148 of 1993: Independent Media Commission Act, 1993.
To establish a body to be known as the Independent Media Commission for the purpose of ensuring, during the period of the first national election for the National Assembly and other legislatures under the Constitution to be held after the commencement of this Act, the equitable treatment of political parties by broadcasting licensees and that State-financed publications and State information services do not advance the interests of any political party; to define the composition, powers, functions and duties of the said Commission; and to provide for incidental matters.
(Assented to 18 October 1993.
Offences and penalties 28. Delegations 29.
any broadcasting service provided by the South African Broadcasting Corporation in accordance with the provisions of the Broadcasting Act, 1976 Act No.
"State" includes the government and administration of any self-governing territory contemplated in the Self-governing Territories Constitution Act, 1971 (Act No.
Transitional Executive Council Act, 1993.
There is hereby established a juristic person to be known as the Independent Media Commission, which shall exercise and perform the powers, functions and duties conferred and imposed upon it by this Act.
The Commission 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 government or any political party.
to ensure that State-financed publications and State information services are not, directly or indirectly, used to advance the interests of any political party, whether directly or indirectly, during the election period, so as to promote and contribute towards the creation of a climate favourable to free political participation and a free and fair election.
not more than six other members.
Each commissioner, including the chairperson, shall be appointed by the State President on the advice of the Transitional Executive Council with due regard to the provisions of this Act, with particular reference to the provisions of section 2(2).
The appointments contemplated in paragraph (a) shall be made simultaneously, be made known by notice in the Gazette and be effective as from the date of publication of such notice.
standing or a magistrate with at least 10 years' appropriate experience.
At least two of the commissioners shall have experience in the field of the broadcasting media and at least one in the field of the printed media.
be persons who are committed to the objects and principles of this Act.
Corruption Act, 1992 (Act No.
is or has been convicted of any offence under this Act.
For the purposes of subsection (1), "spouse" includes a de facto spouse.
Subject to the provisions of this Act, the commissioners shall hold office until the dissolution of the Commission in terms of section 34(1).
A commissioner may at any time, upon at least three months' written notice tendered to the Transitional Executive Council, resign from office.
Notwithstanding the provisions of section 7, a commissioner may be removed from office by the Transitional Executive Council on account of misconduct or inability to efficiently perform the duties of his or her office or by reason of his or her absence from three consecutive meetings of the Commission without the prior permission of the chairperson, except on good cause shown.
A commissioner shall not be removed from office in terms of subsection (1) except after due inquiry, and then only upon a decision to that effect by the Transitional Executive Council.
if a commissioner is removed from office in terms of section 8.
A vacancy in the Commission shall be filled by the appointment of another commissioner by the Transitional Executive Council in terms of this Act as soon as may be reasonably practicable after the occurrence of such vacancy.
Commissioners shall be paid such remuneration and allowances as the Transitional Executive Council, in consultation with the Minister of State Expenditure, may determine.
The meetings of the Commission shall be held at such times and places as may be determined by resolution of the Commission whenever necessary so as to conduct its business expeditiously: Provided that the first meeting shall be held at such time and place as the chairperson may determine.
In the event of the chairperson being absent, the remaining commissioners shall from their number elect an acting chairperson, who, while he or she so acts, may exercise and perform all the powers, functions and duties of the chairperson.
The chairperson may at any time in his or her discretion convene a special meeting of the Commission, which shall be held at such time and place as the chairperson may direct: Provided that the chairperson shall, upon having been presented with a requisition for that purpose signed by at least two commissioners, call for a special meeting, and if the chairperson fails to convene a special meeting within 48 hours of such presentation, such two commissioners may, upon the expiration of such 48 hours, convene the special meeting.
The quorum for any meeting of the Commission shall be a majority of the total number of commissioners.
Subject to the provisions of subsection (4), a decision of the Commission shall be taken by resolution agreed to by the majority of the commissioners present at any meeting of the Commission, and in the event of an equality of votes regarding any matter, the chairperson shall have a casting vote in addition to his or her deliberative vote.
The Commission may, in its discretion, allow members of the public to attend any meeting thereof.
(a) The Commission shall cause minutes to be prepared and kept of the proceedings of every meeting and cause copies of such minutes to be circulated to all the commissioners.
The minutes prepared in terms of paragraph (a), when signed at a subsequent meeting of the Commission by the chairperson, shall in the absence of proof of error therein be deemed to be a true and correct record of the proceedings which they purport to minute and shall, at any proceedings in terms of this Act or before a court of law or any tribunal or commission of inquiry, constitute prima facie evidence of the proceedings of the Commission and the matters they purport to minute.
Subject to the provisions of subsection (2), a commissioner shall not vote nor in any other manner participate in the proceedings at any meeting of the Commission nor be present at the venue where such a meeting is held if, in relation to any matter before the Commission, he or she has any interest which precludes him or her from performing his or her functions as commissioner in a fair, unbiased and proper manner.
such disclosure and the decision taken by the remaining commissioners regarding such determination, shall be recorded in the minutes of the meeting in question.
If any commissioner fails to disclose any interest as required by subsection (2) or, subject to the provisions of that subsection, if he or she is present at the venue where a meeting of the Commission is held or in any manner whatsoever participates in the proceedings of the Commission, the relevant proceedings of the Commission shall be null and void.
Subject to the provisions of section 12, a decision taken by the Commission or any act performed under the authority of such a decision shall not be invalid merely by reason of any irregularity in the appointment of a commissioner or a vacancy in the Commission or the fact that any person not entitled to sit as a commissioner sat as such at the time when such decision was taken, provided such decision was taken by a majority of the commissioners present at the time and entitled so to sit and the said commissioners at the time constituted a quorum.
(a) The Commission shall appoint a suitably qualified and experienced person as chief administrative officer for the purpose of assisting the Commission, subject to its directions and control, in the performance of all financial, administrative and clerical functions and work arising from the application and administration of this Act.
The Commission shall appoint such other staff as it deems necessary with a view to assisting it with all such work as may arise through the exercise and performance of its powers, functions and duties in terms of this Act.
The staff of the Commission shall receive such remuneration, allowances and other employment benefits and shall be appointed on such terms and conditions and for such periods as the Commission may determine, subject to the provisions of section 34(1).
In exercising its powers in terms of subsection (2), the Commission shall consult with the Minister of State Expenditure.
The Commission may establish such other committees for such purposes as it may deem necessary with a view to assisting it in the effective exercise and performance of any of its other powers, functions and duties in terms of this Act.
The Commission shall from its number designate a chairperson for each committee.
on account of their qualifications, expertise and experience in relation to the mandate or terms of reference of the relevant committee, are suited to serve thereon.
Whenever the office of a member of a committee becomes vacant, the Commission shall appoint a person to fill the vacancy.
The provisions of sections 5(3), 10, 11, 12, 13 and 25 shall mutatis mutandis apply in respect of any committee, and for that purpose any reference to the Commission shall be construed as a reference to the committee in question.
The Commission may at any time extend, limit or dissolve any such committee.
The Commission may appoint as many experts, including experts from other countries, as it may deem necessary with a view to assisting it in the exercise and performance of its powers, functions and duties and for the performance of any work arising therefrom.
The terms, conditions, remuneration and allowances applicable to any expert by virtue of his or her appointment in terms of subsection (1), and the work to be performed or service to be rendered by virtue of such appointment, shall be as determined in a written agreement entered into for that purpose between the Commission and the expert concerned.
Upon having performed the work or completed the service pursuant to the agreement contemplated in subsection (2), the expert concerned shall submit a report in regard thereto to the Commission for its consideration.
to perform such further functions as the Commission may deem necessary or desirable.
monitor all State-financed publications and State information services, during the election period in accordance with the provisions of this Act, and shall exercise and perform such other powers and functions as may be assigned to it by this Act.
The Commission shall inform the Transitional Executive Council and the Independent Electoral Commission of any matter which has come to its knowledge in the exercise and performance of its powers, functions and duties in terms of this Act which, in its opinion, may have an adverse impact upon the creation or achievement of a climate favourable to free political participation and the holding of the election on a free and fair basis.
No party election broadcast and no political advertisement shall be broadcast on any broadcasting service except during the election period and then only if and to the extent authorized by the provisions of sections 19 and 20.
Subject to the provisions of this section, a public sound broadcasting licensee shall permit a party election broadcast only during the election period and then only if such a broadcast is produced on behalf of the political party in question at the instance of its duly authorized representative.
The Commission shall determine the time to be made available to political parties for the purpose of subsection (1), including the duration and scheduling of party election broadcasts, duly taking into account the financial and programming implications for the broadcasting services in question.
The Commission shall consult with the relevant public sound broadcasting licensees and all the political parties prior to making any determination in terms of subsection (2).
In making any determination in terms of subsection (2), the Commission may impose such conditions upon a public broadcasting licensee with respect to party election broadcasts as it deems fit, having due regard to the fundamental principle that all political parties are to be treated equitably.
A party election broadcast shall not contain any material which may reasonably be anticipated to expose the broadcasting licensee to legal liability if it were to be broadcast.
A party election broadcast shall comply with a technical quality acceptable to the Commission.
No party election broadcast shall be broadcast later than 48 hours prior to the commencement of the polling period.
A private or community sound broadcasting licensee shall not be required to broadcast party election broadcasts, but if he or she elects to do so, the preceding provisions of this section shall mutatis mutandis apply.
A sound broadcasting licensee shall not be required to broadcast a political advertisement, but if he or she elects to do so, he or she shall afford all other political parties, should they so request, a like opportunity.
A sound broadcasting licensee may broadcast a political advertisement only if it has been submitted on behalf of a political party at the instance of its duly authorized representative.
In making advertising time available to political parties, no sound broadcasting licensee shall discriminate against any political party or make or give any preference to any political party or subject any political party to any prejudice.
A political advertisement shall not contain any material which may reasonably be anticipated to expose the broadcasting licensee to legal liability if it were to be broadcast.
A political advertisement shall comply with a technical quality acceptable to the Commission.
No political advertisement shall be broadcast later than 48 hours prior to the commencement of the polling period.
This section shall be subject to the provisions of any law relating to the 1 expenditure of political parties during an election.
If, during the election period, the coverage by any broadcasting service extends to the field of the election and the political parties and issues relevant thereto, the broadcasting licensee concerned shall afford reasonable opportunities for the, discussion of conflicting views and shall treat all political parties equitably.
In the event of any criticism against a political party being levelled in a particular programme of any broadcasting service without such political party having been afforded an opportunity to respond thereto in such programme or without the view of such political party having been reflected therein, the broadcasting licensee concerned shall be obliged to afford such political party a reasonable opportunity to respond to the criticism.
If, within 48 hours before the commencement of the polling period or during the polling period, a broadcasting licensee contemplates broadcasting a programme in which a particular political party is criticized, the licensee shall ensure that the political party is given a reasonable opportunity to respond thereto in the same programme, or to do so as soon as is reasonably practicable thereafter.
The preceding provisions of this section shall not apply in relation to the contents of any party election broadcast in the circumstances contemplated in section 19 and any political advertisement in the circumstances contemplated in section 20.
The publisher of any State-financed publication in existence immediately prior to the commencement of this Act shall, within 14 days of such commencement, submit to the Commission the prescribed information concerning such publication.
The publisher of any State-financed publication which is published for the first time after the commencement of this Act, shall not later than 14 days prior to the proposed date of publication submit to the Commission the prescribed information concerning such publication.
The Commission may require the publisher of a publication referred to in subsection (2) to provide the Commission with a copy of such publication prior to the printing thereof.
A State-financed publication shall be submitted by its publisher to the Commission free of charge within 48 hours of the completion of the printing thereof.
A State-financed publication shall not contain any advertisement or other material which is intended or calculated to support or advance the interests of any political party, whether directly or indirectly.
The provisions of subsection (5) shall mutatis mutandis apply in respect of any statement, material or advertisement made or issued by any State information service.
Any political party which has reason to believe that a broadcasting licensee, the publisher of a State-financed publication or any State information service has contravened the provisions of this Act in relation to such party, and which was unable to resolve the matter with the licensee, publisher or information service (as the case may be), may in relation thereto lodge a complaint with the Commission.
A complaint contemplated in subsection (1) shall be in writing and shall be served on the licensee, publisher or information service referred to in subsection (1), and be lodged with the Commission.
For the purposes of subsection (2), a complaint may be delivered by hand or sent by registered post, fax or telex.
The Commission shall as soon as may be reasonably practicable, having due regard to the urgency of the matter, investigate and adjudicate any complaint received by it and shall, in doing so, afford the complainant and the respondent a reasonable opportunity to make representations and to be heard in relation thereto.
The Commission shall determine the form and procedure as regards the adjudication of any complaint.
The complainant and the respondent shall be entitled to legal representation at any hearing held by the Commission for the purpose of adjudicating a complaint.
After having considered the complaint and the representations (if any) and evidence in regard thereto, the Commission shall make a ruling in respect of the matter.
Any ruling of the Commission in terms of paragraph (a) shall be published in such manner as the Commission may in its discretion determine.
Hearings held in terms of this section shall be open to the public.
The Commission shall keep records of all complaints received by it and of all its proceedings, rulings and findings in relation thereto.
The records contemplated in paragraph (a) shall be kept in the offices of the Commission and be open to inspection by interested parties during the normal office hours of the Commission.
The Commission shall at the request of any interested party and on payment of such fee as may be prescribed (if any), furnish him or her with a certified copy of or extract from any record referred to in paragraph (a).
With regard to the summoning and examination of witnesses, the administering of the oath or an affirmation, recalcitrant witnesses and the production of books, documents, objects and material, the Commission shall have such powers as shall be prescribed.
For the purposes of this section, a State-financed publication and State information service shall be represented by the official of the State at the head of the State-financed publication or State information service in question.
shall mutatis mutandis apply in relation to any investigation instituted mero motu by the Commission in regard to any suspected contravention of the provisions of this Act by any broadcasting licensee or publisher of a State-financed publication or by any State information service.
make an order prohibiting the respondent from carrying on his or her broadcasting service for such period as the Commission may determine: Provided that such a prohibition shall not extend beyond the day of the dissolution of the Commission in terms of section 34(1), and may, with due regard to the provisions and objects of this Act, make any other order which it considers appropriate with a view to remedying the matter complained of.
Where the Commission has made an order against a broadcasting licensee in terms of subsection (1) (c) it may, having due regard to the nature, consequences and gravity of the contravention with reference to which such order was made, forward a certified copy of such order and of the record of its adjudication proceedings relevant thereto, to the Authority with a view to the Authority taking steps against such broadcasting licensee in terms of section 66(5) of the Independent Broadcasting Authority Act, 1993.
In any case where either the publisher of a State-financed publication or any State information service is the respondent, the Commission shall convey its ruling to the Transitional Executive Council.
The expenditure in connection with the application and administration of this Act and the exercise and performance of the powers, functions and duties of the Commission, shall be paid out of public funds allocated for that purpose by the Transitional Executive Council in consultation with the Minister of State Expenditure.
The chief administrative officer referred to in section 14(1) (a) acting on the authority and subject to the general or special directions of the Commission (if any), may from time to time in writing requisition moneys for the purposes contemplated in subsection (1).
Without in any way derogating from its independence, the Commission shall on a quarterly basis report in writing to the Transitional Executive Council in regard to its expenditure and the performance of its functions in terms of this Act.
wilfully hinders, obstructs or interrupts the proceedings at any hearing of the Commission, shall be guilty of an offence and liable on conviction to a maximum fine of R5 000.
any other order of the Commission, shall be guilty of an offence and liable on conviction to a maximum fine of R10 000.
If any commissioner fails to disclose any interest as required by section 12(2) or, subject to the provisions of that section, if he or she is present at the venue where a meeting of the Commission is held or in any manner whatsoever participates in the proceedings of the Commission, such commissioner shall be guilty of an offence and liable on conviction to a maximum fine of R100 000.
The provisions of paragraph (a) shall mutatis mutandis apply in respect of any member of a committee.
authorize a committee to exercise or perform any power, function or duty assigned to the Commission by this Act.
Any delegation or authorization under subsection (1) may be made subject to such conditions and restrictions as may be determined by the Commission and may at any time be amended or revoked by the Commission.
The Commission shall not be divested of any power nor be relieved of any duty which it may have delegated under this section, and may amend or rescind any decision of a committee by virtue of a delegation under this section.
The Commission shall not delegate any of the powers, functions or duties referred to in sections 15, 16, 17, 19(2) and (4), 23, 24 and 30.
Neither the chairperson, any commissioner or any member of a committee nor any expert appointed in terms of this Act or any member of staff of the Commission, shall be personally liable for any damage or loss suffered by any person in consequence of any act which in good faith was performed or omitted in the course of the exercise or performance or supposed exercise or performance of any power, function or duty in terms of this Act.
The Commission may make regulations, not inconsistent with the provisions of this Act, in relation to any matter which in terms of this Act shall or may be prescribed or governed by regulation.
A regulation in terms of subsection (1) may declare any contravention thereof or failure to comply therewith to be an offence, and may in respect thereof provide for the imposition of a fine not exceeding R10 000.
be deemed to apply mutatis mutandis in such state or territory.
The provisions of this Act shall also apply in respect of the persons in control of the broadcasting services known as "Radio 702", "Capital Radio" and "Trinity Broadcasting Network" as if such persons were broadcasting licensees.
In the event of a conflict between the provisions of this Act and those of any other law, the provisions of this Act shall prevail.
The Commission shall dissolve on the date when the Independent Electoral Commission is dissolved in terms of section 9 of the Independent Electoral Commission Act, 1993, on which date this Act shall cease to have effect.
All assets, moneys and liabilities of the Commission shall on its dissolution in terms of subsection (1) devolve upon the State, which shall to that extent for all purposes in law be deemed to be the legal successor of the Commission.
This Act shall bind the State.
This Act shall bind the State President in so far as he or she shall be obliged to act in accordance with the advice of the Transitional Executive Council wherever so provided for in this Act.
This Act shall be called the Independent Media Commission Act, 1993, and shall come into operation on a date to be determined by the Transitional Executive Council, which date shall be made known by the State President by proclamation in the Gazette.