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Notice of New Code of Conduct of BCCSA for 2011

  Click to read the letter from the Chairman Click to see the Code of Conduct for 2011 

CHAIRPERSON'S ANNUAL REVIEW 2009-2010

Click to view annual Review

LATEST JUDGMENTS

20 MAY    LATEST ADJUDICATON  19-A-2011

BCCSA CONSTITUTION PDF Print Email
     

 

1.

    

Establishment of Broadcasting Complaints Commission

In order to promote freedom of speech, the free flow of information and the maintenance of high standards of broadcasting in South Africa, the National Association of Broadcasters of South and Southern Africa (“the NAB”) hereby establishes a Broadcasting Complaints Commission of South Africa (“the BCCSA”), which shall be a body corporate, capable of suing and being sued in its corporate name, and of performing all such acts as are necessary for or incidental to the carrying out of its objects, and for the performance of its functions and duties under this Constitution.  The BCCSA shall be based in Johannesburg.

2.

 

Objects of the BCCSA

 The objects of the BCCSA are to ensure the adherence to high standards in broadcasting and to achieve a speedy and cost effective settlement of complaints against full members of NAB who have submitted themselves to the jurisdiction of the BCCSA and its Code and, where a settlement cannot be attained, to adjudicate upon a complaint and take appropriate steps in accordance with clause 14 of this Constitution.

3.

 

Acceptance of Code and Procedure

The NAB hereby adopts a code (“the Code”) and procedure (“the Procedure”) set out in the appendices to this Constitution and the members, who sign the Constitution (“the signatories”), undertake not only to maintain the Code of Procedure but also to abide by rulings of the Tribunal or an Appeal Tribunal if a settlement of a complaint cannot be achieved by the Adjudicator (referred to in clause 4): provided that the aforegoing shall not limit the rights of another association of broadcasters to approach the BCCSA to act as mechanism to apply its Code which is to the satisfaction of the Independent Communications Authority  in terms of section 56(2) of the IBA Act 1993; and provided further that the BCCSA shall, after consultation with NAB, negotiate with such an association the terms concerning the minimum duration of such a contract as well as costs which such a service shall entail.

4.

 

 

 

 

 

 

 

 

 

 

Appointment of Adjudicator and Registrar

4.1 The BCCSA may appoint an adjudicator for a term of three years.

 

4.2 The BCCSA may appoint a registrar for a term of up to three years.

 

4.3 The adjudicator shall manage the office of the BCCSA under the  supervision of the Chairperson and he or she shall independently deal with and attempt to settle or otherwise adjudicate upon complaints against signatories: provided,  that if a Registrar is appointed, he or she shall manage the office as aforesaid.  

5.

 

Appointment of the first BCCSA

5.1 Appointments of Commissioners to the BCCSA shall be made by a Committee,  chaired by an external person appointed by the BCCSA. The members of the Committee shall be the following: the Chairperson of the BCCSA , the Chairperson of the NAB or a person designated by him, plus two further external persons appointed by the BCCSA for this purpose. The decisions of this committee are taken by way a majority of votes and the Chairperson of the Committee has a casting vote when there is a stay of votes. The BCCSA shall remunerate the external persons at a rate determined by the BCCSA Chair. Their costs will also be paid.

 

5.2 Commissioners are appointed for a term of five years from nominations from the public and broadcasters, broadcasters under the jurisdiction of the BCCSA having broadcast the advertisement for the posts at their cost.

 

5.3  Six Commissioners are appointed as a result of their interest and/or expertise in the broadcasting media.

 

5.4 Six Commissioners are appointed as a result of their interest and/or expertise in matters which relate to the interests of viewers and or listeners.

 

5.5 The Chairperson is appointed for a term of five years at an AGM or a SGM of the BCCSA. He or she need not necessarily be a member of the Commission.

 

5.6 All appointment terms, including that of the Registrar on re-appointment, are to run from 1 January and not from 1 August, as was originally the case.

6.

 

Appointment of succeeding BCCSA’s and the filling of vacancies 

 6.1 If the position of a Commissioner becomes vacant during a term, a committee consisting of the Chairperson of the BCCSA, the Chairperson of the Panel appointed by the Commission and the Chair of the NAB or his or her delegate may appoint someone to fill the vacancy for the balance of the term of that Commissioner.

 

6.2 The BCCSA shall elect a person or persons as an alternate chairperson to act as chairperson(s) when the chairperson is not available.  Any reference in this Constitution, the Code and the Procedure to the chairperson shall, unless the context indicates the contrary, include a reference to the alternate chairperson.  Where more than one alternate chairperson is elected and the chairperson has not designated otherwise, the alternate chairpersons shall act as chairperson by way of rotation according to the alphabetical order of their surnames or, if that is not possible, by way of casting of lot, for a period of one month each. In the case of the Chairperson of an Appeal Tribunal, the position is adjusted in accordance with the procedure prescribed for such an appeal in the Procedural Rules.

 

6.3  The Appeal Tribunal shall be chaired as follows: the Chairperson of the BCCSA, unless he or she has sat as Chairperson of the first Tribunal, in which case the alternate Chairperson shall chair the Appeal Tribunal, provided that where he or she has sat on the first Tribunal, the Tribunal will be chaired by a Commissioner as designated by the AGM or a SGM.

 

6.4  Where the chairperson is not available to chair a session of a tribunal and the alternate chairperson is not available or, where more than one alternate chairperson has been elected and no alternate chairperson is available to chair a session of a Tribunal, the Chairperson of the Commission shall  appoint one of the Commissioners to chair such a session.

7.

 

Cessation of membership of BCCSA

A person shall cease to be a member of BCCSA if

7.1 he or she resigns;

 

7.2 he or she becomes incapable for whatever reason of fulfilling his or her duties on the BCCSA;

 

7.3 he or she is declared insolvent by a court or is found guilty of an offence listed in Schedule I or II of the Criminal Procedure Act 1977.

 

7.4  he or she becomes an employee, owner, co-owner or director of any printed media in South Africa 

8.

 

Funding of BCCSA

8.1 The NAB shall ensure that the BCCSA is housed in offices which will serve the purpose of the BCCSA and establish and maintain its independence.

 

8.2 The BCCSA shall determine the remuneration, fees and expenses to be paid to the Chairperson, alternate Chairperson, the Commissioners  and the co-opted   members of a Tribunal and the members of the Appointment Panel.

 

8.3 The Chairperson of the BCCSA shall appoint such administrative staff as is necessary for the proper fulfilment by the BCCSA of its duties.

 

8.4 The proceeds of any fines imposed by the Tribunal  or an adjudicator shall be paid by the BCCSA to the NAB, which shall apply such proceeds to causes connected with the education and training of trainees in the electronic media, the updating of the expertise of the BCCSA Commissioners or information to the public on the BCCSA. As a result of an arrangement between the BCCSA and the NAB Executive, such monies may be kept in a separate account by the BCCSA and be used by the BCCSA for the purposes stated.

 

8.5 Before the end of every calendar year, the Chairperson and an alternate Chairperson designated by the Chairperson and the BCCSA finance committee shall approve a budget for the next calendar year and present this budget to the NAB: which shall pay to the BCCSA, in a lump sum, the money required by the BCCSA, before 28 February: provided that the budget shall be limited to reasonable expenses concerning the housing and management of the BCCSA, remuneration, benefits, fees and expenses to the chairperson, members of the BCCSA, members of a Tribunal, the adjudicator, the registrar if appointed, the administrative staff as well as the auditor’s fees: provided further that if the costs of adjudications and Tribunal sessions are higher than the amount budgeted therefor, the NAB shall during the year also pay these additional costs to the BCCSA: provided further that any other unforeseen and unavoidable expenses of which written notice is given to the NAB, shall be paid by the NAB to the BCCSA: provided further that if a dispute which cannot be resolved by mutual consent as to the aforementioned costs arises between the BCCSA and the NAB, an arbiter will be appointed by mutual consent to resolve such a dispute or if mutual consent cannot be reached on the arbiter, an arbiter appointed by the Law Society of  the Northern Provinces or its successor.

 

8.6 The BCCSA shall appoint an auditor, who shall be an auditor approved by the NAB and could be the same auditor who audits the books of the NAB, and annually present its audited financial statements to the NAB for the preceding calendar year: provided that, if so decided, the financial management of the BCCSA may be done by the NAB and audited by its auditors

 

8.7 The BCCSA shall authorise the chairperson, the adjudicator (or the registrar, if appointed) and two members to sign all cheques on behalf of the BCCSA, the signatures of any two of them being sufficient. The Chairperson of the BCCSA may authorise the Executive Director of the NAB to sign cheques in his stead.

 

8.8  Any interest accrued from money invested by the BCCSA shall be taken into consideration when the BCCSA presents its budget to the NAB: provided that the NAB may authorise the BCCSA to place such monies in a reserve to cover additional costs. 

9.

 

General meetings of BCCSA

9.1  The Chairperson shall call an annual general meeting of the BCCSA where matters arising from this Constitution are discussed and decided upon.

 

9.2 A special general meeting may be convened by the Chairperson or otherwise by the adjudicator or if a full time adjudicator is not appointed, the Registrar, at the written request of not less than 8 members of the BCCSA.

 

9.3 Subject to clauses 11 and 12, not less than 10 days notice in writing shall be given of any meeting of the BCCSA unless all the members agree to accept shorter notice, whether given orally or in writing.

 

9.4 The Registrar of the BCCSA shall act as secretary and shall prepare an agenda and minutes of the proceedings at all meetings held in terms of this clause.

 

9.5  A quorum for meeting under this clause shall be 6 members, failing which the meeting shall be adjourned to the same day in the next week, at the same place and time, and at any such meeting members present shall constitute a quorum.

 

9.6  Decisions shall be taken by way of a majority of votes unless it relates to the amendment of the Constitution or the dissolution of the BCCSA, in which case the majority required by clauses 11 and 12 shall be adhered to.  The chairperson shall, in addition to his deliberative vote, have a casting vote where there is a stay of votes. An amendment to the Constitution as well as any other resolution may also be made by way of a written notice to all Commissioners, proposed by a Commissioner and seconded by another Commissioner and agreed to by the majority of the Commissioners either electronically, per fax or by way of a letter.

10.  

 

Quorum for Adjudication Committee

10.1  Complaints that a signatory has contravened the Code shall be adjudicated upon by an adjudicator appointed for that purpose by the Chairperson unless he or she decides to place a complaint directly before a Tribunal in terms of Procedural Rule 5.4. The quorum for the Tribunal shall be three and consist of the Chairperson, one listener and viewer representative and one electronic media representative designated by the Chairperson: provided that the Chairperson may nominate more than two representatives, subject to the condition that an equal number of listener and viewer representatives, and electronic media representatives respectively shall serve on the Tribunal: provided further that if the Chairperson designates one extra person, he or she could come from any one of the categories.

 

10.2  Where the Chairperson is for any reason unable to constitute a Tribunal from the members of the BCCSA, he or she shall co-opt persons to represent the listeners and viewers and/or the electronic media, the number of listener and viewer representatives, and electronic media representatives on such Tribunal being at all times equal, the quorum remaining three.

 

10.3  Where, in the opinion of the Chairperson, it is necessary to ensure greater  representivity on a Tribunal, he or she may add one non-member to an already constituted Tribunal or constitute a quorum by adding one non-member.

 

10.4  Decisions of the Tribunal shall be taken by way of a majority of votes and where there is a stay in the votes, the Chairperson shall have an additional  casting vote.  

11.

 

Amendment of the Constitution and its Appendices

Amendments of this Constitution, the Procedure and the Code shall require the approval of a two-thirds majority of all the members of the BCCSA voting either in person or by proxy: No amendment shall be effective unless at least 21 days written notice of a proposed amendment shall have been given to BCCSA Commissioners.  Proxies shall be in writing, signed by the relevant Commissioners and be recorded for or against the proposed amendments and no further amendments of the proposal may be made at such meeting unless a two thirds majority of the BCCSA is present at the meeting and votes therefor.

12.

 

Dissolution

12.1  The members of the BCCSA may at any time terminate its existence if it appears to them that the BCCSA’s independence is threatened or that as a result of circumstances beyond its control its objects cannot be achieved. A resolution to dissolve the BCCSA must be passed at a special general meeting, called for such purposes, by a two-thirds majority of all the members of the BCCSA.Not less than 21 days written notice shall given of any such meeting and such notice shall give particulars of the purpose for which the meeting is called.

 

12.2  All the assets of the BCCSA shall, on dissolution, be transferred to the NAB who, where applicable, shall negotiate this matter with other associations in terms of the proviso to clause 3.

 

12.3  A signatory may at any time, after having been subjected to this Constitution for three years, give written notice to the chairperson of the BCCSA that it will no longer regard itself bound by this Constitution, and the BCCSA shall strike that signatory’s name from the list of signatories to this Constitution: provided that such signatory shall remain bound to contribute its financial share to the costs of the running of the BCCSA for twelve months after the said notice is given: provided further that a signatory shall remain subject to the Code in so far as any breach during the term had taken place.

13.

 

Notices

13.1  Notices in writing (which includes fax and electronic messages) of annual or special meetings of the BCCSA shall be sent to members thereof at the addresses or fax numbers provided by them in writing to the adjudicator (the Registrar, if appointed)

 

13.2  Accidental omission to notify a member or non-receipt by any member of such notice shall not invalidate the proceedings of the meeting to which the notice relates.

 

13.3   Any requirements in this Constitution that timeous notice must be given, including notices of amendment or dissolution, does not apply to an alternate Chairperson who acts as Chairperson when the Chairperson is not available.

 

13.4  Notwithstanding anything to the contrary herein, personal telephonic notice to a Tribunal member of a meeting of such Tribunal shall be deemed to be sufficient notice 

14.

 

Sanctions of the Adjudication Committee

Following any investigation of an alleged infringement of the Code by a signatory, an Adjudicator or, as the case may be, a Tribunal may

 

14.1 dismiss the complaint;

 

14.2  reprimand any respondent adjudged to have been guilty of an infringement of the Code;

 

14.3  direct that a correction and/or a summary of the findings of an Adjudicator or Tribunal be broadcast by the respondent in such manner as may be determined by an Adjudicator or   Tribunal;

 

14.4  direct that a respondent grant reasonable access in its broadcasts on an equal opportunity basis to a political party, organisation or movement or candidate in a case where the Code was not complied with and the BCCSA has jurisdiction to hear the matter in terms of its recognition in terms of section 56(2) of the IBA Act 1993 or where any applicable legislation does not provide for jurisdiction of the BMCC of the ICASA. The same rule shall mutatis mutandis apply in the case where the sanction of the Tribunal or an adjudicator is that a broadcaster must afford a complainant a right to reply.

 

14.5  impose a fine not exceeding R60,000** on any respondent adjudged to have infringed the Code (R40 000 where the broadcast was before 1 January 2006), whereupon the fine so imposed shall be a debt due to the BCCSA and recoverable as such;

 

14.6  in its reasons for its findings, record criticism of the conduct of the complainant in relation to the complaint, where such criticism is in its view warranted;

 

14.7 make any supplementary or ancillary orders or directions that it may consider necessary for carrying into effect orders or directives made in terms of this clause and, more particularly, give directives as to the broadcasting of its findings.

15.

 

Interpretation of the Constitution, Procedure and Code

In the event of any discrepancy between the English and other language versions of the Constitution, Procedure and Rules, the English version shall be definitive.

** As increased in 2010

              

 

 APPENDIX I

 

Procedure of the BCCSA in the Mediation and Adjudication of Complaints

 

Preamble 

It shall be of the essence of the BCCSA’s proceedings: that complaints be considered and adjudicated upon within the shortest possible time after the broadcast of the matter giving rise to the complaint; that complaints be considered and adjudicated upon in an informal manner; and that whenever possible the adjudicator, Tribunal and Appeal Tribunal and the parties will strive for a speedy and amicable settlement.    

  1.

Complaints

1.1  "Complainant" shall include any person who or any association, body, corporation, institution, political party, organisation or movement, society or union, which lodges a complaint or any office-bearer duly nominated in writing to represent such association, body, corporation, institution, political party, organisation or movement, society or union for the purposes of pursuing the complaint.

 

1.2 The "respondent" in respect of a complaint shall be the proprietor of the broadcasting station which may delegate its chief executive or in his or her absence, a deputy chief executive or other suitable managerial representative of the member concerned, to act and appear in its stead in respect of any complaints dealt with either by an adjudicator or the Tribunal.

 

1.3 Subject to rule 1.6 a complaint shall be made as soon as possible, but not later than thirty days after the date of the broadcast, or the date of any other alleged breach of the Code giving rise to the complaint.

 

1.4 The complaint shall be made to the Registrar either in person, by telephone or in writing. "Writing" shall include cable, telegram, telex, e-mail and fax messages. Where a complaint is made other than in writing it shall be confirmed forthwith in writing or the registrar shall assist the complainant to do so. Upon the receipt of a complaint by the Registrar, the Registrar shall be entitled to request from the broadcaster concerned, a copy of the material broadcast, giving rise to the complaint, and the broadcaster shall be obliged to forward such a copy to the Registrar forthwith.

 

1.5  The Registrar shall only accept a complaint:

 

1.5.1  which is not anonymous, or which, in his or her opinion, is not fraudulent, frivolous, malicious or vexatious and which prima facie falls within the ambit of the Code;

 

1.5.2  which is directed at a signatory; and

 

1.5.3   which does not concern an advertisement broadcast by a signatory who is also subject to the Code of Advertising Practice of the Advertising Standards Authority of South Africa (“ASA”): provided that "advertisement" bears the meaning which that Code attributes to it: and provided further that even if that Code were to be amended so as to have a bearing on political advertising, a complaint concerning such advertising or sponsorship is acceptable in terms of these Procedural rules: provided further that any advertisement which, according to the Regulations of the ICASA, falls within the jurisdiction of the BMCC of the ICASA in its relationship to the ASA, such advertisement will also fall under the jurisdiction of the BCCSA in its relationship to the ASA, unless the IBA Act or any under Act has placed such an advertisement under the exclusive jurisdiction of the Broadcasting Monitoring and Complaints Committee of the ICASA.

 

1.6 The registrar may upon reasonable grounds accept late complaints if in his or her opinion there is good and satisfactory explanation for the delay.

 

1.7 Where the Registrar has accepted a complaint and the respondent offers to settle the matter complained of by way of broadcast or otherwise, which in the opinion of the Registrar constitutes a reasonable and sufficient offer of settlement of such complaint, the Registrar may withdraw his or her acceptance of the complaint.

 

1.8  Where the Registrar declines to accept a complaint on any of the grounds specified in rules 1.3 or 1.5 or withdraws his or her acceptance of a complaint under rule 1.7 the complainant may, within seven days, request the Chairperson of the BCCSA to review the Registrar’s decision. In the event of the Chairperson overruling the Registrar’s decision, the matter shall proceed in terms of rule 2.  

2.

Conciliation and Adjudication Procedure by Adjudicator

2.1 Upon acceptance of a complaint by the Registrar, he or she shall immediately notify the respondent in writing of the complaint, giving sufficient details to enable the respondent to investigate the matter and respond.

 

2.2 Unless the Chairperson decides to directly bring the matter before a Tribunal in terms of Procedural Rule 5.4, the adjudicator or a person appointed by the Chairperson shall forthwith endeavour to achieve a settlement in terms of the Constitution.

 

2.3 The adjudicator shall hold discussions with the parties on an informal basis with the object of achieving a speedy settlement. The parties shall not be entitled to legal or any other representation at such proceedings, but may be accompanied by advisers.

 

2.4  If the complaint is not settled within 7 days of its notification to the respondent, the adjudicator shall, in a written opinion to the parties, give his or her decision as to the resolution of the dispute.

 

2.5  Within 4 days of receipt of the opinion, any one of the parties may appeal to the Tribunal by filing grounds of appeal against the decision of the Adjudicator with the Chairperson ( or the Registrar, if appointed).  

3.

Adjudication Procedure of the Tribunal

3.1 Where the dispute has been brought before the Tribunal in terms of rule 2.5, the complainant shall within two days of his or her being informed thereof submit a written statement to the Registrar of the BCCSA.

 

3.2  The written statement by the complainant shall contain or be accompanied by:

 

3.2.1    full particulars of the complaint and the substantive bases  for the dispute (if material facts or events are alleged these should be presented in affidavit form);

 

3.2.2    copies of relevant correspondence;

 

3.2.3    whenever possible, a video or tape recording or transcript of the broadcast giving rise to the complaint;

 

3.2.4    names and addresses of witnesses, if applicable;

 

3.2.5    any other evidence, including affidavits, in support of the complaint.

 

3.3  The Registrar shall submit a copy of the complainant’s statement to the respondent. The respondent shall within 5 days of the receipt of such statement submit a written statement to the Registrar which shall set out fully his or her defence to the complaint together with reference to supporting evidence, where necessary, including the names and addresses of witnesses, if applicable. The Registrar shall submit a copy of respondent’s statement and supporting documents to the complainant, and if the Chairperson so determines, he or she may allow the complainant to respond, in which case the complainant shall deliver such response to the Registrar and the respondent within 2 days after receiving notice that the Chairperson has so determined. The Registrar ensures that the Chairperson and the members of the Tribunal are in possession of all the documents referred to in this paragraph.

 

3.4 The Registrar shall, within 2 days after an appeal has been lodged, submit to the Chairperson a written report on the dispute, the adjudicator’s decision and the reasons for it, which may be in the form of his or her opinion given to the parties in terms of rule 2.4.

 

3.5 The Chairperson shall determine a date, time and venue for adjudication of the complaint, which shall be within seven days, or as soon as possible thereafter, after receipt by him of the documents referred to in rule 3.3.

 

3.6 The Registrar shall notify the parties of the date, time and venue at which the dispute will be adjudicated upon. It shall not be obligatory for either party to appear personally before the Tribunal, but they are entitled to attend and to address the Tribunal and the Tribunal is, in any case, entitled to question them on the matter: provided that a respondent is not under a duty to disclose the identity of an informant.

 

3.7 The Chairperson may request the parties to appear personally. The Chairperson may advise parties that an adverse inference may be drawn from failure to comply with such request without good cause.

 

3.8 The parties shall be entitled to legal or other representation when appearing before the Tribunal.

 

3.9 When at any stage of the proceedings, the Chairperson is of the opinion that it is in the interest of fairness that a complainant must waive his or her rights to further legal recourse, the Chairperson shall require the complainant to waive such rights before the proceedings continue.

 

3.10     If one or more parties do appear before the Tribunal, the proceedings shall take the form of a round table discussion and not a trial.

 

3.11     On completion of the discussions the parties shall leave and the Tribunal shall come to its decision.

 

3.12     If the Tribunal finds against a respondent who is present, the respondent shall be given an opportunity to address the Tribunal in mitigation of any penalty that may be imposed in terms of clause 14 of the Constitution.

 

3.13     The hearings of the Tribunal shall be open to the public.

4.

Appeal to Appeal Tribunal

4.1 If any of the parties to a matter which has been decided upon by the Tribunal is aggrieved by the decision, that party may, within 5 days, apply to the Chairperson of the Tribunal in writing for leave to appeal to an Appeal Tribunal of the Commission.

 

4.2 A party who files such an application must set out the grounds fully upon which that party believes that an Appeal Tribunal is likely to come to a different decision.

 

4.3 The Chairperson of the Tribunal may decide the application on the papers and a  copy of the broadcast in the matter and without hearing the parties, if the parties agree to such a procedure.

 

4.4 Where such leave is granted, the said Chairperson may require from the party who applied for such leave to provide security to the Registrar for the costs of the appeal by the Appeal Tribunal, which costs would include the aforegoing procedural costs and would be based on an appeal which does not last longer than one day.

 

4.5 Where leave to appeal is refused, a party who is aggrieved by such a refusal may, within 5 days, apply to the Chairperson of the Commission or an alternate Chairperson of the Commission or another Commissioner designated by the Commission for leave to appeal – such Chairperson, Alternate Chairperson or Commissioner not having sat in the first Tribunal. Such application is decided on the papers, unless the Chairperson, Alternate Chairperson or other Commissioner requests the parties to address him or her.

 

4.6 Where leave to appeal is granted, the Chairperson or other Commissioner which has granted such leave, may suspend the sanction imposed by the Tribunal pending the outcome of the appeal.

 

4.7The Appeal Tribunal and its Chairperson shall apply the same procedure which is applied by the first Tribunal of the Commission when it decides upon a matter. In this procedure, the grounds of appeal and response thereto, as lodged within a time frame determined by the Chairperson of the Appeal Tribunal, plus the reasons given by the Tribunal, shall be considered. The Chairperson of the Appeal Tribunal may co-opt a maximum of two persons who are not Commissioners for the hearing of an appeal and such persons will have the right to partake in the proceedings and vote. An Appeal Tribunal shall not consist of more than five persons, including the Chairperson. Where the Chairperson or Deputy of the Commission is not available or may not (as a result of having been on the first Tribunal) sit in such a matter, the Appeal Tribunal will be chaired by another Commissioner designated for that purpose by the Commission.

 

4.8 The Appeal Tribunal may, where it is deemed appropriate, order an appellant to pay the costs which the Commission had in determining the appeal. Such costs would consist of the fees and costs payable to the persons who were involved in the allowing of the appeal, the hearing thereof plus an administrative fee determined by the Chairperson of the Commission from time to time. An Appellant shall be notified by the Registrar of the possible costs involved when the appeal is lodged.

 

4.9 An Appeal Tribunal shall not set aside or amend a decision of the first Tribunal unless it is clearly wrong. 

5.

Variation of Procedure

The Chairperson of the BCCSA may, if satisfied that no injustice will result, and upon such conditions as he or she may impose:

5.1 extend any time period contemplated in these rules;

 

5.2 at any stage require any allegation of the fact in the statements filed in terms of rule 3 to be verified on oath;

 

5.3 call upon the parties to a dispute to furnish such further information as he or she may consider necessary;

 

5.4 dispense with the usual forms and procedures and give such directions as he or she deems fit for the adjudication of a complaint without first attempting to have the complaint settled or adjudicated upon by an adjudicator.  

6.

Findings of the Commission

6.1The Chairperson shall cause any findings, reasons for a finding and/or requirements of a Tribunal to be sent to the complainant and to the respondent who shall carry out the Tribunal’s directives and comply with any decision which the Tribunal may have taken in terms of clause 14 of the constitution.

 

6.2 The Registrar shall keep on record all findings and reasons for findings by the Tribunal.

 

6.3 The records referred to in rule

 

6.4 shall be public documents except insofar as those documents  are privileged in terms of the Promotion of Access to Information Act 2000. 

7.

Computation of time periods

Any reference in these rules to a number of days includes Saturdays, Sundays and public holidays, unless the adjudicator or Chairperson, as the case may be, determines otherwise and notifies the parties accordingly.

  

APPENDIX II

CODE OF THE BCCSA 



1.

Foreword

1. Section 2 of the Independent Broadcasting Authority Act No. 153 of 1993 ("the Act") enjoins the Independent Broadcasting Authority ("the Authority) to ensure that broadcasting licensees adhere to a Code of Conduct acceptable to the Authority.

 

2. In terms of section 56(1) of the Act, "all broadcasting licensees shall adhere to the Code of Conduct for Broadcasting Services as set out in Schedule 1". The provisions of that sub-section do not, however, apply to any broadcasting licensee "if he or she is a member of a body which has proved to the satisfaction of the Authority that its members subscribe and adhere to a Code of Conduct enforced by that body by means of its own disciplinary mechanism, and provided that such Code of Conduct and disciplinary mechanisms are acceptable to the Authority". 

2.

Definitions

"audience" as referred to in this Code means a visual and an aural audience i.e. both television and radio audiences.

"broadcasts intended for adult audiences" as referred to in this Code means broadcasts depicting excessive violence and explicit sexual conduct and shall exclude broadcasts intended for children.

"children" as referred to in this Code means those persons below 16 years.

"watershed period" as referred to in this Code means the period between 21h00 and05h00. Such restriction applies only to television services.

  Preamble
4.

Freedom of expression lies at the foundation of a democratic South Africa and is one of the basic pre-requisites for this country's progress and the development in liberty of every person. Freedom of expression is a condition indispensable to the attainment of all other freedoms. The premium our Constitution attaches to freedom of expression is not novel, it is an article of faith, in the democracies of the kind we are venturing to create.

5.

Constitutional protection is afforded to freedom of expression in section 16 of the Constitution which provides:

"(1) Everyone has the right to freedom of expression which includes -


(a) Freedom of the press and other media
(b) Freedom to receive or impart information or ideas.
(c) Freedom of artistic creativity; and
(d) Academic freedom and freedom of scientific research.

(2) The right in sub-section (1) does not extend to -


(a) Propaganda for war;
(b) Incitement of imminent violence; or
(c) Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm".

6.

Whilst in most democratic societies freedom of expression is recognised as being absolutely central to democracy, in no country is freedom of expression absolute. Like all rights freedom of expression is subject to limitation under section 36 of the Constitution.

7.

The outcome of disputes turning on the guarantee of freedom of expression will depend upon the value the courts are prepared to place on that freedom and the extent to which they will be inclined to subordinate other rights and interests to free expression. Rights of free expression will have to be weighed up against many other rights, including the rights to equality, dignity, privacy, political campaigning, fair trial, economic activity, workplace democracy, property and most significantly the rights of children and women.

8.

In the period prior to the transition to democracy, governmental processes neither required nor welcomed the adjuncts of free expression and critical discussion and our country did not treasure at its core a democratic ideal. The right to freedom of expression was regularly violated with impunity by the legislature and the executive. Therefore the protection of this right is of paramount importance now that South Africa is grappling with the process of purging itself of those laws and practices from our past which do not accord with the values which underpin the Constitution.

  Application of the Code
9.

All licensees are required to ensure that all broadcasts comply with this Code and are further required to satisfy the Authority that they have adequate procedures to fulfil this requirement. All licensees should ensure that relevant employees and programme-makers, including those from whom they commission programmes, understand the Code's contents and significance. All licensees should also have in place procedures for ensuring that programme-makers can seek guidance on the Code within the licensee's organisation at a senior level.

10.

While the Authority is responsible for drafting this Code of Conduct and for monitoring compliance therewith, independent producers or others supplying programme material should seek guidance on specific proposals from the relevant licensee.

11.

Under the Act, the Authority has the power to impose sanctions, including fines, on licensees who do not comply with this Code of Conduct.

12.

This Code does not attempt to cover the full range of programme matters with which the Authority and licensees are concerned. This is not because such matters are insignificant, but because they have not given rise to the need for Authority guidance. The Code is therefore not a complete guide to good practice in every situation. Nor is it necessarily the last word on the matters to which it refers. Views and attitudes change, and any prescription for what is required of those who make and provide programmes may be incomplete and may sooner or later become outdated. The Code is subject to interpretation in the light of changing circumstances, and in some matters it may be necessary, from time to time, to introduce fresh requirements.

13.

In drawing up this Code the Authority has taken into account the objectives of the Act and the urgent need in South Africa for the fundamental values which underlie our legal system to accommodate to the norms and principles which are embraced by our Constitution.

 14. Violence

Licensees shall not broadcast any material which judged within context:- (i) contains gratuitous violence in any form i.e. violence which does not play an integral role in developing the plot, character or theme of the material as a whole.
(ii) sanctions, promotes or glamorizes violence.

15.

Violence against women

Broadcasters shall:-

(i) not broadcast material which, judged within context, sanctions, promotes or glamorizes any aspect of violence against women;

 

(ii) ensure that women are not depicted as victims of violence unless the violence is integral to the story being told;

 

(iii) be particularly sensitive not to perpetuate the link between women in a sexual context and women as victims of violence.

16.

Violence and Hate Speech against specific groups

16.1 Licensees shall not broadcast material which, judged within context sanctions, promotes or glamorizes violence based on race, national or ethnic origin, colour, religion, gender, sexual orientation, age, or mental or physical disability.

 

16.2 Licensees are reminded generally of the possible dangers of some people imitating violence details of which they see, hear or read about.

 

16.3 Licenesees shall not broadcast 

(a)  Propaganda for war;  

(b)  Incitement of imminent violence; or 

(c ) Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. 

17.

The abovementioned prohibitions shall not apply to -

(i) a bona fide scientific, documentary, dramatic, artistic, or religious broadcast, which judged within context, is of such nature;

 

(ii) broadcasts which amount to discussion, argument or opinion on a matter pertaining to religion, belief or conscience; or

 

(iii) broadcasts which amounts to a bona fide discussion, argument or opinion on a matter of public interest.

 18. Children

Broadcasters are reminded that children as defined in paragraph 3 above embraces a wide range of maturity and sophistication, and in interpreting this Code it is legitimate for licensees to distinguish, if appropriate, those approaching adulthood from a much younger, pre-teenage audience.

18.1   Broadcasters shall not broadcast material unsuitable for children at times when large numbers of children may be expected to be part of the audience.

18.2   Broadcasters shall exercise particular caution. As provided below, in the depiction of violence in children’s programming.

18.3   In children’s programming portrayed by real-life characters, violence shall, whether physical, verbal or emotional, only be portrayed when it is essential to the development of a character and plot.

18.4   Animated programming for children, while accepted as a stylised form of story-telling which can contain non-realistic violence, shall not have violence as its central theme, and shall not invite dangerous imitation.

18.5   Programming for children shall with due care deal with themes which could threatens their sense of security, when portraying, for example, domestic conflict, death, crime or the use of drugs.

18.6   Programming for children shall with due care deal with themes which could invite children to imitate acts which they see on screen or hear about, such as the use of plastic bags as toys, use of matches, the use of dangerous household products as playthings, or other dangerous physical acts.

18.7   Programming for children shall not contain realistic scenes of violence which create the impression that violence is the preferred or only method to resolve conflict between individuals.

18.8   Programming for children shall not contain realistic scenes of violence which minimise or gloss over the effect of violent acts. Any realistic depictions of violence shall portray, in human terms, the consequences of that violence to its victims and its perpetrators.

18.9   Programming for children shall not contain frightening or otherwise excessive special effects not required by the story line.

  WATERSHED PERIOD
19.

Programming on television which contains scenes of violence, sexually explicit conduct and/or offensive language intended for adult audiences shall not be broadcast before the watershed period.

20.

On the basis that there is a likelihood of older children forming part of the audience during the watershed period, licensees shall adhere to the provisions of Article 32 below (audience advisories) enabling parents to make an informed decision as to the suitability of the programming for their family members.

21.

Promotional material and music videos which contain scenes of violence, sexually explicit conduct and/or offensive language intended for adult audiences shall not be broadcast before the watershed period.

22.

Some programmes broadcast outside the watershed period will not be suitable for very young children. Licensees should provide sufficient information, in terms of regular scheduling patterns or on-air advice, to assist parents to make appropriate viewing choices.

23.

Licensees shall be aware that with the advance of the watershed period progressively less suitable (i.e. more adult) material may be shown and it may be that a programme will be acceptable for example at 23h00 that would not be suitable at 21h00.

24.

Broadcasters must be particularly sensitive to the likelihood that programmes which start during the watershed period and which run beyond it may then be viewed by children.

25.

Subscription services

25.1   Where a programme service is only available to viewers on subscription and offers a parental control mechanism, its availability to children may be more restricted and the watershed period may begin at 20h00.

  LANGUAGE
26.

Offensive language, including profanity, blasphemy and other religiously insensitive material shall not be used in programmes specially designed for children.

27.

No excessively and grossly offensive language should be used before the watershed period on television or at times when large numbers of children are likely to be part of the audience on television or radio. Its use during the periods referred to above should, where practicable, be approved in advance by the licensee’s most senior programme executive or the designated alternate.

  SEXUAL CONDUCT
28.

Licensees shall not broadcast material, which judged within context, contains a scene or scenes, simulated or real of any of the following:

(i)   A person who, or is depicted as being under the age of 18 years, participating in, engaging in or assisting another person to engage in sexual conduct or a lewd display of nudity;

 

(ii)   Explicit violent sexual conduct;

 

(iii)   Bestiality;

 

(iv)   Explicit sexual conduct which degrades a person in the sense that it advocates a particular form of hatred based on gender and which constitutes incitement to cause harm.

29.

Save for 28.(i) above, the prohibition in 28. (ii) to 28 (iv) shall not be applicable to bona fide scientific, documentary, dramatic material, which judged within context, is of such nature. The prohibition in 28.(i) shall however be applicable to artistic material which judged within context, is of such a nature.

30.

Scenes depicting sexual conduct, as defined in the Films and Publication Act 65 of 1996, should be broadcast only during the watershed period. Exceptions to this may be allowed in programmes with a serious educational purpose or where the representation is non-explicit and should be approved in advance by the most senior programme executive or a delegated alternate.

31.

Explicit portrayal of violent sexual behaviour is justifiable only exceptionally and the same approval process as referred to in 30 above must be followed.

  AUDIENCE ADVISORIES
32.

To assist audiences in choosing programmes, licensees shall provide advisory assistance, which when applicable shall include guidelines as to age, at the beginning of broadcasts and wherever necessary, where such broadcasts contains violence, sexual conduct and/or offensive language.

33.

Classification

33.1   Where a Film and Publications Board classification exists in terms of the Films and Publication Act No. 65 of 1996 (“Films and Publications Act”) for the version of a film or programme intended to be broadcast, such classification certification may be used as a guide for broadcasting.

33.2   No version which has been refused a Film and Publication Board classification  certification should be broadcast at any time.

33.3   In all other instances, the provisions of this Code will apply.

34.

News

34.1   Licensees shall be obliged to report news truthfully, accurately and fairly.

34.2   News shall be presented in the correct context and in a fair manner, without intentional or negligent departure from the facts, whether by:-

(a)   Distortion, exaggeration or misrepresentation.
(b)   Material omissions; or
(c)   Summarisation

 

34.3   Only that which may reasonably be true, having due regard to the source of the news, may be presented as fact, an such fact shall be broadcast fairly with due regard to context and importance. Where a report is not based on fact or is founded on opinion, supposition, rumours or allegations, it shall be presented in such manner as to indicate clearly that such is the case.

34.4   Where there is reason to doubt the correctness of the report and it is practicable to verify the correctness thereof, it shall be verified. Where such verification is not practicable, that fact shall be mentioned in the report.

34.5   Where it subsequently appears that a broadcast report was incorrect in a material respect, it shall be rectified forthwith, without reservation or delay. The rectification shall 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.

34.6   The identity of rape victims and other victims of sexual violence shall not be divulged in any broadcast without the prior consent of the victim concerned.

34.7   Licensees shall advise viewers in advance of scenes or reporting of extraordinary violence, or graphic reporting on delicate subject-matter such as sexual assault or court action related to sexual crimes, particularly during afternoon or early evening newscasts and updates when children would probably be in the audience.

34.8   Licensees shall employ discretion in the use of explicit or graphic language related to stories of destruction, accidents or sexual violence which could disturb children and sensitive audiences.

35.

Comment

35.1   Licensees shall be entitled to broadcast comment on and criticism of any actions or events of public importance.

35.2   Comment shall be an honest expression of opinion and shall be presented in such manner that it appears clearly to be comment, and shall be made on facts truly stated or fairly indicated and referred to.

36.

Controversial issues of public importance

36.1   in presenting a programme in which controversial issues of public importance are discussed, a licensee shall 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.

36.2   A person whose views are to be criticised in a broadcasting programme on a controversial issue of public importance shall be given a right to reply to such criticism on the same programme. If this is impracticable however, opportunity for response to the programme should be provided where appropriate, for example in a right to reply programme or in a pre-arranged discussion programme with the prior consent of the person concerned.

37.

Elections

During any election period, the provisions of sections 58, 59, 60 and 61 of the Act shall apply, and all broadcasting services shall in terms of those sections be subject to the jurisdiction of the Authority.

38.

Privacy

Insofar as both news and comment are concerned, broadcasting licensees shall exercise exceptional care and consideration in matters involving the dignity or  private lives and private concerns of individuals, bearing in mind that the rights to dignity and privacy may be overridden by a legitimate public interest.

39.

Paying a criminal for information

39.1  No payment shall be made to persons involved in crime or other notorious behaviour, or to persons who have been engaged in crime or other notorious behaviour, in order to obtain information concerning any such behaviour, unless compelling societal interests indicate the contrary.

   
  





 

 

Copyright and Applicability Of Original Sources