A complaint was received that the Respondent had not broadcast in its news that the Scorpions, a special division of 
the South African Police Services, was investigating an allegation that the Deputy President might have been involved in a corrupt dealing in the so-called Arms Deal. This had been reported in a newspaper at the end of November 2002 and it was reported that the Deputy President had denied the allegation as “mischievous”. The Arms Deal had drawn much coverage in the media during the previous 18 months as a result of allegations of corruption and an inquiry into the matter.
The Commission held that:
(1) the Broadcasting Code only has a bearing on material that has been broadcast and that a complaint as to a mere omission does not amount to a contravention of the Code;
(2) where a specific broadcast lacks balance or where a significant view on a matter of public importance has not been included, such an omission must be rectified;
(3) the approach should be that a broadcaster, as a result of its independence, should have the right to decide what is newsworthy, and that such independence, in the light of the fundamental right to freedom of expression which includes the right not to publish, may only in exceptional circumstances be interfered with if it is reasonable to do so ;
(4) that the news clause in the Code requires that a broadcast must be “balanced”. Since balance is often achieved by way of more than one broadcast, reasonably connected in time and subject matter, the Tribunal is entitled to inquire into more than one broadcast to establish whether the broadcast at issue was balanced;
(5) when a complaint is received that a broadcaster has not covered an event of public importance and the omitted matter of importance falls within the same subject as a subject covered a reasonable time before the alleged omission, the omission might lead to a finding that the omission of the supervening event of public importance amounted to a contravention of the balance requirement in the news clause.
On the facts of this matter, the Tribunal held that the SABC radio services did publish the matter widely within a reasonable time.
SABC TV was justified in holding over the matter until the ANC Congress on the 16th December 2002. It then could publish the reaction of the President, who said that the law would take its course, if necessary. The President thereby confirmed the Constitutional presumption of innocence of a person until proved guilty, a presumption which is often lost sight of by the general public. The manner in which the SABC dealt with this matter was both balanced and reasonable. It was not necessary for it to publish as soon as the matter was published in a newspaper. For the BCCSA to deduce that the SABC applied censorship in not immediately broadcasting the matter of the Scorpions’ investigation, would not be justified.
As to the legal points raised, the complaint is dismissed insofar as it was argued that the mere omission in the news of an event of public importance should be regarded as a contravention of the Broadcasting Code. Otherwise, the legal point is upheld as set out in (4) above.
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