Act No. 153 of 1993
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Independent Broadcasting Act, 1993
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In this Act, unless the context otherwise indicates, broadcasting, broadcasting signal distribution, broadcasting service, encryption, private broadcasting service, public broadcasting service, community, broadcasting services frequency bands, have the meaning assigned thereto in section 1 of the Broadcasting Act of 1998.
| 1. | Amendment of section 1 by the insertion of the following definitions: |
| (a) | " 'low power sound broadcasting service' means a community, private or public sound broadcasting service which radiates power not exceeding one watt;"; |
| (b) | " 'National Revenue Fund' means the Fund established by section 213 of the Constitution;"; |
| (c) | " 'financial interest' means interest that may not have voting rights attached to it but which gives the person or entity a financial interest directly via shares or indirectly via an agreement giving it the power to have control of the licensee or effective say over the affairs of the licensee." |
| 2. | Amendment of section 1 by the substitution for the definition of "election period" of the following definition: |
" 'election period' means the period commencing with the date on which the election day is proclaimed and ending on the day immediately following upon the day on which candidates of any of the political parties are declared elected."
| 3. | Amendment of section 2 by the substitution for "private" to "commercial", wherever it appears. |
| 4. | Amendment of section 10 by the substitution for subsection (4) of the following subsection: |
| (4) | The quorum for any meeting of the Council shall be four councillors or a majority of the total number of councillors holding office at the time, whichever is the greater.". |
| 5. | Substitution for section 13 of the following section: |
"General powers and functions of Authority
13.
| (1) | Without derogation from the generality of the provisions of section 3, the Authority shall, in addition to powers conferred upon it elsewhere in this Act, or by any other law, have the power— |
| (a) | to administer the statutory scheme for granting, renewing and amending of broadcasting licences; |
| (b) | to manage broadcasting services frequency bands and other parts of the radio frequency spectrum properly delegated to it by the Minister as outlined in section 29 of this Act; |
| (c) | to make regulations consistent with section 2 of the Broadcasting Act, 1998, as set out in section 78 of this Act; |
| (d) | to design and implement broadcasting conditions of licence consistent with the objectives set out in section 2 of the Broadcasting Act, 1998, for different categories of broadcasting service, including, but not limited to conditions relating to— |
| (i) | local content requirements; |
| (ii) | programme requirements; |
| (iii) | coverage obligations; |
| (iv) | language service provision; |
| (v) | ownership and control compliance; |
| (vi) | compliance with the Code of Conduct for Broadcasting Services; and |
| (vii) | empowerment of historically disadvantaged groups; |
| (e) | to specify the frequency characteristics of broadcasting services; |
| (f) | to undertake inquiries on all matters within its jurisdiction, including the holding of public hearings; |
| (g) | to submit an annual report to the Minister on all matters within its jurisdiction, including, but not limited to— |
| (i) | the audited report set out in section 20 of this Act; |
| (ii) | the issuance, renewal and amendment of licences as set out in section 20(3)(c) of this Act; |
| (iii) | compliance with standards; |
| (iv) | spectrum planning and allocation; |
| (v) | progress on meeting local content requirements; |
| (vi) | details of all inquiries undertaken within the year; |
| (vii) | statistical overview of the broadcasting environment; |
| (viii) | a status quo of the organisation of the Independent Broadcasting Authority, including its executives from the rank of Head of Department and above; |
| (h) | to monitor the broadcasting industry to ensure compliance with broadcasting laws and regulations as well as with community standards in programming, as set out in section 66 of this Act; |
| (i) | to conduct research in all matters affecting broadcasting in order to perform its regulatory role; |
| (j) | each year to establish a proposed regulatory agenda for the ensuing three years; |
| (k) | to make recommendations to the Minister for amendments to this Act and the Broadcasting Act, 1998, so as to align them with the current industry and public policy environment; |
| (I) | to review and consider any technical matters relating to broadcasting referred to it by the Minister and to make recommendations to the Minister with respect thereto; |
| (m) | to be consulted by the Minister with regard to any matters to be put before Parliament pursuant to requests made under paragraph (g); |
| (n) | to hold public hearings. |
| (2) | The President shall, on the advice of the National Assembly, appoint the chairperson of the Authority.". |
| 6. | Insertion of the following section after section 13: |
"General role and powers of Minister
13A.
| (1) | No acquisition or disposal of State broadcasting assets is valid unless it is approved by the Minister. |
| (2) | The Minister may direct the Authority— |
| (a) | to undertake any special investigation and inquiry on any matter within its jurisdiction and to report to the Minister thereon; |
| (b) | to determine priorities for the development of broadcasting services; |
| (c) | to consider any matter within its jurisdiction placed before it by the Minister for urgent consideration. |
| (3) | Any special investigation or inquiry contemplated in subsection (2)(a) shall be financed by money appropriated to the Authority for that purpose. |
| (4) | The Minister shall, before a direction contemplated in subsection (2) is issued, consult the Authority. |
(5)
| (a) | Subject to paragraphs (c) and (d) the Minister may issue to the Authority policy directions of general application on matters of broad national policy consistent with the object mentioned in section 2 of the Broadcasting Act, 1998, in relation to— |
| (i) | the radio frequency spectrum, for the purposes of planning broadcasting and other services; |
| (ii) | the universal service coverage targets of the public broadcasting services; |
| (iii) | the Republic's obligations and undertakings under international treaties and conventions, including technical standards and frequency matters; |
| (iv) | the application of new technologies that interface with broadcasting; |
| (v) | government regulations on financial, revenue and expenditure controls. |
| (b) | The Authority, in performing its functions in terms of this Act, must consider any policy direction issued by the Minister under paragraph (a). |
| (c) | No such direction may be issued regarding the granting of a licence or regarding the amendment, suspension or revocation of a Iicence. |
| (d) | No such direction may be issued which interferes with the independence of the Authority or which affects the powers and functions of the Authority. |
| (6) | The Minister shall, before a policy direction contemplated in subsection (5) is issued— |
| (a) | consult the Authority; |
| (b) | in order to obtain the view of interested persons, cause the text of such direction to be published in the Gazette together with a notice declaring his or her intention to issue that direction and inviting interested persons to lodge written representations in relation to the direction in the manner specified in such notice within 30 days from the date of the notice; |
| (c) | refer the proposed direction for comment to the committees of Parliament appointed for the of considering matters relating to broadcasting. |
| (7) | The provisions of subsection (6) shall not apply in respect of any amendment by the Minister of a policy direction in consequence of comments or representations received by him or her pursuant to consultation, publication or reference in terms of that subsection. |
| (8) | A policy direction issued under this section may be amended, withdrawn or substituted by the Minister, and the provisions of this section shall apply, with the necessary changes, in relation to any such amendment, withdrawal or substitution. |
| (9) | The Minister shall table in Parliament the annual or any other reports of the Authority. |
| 7. | Amendment of section 14 by the substitution for subsections (1) and (3) of the following subsections: |
| "(1) | The Council shall appoint a suitably qualified and experienced person as [chief administrative officer] chief executive officer of the Authority for the purpose of assisting the Council, subject to the latter's direction and control in the performance of all financial, administrative and clerical functions and work arising from the application and administration of this Act. |
| (3) | Subject to the provisions of subsection (4), the Authority may pay to the persons in its employ, or provide them with, such remuneration, allowances, bonuses, subsidies, housing benefits, pensions and other employment benefits as [the Authority may, after having obtained such professional advice as it may deem fit, consider as being competitive in the open employment market] is consistent with the public sector.". |
| 8. | Amendment of section 15 by the substitution for subsection (1) of the following subsection: |
"(1)
| (a) | The operating and capital costs of the Authority shall be financed from money appropriated by Parliament from time to time for that purpose. |
| (b) | The Authority shall utilise any money contemplated in paragraph (a) in accordance with the statement of estimated expenditure referred to in paragraph (c). |
| (i) | shall in each financial year, at a time determined by the Minister, submit a statement of estimated income and expenditure for the following financial year to the Minister for his or her approval, granted in consultation with the Minister of Finance; |
| (ii) | may in any financial year submit adjusted statements of estimated income and expenditure to the Minister for his or her approval granted in consultation with the Minister of Finance; |
| (iii) | may retain application fees for administration purposes.". |
| 10. | Amendment of section 17 by the substitution for subsection (2) of the following subsection: |
| (2) | Cheques drawn on the Authority shall have been duly issued and signed on its behalf if issued under the joint signatures of any two members of the staff of the Authority [from time to time authorized for that purpose by special resolution of the Council] as designated by the chairperson from time to time.". |
| 11. | Substitution for section 18 of the following section: |
"Investment of surplus moneys
| 18. | All fees and penalties received in terms of section 67 shall be paid into the National Revenue Fund.". |
| 12. | Section 40 is hereby repealed. |
| 13. | Amendment of section 41— |
| (a) | by the substitution for subsection (6) of the following subsection: |
| "(6) | Within [14] 30 days of receipt of any application in terms of this section, the Authority shall cause to be published in the Gazette a notice containing all the material particulars of the application and inviting interested persons to lodge [their] written representations in relation to the application in the manner specified in such notice within [one month] 30 days or such shorter period as from the date of such notice as may be determined by the Authority, which may not be less than 10 days."; |
| (b) | by the substitution for subsection (8) of the following subsection: |
| "(8) | The applicant shall submit his or her written response (if any) to any representations lodged in terms of subsection (7) to the Authority within [two months] 60 days of the date of the notice contemplated in subsection (6), and shall at the same time furnish proof to the satisfaction of the Authority that he or she has sent by registered post or delivered a copy of such written response to the person having made such representations."; |
| (c) | by the insertion after subsection (8) of the following subsection, with subsection (9) becoming subsection (10): |
| "(9) | Save for representations made under subsection (6), the response of the applicant under subsection (8) and such further information as the applicant furnishes under subsection (5) within the period specified under that subsection, no application may be amended or varied and no supplementary or additional documents may be filed after the publication of the notice under subsection (6), except with the written permission of the Authority granted upon application and such terms and conditions as Council may determine.". |
| 14. | Insertion of the following section after section 41: |
"41A.
| (1) | Notwithstanding the provisions of sections 41, 42, 44 and 47 the Authority may on such terms and conditions as it may determine, issue a licence to provide a low power sound broadcasting service. |
| (2) | The Authority shall prescribe the requirements and procedures applicable to applications for such licences.". |
| 15. | Amendment of section 42— |
| (a) | by the substitution for subsection (1) of the following subsection: |
| "(1) | [In] Save as provided in section 41A in respect of [every application] applications for [a] broadcasting [licence] licences received by the Authority, a notice of which has been published under section 41(6), it shall at its discretion hold a hearing as provided for in this section."; |
| (b) | by the substitution for paragraph (c) of subsection (3) of the following paragraph: |
| (c) | the Authority, after having [duly] considered the application, the , representations (if any) made in accordance with the provisions of that subsection, the applicant's written response thereto (if any), any [further] other information furnished in terms of section 41 and any other evidence [tendered to] admitted by the Authority, shall within a reasonable time grant or refuse the application and shall subsequently provide written reasons for its [ruling] decision by notice in the Gazette and give notice of the availability of the reasons at the office of the Authority.". |
| 16. | Amendment of section 48 by the substitution for paragraph (b) of subsection (1) of the following paragraph: |
| "(b) | have financial interest or interest either in voting shares or paid-up capital in a private broadcasting licensee exceeding twenty percent.". |
| 17. | Amendment of sections 48, 49, 50 and 54 by the substitution of "private" with "commercial", wherever it appears. |
| 18. | Amendment of section 50 by the substitution for subsection (2) of the following subsection: |
"(2)
| (a) | No person who controls a newspaper may acquire or retain a financial control in both a radio and TV licence. |
| (b) | No person who is in a position to control a newspaper may be in a position to control a radio or television licence in an area where the newspaper has an average ABC circulation of 20% of the total newspaper readership in the area, if the licence area of the radio licencee overlaps substantially with the said circulation area of the newspaper. |
| (c) | Substantial overlap shall be interpreted to mean an overlap by 50% or more. |
| (d) | A 20% shareholding in a radio or television licence shall be deemed to constitute control. |
| (e) | The shareholding and financial structures of commercial broadcasting licensees will form part of the annual reports submitted to the authority.". |
| 19. | Amendment of section 54— |
| (a) | by the substitution for paragraphs (b) and (c) of the following paragraphs: |
| ''(b) | in the case of a public and a private sound broadcasting licence, shall be six years; [and] |
| (c) | in the case of a community sound or television broadcasting licence which is not a temporary community broadcasting licence within the contemplation of section 47 A, shall be four years [,]; and"; |
| (b) | by the insertion of the following paragraph: |
| "(d) | in the case of a low power sound broadcasting Iicence shall be such period not exceeding three years as the Authority may determine.''. |
| 20. | Amendment of section 63 by the substitution for subsections (2) and (3) of the following subsections: |
| "(2) | A complaint contemplated in subsection (1) shall be [in writing and shall be served on the licensee concerned and be] lodged with the Authority for consideration by the Broadcasting Monitoring and Complaints Committee. |
| (3) | For the purposes of subsection (2), a complaint may be delivered by hand [or] sent by registered post, [fax or telex] faxed, or communicated telephonically to the Authority, which shall record and transcribe such complaint.". |
| 21. | Amendment of section 66A by the substitution for subsections (3) and (4) of the following subsections: |
"(3)
| (a) | No person shall use any [television set] apparatus for the reception of [anything] any broadcast by a pay-television service which has been licensed in terms of section 46, unless such person has been authorized by such licensee to do so. |
| (b) | No person shall assist any other person in receiving, in conflict with paragraph (a), any broadcast by a pay-television service. |
| (c) | No person shall have in his or her possession any equipment, object or electronic data intended to be used for the reception, in conflict with paragraph (a), of any broadcast by a pay-television service. |
| (d) | For the purposes of paragraph (b), "assist" shall include but shall not be limited to manufacturing, distributing, letting, selling or supplying any equipment, object or electronic data intended by the manufacturer, distributor, lessor, seller or supplier, as the case may be, to be used or applied, either by itself or in conjunction with any other object, for the reception, in contravention of paragraph (a), of anything broadcast by a broadcasting service. |
| (4) | Any person who contravenes subsection (1) or (3) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.". |
| 22. | Amendment of section 67 by the substitution for subsection (2)(h)(ii) and (iii) of the following subparagraphs: |
| "(ii) | in the case of a contravention of sections 32, 39 and 74, to a fine not exceeding R1 000 000 per day; |
| (iii) | in the case of a contravention of section 71(1), and in the case of an offence contemplated in paragraph (d) of this subsection, to a fine not exceeding R100 000.". |
| 23. | Amendment of section 69 by the addition of the following paragraphs in subsection (1): |
| "(c) | delegate to a committee of the Council, established pursuant to section 23 of this Act the power to hold hearings in respect of inquiries under section 28 and in respect of applications to grant, renew, amend or transfer any licence; |
| (d) | delegate to any committee acting in terms of subsection (c) shall as soon as reasonably possible after it has held an inquiry or hearing, provide the Council with transcripts of the proceedings together with a written report on the proceedings, oral evidence and representations. The Council shall after due consideration, decide the matter and provide written reasons as prescribed in section 42(3)(c); |
| (e) | the common carrier for broadcasting signal distribution shall provide signal distribution facilities to be used for emergency sound broadcasting services to the extent that they are deemed necessary in the public interest by the Minister. The common carrier shall come with the conditions imposed by the Authority.". |
| 24. | Section 80 is hereby repealed. |
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