Introducción

The historical overview of the regulation of broadcasting and telecommunication in South Africa shows that prior to the advent of constitutional democracy in South Africa in 1994, the broadcasting and telecommunication sectors were regulated primarily by the provisions of the Radio Act, 1952 and the Broadcasting Act, 1976. The effect of the provisions of these two statutes was that, during the apartheid era, the government had complete control over all telecommunications and broadcasting activities in South Africa. The National Party government exercised exclusive control over the formulation of broadcasting and telecommunications policy, over the regulation of the broadcasting and telecommunications industry, and through the South African Broadcasting Corporation (SABC), over the provision of broadcasting services to aggressively construct its apartheid ideology (Olorunnisola & Lugalambi, 2011).

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The apartheid government abused its position of power in this regard in order to cement its political agenda. For instance, although the government claimed that the SABC was an independent body, free of editorial control over programme content, it was common knowledge that news broadcast and other programmes were manipulated by the government (Teer-Tomaselli, 1995; Fokane, 2003). During the multi-party negotiation process between 1990 and 1994 which resulted in the transition to democracy, it was agreed that various bodies that would facilitate the transition be set up. These bodies included the Independent Media Commission, the Independent Electoral Commission, the Transitional Executive Council and most importantly, the Independent Broadcasting Authority (Fourie, 2001).

The IBA was established by the Independent Broadcasting Act, 1993 (The IBA Act).

The IBA Act introduced, to a certain extent, a separation of powers in that the IBA became responsible for the formulation of broadcasting policy and for the regulation of broadcasting activities. The IBA was also mandated to supervise the expansion and diversification of the broadcasting industry by means of the privatisation of some of the existing services (Olorunnisola & Lugalambi, 2011). By doing so, the IBA Act, which came into effect on 30 March 1994, reformed the regulation of broadcasting activities in South Africa. The Constitution of the Republic of South Africa of 1996 came into effect on February 1997 and provides in Section 192 that national legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society (Teer-Tomaselli, 1995). By enacting this provision, the Constitutional Assembly gave recognition to the IBA. It also entrenched the principle of the independence of the IBA.

These regulations therefore paved the way for various improvements in the South African broadcasting industry (Olorunnisola, 2000; Fokane, 2003).

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2.5.1 The Independent Broadcasting Authority (IBA) and its contributions to the transformation of the South African broadcasting industry

The numerous public protests by mass democratic movements in the 1980’s and by oppositional political parties in the years between their unbanning in 1990 and the 1994 elections led to the call for the Convention for a Democratic South Africa (CODESA), which was later to draw up the Independent Broadcasting Authority (IBA), which came into existence in 1993. The main purpose of creating the IBA was therefore to free the SABC from government control and also to give the Station more credibility in its attempts to disseminate news and information in a truthful manner. This was also necessary to ensure fairness in the upcoming 1994 democratic elections in South Africa (Olorunnisola, 2000; Fokane, 2003). The main task of the IBA, however, was to generate policy regarding broadcasting, to issue broadcast licenses and to regulate and monitor the activities of broadcasters within the country.

However, for the IBA to start off effectively as a broadcasting regulator, a Commission of Inquiry was set up in 1993 to look at the broadcasting scenario in South Africa and the Commission drafted what was then known as the Triple Inquiry Report. The Report was published in 1995, two years after the establishment of the IBA, and it focused on three main issues. The first issue that was raised focused on the protection and viability of public broadcasting, with recommendations that the financially lucrative regional radio stations being operated by the SABC be sold off. The second was a concern for the percentage of local content of radio and television, with recommendations that local content should constitute at least 50% of programming by the year 2000. The third issue was centred around the establishment of criteria regarding cross-media ownership, aimed at ensuring that no one person may own more than one television station, two FM and two medium-wave radio stations (Olorunnisola, 2000; Horwitz, 2001; Fokane, 2003; ICASA Corporate Information). The main consideration behind this was to encourage diversity in media ownership.

In addition, the Report recommended that all radio stations established by the former homelands (TBVC states) of Transkei, Ciskei, Venda and Bophuthatswana should be merged with the SABC, be sold or that the frequency be considered for a community

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radio station. It is of importance to note that, two years after the 1994 elections, six radio stations were privatised, new private stations were created, a private television channel was created and eighty-two community radio stations were granted licenses with the aim of empowering the disadvantaged communities (Buckley, 2000). The idea of establishing a community media sector therefore shifted from resistance as in the period of struggle against apartheid, to reconstruction and development. Community radio stations are now understood to serve as a tool for empowering communities at the grassroots level and also to give them a platform to participate meaningfully in the growth of the nation’s young democracy (Olorunnisola, 2000; Horwitz, 2001). The broadcasting environment at that time therefore provided community radio stations with an atmosphere in which to flourish and bring development and empowerment to their communities.

It is important to note that the advent of the Independent Broadcasting Authority (IBA) brought a considerable number of changes and new development to the South African broadcasting sector. Soon after the 1994 elections in South Africa, a coalition government of national unity came to power with the African National Congress (ANC) having secured a clear majority. Soon afterwards, the apartheid constitution was abolished and a new constitution was put in place to effect changes in the new South Africa. This new constitution allowed for freedom of expression and also guarantees the protection of the media from censorship and any other form of interference.

All these changes in the political, economic and social spheres of the country brought about the need for reforms in the nation’s broadcasting industry. This was to render the media independent and thus ensure a more critical coverage of government activities than prior to 1994. The government therefore systematically democratised the airwaves to ensure an improved reception of broadcasts, free of any form of interference from any quarters and also encourage ownership and control of broadcasts by the previously disadvantaged groups in post-apartheid South Africa. Teer-Tomaselli (1995) observes that all these developments and pressures from political parties were aimed at breaking the monopoly of the South African Broadcasting Corporation (SABC).

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The Broadcasting Act of 1999 therefore establishes a broad framework for the regulation of the broadcasting industry and supplements the provisions of the IBA Act. A substantial part of the Broadcasting Act is devoted to the restructuring of the SABC and, in particular, its conversion from a statutory body into a public company of which the State is the sole shareholder. The Broadcasting Act also provides that the Minister of Communications is ultimately responsible for the development of broadcasting policy.

By conferring this power on the Minister, the power of the regulatory authority to determine broadcasting policy was, however, effectively diluted. The IBA Act was also amended in 1999 to empower the Minister to issue policy directions of general application on matters of broad national policy to the regulatory authority (Olorunnisola, 2000; Fourie, 2001, Fokane, 2003, ICASA Corporate Information, n.d).

2.5.2 Independent Communications Authority of South Africa and its contributions to the South African Broadcasting industry

In an attempt to further improve the South African broadcasting and telecommunication industries, the Independent Communications Authority of South Africa (ICASA) was established in July 2000 in terms of ICASA’s Act No. 13 of 2000. ICASA was set up to therefore serve as the regulator of telecommunications and the broadcasting sectors. It took over the functions of two previous regulators, namely, the South African Telecommunications Regulatory Authority (SATRA) and the Independent Broadcasting Authority (IBA). The two bodies were merged into ICASA to facilitate effective regulation of telecommunications and broadcasting and to accommodate the convergence of technologies, which was fast gaining ground globally. ICASA derives its mandate from four statutes. These are the ICASA Act of 2000, The Independent Broadcasting Act of 1993, the Broadcasting Act of 1999 and the Telecommunications Authority Act No. 103 of 1996 (ICASA Corporate Information, I.C.A.S.A, 2002).

A critical look at this mandate given to ICASA shows that the Independent Communications Authority of South Africa Act, 2000 (The ICASA Act), indeed provided for the dissolution of the IBA and SATRA and for the creation of a regulatory body known as the Independent Communications Authority of South Africa (ICASA). The ICASA Act therefore recognised that technological developments in the fields of

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broadcasting and telecommunications had caused a rapid convergence of these fields.

The Act also acknowledged a need to establish a single body to regulate broadcasting and telecommunications matters, with the right to function without any political or commercial interference. ICASA continues to perform the duties imposed, and to exercise the powers conferred on upon the IBA and SATRA by the IBA Act, the Telecommunications Act and the Broadcasting Act (ICASA Corporate Information;

Olorunnisola, 2000; Fokane, 2003).

2.5.3 Licensing radio stations in South Africa: Relevant criteria and considerations for issuing community broadcasting licenses

There are certain legislations and relevant criteria to be considered when issuing community broadcasting licenses in South Africa. For instance, Section 47 (1) of the ICASA Act provides that:

in considering any application for a community broadcasting license, the Authority shall, with due regard to the objects and principles as enunciated in Section 2 of the Act, at the same time take into account that the applicant is fully controlled by a non-profit entity and also proposes to serve the interests of the relevant community. The Act also requires the applicants to have the support of the relevant community or of those associated with or promoting the interests of such community, which support is measured according to the criteria prescribed by the Authority by means of regulations ("the Support Criteria Regulations") published in Government Gazette No. 18823 of 13 April 1998.

The criteria include the details of the number of listeners which the applicant proposes to serve, the level of interest among the potential listenership in the proposed service and the level of support from funders. Applicants are also required to have sufficient resources and funding necessary to ensure the viability of the service.

Lastly, applicants are obliged to clarify whether members of the relevant community or those associated with, or promoting the interests of such community will be encouraged to participate in the selection and provision of programmes to be broadcast in the

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course of such broadcasting service (ICASA Corporate Information, n.d; I.C.A.S.A, 2002).

All these requirements are very central in some ways to this case study as they highlight the importance of community radio ownership and community participation, which are key issues that mark the existence of community radio. In addition and to throw more light on the legislation and licensing conditions, Paragraph 4 of the Act provides that, in considering an application for a community sound broadcasting license, the Authority should also take into account the extent to which the applicant, in the case of geographically founded communities, proposes to meet the diverse needs of the community within the coverage area (I.C.A.S.A, 2002).

The Act also aims to ensure that the applicant has taken measures to ensure that the stakeholders in its policy-making, operational and other structures are representative of the community to be served and encourages members of that community to participate in the selection and provision of programmes. This furthermore points to the commitment of the government in the new South Africa to enable people to voice out their opinion and be heard. Applicants are required to offer radio programmes that propose to reflect the needs of the community as identified and prioritised by that community, in a forum or any other manner to the satisfaction of the Authority. The Act furthermore obliges applicants to strive to develop programmes that will contribute towards general enrichment of the lives of the members of that community; and that are distinguishable from other applicants and / or broadcasters serving the same geographical coverage area (ICASA Corporate Information, n.d).

According to ICASA, there are other critical factors to be considered when issuing community broadcasting licenses. Firstly, the programming of community radio stations should be community-driven. Accordingly, the Authority requires community participation well beyond phone-in programmes. Community members are to be involved in meetings and visits to the radio station and also enabled to give input for for programme content development and other relevant activities in the station. Secondly,

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community sound broadcasting services are required to broadcast news and other information programmes specifically about events and issues at local level. Thirdly, community sound broadcasting services should reflect the language needs of their target communities. The use of appropriate and acceptable language is very important if community listeners are to take ownership of the station and identify with it. Furthermore sound broadcasting services dedicating more than 15% of their airtime schedules to the broadcasting of music are required to ensure that at least 40% of music broadcast is South African (ICASA Corporate Information, n.d; I.C.A.S.A, 2002).

It is therefore important that all the above be taken into consideration when applying for and issuing community broadcasting licenses. It must also be noted that applications for a license are only deemed to be successful if applicants satisfied the Authority that they are, or would be community-driven, ensuring meaningful community participation in the general operation of the radio station and that their programming is distinct from other sound broadcasting services in the license area (I.C.A.S.A. 2002). All these are aimed at making the broadcasting sector function effectively and contribute to the development of the listeners and the community as a whole.