CASE NUMBER: 20/2018
DATE OF HEARING: 05 SEPTEMBER
JUDGMENT RELEASE DATE: 21 SEPTEMBER 2018

PHUMZILE VAN DAMME, MP
DA SHADOW MINISTER: COMMUNICATIONS

1ST COMPLAINANT

obo
DEMOCRATIC ALLIANCE
2ND COMPLAINANT

CHURR
vs

SABC NEWS CHANNEL 404

TRIBUNAL:

RESPONDENT

PROF HENNING VILJOEN (CHAIRPERSON)
ADV BOITUMELO TLHAKUNG
MS NOKUBONGA FAKUDE
DR LINDA VENTER

FOR THE 1st COMPLAINANT: Mr N Ferreira, Counsel for the Democratic Alliance,
Ms E Jonker, Attorney, Director Litigation Department of Mindi Schapiro and Smith
Inc, Ms P Van Damme, MP, Democratic Alliance Shadow Minister of Communications.
FOR THE 2nd COMPLAINANT: Mr Churr in person.
FOR THE RESPONDENT: Mr Nyiko Shibambo, Acting Manager accompanied by Mr
K Mwelase, Legal Advisor, Ms N Mda, Acting General Manager: SABC News, Ms P
Magopeni, Group Executive: News and Current Affairs, Ms Refiloe Timana,
Broadcasting Compliance of the SABC.

1

 Complaint that the DA was not afforded opportunity to fairly present its opposing point of
view to that of the president of the ANC in a programme in which controversial issues of
public importance were discussed – DA invited onto subsequent programme to present its
view – complaint that broadcast was qualitatively and quantitatively inferior to that of the
ANC president, that it was not in same series as original broadcast, was not done within a
reasonable time and not in substantially the same time slot – Tribunal finding that broadcast
of DA’s view within some 10 (night) hours after original broadcast was in same news series
and was done within reasonable time – Tribunal condoning non-compliance with same time
slot requirement – no contravention found and complaints not upheld - Democratic Alliance
vs SABC News, Case No:20/2018 (BCCSA)

SUMMARY
Complaint that the Democratic Alliance was not afforded the opportunity to fairly
present its opposing point of view to that of the president of the ANC in a programme in
which controversial issues of public importance were discussed. The DA was invited
onto a subsequent programme to present its views in a telephonic interview. The
Complainants contended that this broadcast was qualitatively and quantitatively
inferior to that of the ANC president’s address, that it was not in the same series as the
original broadcast, was not done within a reasonable time and not in substantially the
same time slot as required by Clause 13(1) of the Free-to-Air Code and Clause 28.3.1 of
the Subscription Broadcasting Code respectively. The complaints by the two
complainants were treated as one because the complaints were substantially the same.
The Tribunal found that the broadcast of the DA’s view within some 10 (night) hours
after the original broadcast was in the same news series and was done within a
reasonable time. There is no obligation on a broadcaster to afford the same airtime to
opposing viewpoints.

This is part of the editorial freedom of a broadcaster. The

Tribunal condoned the non-compliance of the Broadcaster with regard to the same time
slot requirement. No contravention of the Codes was found, and the complaints were
not upheld.
___________________________________________________________________________
JUDGMENT
HP VILJOEN

[1]

The facts on which this complaint is based, are briefly the following: On 31 July 2018
at 22:10, the Respondent on its News Channel and in a programme called The Globe,
broadcast an address by President Ramaphosa. In this address it was made clear to the
2

 public that the ANC is in favour of amending the Constitution of South Africa to
provide for the expropriation of land without compensation and that it intends to have
legislation passed by Parliament to achieve this objective. The following morning (1
August at 08:04) on the programme Morning Live on SABC2 and simulcast on News
Channel 404, after again broadcasting the address of the previous evening, Portia
Adams, a spokesperson for the leader of the Democratic Alliance (DA) was invited by
the Broadcaster to telephonically comment on the President’s address and to put
forward the views of the DA on this topic. After she had done this, the shadow minister
of communications of the DA, Ms Phumzile van Damme, lodged a complaint with the
Broadcasting Complaints Commission of South Africa (BCCSA) wherein she
complained about the fact that the address by President Ramaphosa was ostensibly in
his capacity as president of the ANC, while the impression was created that he did so in
his capacity as president of the Republic of South Africa. She further complained that
the broadcast on 31 July constituted a discussion of a controversial issue of public
importance and therefore, in terms of Clause 13(1) of the Code of Conduct, the
Broadcaster was obliged to fairly present opposing points of view which, according to
the Complainant, it failed to do.

The second Complainant, Mr Churr, also lodged a complaint in which he dealt with
substantially the same issues as the DA. The two complaints will be dealt with as one
to the extent that they overlap.
[2]

The complaints read as follows:
VAN DAMME: “COMPLAINT AGAINST THE SOUTH AFRICAN BROADCASTING
CORPORATION
1.

I lodge this complaint in my capacity as the Democratic Alliance’s Shadow Minister of
Communications.

2.

We, as the Democratic Alliance, register our deep disdain over a South African
Broadcasting Corporation (“SABC”) broadcast that took place on 31 July 2018. The
broadcast was at 22:10pm and the title of the programme was ‘President Ramaphosa
addresses the nation’. It was aired on the SABC News channel.

3.

The broadcast featured the President of the Republic of South Africa, Mr. Cyril M.
Ramaphosa, addressing the nation. However, Mr. Ramaphosa was dressed in regalia of
the African National Congress (“ANC”), the background featured ANC flags, and he was
discussing ANC policy decisions and the outcomes of an ANC lekgotla that had taken
place over the course of the preceding two days.

4.

It is clear from the broadcast that Mr. Ramaphosa was not speaking in his capacity

3

 as President of the Republic of South Africa, but in his capacity as President of the ANC.
5.

We are of the belief that this broadcast infringed upon the BCCSA Code of Conduct
(“the BCCSA Code”) and in particular on section 13(1) of this Code which states that:
Controversial Issues of Public Importance
(1) In presenting a programme in which a controversial issue of public importance is discussed, a
broadcaster must make reasonable efforts to fairly present opposing points of view either in
the same programme or in a subsequent programme forming part of the same series of
programmes presented within a reasonable period of time of the original broadcast and within
substantially the same time slot.

In his address Mr. Ramaphosa announced that the ANC had determined that they will
amend the Constitution of the Republic of South Africa (“the Constitution”) to allow for
expropriation without compensation. This is clearly a very controversial issue of public
importance. No effort was made on the part of the SABC to present opposing views in
the same programme or in the same time slot.
6.

On 1 August 2018, I wrote to the Chairperson of the SABC Board, Mr.
Bongumusa Makhathini (“Mr. Makhathini”) requesting a right of reply for the Leader of
the Democratic Alliance (“DA”), the official opposition party. The DA’s views on
expropriation without compensation differs substantially from that of the ANC. I attach
my letter hereto as ANNEXURE “A”.

7.

Mr. Makhathini responded to me on 2 August 2018, which response I attach hereto as
ANNEXURE “B”. It is my submission that Mr. Makhathini fundamentally misinterprets the
issue.
It is my submission that:
7.1 It is unacceptable that the public broadcaster accepted a recording from a
political party and halted normal programming in order to broadcast it, without even
attempting to balance the views of this political party with those of other political
parties;
7.2 I am further of the opinion that offering the DA an opportunity to comment on
Mr. Ramaphosa’s announcement is an insufficient response by the SABC and does
not satisfy the requirements of section 13(1) of the BCCSA Code.

8.

I believe that the DA needs to be afforded an opportunity to present our own offer on
land and jobs to the electorate, as Mr. Ramaphosa had done with the ANC’s offer, on an
equitable basis.

9.

As the urgency and gravity of this matter is evident, your prompt action in this regard will
be most appreciated.

ANNEXURE A: LIVE BROADCAST: ADDRESS BY PRESIDENT CYRIL
RAMAPHOSA ON 31 JULY 2018
With reference to the live broadcast on 31 July 2018, in which President Cyril Ramaphosa
addressed the country on the outcomes of an ANC lekgotla held in Tshwane on 30-31 July
2018.
We note that the President appeared on television during the above-mentioned broadcast
dressed in ANC - branded apparel, with ANC flags in the background of the shot, and
addressed the nation on the outcomes of an ANC lekgotla where it was determined that
the ANC will push through amendments to the Constitution in Parliament in order to
effect expropriation without compensation.
We find it entirely unacceptable that the leader of a political party is provided with unlimited
opportunity to address the country on party-political matters on the public broadcaster -

4

 even more so in that the same opportunity was not afforded to other political parties.
That the leader in question also happens to be the president of the country is immaterial,
as he was not speaking on state matters but on party matters.
The SABC, as public broadcaster, has a duty to ensure that their broadcasting is
independent and impartial, and that political parties are provided with equitable coverage.
This is crucial in order to ensure a well -informed electorate.
It is therefore our request that the Democratic Alliance be afforded the same opportunity
as the ANC to address the nation on our party position on amending the Constitution to
effect expropriation without compensation.
I trust you find the above request in order and look forward to hearing from you at your
soonest convenience.”

ANNEXURE B: “RE: ADDRESS BY PRESIDENT CYRIL RAMAPHOSA ON 31 JULY
2018
Your letter of 1 August 2018 to my office has reference.
I wish to reconfirm that the SABC like many other media institutions received a recording
of President Cyril Ramaphosa's address in his capacity as the President of the African
National Congress (ANC), and it was not the only media house to broadcast the address.
The SABC made an editorial decision to broadcast the address as it was deemed
newsworthy.
To alleviate your concerns, it is imperative to note that the SABC as a responsible public
service broadcaster, made efforts to deliver a balanced story by soliciting reactions from
other political parties, including the Democratic Alliance. In fact the Democratic Alliance
represented by the Spokesperson for the leader of the DA, was on Morning Live today
responding to this story.
I trust that you find the above in order and wish to assure you of the SABC's commitment
to independence and impartiality.”

Churr: “SABC NEWS channel 404 1 AUGUST 2018 - The ANC president addressing the
Nation on changes to section 25 of the Constitution - property rights.
http://www.sabcnews.com/sabcnews/anc-president-ramaphosa-addresses-the-nation-on-landexpropriation/
I saw the above news on channel 404 on 1 August 2018.
SABC also has free channels 191, 192 and 193 and the SABC may well have broadcasted the
same news on all the SABC channels.
There is no need to prove that the matter is of National as well as International interest and
is highly controversial in nature.
The SABC TV station, funded and supported in part by the state, is in contravention of section
28.3 of the code of conduct. There are many other political parties and organizations that have
not been afforded the opportunity to present an OPPOSING POINT OF VIEW, as of date, 8
days later.

5

 28.3 Controversial issues of public importance 28.3.1 In presenting a programme in which
controversial issues of public importance are discussed, a licensee must make
reasonable efforts to fairly present opposing points of view either in the same programme
or in a subsequent programme forming part of the same series of programmes presented
within a reasonable period of time of the original broadcast and within substantially the
same time slot.
COMPLAINT: The broadcaster has made NO reasonable effort to fairly present opposing
points of view in the same or subsequent programme within a reasonable period of time
of the original broadcast – nor in any other time slot.
The same complaint holds true if the SABC TV station also broadcasted on the free to air
channels 191 to 193. Code 13.1 will then apply.
13. Controversial Issues of Public Importance (1) In presenting a programme in which a
controversial issue of public importance is discussed, a broadcaster must make
reasonable efforts to fairly present opposing points of view either in the same programme
or in a subsequent programme forming part of the same series of programmes presented
within a reasonable period of time of the original broadcast and within substantially the
same time slot
COMPLAINT PROPAGANDA clause 28.3.1
The BCCSA
 APPLICATION NUMBER: 16/2018
JUDGMENT DATE: 06 AUGUST 2018
States inter alia in paragraph [4] (with my bold underlining added for emphasis)
[4]

In his documentation, the Applicant states:
The BCCSA code does not address incorrect opinions, propaganda or untruths
expressed as “opinions”. It does however request that broadcasters take due note of
the source of the opinions aired. And this what the complaint was all about. That by
listing all the untruths, that the broadcaster should take due regard as to the source of
the untruths.
He is correct that our Code does not address incorrect opinions or untruths (except in the
case of untruths in news broadcasts). However, he is wrong that our Code does not
address propaganda. That is precisely the reason for clause 28.3.1 which provides
that:
In presenting a programme in which controversial issues of public importance are
discussed, a licensee must make reasonable efforts to fairly present opposing
points of view …

It is possible that the news broadcast, address to the Nation, may be seen as propaganda. It
will be appreciated if the BCCSA can confirm its own definition of propaganda as it is not
found in the BCCSA code of conduct. Thus there are two matters for the BCCSA to rule upon.
The following does not imply that the BCCSA should be guided by the examples supplied.
Propaganda- noun
information, especially of a biased or misleading nature, used to promote a political cause
or point of view.
Southern Illinois University, 2005
I analyze this division between propaganda and persuasion by discussing propaganda as
one-way communication process and persuasion as a two-way communication process.

6

 https://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?article=2336&context=theses

[3]

The Respondent responded as follows:
“RESPONDENT’S HEADS OF ARGUMENT
1.

The SABC broadcast a pre-recorded message from the ANC President on the 31st of
July 2018 at at 22h10. The address was about the resolutions that the ANC had taken at
their Lekgotla. The recording was in the public interest because people wanted to know
the outcomes of the lekgotla. The strap on screen read as follows: President
Ramaphosa addresses the Nation.

2.

As prescribed in the BCCSA Code, clause 11.6 that, “Where is subsequently appears
that a broadcast was incorrect in a material aspect, it must be rectified forthwith, without
reservation or delay. The rectification must be presented with such a degree of
prominence and timing as in the circumstances may be adequate and fair so as to
readily attract attention”. The error was corrected in the same broadcast to reflect the
following strap: ANC President Ramaphosa makes a special address.

3.

Later in the broadcast the following strap was shown: ANC resolves to amend
Constitution to fast track land expropriation.

4.

After Ramaphosa’s message, the SABC interviewed Angelo Fick, a researcher and
analyst between 22:43 – 22:52. In this instance we are addressing clause 13.1 which
was allegedly contravened. The clause states that, “In presenting a programme in which
a controversial issue of public importance is discussed, a broadcaster must make
reasonable efforts to fairly present opposing points of view either in the same programme
or in a subsequent programme forming part of the same series of programmes presented
within reasonable period of time of the original broadcast and within substantially the
same time slot.” Amongst other things mentioned by Fick was to clarify that the
President was speaking as the leader of the ANC. The SABC does not dictate to its
guests as to what to say on air. We invite them based on their knowledge of the subject
under discussion and also to give alternative views.

5.

We also had a studio guest in Ms. Bulelwa Mabasa, a Land Reform Specialist between
23:10 – 23:24.

6.

The Democratic Alliance erroneously believes that opposing points of views means
opposition party. Opposing points of views may come in the form of analysts, bloggers,
public comments etc. The fact that we invited Fick and Mabasa in the programme to
deal with the ANC’s resolution that night is enough to meet the demands of Clause 13.1.
It is inconceivable that the DA would expect the BCCSA to rule that they are the
only interested party that can offer opposing points views.

7.

On 01 August 2018, Morning Live, which is simulcast both on SABC 2 and News
Channel 404, played Ramaphosa’s message. The aim was to update viewers who may
have missed the story the previous night and also to introduce it to SABC 2 viewers. The
presenter also introduced a Twitter topic to get public reaction to the ANC’s resolution.
The SABC also rebroadcast an interview with Ms. Mabasa. We also interviewed Mr.
Kallie Kriel of Afriforum. The overlays were used.

7

 8.

The spokesperson of the DA leader, Portia Adams reacted to Ramaphosa’s message.
She was not interrupted or stopped from airing her party’s views. It should be noted that
this was not a right of reply, rather a reaction to the issue that involved the ANC’S
internal affairs.

9.

Important developments that we submit be seriously considered when assessing
the evidence:
9.1

The DA shadow minister of the communications who also happens to be the
complainant in this case, wrote a letter of complaint about Ramaphosa’s recorded
message to the Chairperson of the Board, Mr. Bongumusa Makhathini on 01
August 2018. Mr. Makhathini received the letter and responded on the 2 nd of
August indicating that the SABC had already afforded the DA airtime. Though the
BCCSA cannot rule on the complainant’s unbecoming behaviour in this instance, it
should be noted that she was asking the Chairperson of the Board to interfere with
editorial matters.

9.2

The DA did not make any attempt to share their views on the 31 st of July 2018.
The ANC took their resolution as a political party and not as government.
Therefore the DA’s ill-informed conviction that they had an inherent right to
comment immediately after Ramaphosa’s speech is misplaced. Other parties that
reacted to the ANC’s resolution did so as political parties and not oppositions.
Political parties become opposition in a specific legislative framework like
parliaments, legislatures and councils. Outside these frameworks, they are
independent political parties and should not be addressed as such.

9.3

In a scenario wherein the DA was to announce a resolution on a specific matter,
they would not want to be referred to as an opposition party, but in this BCCSA
complaint, find it convenient to invoke the ‘opposition’ status to suit their
arguments. In this matter involving the ANC, the DA was not reacting as an
opposition party but as a party that has an interest in the land question.

9.4

Morning Live is shown on the same News Channel 404 and not a separate one as
alleged by the DA. The DA got an unfair advantage because Morning Live is
simulcast both on Channel 404, which is satellite based and SABC 2. The DA
could have informed the SABC that they were not interested in that morning time
slot but grabbed the opportunity with both hands and used it optimally. The DA
cannot prove any harm that has been caused to them as a result of that broadcast.

9.5

The fact that the DA spokesperson was interviewed telephonically does not
change the content of their reaction. The complainant herself has had
telephonic interviews before and continues to.

10.

There is no clause in the BCCSA Code that prescribes that anyone who reacting to a
message must be given equal time.

11.

It may be politically correct for the DA to suggest that the President was given,
“unlimited opportunity to address the country” but factually incorrect. Ramaphosa’s
speech was limited and focused on specific issues that are in the public domain.

12.

Again, it is factually incorrect that normal programming was halted to make way for the
President of the ANC to address the nation. There was no such a thing.

8

 13.

The DA contends that the time they were given was not sufficient; however what is clear
from the broadcast of Morning Live on 01 August 2018, is that Adams was asked a
question and she spoke freely without interjection until she was done. No one from the
SABC had told Adams in advance that she only had a minute to react. It was purely
her prerogative to fully express her party’s views.

VIEWERSHIP
1.

The broadcast of President Ramaphosa’s recorded message on 31 July on “The Globe”
achieved an average of 27,500 viewers on that specific broadcast.

2.

The Morning live broadcast, in which the DA was interviewed, on 01 August 2018
achieved an average of 527,000 on SABC2, and 66,200 on SABC News channel.

CONCLUSION
Over the years, the BCCSA Tribunal has proven not to be influenced by politics when taking
decisions and we trust that even in this case, sanity will prevail. From the explanations above, it
is undoubtedly clear that the DA’s complaint is vexatious and therefore should be dismissed.
The SABC complied with the Code.
BCCSA COMPLAINT: L D CHURR - CHANNEL 404 - THE GLOBE - 31.07.2018 - 22:10
In respect of the above-mentioned complaint,please, find our comments as follows:
1.

On Tuesday, 31 July 2018 the SABC broadcast a statement by ANC President, Mr. Cyril
Ramaphosa, following an ANC Lekgotla. The statement, released to media houses
including the SABC, in pre-recorded form, was broadcast on the SABC News Channel at
22:10 on the live programme called The Globe.

2.

The SABC proceeded to seek comment from other political parties, analysts and South
Africans. Again, the next morning, on Morning Live; the DA represented by its leader’s
spokesperson, Portia Adams, was interviewed at 08:04 offering its views on Mr.
Ramaphosa’s statement.

3.

While it may not have been in the same programme The Globe, the subsequent most
viewed programme was Morning Live. To have waited for The Globe at 22:00 on 1
August would not have been editorially sound as the story would have possibly lost
traction by then. In any event; Morning Live has a far wider audience reach than The
Globe because the former simulcasts on SABC 2 while the latter is confined to the
satellite channel.

4.

The complaint goes on a fishing expedition and makes references to news broadcasts on
other channels that he did not watch. We find it to be desperate to the extreme.

We submit that there was no contravention of section 13(1) of BCCSA Code of Conduct.“

[4]

The second Complainant replied as follows:
“BCCSA COMPLAINT: L D CHURR - CHANNEL 404 - THE GLOBE - 31.07.2018 - 22:10
In reply to SABC letter dated 11 August 2018.
The BCCSA and the SABC is commended for the prompt reply to the complaint dated 10
August 2018.
Paragraph 1

9

 The SABC letter does not clarify why SABC chose to air said received pre-recorded message
as:
The PRESIDENT OF SOUTH AFRICA ADDRESSING THE STATE OF THE NATION, when it
was a party political statement resulting from a party political meeting.
Paragraph 2
The SABC attempt to adhere to the BCCSA code of conduct by obtaining a balanced opposing
point of view is rejected.
The original news broadcast showed the ANC president addressing the nation without
distractions. The SABC early morning attempt the next day at balance via a telephone call of
poor quality, was distracted by images of land invasions and riots. Distracting viewers with
flashing images from what was trying to be conveyed via a telephone call.
It is strange that the SABC fails to mention that the leader of the opposition party forwarded a
pre-recorded message to the SABC. The SABC had no need to go looking for comments, as it
was forwarded to them by the official opposition party. I am sure there must have been many
others also clamoring for an opportunity to comment on this very controversial Constitutional
change message. The best that can be said is that SABC made a token gesture in this
regard.
To add insult to injury, the SABC further promotes the one-sided discussion on their various
online
posts.
One
link
is
supplied
here
for
easy
reference.
http://www.sabcnews.com/sabcnews/anc-president-ramaphosa-addresses-the-nation-on-landexpropriation/
A cursory review of the SABC own online placement as per above link makes it more than
abundantly clear that they are promoting only a one sided conversation.
Paragraph 3
Most people watch TV at night and not in the morning. I never watch SABC in the evening. I
only watched as the news spread very fast that the South African president was going to
“Address the Nation” on “Changing the Constitution”. Each item on its own is extremely
news worthy and combined even more so. Stating that the story “May possibly” lose traction is
belied by the fact that many commentators are still commenting on this. Commentators not on
SABC platforms. If anything, the story is gaining traction, even internationally, and not losing
traction despite SABC best attempts to not show opposing points of views.
SABC appears to ignore their own “editorial sound policy” decision as they placed the same
“State of the Nation” news online on 3 August 2018 as per link. This link further enforces the
fact
that
SABC
is
promoting
only
one
side
of
the
narrative.
http://www.sabcnews.com/sabcnews/author/mocheet/
The above link clearly shows that SABC has not lost interest in the land expropriation debate
nor the changing of the constitution announcement.
Paragraph 4
Fishing expedition means:Legal grasping at straws; the use of pretrial investigation discovery or witness questioning in
an unfocused attempt to uncover damaging evidence to be used against an adversary.
https://www.law.cornell.edu/wex/fishing_expedition
I am falsely accused by SABC of fishing as I allegedly :The complaint goes on a fishing expedition and makes references to news broadcasts
on other channels that he did not watch.
1) SABC has no idea what I watch, how I watch, and when I watch news broadcasts. The
following link serves multiple purposes. It shows but one of many ways that I watch

10

 multiple news broadcasts on other channels. It is also a good example of a “real
balanced opposing point of view. https://www.youtube.com/watch?v=0YjOK2F4wus
2)

3)

4)

What I wrote was:- SABC also has free channels 191, 192 and 193 and the SABC may
well have broadcasted the same news on all the SABC channels. It would be insulting to
define what may well have means.
I also wrote:- The same complaint holds true if the SABC TV station also broadcasted on
the free to air channels 191 to 193. Code 13.1 will then apply. It would be insulting to
define what holds true if means.
As I made no other references to watching other news broadcasts on other channels
as falsely claimed, SABC must quote where I as per their allegation:-

makes references to news broadcasts on other channels that he did not watch.
I suggest that SABC reply is a prime example of misdirection and “desperate to the extreme”
and does not convince that SABC attempted to adhered to the BCCSA code of conduct clause
28.3.1.”

[5]

The SABC replied as follows to Mr Churr:
“SABC’s ADDITIONAL COMMENTS TO CHURR’S RESPONSE
In reply to Churr’s comments dated 14 August 2018, please find our comments as follows:
Paragraph 1
Mr. Churr must learn to read his own complaints before pressing the SEND button. In our initial
response, we were responding to the things that he had raised relating to the broadcast. We
admit that there was an error in terms of Ramaphosa’s title. That error was corrected in the
same broadcast consistent with the BCCSA Code of Conduct.
Paragraph 2
It is Churr’s subjective view that he was distracted by pictures being show during the interview
with the representative of the DA. He could have chosen to look away. He has no right to
dictate to the SABC as to how we should do interviews.
It is also strange that the party that had already shared its views about the same matter would
also want a recorded message to be aired. We would like the BCCSA to ask Churr as to when
was that recorded message delivered to the SABC and to whom?
News cannot be a promotion of anything. It is quiet confusing as to why is the DA’s message
not seen as promoting a one sided conversation.
Paragraph 3
It is not our business that Churr does not watch TV at night. We do not even know as to where
did he get that message that the, “South African president was going to “Address the Nation”
on “Changing the Constitution”.
Unfortunately Churr will have to accept that the SABC will not be deterred from broadcasting
news that will not excite him. News is not for entertainment. The issue of land is very important
to the majority of South Africans who have been deprived off their land by apartheid
government. Churr must accept that the SABC does not make stories, it covers them. If he
does not like us covering the land story, then he should take his fight to those who are pushing
it.
Paragraph 4
If he had watched the channels concerned, could have effortlessly made references to them in
his initial complaint without telling a long winding story. He sounds very desperate to push a
narrative that seeks to portray SABC journalists as people who do not know what they are
doing, which is plainly false. We have clearly seen through Churr’s response that as long as the
news about the DA, he is at peace with it and agitated when airtime is accorded to the ANC.”

11

 EVALUATION

[6]

The first point of dispute is that the strapline on the screen with the camera focussed on
President Ramaphosa when he started his address on 31 July, stated “President
Ramaphosa addresses the nation”.

However, the background on the screen is

dominated by an ANC flag and the President, inter alia, states at the start of his address
that
The African National Congress has just concluded a two-day NEC Lekgotla in
Tshwane, and
We thought that it was important for the President of the ANC to clearly and
unambiguously articulate the position of the organisation on two matters …

From this, it is clear that President Ramaphosa made the announcement in his capacity
as president of the ANC and not in his capacity as president of South Africa. The
Broadcaster was clearly at fault with the wording of its strapline.

[7]

The Broadcaster apparently realised its mistake and a little more than halfway through
the broadcasting of the address, the strapline disappeared from the screen and a few
seconds later a new strapline appeared on-screen, announcing “ANC President
Ramaphosa makes a special address”. Later in the broadcast, the strapline was again
amended to read “ANC resolves to amend Constitution to fast track land
expropriation”.

The Broadcaster admitted that it had made a mistake and that is the reason why the
wording on the strapline was changed. In this context it referred the Tribunal to Clause
11(6) of the Code, because the address by President Ramaphosa was broadcast as a
news item. This subclause reads:
Where it subsequently appears that a broadcast report was incorrect in a material respect, it
must be rectified forthwith, without reservation or delay. The rectification must be presented
with such a degree of prominence and timing as in the circumstances may be adequate and fair
so as to readily attract attention.

It is clear that the Broadcaster corrected the wording of the strapline without reservation
or delay. As neither of the two Complainants pursued this aspect of the complaint at
12

 the hearing and neither of them referred to an alleged contravention of the Code, it is
not deemed necessary for the Tribunal to make a finding in this regard.

[8]

The main complaint is that there were allegedly no opposing points of view broadcast
on 31 July or that there was not proper compliance with the requirements of the Code.
The allegation by the DA is that Clause 13(1) of the Free-to-Air Code was contravened.
Mr Churr, on the other hand, alleges that Clause 28.3.1 of the Subscription
Broadcasting Service Licensees Code was violated. This clause reads:
In presenting a programme in which controversial issues of public importance are discussed, a
licensee must make reasonable efforts to fairly present opposing points of view either in the
same programme or in a subsequent programme forming part of the same series of
programmes presented within a reasonable period of time of the original broadcast and within
substantially the same time slot.

Complainant Churr is correct when he refers to Clause 28.3.1 because the address by
President Ramaphosa was broadcast by the SABC on Channel 404 which is a
subscription channel. In the end, however, it matters not that the DA referred to Clause
13(1) because the interview with the representative of the DA was broadcast on SABC2
and the wording of the clauses in the two Codes is identical, save for the use of the
singular in Clause 13(1) (“a controversial issue”) and the reference to a “broadcaster”
instead of a “licensee”.

The point is that the Complainants contend that the topic of expropriation of land
without compensation is a controversial issue of public importance and that the
Broadcaster failed to make reasonable efforts to fairly present opposing points of view.
It is common cause that the DA was not invited to present its opposing point of view on
The Globe news programme on 31 July. It is also not denied by the Broadcaster that
the broadcast touched upon a controversial issue of public importance. From this it
follows that the Broadcaster must have made reasonable efforts to fairly present
opposing points of view.

13

 [9]

The DA, as the official opposition in Parliament, insists that the Broadcaster should
have broadcast the DA’s equivalent party-political statement1. While it might not be
unreasonable of the party to expect to get media coverage on this topic, no such duty on
the Broadcaster towards the DA can be determined by an objective reading of the
relevant clause of the Code. As long as opposing points of view are broadcast, we
cannot find a contravention. The next question is whether opposing points of view by
anybody were broadcast. The Broadcaster states that directly after the address by
President Ramaphosa, the views of Angelo Fick, a researcher and analyst, and Bulelwa
Mabasa, a land reform specialist, were broadcast on the same programme.

The

Tribunal did not listen to these views at the hearing, but after we reserved judgment, I
requested that clips of these broadcasts be sent to all the members of the Tribunal and
to the two Complainants with the further request that the Complainants submit written
arguments pertaining to the clips, if they so wish. These arguments must then be
copied to the Broadcaster who may respond to the arguments by the Complainants. In
the meantime, the Tribunal has received comments from both the DA and the SABC on
the question whether the interviews with the two commentators directly after the
address by the President on 31 July constituted opposing points of view. We deal with
these comments in the paragraphs below.

[10] We have read the transcription of the interview with Angelo Fick which was broadcast
directly after the address by Mr Ramaphosa.

The Broadcaster’s argument is that

“Opposing points of views may come in the form of analysts, bloggers, public
comments etc.” That might be true, but one will have to analyse the interviews to
decide if they really presented an opposing point of view. Mr Fick, according to the
Broadcaster, is a researcher and analyst. In our view, nothing that he said in the
interview could be classified as an opposing point of view to that of the Mr Ramaphosa.
He merely discussed the timing of the address and he gave an analysis of the political
challenges that face Mr Ramaphosa.

In terms of Clause 13(1) of the Code, his

interview cannot be considered to be in compliance with the requirement of an
opposing point of view to that of the president of the ANC. In this context we have to
agree with the arguments submitted by the DA.

1

See the DA’s Heads of Argument, point 32.2.

14

 [11] We have also listened to the comments by Ms Bulelwa Mabasa, who is described as a
land reform specialist. Although she gave some interesting perspectives on the issue of
expropriation of land in general and on expropriation of land without compensation, we
cannot find in her interview an opposing point of view to that of Mr Ramaphosa. We
have to distinguish three aspects which came to the fore on this interview: firstly,
expropriation of land, secondly, expropriation of land without compensation, and
thirdly, the amendment of section 25 of the Constitution to authorise the second aspect.
We think the announcement to proceed with the amendment of section 25 was the most
newsworthy part of the address, because the policy decision on expropriation of land
without compensation had already been taken in December 2017 at the ANC National
Elective Conference. An opposing point of view on this would have entailed the land
reform specialist to state that section 25 should not be amended or something to this
effect and to motivate such opposing point of view. This did not happen, and we do not
think the Broadcaster can rely on this interview as putting forward an opposing point of
view and thus complying with the requirement of Clause 13(1). We also agree with the
DA on this score. The Broadcaster also referred to an interview with a representative
of AfriForum in which an opposing point of view was allegedly expressed. We did not
listen to this interview because it was not presented to us. In light of our conclusion at
the end of this judgment, we do not think it is important to decide whether or not that
interview constituted compliance with the Code.

[12] As stated in paragraph [1] above, the DA was granted the opportunity to put its views to
the public the following morning on SABC2, which was simulcast on News Channel
404 just after 8:00, in other words some 10 hours after the broadcast of the address the
previous evening. This was an opposing point of view, but the question we have to
decide is whether this was in compliance with the requirements of Clause 13(1) of the
Free-to-Air Code (for the SABC2 broadcast) or Clause 28.3.1 of the Subscription
Broadcasting Code (for the Channel 404 broadcast). Both Complainants contend that
there was not compliance by the Broadcaster with the requirements: firstly, because the
SABC did not make reasonable efforts to fairly present opposing points of view;
secondly, that the opposing point of view expressed by the DA was not presented in the
same programme or in a subsequent programme forming part of the same series of
programmes; thirdly, that the SABC did not do so within a reasonable time; and
fourthly, the SABC did not do so within substantially the same time slot.
15

 [13] As for the first argument, the Complainants state that the address by President
Ramaphosa was a pre-recorded and edited political statement.

The camera was

focussed on Mr Ramaphosa for 6 minutes and 45 seconds without interruption. In
contrast, the interview with Ms Portia Adams, spokesperson for the leader of the DA,
lasting 1 minute and 43 seconds, was a telephonic interview during which visuals were
shown of rural landscapes and of public hearings into expropriation of land, that this
distracted the attention of the viewers and the interview was therefore qualitatively and
quantitatively inferior to that of the address by the ANC president, according to the
Complainants. The DA further objects to the fact that, due to the haste in which they
had to go on air, their leader could not present the party’s viewpoint. The question
could be asked whether they should not have negotiated with the broadcaster to
properly present their viewpoints at a later time.

[14] The Broadcaster, on the other hand, argued that there is no duty on it to allow the
opposing point of view to be broadcast for the same length of time. It states that the
spokesperson for the leader of the DA could talk uninterruptedly and she was not
limited in time to put forward the views of the DA on expropriation of land without
compensation. The clear message of her interview was that the DA will oppose the
ANC in Parliament on this matter as it is the view of the DA that it is not a requirement
to amend the Constitution for a successful land reform policy. As for the argument
about equal time to be allowed for the presentation of opposing views, it should be
noted that this Tribunal has decided on more than one occasion that there is no
obligation on a broadcaster to accord contending viewpoints equal time on a broadcast.2
Such a mathematical balancing of broadcasting time is almost impossible to achieve.
This is within the editorial freedom of the broadcaster, part of its freedom of
expression.

A further argument by the Broadcaster relates to the impact which the relevant
broadcasts made on the viewing public.

According to the RAMS (Radio Audio

Measurement) statistics, the address by Mr Ramaphosa on 31 July reached an average
27 500 viewers of The Globe programme, broadcast on Channel 404. On the other
2

See for instance Case 37/2003 South African Dental Association v M-Net.

16

 hand, the interview with Ms Adams on 1st of August, according to the RAMS statistics,
reached an average 527 000 viewers on SABC2 and 66 200 on the simulcast broadcast
on SABC News Channel (Channel 404). Even though the profile of the Channel 404
audience on 1 August in the morning might not have been the same as the Channel 404
audience on 31 July the previous evening, the difference in size of the audiences
reached is significant. This means that 565 700 more viewers were reached with the
broadcast on 1 August than with the broadcast on 31 July.
[15] The Complainants further contend that the broadcast of Mr Ramaphosa’s address on 31
July deteriorated into ANC propaganda without fair presentation of opposing views3.
We cannot agree with this. Seen in a broader context, the debate around expropriation
of land without compensation has been raging since the decision by the ANC about this
policy at its National Elective Conference in December 2017 at NASREC. This topic
was since debated in Parliament and recently at public hearings facilitated by a
Parliamentary Committee all over the country4. The only “newsworthy” part of the
address, as far as expropriation of land without compensation is concerned, was that the
ANC had decided to proceed to have section 25 of the Constitution amended through
the parliamentary process.

One definition of propaganda (there are many) on the Internet, reads:

Information or ideas that are spread by an organised group or government to influence
people’s opinions, especially by not giving all the facts or by secretly emphasizing only
one way of looking at the facts.

Objectively seen, the announcement that the ANC is proceeding with its plan to have
section 25 of the Constitution amended, can hardly be considered to be propaganda,
even though the DA was not offered the opportunity to put its opposing point of view
on The Globe broadcast on 31 July. The fact that the DA was allowed to put its point
of view the next morning to a much bigger audience, negates any suggestion of
propaganda.

Paragraph 35 of the DA’s Heads of Argument, with reference to Foundation for Equality before the Law v SABC3 [2009]
JOL 23221 (BCCSA) at par 12.
4 In par 27.1 of the DA’s Heads of Argument it is referred to as “arguably the leading public issue of the day”.
3

17

 [16] The second contention by the Complainants (see paragraph [12] above), is that the
opposing points of view were not broadcast in a subsequent programme forming part of
the same series of programmes. This requirement poses some problems: What, in
broadcasting parlance, does “same series of programmes” mean? The representative of
the DA could not throw light on this problem5. A quick Wikipedia search revealed that
a TV series is usually released in episodes that follow a narrative and are usually
divided into seasons or series.

A North American description of TV series is a

connected set of TV program episodes that run under the same title. “Series” in this
context seem to refer to programmes which are colloquially called soapies. This is not
helpful in understanding what the words mean in the Broadcasting Code. Because The
Globe is a news programme on Channel 404, we think that “series” in Clause 13(1), in
this context, would mean other news programmes. The broadcasting of the interview
with Ms Adams on SABC2 was on the programme Morning Live. On the website of
this programme it states that Morning Live gives all the regular news updates and it
delivers news as it happens.

It is clear that Morning Live is basically a news

programme, like The Globe, and therefore it forms part of the same series of
programmes.

The simulcast on 1 August was broadcast on The Globe, like the

broadcast the night before, and there can be no argument that this was not in
compliance with the Code. The broadcasting of the DA’s opposing point of view on
another news programme would thus be in compliance with this requirement in Clause
13(1) or Clause 28.3.1, whichever is applicable.

[17] The third contention by the Complainants is that the opposing point of view of the DA
was not presented within a reasonable period of time. Combined with this requirement
is the fourth contention, namely that the opposing point of view must have been
presented within substantially the same time slot. The Complainants did not labour the
point about a reasonable period of time. To decide whether these two requirements
have been complied with or not, it is necessary to interpret the meaning of this part of
Clause 13(1). We refer here to some legal authorities who have written about the topic
of mandatory and directory provisions in legislation6. Prof George Devenish7, who has

See par 36 of the DA’s Heads of Argument.
It should be understood that the Broadcasting Code is being regarded as subordinate or administrative legislation (like rules
and regulations) and should be interpreted by applying the same rules as those used to interpret statutes (like Acts of
Paliament).
7 Interpretation of Statutes, Juta 1992.
5
6

18

 written a chapter on this topic in his book, refers to the different theories used to come
to the true meaning of legislative provisions. For example, he refers to “teleological
evaluation” where there must be compliance with the object or aim of the prescription
in the context of the statute as a whole, rather than with its detail. In order to ensure that
the object of the statute is fulfilled, one must take into account the principles and the
ethos of our common law, which requires that justice must be done to the parties
concerned.8 Prof Lourens du Plessis9, in his work, refers to the intention of the lawgiver
as ascertained from the language, scope and purpose of the enactment as a whole and
the statutory requirement in particular.10

[18] From the authorities quoted, it seems that we must discern what the intention or object
of the authors of the Broadcasting Code was when they drafted Clause 13(1). It deals
in the first instance with broadcasts in which controversial issues of public importance
are discussed.

In order to obtain balance in such a programme, so that the

listeners/viewers can come to their own conclusions, and to avoid the risk of the
programme becoming (a tool for) propaganda, it is required that opposing points of
view be presented. The use of the word “must” in the second line of the clause, is
indicative of the obligation upon the broadcaster to make reasonable efforts to present
opposing points of view. That would constitute the purpose with the clause or the
intention of the law maker (the drafters of the clause). That could, according to the
authors quoted above, be described as the peremptory or imperative provision of the
clause. Non-compliance with this requirement will lead to a finding of contravention of
the Code.

The way in which this purpose could be attained, is set out as follows in the rest of the
clause:

18.1

by presenting opposing points of view in the same programme; or

18.2

by presenting opposing points of view in a subsequent programme
forming part of the same series of programmes; and

18.3

8
9

presented within a reasonable period of time; and

At p 225.
The Interpretation of Statutes, Butterworths 1986.

10

At p 144.

19

 18.4

within substantially the same time slot.

These provisions can be regarded as directory provisions because it confers a wide
discretion on the decision maker (the broadcaster in this instance) to comply with the
requirement. The compliance or not with the provisions enumerated under 18.1 and
18.2 has been dealt with in paragraphs [13] to [16] above. We must now decide
whether the provisions mentioned in para

graphs 18.3 and 18.4 were complied with

or not.
[19] As far as the “reasonable period of time” requirement is concerned, the following
decided case throws some light on the problem at hand: In Suidwes-Afrikaanse
Munisipale Personeel Vereniging v Minister of Labour & Another11 the court stated
that:
“the principle ... has now been firmly established that, in all cases of time limitations,
whether statutory or in terms of the Rules of Court (or, in our case, “in terms of
administrative legislation”) the Supreme Court (or, in our case, “the administrative
tribunal”) has an inherent right to grant condonation where the principles of justice
and fair play demand it to avoid hardship and where the reasons for strict noncompliance with such time limits have been explained to the satisfaction of the Court”
(or the Tribunal, in our case).
Devenish12 states “If the provision involves elastic language or an indefinite concept or
phrase such as for instance ‘without unreasonable delay’, there is a presumption in
favour of validity. Thus, indefiniteness of language may justify the inference that a
provision is intended to be directory only.”
In our opinion, the words “within a reasonable period of time” denote a directory
provision and non-compliance with this may be condoned by the Tribunal in
accordance with the principles of justice and fair play.

The same applies to the

requirement of “substantially the same time slot”.

11

1978(1) SA 1027 (SWA). Note that this case was decided when SWA was still being administered by the South African
Government.
12 Op. cit. p 231.

20

 [20] The next question which arises is: What would a reasonable period of time be after the
initial broadcast on 31 July? In fairness to both parties, we have to consider this,
together with the requirement of “substantially the same time slot”. The DA states that
the Broadcaster admits that the opposing point of view was not broadcast within
substantially the same time slot. On a strict interpretation of the words “within
substantially the same time slot”, the Broadcaster would have complied with the
provision, had it broadcast the DA’s opposing viewpoint at 22:00 on 1 August on The
Globe news broadcast. This would have been 24 hours after the first broadcast. But
would that have been within a reasonable period of time? The Broadcaster explained
that “[T]o have waited for The Globe at 22:00 on 1 August would not have been
editorially sound as the story would have possibly lost traction by then.” This Tribunal
has often decided that editorial freedom of a broadcaster is part of its right to freedom
of expression, which is a basic right of everyone in South Africa, as explained in
paragraph [14] above. The Broadcaster seems to have found itself in a “catch 22”
situation. Had it broadcast the DA’s viewpoint in the same time slot, i.e. at 22:00 on 1
August, it would have complied with paragraph 18.4 above but probably contravened
the requirement of a reasonable time, mentioned in paragraph 18.3. The fact is that it
broadcast the DA’s viewpoint within about 10 hours (night time) after Mr Ramaphosa’s
address, which is within a reasonable period of time, but was strictly speaking in
violation of the requirement mentioned in paragraph 18.4, namely the same time slot.
The solution to this problem, we find, is that the requirements mentioned in paragraphs
18.3 and 18.4 are directory in nature and that this Tribunal has the power to condone
non-compliance with the provisions because the reasons for this deviation have been
explained to our satisfaction.

In our view, an injustice is not being done to the

Complainants with this decision of ours, as the DA has had the opportunity to put
forward its views on expropriation of land and on amendment of the Constitution. As
for the Complainant Churr, in our view his right not to be offended by what the national
broadcaster broadcasts or fails to broadcast, has not been violated, because our finding
is that the Broadcasting Code has not been contravened by the Respondent in this
matter.

21

 [21] In the case of Abel v SABC313, the Tribunal had to consider whether a contravention
had been committed when the reaction by the leader of the DA to the President’s state
of the nation address in Parliament was not included in a news bulletin in the evening
when the address was broadcast, but only the following morning. Although the clause
dealing with news was applicable here and not the clause dealing with controversial
issues of public importance, the principle on which this was decided, is that the
omission was not material and was addressed by the broadcaster the next morning. In
that case it was decided that the editorial freedom of the broadcaster was more
important than the prejudice suffered by the complainant, which was in any case
remedied the next morning. The editorial freedom of the Broadcaster, as part of its
right to freedom of expression, is also an important factor in this judgment, provided
that the Broadcaster has not contravened any clause of the Code with this broadcast.
We have not found any contravention of clause 13(1) of the Free-to-Air Broadcasting
Code or Clause 28.3.1 of the Subscription Broadcasting Service Licensees Code.

[22] We do not find it necessary to make a finding about or comment on accusations and
acrimony that flew between the Broadcaster and the Complainants, especially the
Complainant Churr, some of which were very personal. Nor are we going to comment
on the fact that the shadow minister of communications of the DA wrote to the
chairperson of the SABC Board to complain about this matter. As explained in
paragraph [7] above, we also need not make a finding on the incorrect strapline in the
broadcast on 31 July.

As we have found no contravention of the Code(s), the complaints are accordingly not
upheld.

PROF HP VILJOEN
CHAIRPERSON
Commissioners Tlhakung, Fakude and Venter concurred in the above judgment.

13

BCCSA Case 5/2015.

22