Vol. 446 Cape Town 15 August 2002 No.
Notice is hereby given that the Minister of Communications, Dr IF Matsepe-Casaburri intends to introduce the Broadcasting Amendment Bill, 2002 in the National Assembly in this Government Gazette.
Words in bold in square indicate from existing enactments.
Amendment of the Preamble to Act4 of 1999 1. ThePreambletotheBroadcastingAct. 1999 (Act No.
"Realising that the broadcasting system must reflect the identity and diverse nature of South Africa, is controlled and managed by persons or groups of persons from a diverse range of communities, including persons from previously disadvantaged groups, andmust reflectthemultilingualand diversenature of South Africa by 10 promoting the entire spectrum of cultural backgrounds, religious backgrounds and official languages in the Republic;".
Amendment of section 1 of Act 4 of 1999 2.
notice in the Gazette.
n j by the insertion after the definition of "IBAAct" of the following definitions: '.
((1) by the substitution for the detinition of "multi-channel distribution service" of following the .'
(1-1 by the insertion after the definition of "multi-channel distribution service" of the following definition: .. 'national intrrest' meansthe founding provisions of the Republic as provided in Chapter I of the Constitution, 1996 (Act No.
(t, by the insertion aftsr the definition of "old Corporation" of the following definition: '' 'person' has the meaning assignedto it in section2 of the Interpretation Act. 1957 (Act No. 33 of 1957), and includes any departmentof state or administration in the national.provincial or localspheres of yovern- rnent."
(1,) by the insertion after the definition of "radio" of the following definitions: .'
(.v) by the insertion after the definition of "television broadcasting service"of the followiny definitions: .'
by the deletion of the definition of "transfer date"; (ua)by the deletion of subsection (3).
Amendment of section 3 of Act 4 of 1999 3.
Amendment of section 4 of Act 4 of 1999 4.
(crl the substitution for subsections (I) and () of the following subsections?
*(1) Anypersonwhointendstoprovide a broadcasting or signal distribution service,[including distribution services] whethersatel-lite or b~ terrestrial transmitters, [or any other form of distribution which offer programming to the public] is required to obtain [a] @ necessarylicence in accordancewiththeconditions [which the Authority may determine from time to time] prescribed by the .4uthority.
be deemed to have the necessary permission to continue[its activities for a period not exceeding six months from the commencement of this Act or until such time as the Authority has decided on the licence application and, in the event of a decision to grant the application, has issued such licence] to operate such serviceuntil a date determined by the Authorityin the Grl,-erteor until the dateupon which the Authority has granted or refused a broadcasting or distributionlicencetosuch person after application by such personfor a broadcasting or distribution licence. whichever date is the earlier.
"(5) [No] Subjecttosubsection (2). no personmayprovide a broadcasting service unless such service is provided in accordance with a broadcasting licence issued to that person by the Authority."
Subject to subsection (7),no broadcasting or distribution service shall provide a service through a channel or station that isnot defined in a broadcasting or distribution licence and authorised by the Authority in term of the regulations contemplated in subsection (8).
(7)Anychannelorradiostation that carried on a broadcasting or distribution service immediately before the commencement of this Act is deemed to have the necesary permission to continue its activities until theAuthoritvhasmade 3 decision, on amlication for authorisation in 1 terms of the reyulations contemplated in subsection (S).
"(8)In terms of section 78 of the IBA Act the Authority must make regulations prescribing the terms of and proceduresfor the authorisation of all channels and stations carried by broadcasting or distribution services.".
Amendment of section 5 of Act 4 of 1999 8.
by the substitution for subsection () of the following subsection?
(2)Subject to [the provisions of] this Act.
anyotherclass of licenceas [determined] prescribed by the Authority from time to time.
Substitution of section 6 of Act 4 of 1999 6.
(2)In terms of this Charter, the Corporation will in pursuit of its objectives and in exercise of its powers, enjoy freedom of expression and journalistic, creative and programming independence.
(3)The Board must ensure accurate, accountable and fair reporting by the Corporation in order to advance the national and public interest of the Republic.
The Board must prepareandsubmit to theMinisterforapproval withinthreemonthsafterthedate of conversion. policies governing the exercise of accurate, accountable and fair reportingin order to advance the national and public interest of the Republic.
TheBoardandindividualjournalists of theCorporationshallbe subject to the policies of the Corporation dealing with accurate. fair and responsible journalism and thus exercise care and skill and act in the best interests of the Corporation.
Amendment of heading to Part 2 of Chapter IV of Act 4 of 1999 7.
"Establishment, [incorporation] conversion, objectives and organisation of Corporation. ".
With effect from a date determinedby the Minister by notice in the Gazette, which may be a date prior to the commencement of this Act, the Corporation must be convertedinto a publiccompany in terms of the CompaniesActand on thedate of conversion theCorporationshallbe known as the South African Broadcasting Corporation Limited.
(2)The Corporation must havea share capital as contemplated in section 19 of the Companies Act with the State as its sole shareholder with effect from the date of conversion referred to in subsection (1).
The applicable transitional provisions relating to the conversion of the Corporation into a public company are set out in Schedule 2.
Amendment of section 8 of Act 4 of 1999 9.
"(d)to provide. in its public broadcasting services, radio and television program-ming that informs, educates, spiritually enriches and entertains:".
Substitution of section 9of Act 4 of 1999 10.
(3)The public and commercial broadcasting [service] service divisions [of the Corporation] must be separately administeredandaseparateset of financial recordsandaccountsare to be kept in respect of eachsuchdivision.
Amendment of section 10 of Act 4 of 1999 11.
"(e) includesignificantamounts of educational programming, both curriculum-based and informal educative topics from a wide range of social. political and economic issues. including, but not limited to, human rights.
(iii)thereport of the auditors on thefinancialstatements of the public broadcasting service division for the financial year of the Corporation.
Amendment of section 11 of Act 4 of 1999 12.
(2) The Corporation must.
the report of the auditors on the financial statements of the commercial broadcasting service division for the financial year of the Corporation.
Amendment of section 13 of Act 4 of 1999 14. Section I of the principal Act is hereby amended?
"(9) The Board of the old Corporation as constituted on the date of 15 conversion constitutes the first Board of the Corporation."
"(11) The Board determines the overall policies of the Corporation as contemplated in this Act.".
Act 20 15.
13A. i1) The management and control of the business and affairs-(ai of the public service division is vested in a public service management board: and !5 the service is in commercial broadcasting service management board.
ia the public broadcastingservicedivision, thepublicservicemanage-40 mentboard may exercise all thepowersandmustperform all the duties of the Corporation in relation to the public broadcasting service division. which may not be inconsistent with this Act or any policyof the Corporation determined or established by the Board: and the commercial broadcasting service division, the commercial service 45 management board may exercise all the powers and must perform all the duties of the Corporation in relation to the commercial broadcast-ing senice division, which may not be inconsistent with this Act or any policy of the Corporation determined or established by the Board.
The specificpowersandduties of each of thepublicservice 50 management board and the commercial service management board are sel out in the memorandum and articles of association of the Corporation.
of their powers and such of their duties as they deemfit to an executive committee consisting of the Group Chief Executive Officer. the Chief Operations Officer, the Chief Financial Officer and four other members appointed by the Board.
Repeal of section 19 of Act 4of 1999 17. Section 19 of the principal Act is hereby repealed.
Substitution of section 22 of Act 4of 1999 18.
Despite any other law, no transfer duty. stamp dutyor any other duty is payable in respect of the transferof any licence in terms of this section.
Amendment of section 24 of Act 4of 1999 19.
(4)The Board must. whilst the Stateis the sole shareholder in the Corporation. ensure that the Corporation complies with the Public Finance Management Act in relation to accountin. procedures by public entities.
"(1) In addition to the annual financial statementsto be prepared in terms of the Companies Act and whilst the State is the sole shareholder in the Corporation and also in terms of the Public Finance Management Act the Corporation must cause its books and accounts to be audited annually by a person registered as an accountant and auditor under the Public Accountants' and Auditors' Act. 1991 (Act NO. 80 of 1991). and appointed as auditor of the Corporation.".
Substitution of section 27 of Act 4 of 1999 21.
such business or dealer is able to produce such licence on demand.
Subsection (1) does not apply to a personwhomanufactures or repairs television sets. or who acts in the execution of his or her duties in the service of such a person. in so far as he or she uses any television set manufacturedor repaired by him or her, in or on the premises where it was manufactured or repaired or on any other premises approved by the Corporation. for the purposes of testing such a television set.
in the event of a user proving that he or she had used the television set for a period of less than one year. pay to the Corporation, by way of a penalty, in respect of every month or part of a month during which such a person had applicable prescribed television licence fee: Provided that the total amountof the penalty may not exceed the amount of such television licence fee, unless otherwise prescribed.
(4)A dealer who sells or alienates a television set in contravention of this Act.
may. ir7 lieu of prosecution pay the penalty contemplated in subsection (3)(6)in respect of each television set soldor alienated to a person who is not in possession possession of a television licence.
after an authorised inspector. referred to in subsection(6),has produced his or her written authority to such person fails.
R500 in relation to each such offenceor to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.
(6)(a)The Corporation may appoint any person as an authorised inspector.
involving television sets for inspection.
enter upon any land, in so far as this may be necessary, in order to exercise z power conferred on him or her by the provisions of this Act: Provided tha entry may not be gained to a residence after dark without a warrant or thf occupier's permission.
A television licence is not, save as may be prescribed, transferable.
(e)The Corporation must keep a national database register containing a list of all sales of television sets in the Republic, which must be prepared and produced for the purposes of the collection of television licence fees.
Amendment of section 28 of Act 4of 1999 22.
Amendment of section 30 of Act 4 of 1999 23.
"(a)reflect the culture, character.
Amendment of section 31 of Act 4of 1999 24.
(2)The Authority must as soon asreasonablypossibleconducta licensingprocess [immediately if it finds that the provision of additional subscription television services is feasible] forlicences classified under section 5(2)(e)and (f).
Amendment of section 32 of Act 4of 1999 25.
"(6)be informational, educational, spiritually enriching and entertaining;".
Insertion of section 32A in Act 4 of 1999 26.
Amendment of section 31 of Act 4 of 1999 27.
(4) A broadcasting signal distribution service that provided broad-casting signal distribution for broadcasting service immediately before the commencement of this Act withouta broadcasting signal distribution licence.
a date to be determined by the Authority by notice in theGazette;or the date upon which the Authority grants or refuses an application by such broadcasting signal distribution service for a broadcasting distribution licence, whichever date is the earliest.
Amendment of section 40 of Act 4 of 1999 28.
(c) (i) thetele\,isionlicencefeewhich is payable foranytelevisionlicence issued in terms of this Act, including the manner of payment and the collection thereof.
the dutyto keep.
the transferabilitv of a television licence.
Insertion of Schedule 2 in Act 4of 1999 29.
The Registrar appointed in terms of section 7 of the Companies Act 61 of 1973'). must on the date of conversion register the memorandum and the articles of associationof the Corporation in termsof section 63(1) of the Companies Act and issue a certificate of incorporation and a certificate to commence business to the Corporation, but no fees are payable in respect ot such registration or issue.
3 and 4 of this Schedule.
Sections 32.44.54(2), 60,63(2),64,65 and 172 of the Companies Act do not apply to the Corporation.
Whilst the State is the sole shareholderin the Corporation. sections66. 190 and 344b) and (d) oftheCompaniesActdonotapplytothe Corporation.
All references in this Actto the conversion of the old Corporation mug be construed as references to the conversion of the legal nature of the old Corporation into a public company havinga share capital and having been incorporated in terms of the Companies Act as stipulated in section 7(2) of this Act.
Neither the repealof the Broadcasting Act, 1976 (ActNo.
any of the rights, liabilities or obligations acquired or incurred by the old Corporation or on the old Corporation's behalf at any time beforc its conversion; or the terms and conditions of service of its employees.
Any reference to the old Corporation in the patents register, tradc marks register. design register, deeds register or any other register in thr Republic is with effectfromthedateofconversion, deemedtobe 21 reference to the Corporation.
register referred to in item 7(1) or other documents in the registrar's officr or submitted to the registrar as are necessary to give effect to the conversior and this Schedule.
lau governing the prescription of claims.
The Minister of Finance, after consultation with the Minister, mus to the value determined in terms of subitem (1).
The old Corporation shall before the date of conversion conduct a legal and financial due diligence investigation into the state of its affairs for the purposes of identifying and establishing the status of all its assets, rights, obligations and liabilities.
The old Corporation must, after submitting the due diligence report to the Minister and before the date of conversion. prepare and submit to the Minister for approval an inventory of all its assets. rights, obligations and liabilities.
on or as soon as reasonably possible after the date of conversion, sign theinventoryofassets, rights, obligationsandliabilities of the Corporationandsubmit a copy of theinventory to theNational Treasury and the Auditor-General.
(2)Any service deemed to have been rendered by the public broadcasting service division to the commercial broadcasting service division and the 35 other way round, must be regarded as having been rendered on an arms' length commercial basisfor purposes of the financial recordsto be prepared in respect of the public broadcasting service division and the commercial broadcasting service division as stipulated in this Act.
The laws specified in Schedule 1 are repealed or amended to the extent indicated in the third column thcreof.
Schedule 1 is hereby re pealed.
ity by or in terms of this Act: Provided that a power.
(2-q delegation or authorization under subsec. tion (1) may be made sub-ject to such conditions and restrictions as the Council may determine, and may at any time be amended or revoked by the Council.
(3)The Council shall no1 be divested of any power nor be relieved of any duty which it may have del- egated under this section, and may amend or rescind any decision made in terms of such a delegation.
The power to make regulations shall not be delegated under subsection (I).'..
ict No. 13 of 2000 ldependent Communications . Amendment of section 17 iuthority of South Africa Act by the substitution for sub- 000 section (8) of the following subsection: "(8) The members of any committee, includ ing the [Broadcasting Technical Committee and] Broadcasting Monitoring and Com- plaints Committee referred to in section 2 1 of the IBA Act. who are not councillors or mem-bers of the staff of the Authority must be paid such remuneration and allowances as the Coun-cil determines.".
b The Bill seekstoprovidefortheSABC(hereinafterreferredtoas"the Corporation") to develop policies that clarify its role and achieve its mandate. The Bill requires the Corporation in all its reporting to beaccurate, accountable. fair andto advance national and public interest of the Republic in accordance with the Constitution.
e The amendment Bill incorporates provisions that require the Board to prepare and submit to the Minister for approval business plans, financial statements, and a set of policies of both the public service division and commercial service division.
Section 27 of the Act is amended to provide for a detailed television license collection mechanism and to prohibit the use of a television set by individuals and businesses without a television licence.
Section 30 is amended to provide for commercial broadcasters to pay license fees, andto have South Africancontent in theirprogrammes.ICASAis empowered to prescribe conditions in ethics regards.
I: Section 31 is amended to empower ICASA to conduct a licensing process for additional subscription services and to promote competition in that area.
$ Section 32 is amended to providefortheestablishmentof tworegional television services in the country which will assist the national broadcaster in rolling out programming in indigenous languages which are not adequately covered by the national broadcaster.
e The Bill provides that existing signal distribution services and multi-channel distribution services must applyto ICASA for a licence to continue with their operations. ICASA is empowered to impose licence conditions.
The Broadcasting Amendment Bill contains no financial implicationsfor the National Revenue Fund. the State. the SABCor the Regulator prior to the passing of the Bill into law. There will be financial implicationsfortheNationalRevenueFund in the implementation process of certain provisions of the Bill, for example, the rollingout of regional television services and the mechanism for the collection of television licence fees.
An extensive consultative process was followed in the development and finalisation of the drafting of the Broadcasting Amendment Bill.
$: The Department of Arts. Culture.
The Bill was sent to all Directors-General of the Departments mentioned above for comments.
The Department of Communications and the State Law Advisers are of the opinion that the Bill must be dealt with in accordance with the procedure established by Section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.