MultiChoice and ANN7 debacle puts spotlight on graft in media
Much dust has been kicked up over the MultiChoice agreements with the SABC and the Guptas’ ANN7 television news channel. These parties allegedly colluded in a form of state capture and corruption to their mutual benefit.
The payoff for MultiChoice was that the government’s digital migration policy on encryption was fixed around their position, while the SABC and ANN7 had their 24-hour news channels funded and carried on MultiChoice’s DStv platform.
But this explanation is not the whole story. Let’s assume former president Jacob Zuma wanted to control all electronic broadcast news in SA. In 2013, Hlaudi Motsoeneng, then acting SABC chief operating officer, said that SABC news had to have at least 70% good-news stories. Then talk-show anchor Jimmy Manyi was promoting "sunshine" news on ANN7.
Zuma’s allies at the state broadcaster — Ben Ngubane and Motsoeneng — facilitated access to the SABC for the New Age newspaper’s breakfasts, hosted by the Guptas, which promoted the views of cabinet ministers. The breakfasts were bankrolled to the tune of millions of rand by, among others, state-owned enterprises such as Transnet, Telkom and Eskom.
Uneasy about e.tv’s 24-hour news channel, Ngubane and Motsoeneng began negotiations with the Treasury to get funding for a 24-hour SABC news channel. Former minister of finance Pravin Gordhan turned them down, saying it was a "vanity project". Perhaps persuaded by the Guptas’ ANN7 collaboration with MultiChoice, Ngubane and Motsoeneng initiated discussions with MultiChoice, but the first round failed.
Recognising an opportunity for a quid pro quo on encryption, MultiChoice closed the deal in July 2013 and got kudos for hosting and financing ANN7 and the SABC’s 24-hour news channel. But former communications minister Yunus Carrim tabled a new draft amendment to the digital migration policy in December 2013, proposing that broadcasters could make use of encryption in set-top boxes if they wished, with the proviso that should they develop a pay-TV service using encrypted set-top boxes, they would have to compensate the state for the cost of encryption.
Encryption will enable free-to-air broadcasters such as the SABC and e.tv to access premium television content monopolised by MultiChoice. Without encryption, MultiChoice’s premium content monopoly would be indefinitely protected and the viewers of the SABC and e.tv would become second-class citizens in their viewing options.
MultiChoice formed an alliance with the set-top box manufacturers association, the National Association of Manufacturers in Electronic Components, and the Association of Community Television to attack the minister in full-page Sunday newspaper advertisements.
Zuma removed Carrim as communications minister after the 2014 elections. He appointed Faith Muthambi as minister of communications. Muthambi ensured that Motsoeneng was appointed permanent SABC chief operating officer and challenged the public protector’s findings on his role in "capturing" the public broadcaster. She also defied the ANC communications subcommittee on the encryption issue.
In March 2015, Muthambi passed a policy amendment removing encryption.
She defended it in an e.tv court challenge and in 2017 won the case at the Constitutional Court. This was the quid pro quo for MultiChoice.
Pressure was allegedly exerted on Hosken Consolidated Investments CEO Johnny Copelyn to fire Marcel Golding as CEO of e.tv.
Challenging his dismissal in the Labour Court, Golding revealed that Economic Development Minister Ebrahim Patel had pressured him into giving favourable news coverage of Zuma on e.tv.
Golding stated in his affidavit: "Editorial independence is part and parcel of the constitutional right of the media to freedom of expression as protected by Section 16 of the Constitution of SA. In opposing the attempts to manipulate news content I have been acting to protect the right of editorial staff to run an independent news service."
When Jackson Mthembu became ANC chief whip in Parliament, the composition of the portfolio committee on communications changed and a successful inquiry into the SABC board resulted in the appointment of a new board, which was not directly in Zuma’s pocket, although he did manage to appoint the chairman of a foundation headed by one of his wives as chairman of the broadcaster’s board.
Before the local government elections in 2016, Motsoeneng unilaterally declared that the SABC would not show any footage of the destruction of property during public protests.
The Independent Communications Authority of SA (Icasa) rejected Motsoeneng’s news censorship and the interim board reinstated the initial SABC editorial policy for news and launched a consultative process on editorial policy.
Motsoeneng was dismissed.
Muthambi was challenged by e.tv on her encryption amendment and a picture emerged of Zuma’s systematic undermining of the Constitution’s prohibition on political interference in electronic news broadcasting, aided and abetted by his allies.
Judge Hilary Squires’s concept of corruption as a form of "mutually beneficial symbiosis" can be applied to the control, encryption, governance and news matrix.
Section 3 of the Prevention and Combating of Corrupt Activities Act prohibits any person from offering or receiving any financial benefit for a corrupt purpose.
A person would be acting with a corrupt purpose if expected to act in an "illegal, dishonest, unauthorised, incomplete, or biased" manner that would amount to "the abuse of a position of authority; a breach of trust; the violation of a legal duty or a set of rules; designed to achieve an unjustified result; or that amounts to any other unauthorised or improper inducement to do or not to do anything".
In S v Shaik, Squires found that a corrupt act could exist even if there was no formal agreement between the parties if it could be shown that there was a mutually beneficial symbiosis between the parties to the corrupt act. In the collusion between the SABC, MultiChoice, ANN7 and the minister of communications (acting as a proxy for the president), such a mutually beneficial symbiosis existed and a prima facie case exists of a series of corrupt acts designed to gift the president control over broadcast news in exchange for a change of government policy on the encryption of set-top boxes that favoured MultiChoice.
There were substantial negotiations on the Constitution during and after the 1994 elections into setting up an independent authority for the purpose of regulating broadcasting "in the public interest, and to ensure fairness and a diversity of views broadly representing South African society" (section 92 of the Constitution). The negotiators established an Independent Media Commission to monitor the use of government information resources and ensure fair news coverage during the 1994 election. The notion of fairness counters the use of propaganda by placing an onus on a broadcaster to present a fair diversity of views.
The Zupta attempt to capture all electronic broadcast news in the country undermines these constitutional principles.
Access to information that is fair, reliable and without propagandist intent is integral to citizens being able to exercise their rights in a constitutional democracy. When this right to know is interfered with by a powerful and unscrupulous state and commercial forces, democracy is degraded. This is a matter that the state capture commission must investigate.
If the commission finds there was a conspiracy between the SABC, ANN7 and MultiChoice in violation of the Constitution, this will bring to light the fact that the protections for the fairness and diversity of broadcast news in the Constitution can be undermined by ruthless actors, inside and outside the state.
One way of addressing this may be for Icasa to tighten its criteria for free, fair and diverse broadcast news in its licensing processes. It is too easy to set up a propaganda news channel on MultiChoice’s DStv platform.
Another may be to change the way senior leadership appointments are made at the SABC by removing the appointment of its board from the legislative branch and the appointment of senior SABC executives from the executive branch of the government.
There is a precedent for this in the negotiations before the 1994 election. Under pressure from civil society and the negotiators, the National Party government agreed that an independent panel of jurists, under Judge Ismail Mohamed, would conduct public hearings to select a new SABC board in 1993.
Is it not time for the judiciary to play a leading role in protecting the fairness and diversity of broadcast news once again?
• Currie is a former Icasa councillor.