Government Gazette REPUBLIC OF SOUTH AFRICA Vol. 444 Cape Town 24 June 2002 No. 23541 THE PRESIDENCY No. 849 24 June 2002 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 14 of 2002: Media Development and Diversity Agency Act, 2002. AIDS HELPLINE: 0800-123-22 Prevention is the cure 2 No. 23541 GOVERNMENT GAZETTE, MEDIA DEVELOPMENT AND DIVERSITY AGENCY ACT, 2002 24 JUNE 2002 Act No. 14,2002 (English text signed by the President.) (Assented to 18 June 2002.) ACT To establish the Media Development and Diversity Agency; to provide for its objective and functions; to provide for the constitution of the Board and the management of the Agency by the Board; to provide for the chief executive officer and other staff the Agency;to provide for the finances the Agency; to provide of of for the support projects aimed at promoting media development and diversity; of and to provide for matters connected therewith. Preamble WHEREAS IT IS DESIRABLE TOESTABLISH the Media Development and Diversity Agency to help create an enabling environment for media development and diversity that is conducive to public discourse and which reflects the needs and aspirations of all South Africans; REDRESS exclusion and marginalisation of disadvantaged communities and persons from access to the media and the media industry; PROMOTE mediadevelopmentanddiversity by providingsupportprimarilyto community and small commercial media projects, B E IT THEREFORE ENACTED by the Parliament the Republic of South Africa, of as follows:- Definitions No. 1. In this Act, unless the context indicates othenvise(i) “Agency” means the Media Development and Diversity Agency established S by section 2; (ii) “Board” means the Board referred to in section 4; (iii) “community” means a geographically founded community or any group of persons or sector of thepublichavingaspecificascertainable common interest; 10 (iv) “community media” means any media project that is owned and controlled by a community where any financial surplus generated reinvested in the media is project; (v) “Constitution” means the Constitution of theRepublic of SouthAfrica,1996 . (Act 108 of 1996); 1s (vi) “diversity” with regard to media, means access to the widest range of sources of information and opinion, as well as equitable representation within the media in general; ~ 4 ~~ No. 23541 ’ ~~~ GOVERNMENT GAZETTE, ~ ~ 24 JUNE 2002 Act Nu. 14,2002 MEDIA DEVELOPMENT AND DIVERSITY AGENCYACT, 2002 (vii) “GCIS” means the Government Communication and Information System; means all forms of mass communication, including printed (viii) “media” publications,radio,televisionand new electronicplatformsfordelivering content; (ix) “media development” means the development of the media environment and 5 infrastructure so that historicallydisadvantagedcommunitiesandpersons have access to the media as owners, managers, producers and consumers of media; (x) “member” means a member of the Board; Minister responsible means the for GCIS; 10 (xi) “Minister” (xii) “Portfolio Committee” means the Portfolio Committee on Communications of the National Assembly; (xiii) “prescribe” means prescribe by regulation; (xiv) “projects” means projects referred to in section 19; 15 (xv) “small commercial media” means independent media enterprises or initiatives that are run for personal gain micro, very small or small businesses as as classified in the National Small Business Act, 1996 (Act No. 102 of 1996); (xvi) “support” means support referred to in section 17; (xvii) “this Act” includes any regulation made thereunder. Establishment of Agency 20 2. ( I ) A juristic person known as the Media Development and Diversity Agency is hereby established. (2) The Agency acts only through the Board. (3) TheAgency must act in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999). 25 (4) The Agency is independent and must be impartial and exercise its powers and perform its dutieswithoutfear,favour or prejudice.andwithoutanypoliticalor commercial interference. (5) The Agency must not interfere in the editorial content of the media. Objective of Agency 30 3. The objective of the Agency is to promote development and diversity the South in African media throughoutthe country, consistent with right to freedom expression the of as entrenched in section 16 ( 1) of the Constitution. in particular((1) freedom of the press and other media; and ( b ) freedom to impart or receive information and ideas, 35 and for that purpose to(i) encourageownershipandcontrolof,andaccess to, media by historically disadvantaged communities as well as by historically diminished indigenous language and cultural groups: ( i i ) encourage the development of humanresourcesandtraining,andcapacity 40 building, within the mediaindustry, especially amongst historically disadvantaged groups; (iii) encourage the channelling of resources to the community media and small commercial media sectors; ( i v ) raise public awareness with regard to media development and diversity issues: 45 ( v ) support initiatives which promote literacy and it culture of reading; 6 No. 23541 GOVERNMENT GAZE'ITE, 24 JUNE 2002 Act No. 14,2002 MEDIA DEVELOPMENT AND DIVERSITY AGENCY ACT, 2002 (vi) encourage research regarding media development and diversity; and (vii) liaise with other statutory bodies such as the Independent Communications Authority of South Africa and the Universal Service Agency. Constitution of and appointment of members of Board 4. (1) (a) The Board consists members. of nine 5 ( b ) Six members of the Board must be appointed by the President on the recommendation of the National Assembly, according to the following principles: (i) Participation by the public in the nomination process; (ii) transparency and openness; and (iii) the publication of a shortlist of candidates for appointment with due regard to 10 subsection (4) and section 5 . (c) Three members must be appointed by the President, taking into consideration section 15, of whom one must from the commercial print media and another from the be commercial broadcast media. (2) The President must appoint one of the members as chairperson of the Board. 15 (3) Members are appointed on a non-executive basis. (4) Persons appointed to the Board must be persons whoare( a ) committed to fairness, freedom expression, openness and accountability of on the part of those entrusted with the governance of the public service; viewed ( 6 ) when (i) arerepresentative of abroadcrosssection of thepopulation of the Republic; and (ii) possess suitable qualifications, expertise and experience in fields such as community media, social, labour development and issues, media economics, financial management and funding, advertising and market- 25 ing,journalism and broadcastprogramming,mediaresearch,media training, literacy and education, media law, information and communication technology policy. (5)A member must, before performing his her functions, take an oathaffirmation or or she that he or is committed to30 ( a ) fairness, freedom of expression, openness and accountability; and (b) upholding and protecting the Constitution and the other laws the Republic. of collectively- Disqualification 5. A person may not be appointed as a member if he or she(a) is not a South African citizen ordinarily and resident in the Republic; 35 (b) is an unrehabilitated insolvent; ( e ) is amemberofParliament, anyprovinciallegislature or anymunicipal council; (d) is an office-bearer or employee of any party, movement or organisation of a party-political (e) has, notwithstanding paragraph cf), at any time been convicted of theft, fraud, perjury, an offence under the Corruption Act, 1992 (Act No. 94 of 1992), or any other offence involving dishonesty; (f) has convicted the been after commencement of theConstitution of the Republic of South Africa, 1993 (ActNo. 200 of 1993) of a crime specified in 45 Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977), and has No. nature; 8 No. 23541 . GOVERNMENT GAZETTE. 24 JUNE 2002 Act No. 14,2002 MEDIA DEVELOPMENT AND DIVERSITY AGENCY ACT, 7-002 been sentenced to a period imprisonment of not less thanone year without of the option of a fine; (g) has, as a result of improper conduct, been removed froman office of trust; or ( h ) has been declared by a court to be mentally ill or disordered. m Removal office 5 4. t 1) Subject to subsPCtion ( 2 ) , a member ceases to be a member of the Board and must vacate his or heroffice if( a ) he or she becomes disqualified in terms of section 5 , from being appointed as a member; (b) he or she submits his or her resignation in writing to the President; 10 (cl he or she has, without the leave of Board, been absent from morethan two the consecutive meetings of the Board; (d) he or she is found to be incompetent or unfit to fulfill his or her duties: ( e ) he or she is found guilty of misconduct; or ffl he or she guilty found is of an offence section under 1 l(4). 15 ( 2 ) A member may be removed from office only on( a ) a finding to that effect by the National Assembly: and ( b ) theadoption by theNationalAssembly of a resolutioncalling for that member's removal from office. (3) The President20 ( a ) may suspendmember a from office at time the any after start of the proceedings of the National Assembly for the removal of that member: ( h ) must remove a member from office upon adoption by the National Assembly of the resolution calling for that member's removal. Vacancies 25 7 (1) ( a ) If a member contemplated section 4( 1)(b) dies or vacates his or her office . in in terms of section 6, the President may appoint a suitably qualified person, from the nominees referred to in section 4( l)(b), from which such member was appointed,fill to the vacancy for the unexpired term of office. (b)If appointment made an cannotterms be in of paragraph (a)30 (i) the Nationa! Assembly must, as soon as possible, request nominations in terms of section 4( l)(b); (ii) the National Assembly must compilea shortlist in terms of section 4( l)(b)(iii) and must make recommendations in termsof section 4( 1)(b); and (iii) the President must appoint a member from the recommendations referred to in 35 subparagraph (ii). ( 2 ) If a member contemplated in section 4( l)(c) dies or vacates his or her office in terms of section 6, the President must appoint another member in terms of section 4( I ) ( c )to fill the vacancy for the unexpired term of office. Term of office of members 40 8. 1) The chairperson holds office for a period of five years. ( 2 ) Subject to subsection (3). the term of office of members is three years. (3) Fifty per cent of the members of the first Board who were nominated through a public process must hold office for a period of five years. (4) Members referred to in subsection (3) must be determined by lot in accordance 45 with the Schedule. ( 5 ) No member may be appointed for more than two consecutive terms of office. Remuneration of Board members 9. The Minister must, in consultation with the Minister of Finance, determine the remuneration of the members. Meetings of Board 5 10. (1) The first meeting the Board mustbe held at a time and place determined of by the Minister,and thereafter meetings must be held such times and places the Board at as may determine. ( 2 ) The Board must meet four times a year. (3) The chairperson of the Board may at any time. and must at the request in writing 10 of not fewer than four members, convenea special meeting of the Board, to be held at such time and place as the chairperson may determine. (4) There may not be more than eight special meetings per year. ( 5 ) A quorum for a meeting of the Board is the majority of its members. (6) The chairperson must give 14 days' prior written notice of every meeting of the 15 Board to all members. (7) A decision of the majority of the members present at any meeting constitutes a decision of the Board and, in the eventof an equalityof votes, the chairperson must have a casting vote in addition to his or her deliberative vote. (8) In the absence of the chairperson the remaining members must from their number 20 elect an acting chairperson who, whileor she so acts, performsall the functions of the he chairperson. (9) Subject to section 11(3), decision taken by the Board or an act performed under a that decision is not invalid merely by reason of( a ) any irregularity appointment in the of a member; 25 (b) a vacancy on the Board; or (c) the fact that any person not entitled to sit a member sat as such at the time as when the decision was taken: Provided such decision was taken by a majority of the Board members present at the time entitled sit, those and to and members the time constituted a quorum. at 30 (10) Minutes of proceedings of every meeting of the Board must be recorded and entered in a book kept for that purpose. (11) Minutes of the proceedings of each meeting must be submitted at the next meeting of the Board and, if passed as correct, mustbe confirmed by the signatureof the chairpersonandmust,when so confirmed,beevidence in acourt of law of the 35 proceedings of the first-mentioned meeting. (12) The Board must require the chief executiveofficer to attend any of the Board's meetings, but the chief executive officer is not entitled to vote. Conflicting interests 11. (1) A member may not vote at, attend or in any other manner participate in, any 40 meeting of the Board, nor be present at the place wherethe meeting is held, if( a ) in relation to an application for support,he or she or his or her family member is a director, member or business partner or associate of, has an interest in, or the business of the applicant or of any person who made representations in relation or the application; to 45 (b) in relation to any matter before the Board, he or she has any interest which might preclude him or her from performing his or her functions a member as in a fair, unbiased and proper manner. (2) ( a ) If, during the course of any meetings of the Board, there is reason to believe that a member has anyinterestcontemplatedinsubsection (1), thatmembermust 50 12 ~~~ ria. 23541 ~ ~ GOVERNMENT GAZETIT. 24 JUNE 2002 ~~~ ~ Act No. 14,2002 MEDIA DEVELOPMENT AND DIVERSITY AGENCY ACT, 2002 irnmediacely fully disclose the n a m e of his or her interest and leave the meeting in question so as to enable the remaining members to discuss the matter and determine whether or not that member should be allowed to participate in the meeting. ( b ) The disclosure.and the decisiontakenbytheremainingmembers,must be recorded in the minutes meetings of the in question. 5 (3) If any member fails to disclose any interest as required by subsection (2) or, subject to that subsection, if he or she is present at the place where a meeting of the Board is held or in any manner participates in the meeting of the Board, the relevant meeting of the Board is null and void. (4) A member is guilty of an offence and liable on conviction to a fine not exceeding 10 R250 000 or to imprisonment for a periodnot exceeding five years, or to both such fine and imprisonment, if he or she(a) contravenessubsection (1); or (6) fails to disclose any interest or fails to leave meeting or hearing as required the by subsection (2). 15 Staff 12. (1) The Board must appoint a person qualified and experienced in accounting and tinancial matters. and whois, as far as possible, qualified experienced in the fields set or out in section 4(4)(h)(ii), as chief executive officer of the Agency. (2) A person is disqualified from being appointed or remaining a chief executive 30 ofticer if he or she i s aBoardmember or subject to anyof thedisqualifications mentioned in section 5. (3)A chief executiveofficer holds office for a periodnot exceeding five years and may nor be appointed for more than three consecutive terms of office. (4) The Board may at any time terminate the appointment of the chief executive 25 ofticer(ai if that chief executive officer failed to perform the duties of his or her office efficiently; (b) if,dueto any physical or mental illness or disability, that chiefexecutive officer has become incapableof performing his or her functionsor performing 30 them efficiently; cr (c) for misconduct. ( 5 ) The chiefexecutive officer and staff mustbeappointed in accordancewith proceduresapplicable to the appointment of public servants in terms of thePublic Act, Service 1994 (Proclamation No. 103 of 1994). 35 (6)The terms and conditions service of the chief executive of officer and otherstaff of theAgency,includingtheirremuneration,allowances.pensionsandotherservice benehts, are determined by the Board. (7) The remuneration, allowances, pension and other service benefits referred to in subsection (6) mustbe determinedinaccordance with a systemapproved by the 40 Minister with the concurrence of the Minister of Finance. Functions of chief executive officer 13. ( 1 ) Subject to the written directions of the Board and section 15(2)(6),the chief executive officer may appoint such other staff for the Agency as are necessary perform to the work arising from or connected with the functions of the Board or the 4gency. 45 ( 2 ) The chief executive officer must( ( 0 ensure that the instructions of the Board are carried out; ( b ) report to the Board on the activities of the Agency: and ( c ) compile an annual report on the activities of the Agency and submit the report to the Board for approval. 50 (3) The report referred to in subsection (2)(c) must include( a ) audited financial statements; ( b ) a list of all beneficiaries; 14 NO. 23541 GOVERNMENT GAZETIT. 24 JUNE 2002 Act No. 14,2002 MEDIA DEVELOPMENT AND DIVERSITY AGENCY ACT. 2002 (c) an evaluation of how the Agency’s mandate has been achieved; and (d) a projection of forthcoming activities. General functions of Board 14. (1) The Board must, in the promotion of media development and diversity( a ) identify historically disadvantaged communities persons and that are not 5 adequately served by the media; (b) select projects in accordance with the criteria prescribed in terms of section 19(3) to receive support: ( c ) ensure that theAgency’sobjectives,achievementsandactivitiesaremade and public; known to the 10 (d) negotiate public with utilities, organisations financial and institutions to acquire indirect support for projects, including support in the form of(i) discounts or subsidies in print and signal distribution, postal rates and telephone tariffs; and low-interest (ii) 15 (2) The Board may delegate anyof the functions mentioned in this section, except the function specified in subsection (l)(b), to the chief executive officer. rate Finances of Agency 15. ( I ) Funds of the Agency consist of20 ( a ) money appropriated by Parliament; ( b ) money received in terms of agreements contemplated in section 21; ( c ) domesticandforeigngrants: ( d ) interest derived from any investments; or (e) money lawfully accruing from any other source. ( 2 ) The money referred subsection in to (1) must be utilised to25 ( a ) fund projects and activities connected therewith, including project evaluation, feasibility studies, needs analyses, research and training; and (6) defrayexpenses,includingexpensesregardingremuneration,allowances, pensions and other service benefits referred to in section 12(6),incurred by the Agency in the performance of its functions under this Act as long as such 30 expenses do not exceed the prescribed percentage of the funds referred to in subsection (1). (3) The Auditor-General must audit the financial statements of the Agency. Annual Report 16. ( 1 ) The Board must submit the approved report referred toin section 13(2)(c), to 35 the Minister within three months of the end of the relevant financial year. (2) The Minister must table a copyof the annual reportin Parliament within 30 days after it has been received by him or her if Parliament is then sitting and, Parliament is if not in sittine. within 14 days after the next ensuing sittingof Parliament. Nature of support provided by Agency 40 17. The nature of support provided or facilitated by the Agency may be in the form Of- ( a ) financial support by- (i) direct subsidies that are cash grants; (ii) emergency funding aimed at strengthening and ensuring the survival media projects; of 45 16 No. 23541 GOVERNMENT GAZETTE. 24 JUNE 2002 Act No. 14,2002 MEDIA DEVELOPMENT AND DIVERSITY AGENCY ACT. 2002 ( b ) training opportunities capacity and development in all areas of media production and distribution; ( c ) conducting feasibility studies for new projects; (d) media research; (e) any support to indirect referred in section 14( 1)(d); and (f) identifying, gathering distributing and resources media for development through agreements with strategic partners. 5 Allocation of support 18. (1) Direct subsidies referred to in section 17(a)(i) may be granted to community media projects. 10 ( 2 ) Community media projects may also receive any other support contemplated in the Act. ( 3 ) Small commercial media projects primarily receive low interest rate loans referred to in section 14( l)(d)(ii) and may receive, subject to subsection (l), any other support contemplated in this 15 Act. Projects 19. (1) All projects must be aimed at achieving the objectives of the Agency as contemplated in section 3. (2) The Board must, when selecting projects, take into consideration the communities persons and identified in terms of 14( section l)(a). 20 (3) The Board must, prescribe( a ) detailed criteria for selecting(i) communitymediaprojects; (ii) small commercial media projects; and (iii) 25 (b) the manner in which an application for support for projects mustbe made; and ( c ) the information that must accompany the application. (4) The Board must prescribe the percentages of the money referred to in section 15(2)(a), to be utilised formedia ( a ) community 30 ( b ) small commercial media projects; and ( c ) research projects. ( 5 ) The information referred to in subsection (3)(c) must include information regarding( a ) goalsobjectives the and project; of the 35 (b) business plans containing measures for future sustainability; and ( c ) theproposedbudget. research projects; Evaluation of projects receiving support 20. (1) The Board must evaluate all projects receiving support so as toprogress assess ( athe ) and such projects; of 40 (b) ensure that such projects are achieving their agreed goals. (2) If the Board is of theopinion thata project concerned is not achieving its goals, the Board may( a ) instruct the person in control of the project, in writing, to rectify the problem identified it; 45 f b ) if the instruction contemplated in paragraph ( a )is not complied with. suspend or terminate the support provided to the project concerned. by Agreements 21. (1) The Board may enter into agreements with any organisation terms of which in financial or non-financial assistance is given to the Agency for the furtherance of the 50 objectives of this Act . . . . . . . , . ., . . ., .. 18 No. 23541 JUNE GOVERNMENT 24 GAZETTE, 2002 Act No. 14,3002 MEDIA DEVELOPMENT AND DIVERSITY AGENCY ACT,2002 Regulations 22. (1) The Minister may, in consultation with the Board, make regulations regarding any matter that is required or permitted to be prescribed in terms of this Act. (2) The Board must,not less than two months before any regulation is made, cause the text of such regulation to be published in the Gazette, together with a notice declaring 5 the Minister's intentionto make that regulation and inviting interested persons furnish to the Board with comments thereon or representations in regard thereto. Short title and commencement 23. This Act is called the Media Development and Diversity Agency Act, 2002, and comes into operation on a date fixed by the President by proclamation in the Gazette. 10 20 No. 23541 GOVERNMENT GAZETTE. 24 JUNE 2002 Act No. 14,2002 MEDIA DEVELOPMENT AND DIVERSITY AGENCY ACT. 2002 Schedule DETERMINATION BY LOT FOR PURPOSES OF SECTION 8(4) 1. Upon having appointed the members the Board in terms of section of this Act, of 4 the Board must forthwith proceed, in an open and transparent manner, to determine by lot, as required by section 8 of this Actwhich three of such six members must hold their offices for a period of five years after their appointment. The chairperson of the Board must conduct the lot (hereinafter referred to as the designated person). 2. The designated person must thereupon ensurethat the name of each one of the six members is written on a separate piece of paper of equal size in identical shape and colour. 3. The designated person must thereafter display the six pieces of paper contemplated in item 2 to every person who is present at the place where the lot is being conducted who is desirous of inspecting any such piece of paper. 4. The designated person must thereafter fold every such piece of paper in such a manner that the name thereon is not visible, and place all such pieces of paper in an empty container. 5. The designated person must thereupon appoint an impartial person (hereinafter referred to as the drawer) to draw three pieces of paper from the said container. 6. The designated person must thereafter shake the container in such a manner as to thoroughly mix the pieces of paper therein, and must hold such container in such a position that the drawer is unable to see the pieces of paper inside. 7. The drawer must thereafter draw three pieces of paper from such container and hand them to the designated person without unfolding any of them. 8. The designated person must then unfold eachof the three piecesof paper handed to him or her as contemplated in item 7, read out the names written thereon and display every such piece of paper to every person who is present at the place where the lot is being conducted and who is desirous of inspecting the same. 9. The three persons. whose names have been so drawn. must hold their offices for a period of five years after the date of their appointment as such.