20.3 She recorded that he had also forbade the views of Archbishop Pius Ncube and publisher Mr Trevor Ncube on radio and television. Ms Green protested that the prohibition was indefensible and that she "cannot see how we can possibly fulfil our public broadcasting mandate and agree to this."

20.4   Ms Green argued that Dr Zikalala's conduct violated the SABC's Editorial Code and concluded as follows:
"In short, your instruction not to use Moeletsi Mbeki, Archbishop Pius Ncube, Trevor Ncube or Elinor Sisulu, all legitimate figures, is so unreasonable that I cannot carry out or implement it I think it is morally wrong, professionally wrong and ethically wrong, and violates not only our Editorial Code but the entire spirit of our Constitution."

[21] Dr Zikalala's only response to Ms Green's letter was a one line e-mail the following day which reads as follows:
23

24
26

[23] Mr Pigou concluded in his research report that the resultant coverage of the Zimbabwe election had been seriously flawed. He highlighted the following flaws in his conclusion:
27
28
23.3 "Indeed, it is important, however, to draw a distinction between the general reportage and the central role that was played by SABC Africa's anchor, Hope Zinde. Her remarkable editorial commentary and analyses, which appeared to continue unrestricted throughout her time at the Harare Sheraton was at times incoherent, often partisan and generally uninformed. Unlike reports from the field, her contributions could not be vetted for 'balance, fairness and accuracy' as it was largely broadcast live.
29
30

[24] This evidence, uncontradicted as it is, establishes, in my view, a justified conclusion as the only reasonable inference to be drawn there from, that Dr Zikalala unlawfully manipulated the news coverage of the Zimbabwe elections. This inference could only have been countered by an affidavit from Dr Zikalala denying the allegations aforesaid. The absence of such an affidavit is quite conspicuous.

313233

34

[27] Only a few seconds of the mayhem was shown on the 7 p.m. English television news bulletin.

35

36

3738

[31] In my view this uncontroverted evidence establishes that Dr Zikalala also interfered with the news coverage of this incident.

The Slier Incident (Reporting on the death of Yasser Arafat)

39

4041

42

43

4445

[37] After his conversation with Ms Green, Dr Zikalala instructed the National Bulletin Editor Mr Sithole to put the following notice on the SABC's internal news network system:
"Urgent note: All desks
46

[38] Later that evening Ms Green received a "puzzled" sms from Ms Slier which read:
47

[39] Ms Green concludes that Dr Zikalala's banning of Ms Slier's reports was unjustified and as a result of it,
48

The Karima Brown Incident

49
50

51

52

53 54

55

[45] Mr Perlman says that Ms Brown's article on President Mbeki in Business Day could not have been the reason for the ban imposed on her because,
5657
58

The Aubrey Matshiqi Incident
[46] Mr Aubrey Matshiqi is a well-known political commentator. He was often used in that capacity on various current affairs programmes on the SABC including Mr Perlman's show.

59

606263

[49] Mr Perlman says that Mr Phetoe's explanation for their disenchantment with Mr Matshiqi, namely that he had been quoted in the Sowetan as saying that the conflict between President Mbeki and Mr Zuma "could lead to civil war", could not be true because,
�	64
�	65
�	66

67 

697071

The SABC's dishonest cover-up (The events on 20 and 21 June 2006)
72

73

7475
54.1 "The SABC would like to state that the News Division has not imposed any blanket bans on the use of individual commentators by our current affairs programmes as reported by the Sowetan today."
76

These statements were also false. It was not true that there was no more than a "proposal". Dr Zikalala had already blacklisted many people for which he had advanced diverse excuses. The only thing these blacklisted individuals had in common was that they were all perceived to be less than friendly to the governing party under the leadership of President Mbeki.

7778

54.4 "The SABC subscribes to freedom of speech in its policies and we strive to give the South African public a diversity of opinions and voices on any topic discussed."
This was a rather cynical distortion of the true facts in light of a false cover-up of Dr Zikalala's blacklisting.

54.5 "The discussion paper is just that, a discussion paper. Nothing has been made into policy and the SABC wonders where these sources within and outside the SABC got the false information that this was now policy at the news department. SABC's policies are determined by the Board of the SABC not by departments."
This was a repetition of the earlier statement and is equally devoid of truth.

7980818284

[56] The interview ended dramatically when Mr Perlman put to Mr Kganyago that it was not true that there was no more than a discussion document because he knew from personal experience that there was an existing instruction at the SABC that certain people could not be used:
"JP: Mr Kganyago I, I, I can confirm for you, this is existing practice.
KK:    Like I say, from the information that I have this is a...ehh, the news
department people have indicated to me that this is merely a discussion
document.
JP:      Mr Kganyago it is happening in practice that certain people are no longer
used on SABC by instruction.

KK:    .. .that what has happened to you... JP:      Yes.
KK:     Or, or...that, that's the unfortunate part. Like  said, J am not in the
85

[57] The SABC has never refuted these dramatic statements Mr Perlman made on air.

The SABC Board's failure to take action
86

878889

909193

9495

97

THE SABC'S TRANSGRESSIONS
The Legislative Framework

[64] ICASA is the independent authority contemplated by section 192. It is a creation of the ICASA Act. Its primary objective in terms of section 2(a) is to,

[65] The CCC is an organ of ICASA established in terms of section 17A (1) of the ICASA Act.

[66] Section 17C(l)(a) provides that anybody may complain to the CCC if they have reason to believe that the holder of a broadcasting licence is guilty of non-compliance with, the terms and conditions of its licence; the ICASA Act itself; or
"the underlying statutes" which are defined in section 1 to include the Broadcasting Act and the Electronic Communications Act.

[67]   The further relevant provisions of the ICASA Act are as follows:
"17B. Functions of Complaints and Compliance Committee
The Complaints and Compliance Committee -
(a)      must investigate, and hear if appropriate, and make a finding on ―
(1) all matters referred to it by the Authority; (ii)     complaints received by it;..."
Subsection (ii) clearly envisages that any person or body may refer complaints to the CCC.

99

FXI's causes of complaint

[70] FXI did not persist in its contention that he SABC's conduct violated ICASA's Code of Conduct for Broadcasters. The SABC is exempted from compliance with the Code in terms of section 54(3) of the Electronic Communications Act 36 of 2005 by virtue of its membership of the Broadcasting Complaints Commission of South Africa.

The SABC's licence conditions
[71] In this section of the judgment it will be necessary to consider whether the CCC rightly disregarded the licensing provisions and, if not, whether the acts complained of did transgress the licensing provisions.

100101102103
"2.5    News and current affairs104

The Licensee shall, in the production and presentation, of its news and current affairs programming:
2.5.1 exercise full editorial control in respect of the contents of such programming;
2.5.2 include matters of international; meet the highest standards of journalistic professionalism;
2.5.3 meet the highest standards of journalistic professionalism;
2.5.4 provide fair, unbiased, impartial and balanced coverage independent from governmental, commercial or other interference; and
105

[73] The licence conditions apply to the "production" as well as to the "presentation" of its news and programming. The CCC drew a distinction between the production of a programme and the presentation thereof. It held that the production of a programme related to the activities of the personnel prior to the screening of the completed programme. The presentation of the completed product related to the actual broadcast thereof on the air. Assuming, without deciding, that the words "production" and "presentation" as used in the licence condition have these different meanings ascribed to them by the CCC, it is necessary to see how such meanings affect the jurisdiction of the CCC to deal with complaints. The reasoning of the CCC why the complaints were beyond their jurisdiction to entertain is somewhat convoluted but, as I understand it, their reasoning was as follows. They were of the view that all actions relating to the screening of the final product fall under the Code of Practice under the ICASA Act. Since the CCC was a creation of the ICASA Act, it, too, had only jurisdiction to hear complaints regarding the actual screening on air of final programmes. It held that all conditions in the licence dealing with the actions of personnel in the process of the production of any programme were beyond their jurisdiction and fell within the disciplinary jurisdiction of the SABC and its Board in terms of the Charter of the Broadcasting Act. It concluded that any condition in the SABC's licence dealing with the preparation of any programme conflicted with the programming independence guaranteed in section 6(3) of the Broadcasting Act. It held that the complaints related to the conduct of "blacklisting" which is an action of personnel performed prior to the actual broadcasting on air of the final product. As such, the CCC had no jurisdiction to deal with FXI's complaints.

"6       Charter of Corporation
(3) In terms of this Charter, the Corporation, in pursuit of its objectives and in the exercise of its powers, enjoys freedom of expression and journalistic, creative and programming independence as enshrined in the Constitution.

(a) reflects South African attitudes, opinions, ideas, values and artistic creativity;
(b) displays South African talent in education and entertainment programmes;
(c) offers a plurality of views and a variety of news, information and analysis from a South African point of view;
(d) advances the national and public interest.

(ii) programming policy;
(iii) local content policy;
(iv) educational policy;
(v) universal service and access policy;
(vi) language policy; and
(vii) religious policy, (b)      ...
(6) ...
(7) ...

(a) the constitutional principle of equality;
(b) the equitable treatment of all segments of the South African population;
(c) the constitutional requirement of equitable treatment of all official languages;

(e) the mandate to provide for a wide range of audiences interests, beliefs and perspectives; and

106

107

[78] Section 6(3) cannot be interpreted in isolation as the CCC seems to have done. The remaining provisions of the Broadcasting Act make this quite clear:
78.1 Section 6(4) provides that the SABC must provide a wide range of programming that "reflects South African attitudes, opinions, ideas, values and artistic creativity" and "offers a plurality of views and a variety of news, information and analysis from a South African point of view".
78.2 Section 6(5)(a) obliges the SABC to adopt policies ''that will ensure compliance with the Authority's Code of Conduct as prescribed and with the Corporation's licence conditions and with the objectives contained in this Act".
78.3 Section 6(8) obliges the SABC to adopt a Code of Practice that ensures that both the services it provides and its own personnel comply with a range of standards including "a high standard of accuracy, fairness and impartiality in news and programmes that deal with matters of public interest".

[79]   In addition section 10(l)(d) states the following:
"10(1) The public service provided by the Corporation must -

[80]   In my view, the concept of "the highest standards of journalism" is defined by what follows thereafter in the sub-section, namely it must contain "fair and unbiased coverage, impartiality, balance and independence from government, commercial and other interests". In the context of the SABC as public Broadcaster, it encapsulates what would be regarded as good journalism. What is good journalism generally, will depend upon many other considerations, to mention only a few:
�	the nature of the particular subject being journalistically examined;
�	the level of interest it engenders;
�	the public or section of the public whose interests are at stake; the language used;
�	the checking of sources of information and accuracy of reporting;
�	the level of importance of the subject;
�	morality and changing community views in regard thereto;
�	legal considerations;
�	monetary considerations;
�	whether it is generated by a private, public or governmental enterprise.

108

109
110
111
112
113

114

115
116

117

118119

[86] Dr Zikalala's blacklisting of commentators perceived to be critical of the government of the day, was clearly designed to silence their voices by not allowing them on air. His purpose was obviously to manipulate the SABC's news and current affairs programmes by excluding these critical voices from them. To suggest that his blacklisting might not have had an effect is quite incorrect. It is obviously impossible to point to any particular programme and say that it was a distortion of the truth because the blacklisted commentators were not on it. The truth could only have been established if both sides of the story had been aired. But the impact of their blacklisting which was intended and designed to manipulate the SABC's news and current affairs coverage by silencing critical voices, necessarily and inevitably had that effect.

[88] The learned author also refers to a quote from Jefferson as quoted by Boyd "Subversive of What?" in Downs (ed) The First Freedom (1960) 224 where it was said:

The conduct of Dr Zikalala amounts, sadly, to a "tyranny of the mind of man" by disallowing views expressed contrary to his political opinion and that of the government of the day, and that process, he "killed reason" instead of allowing reason to be "left free".

[89] The SABC's broadcast of its dishonest denial of the existence of the blacklisting was in itself a deliberate lie told on air. It directly affected the honesty and integrity of the SABC's news programmes.

[90] In my view, it is clear that the SABC's conduct violated the requirements of the licence conditions, even if one were to conclude, as the CCC did, that it only applied to the SABC's broadcasting of the end-product and not also to the manner in which it was made.

Section 10(l)(d) of the Broadcasting Act
[91] Section 10(l)(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:
120

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.

121

[93] The reasoning is hard to follow but it seems that the CCC argued as follows:
93.1 The subject-matter of the duty imposed by section 10(l)(d), is the provision of the SABC's service.
93.2 The standards imposed by section 10(l)(d), are expressed in regulations 34, 35, 36 and 37 of ICASA's Code of Conduct for Broadcasters.
93.3 These regulations "pertain to the product which is seen or heard by the public" and not to the manner in which it is made.
93.4 The SABC is in any event exempted from compliance with the Code for Broadcasters in terms of section 54(3) of the Electronic Communications Act by virtue of the SABC's membership of the Broadcasting Complaints Commission of South Africa.

[94] This reasoning is, in my view, fundamentally flawed. The CCC's assertion that it pertains only "to the product which is seen or heard by the public" is clearly wrong. It is for instance incompatible with the requirement of section 10(l)(d) that the SABC provide news and public affairs programming "which meets the highest standards of journalism". This requirement speaks to the conduct of the people who make the programmes. It cannot sensibly be read as a requirement confined to their end-product.

122

[96] The CCC's ultimate conclusion seems to have been that the SABC is not bound by section 10(l)(d) because regulations 34 to 37 of ICASA's Code of Conduct give effect to section 10(l)(d) and the SABC is not subject to ICASA's Code.

[97] But this reasoning is with respect absurd. Section 10(l)(d) is expressly applicable to the SABC as a public broadcaster. ICASA's Code is subordinate legislation made under a different Act, namely section 54(1) of the Electronic Communications Act. It is not tailor-made for the SABC and applies to all broadcasters. The SABC is exempted from it in terms of section 54(3) of the Electronic Communications Act only because it is a member of the Broadcasting Complaints Commission. To suggest that, because it is exempted from compliance with the Code, the SABC is also relieved of its duties under section 10(l)(d) of the Broadcasting Act, is quite startling and obviously wrong.

CONCLUSION
[98] In my view, the SABC's conduct clearly violated both its licence provisions as well as the provisions of section 10(l)(d) of the Broadcasting Act. I say this for the following reasons:
98.1 Dr Zikalala's politically motivated manipulation of the SABC's coverage of the Zimbabwe elections violated the SABC's duties to,
meet the highest standards of journalistic professionalism: and "provide fair, unbiased, impartial and balanced coverage".
98.2 Dr Zikalala's instruction to Ms Green to institute disciplinary proceedings against Mr Zembe for reporting the truth about the KwaMashu rally and the extended coverage given to the Premier's account which the SABC knew to be untrue, violated the SABC's duties to, "meet the highest standards of journalistic professionalism"; and "provide fair, unbiased, impartial and balanced coverage independent from governmental...interference."
98.3 Dr Zikalala's politically motivated blacklisting of Ms Elinor Sisulu, Mr Moeletsi Mbeki, Mr Trevor Ncube, Archbishop Pius Ncube, Ms Paula Slier, Ms Karima Brown and Mr Aubrey Matshiqi violated the SABC's duties to,
"meet the highest standards of journalistic professionalism"; "provide fair, unbiased, impartial and balanced coverage independent from governmental., .interference"; and "provide a reasonable opportunity for the public to receive a variety of points of view on matters of public concern."
98.4 The SABC's dishonest attempt to cover-up it's blacklisting of these commentators and particularly its false public denials of the blacklisting, violates its duties to, "meet the highest standards of journalistic professionalism" and "provide fair, unbiased, impartial and balanced coverage."

[99] In my view, the CCC was materially influenced by an error of law in that it misinterpreted section 6(3) and section 10(l)(d) of the Broadcasting Act. This court is therefore entitled to regard the CCC's judgment as reviewable in terms of the provisions of section 6(2)(d) of PAJA.

[100] For the aforesaid reasons I make the following order:
1. The decision of the Complaints and Compliance Committee (CCC) of the Independent Communication Authority of South Africa on 18 June 2009, dismissing the applicant's complaints against the third respondent, is reviewed and set aside.
2. The matter is referred back to the CCC to determine the complaints afresh.
3. The CCC which determines the complaints afresh must be constituted so as not to include anybody who participated in the original decision reviewed and set aside.
4. The respondents are ordered jointly and severally to pay the applicant's costs including the costs of two counsel.

JUDGE OF THE HIGH COURT

Counsel for the Applicant: Adv W. Trengove SC, Adv M. Sikhakhane

Counsel for the Third Respondent: Adv V. Soni SC
Attorney for the Applicant: Webber Wentzel
Attorney for the First and Second Respondents: Mkhabela Huntley Adekeye Inc Attorney for the Third Respondent: Mabuza Attorneys
The application was argued on 24 November 2010