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Electronic Communications Act, 2005 (Act No. 36 of 2005)RegulationsNational and Provincial Party Elections Broadcasts and Political Advertisements Amendment Regulations, 2024Reasons Document - February 2024Analysis3.2 Party Elections Broadcasts |
| 3.2.1 | Regulation 4(2) and 4(7) |
| 3.2.1.1 | MCMT proposes that regulation 4(2) of the Regulations be amended to read: |
“(2) A political party or an independent candidate who wishes to have its PEB broadcast must submit same to the BSL within five (5) working days after the date of the proclamation of the election date, whereafter BSL will be afforded a five (5) working day period within which to ensure that all PEBs submitted comply with the Regulations”.6
| 3.2.1.2 | According to MCMT, for community BSL that wishes to participate in the broadcast of PEBs, the five working days of receiving all the PEBs and having to go through all the content and ensuring that they meet all the technical requirements, and write back to them for confirmation amongst other issues will be a logistical challenge. Therefore, MCMT proposes that BSL be afforded an additional five days after the date of submission to go through the content and then reply to all the submissions accordingly.7 |
The Authority’s decision
| 3.2.1.3 | The Authority wishes to advise that its intention is to afford BSL’s five (5) working days after receipt of PEBs to go through the content of the PEB and then reply to all the submissions accordingly within the 5 working days. This is reflected in regulation 4(7), which requires BSLs that reject a PEB to furnish the political party or independent candidate concerned with written reasons for the rejection within five (5) working days after receipt of the PEB. |
| 3.2.2 | Risk of Unused Slots |
| 3.2.2.1 | The SABC submits that the risk of unused slots should be minimised8. |
The Authority’s decision
| 3.2.2.2. | On 20 February 2024, the President announced the election date prior to the publication of the regulations. Therefore, the Authority resolves that political parties and independent candidates that wish to have their PEBs broadcast will be afforded 5 calendar days from the publication of the list of broadcasters that will be carrying PEBs to submit their PEBs to broadcasters. |
| 3.2.2.2 | The Authority agrees with the proposal that the risk of unused slots should be minimised given the financial implications on broadcasters. However, the Authority is of the view that the risk of unused slots has been significantly addressed by the Draft Regulations in so far as Draft Regulations provide that if a political party or an independent candidate fails to deliver the PEB to the BSL before the expiry of five (5) calendar days the political party or independent candidate is deemed to have forfeited its allocated airtime. |
| 3.2.2.3 | The Authority has further reduced the duration of PEBs to mitigate the risk of unused airtime. Given that the upcoming national and provincial election is the first time that independent candidates will be contesting, the Authority does not have sufficient statistics regarding the number of slots needed to accommodate all contesting political parties and independent candidates and therefore cannot minimise the risk of unused slots beyond what is currently contained in the Regulations. |
| 3.2.3 | PEBs on commercial platforms |
| 3.2.3.1 | The SABC submits that its commercial services (SABC 3, 5FM, Metro and Goodhope FM) should not be compelled to broadcast PEBs similar to other non-SABC commercial broadcasters. To this end, SABC states that the inclusion of its commercial services would go against the spirit of the Broadcasting Act and Broadcast Policy9. |
The Authority’s decision
| 3.2.3.2 | Section 57 (8) of the ECA applies to a commercial or community broadcasting service licensee, and in terms thereof a commercial broadcasting service licensee may elect to broadcast a PEB however it is not required to broadcast PEBs. Under the circumstances the SABC is not a commercial broadcasting service licensee nor is it a community broadcasting service licensee therefore section 57 (8) does not apply to the SABC. |
| 3.2.3.3 | According to section 57(1) of the ECA, a public broadcasting service licensee must permit PEBs during the election period. Nonetheless, section 57 (2) requires the Authority to determine the duration and scheduling of PEB slots taking into account the financial and programming implications for the broadcasting services in question. Therefore, when determining slots allocations to the SABC the Authority will consider the financial and programming implications for its commercial services. |
| 3.2.4 | Regulation 4(14): Duration of PEBs |
| 3.2.4.1 | The SABC states that it supports and appreciates the reduction in the duration of the PEBs. However, it seeks clarity regarding whether the proposed amended 40-second duration of the PEB slot is inclusive of the tail disclaimer10. |
The Authority’s decision
| 3.2.4.2 | The Authority emphasise that forty (40) seconds duration of the PEB slot excludes the tail disclaimer as per regulation 4(14)(a) of the Regulations. |
| 3.2.5 | Allocation of PEB Airtime |
| 3.2.5.1 | Kanyamazane Community Radio submits that it shall provide the participating political parties including independent candidates an equal number on PEBs for free. Furthermore, Kanyamazane Community Radio indicates that it will charge the political parties and independent candidates an equal rate for advertising they would like to buy to advertise their parties. It states that it will do a promo to invite political parties and independent candidates to avail themselves for PEBs and for advertising their political parties.11 |
The Authority’s decision
| 3.2.5.2 | The Authority would like to clarify that the allocation of PEB slots to political parties and independent candidates is the sole responsibility of ICASA and BSLs are not allowed to allocate PEBs. Broadcasters who intend to broadcast PEBs are expected to inform the Authority of their intention to broadcast such and avail airtime to the Authority to the allocate the PEBs. The Authority will, after allocation of PEB slots, publish the schedule that will consist of the names of political parties and independent candidates and the time of PEB broadcast allocated to those political parties and independent candidates. |
| 3.2.5.3 | PAs are a contractual relationship between the broadcaster and the political party/independent candidate concerned. Therefore, the broadcaster decides on the allocation of such. In case, where a BSL avails PA airtime to political parties, it should also avail the same to independent candidates. Any BSL that wishes to broadcast PAs and PEBs will need to inform the Authority of their intention to do so within 20 calendar days after the publication of the final Regulations. |
| 3.2.6 | Broadcast of PEBs/PAs and other elections programming |
| 3.2.6.1 | The Voice of Community FM is of the view that political parties should be treated with fairness during heated debates. The Voice of Community FM submits that, after going through the Draft Regulations, it believes that it can broadcast PEBs and PAs fairly and equally.12 |
The Authority’s decision
| 3.2.6.2 | The Authority agrees that PEBs and PAs should be broadcast fairly and would like to remind stakeholders that the allocation of PEB slots is the sole responsibility of ICASA. In instances, where political parties are given an opportunity to partake in debates, independent candidates should also be given such opportunity and both political parties and independent candidates should be treated equitably. In such instances, broadcasters must invite political parties and independent candidates with reasonable notice, to participate either in the same programme or in a series of programmes. Equitable treatment is unlikely to be achieved in a single programme but can be achieved in a series of programmes. |
| 3.2.7 | Allocation of PEBs during the performance period |
| 3.2.7.1 | The SABC submits that PEBs should not be allocated during prime time in the interest of protecting the financial viability of the SABC13. |
The Authority’s decision
| 3.2.7.2 | The Authority acknowledges its obligation to take into account the financial and programming implications for broadcasting services in question when determining the time to be made available, including the duration and scheduling of PEBs to political parties and independent candidates However, the Authority is of the view that this obligation must be executed having due regard to the right of political parties and independent candidates having their voice heard and being treated equitably. Prime time slots offer political parties and independent candidates the opportunity to be heard by the majority of South Africans. |
| 3.2.7.3 | Excluding prime time slots would further mean that the performance period is reduced to only fourteen (14) hours as prime time is defined to be from 18h00 until 22h00 (four (4) hours in total). This would have negative implications on the scheduling of PEBs and would advantage political parties and independent candidates who can afford to pay for Political Advertisements during these prime-time slots. |
| 3.2.7.4 | The Authority tries to be as accommodating as possible by prescribing time slots that enable a broadcaster to be flexible in slotting in the PEB in a manner that is best suited to its programming. For example, slot one may be from 06h00 to 07h00 and the broadcaster is free to slot in the PEB anywhere within this sixty (60) minute period. There is a risk that if PEBs are excluded from prime time it would mean that PEBs will be too concentrated during certain periods and not be spread out evenly throughout the performance period. The Authority continues to review its slot allocations before every election to ensure that the process is still relevant and results in a fair and balanced outcome for both political parties and independent candidates as well as broadcasters who participate in the broadcast of PEBs. |
| 3.2.8 | Allocation of PEBs outside news and current affairs |
| 3.2.8.1 | The SABC submits that during the election period, it makes an effort to broadcast all newsworthy, important, relevant and interesting political party election-related news and content in its current affairs programmes. Furthermore, it does not broadcast PAs in its radio current affairs programmes, with the view to preserve the editorial integrity of these programmes. The SABC indicates that neither PEBs nor PAs be scheduled directly before, during or directly after TV and Radio current affairs shows and news bulletins, (including Morning Live) so as to preserve the editorial integrity of these programmes as far as possible and to avoid any association of party messages with editorial content by the public.14 |
The Authority’s decision
| 3.2.8.2 | The Authority is of the view that broadcasting PEBs during current affairs or immediately before or after the airing of news will not damage or have an adverse effect on the SABC’s editorial policy as the PEBs come with a disclaimer which clearly stipulates that the views expressed are those of the relevant political party and independent candidates and not the public broadcaster. |
| 3.2.9 | Allocation of PEBs and clock hour advertising cap |
| 3.2.9.1 | The SABC submits that it has noted that the Draft Regulations are silent about the position of the clock hour advertising cap of twelve (12) minutes per hour and that it is its view that PEBs should not be counted towards the existing clock hour advertising cap. Thus, it is submitting that the Final Regulations should state that PEBs will not count towards the existing clock hour advertising cap. This position will allow the SABC to still generate commercial revenue for the sustenance of the Corporation15. |
The Authority’s decision
| 3.2.9.2 | The Authority would like to confirm that the PEB airtime does not contribute towards the clock hour advertising cap contained in the license conditions. Advertisements are paid for whilst the PEBs are free of charge. |
| 3.2.10 | Allocations of PEBs slots in provinces |
| 3.2.10.1 | The SABC submits that it supports the notion of allocating targeted and relevant PEB slots to the constituencies of contesting political parties and independent candidates. Ideally, political parties and independent candidates contesting only in a few provinces should be allocated PEB slots in the radio services mainly broadcasting in the provinces in which they are contesting elections. This will make the PEBs to be effective as they will be broadcast to the relevant constituencies only16. |
The Authority’s decision
| 3.2.10.2 | The Authority concurs that political parties or independent candidates be allocated PEB slots for where they are contesting elections. |
| 3.2.11 | Regulation 4: Cutoff date for submission of PEBs |
| 3.2.11.1 | The DA in their submission notes the amendments that ICASA intends to provide a singular cutoff date for political parties and independent candidates to submit PEB’s to BSL’s to streamline processes in the election broadcast period. However, the DA disagrees with ICASA’s proposed cutoff date of five (5) working days after the proclamation of the election date. Consequently, the DA proposes that political parties and independent candidates submit PEBs to BSLs within ten (10) working days of the finalisation and publication of the slot allocation17. |
| 3.2.11.2 | The SABC states that regulation 4(2) provides for a singular cut-off date for submission of PEBs by political parties and independent candidates. The SABC supports a singular cut-off date as it will ensure that PEBs are allocated to political parties and independents who will make use of the PEB slots. The SABC has a control measure in place to ensure that all received PEBs are properly processed and acknowledged accordingly.18 |
The Authority’s decision
| 3.2.11.3 | The Authority can only allocate slots to registered political parties and independent candidates after receipt of the final candidates’ list from the IEC. |
| 3.2.11.4 | The submission of PEBs to BSL during the election broadcast period in its current format provides for five working days before the broadcast date of the PEB. Any further extension in the number of days after slot allocation will drastically reduce the election broadcast period and the number of PEBs to be allocated. |
| 3.2.11.5 | Furthermore, the current process of submission of PEBs five working days before the broadcast date has resulted in low usage of PEBs due to PEBs not being submitted on time, not being submitted in the correct format amongst other issues and placed an administrative burden on BSL in terms of processing PEBs during the entire election broadcast period. It should also be noted that the low usage of PEBs also resulted in BSL losing revenue generating opportunity because unused allocated airtime cannot be repurposed for any other purpose in such short notice. |
| 3.2.11.6 | The once off cut-off date ensures that after submission, the only administrative process that will be done by BSL is processing the content and/or ensuring compliance with the regulations of the PEBs submitted. Furthermore, the benefits of the cut-off dates included the extended number of days for the election period within which PEBs could be broadcast and thus additional PEBs available for allocation. |
| 3.2.11.7 | Therefore, the Authority will maintain a once-off cut-off date for submission of PEBs to ensure that BSLs are given sufficient time to process the PEBs, audit the number of PEBs that have met the requirements and schedule ahead prior to allotment. |
| 3.2.12 | Physical and online submission of PEBs |
| 3.2.12.1 | The SABC states that in the previous elections, it has had to reject PEBs that were delivered in-person by political parties and independent candidates, on the basis of their non-compliance with prescribed technical standards. In other cases, these political parties and independent candidates had travelled from other provinces to deliver the PEBs in Auckland Park, Gauteng. This exercise could be less costly for political parties and independent candidates, if electronic submissions were made.19 |
| 3.2.12.2 | The SABC states that in the interest of reducing travel/operational costs on both ends, it is submitted that the regulations should encourage political parties and independent candidates to submit their PAs and PEBs materials electronically only (through Aspera or other file transfer platforms). The SABC is of the view that whilst it understands that other parties may prefer manual/in-person submissions, electronic submissions should be encouraged, as it has financial gains.20 |
The Authority’s decision
| 3.2.12.3 | The Authority acknowledges the benefits of electronic submission for political parties, independent candidates and broadcasters alike. Therefore, electronic submission has been introduced in the Regulations. However, it is important to acknowledge that not everyone has access to platforms that would enable electronic submission and therefore the Authority has decided to, in addition to electronic submission, retain the option to submit manually. This allows the political party or independent candidate to choose an option that best suits them. |
| 3.2.13 | Regulation 4(4) |
| 3.2.13.1 | The DA submits that ICASA proposes lowering the period in which BSLs must inform ICASA of their intention to broadcast PEBs. ICASA proposes lowering the period from thirty (30) calendar days to twenty (20) calendar days following the finalisation of the Regulations and argues this will allow it to allocate PEB slots earlier. |
| 3.2.13.2 | The DA proposes that the BSLs should instead notify ICASA within 10 working days of the proclamation of the election date. The DA motivates its arguments based on the fact that it is unclear when the President will proclaim the election date, which formally begins the campaign period. This way, processes are more streamlined. It is also unclear when after being notified, ICASA must finalise and publish its slot allocation. The DA proposes that ICASA finalise and publish its slot allocation within seven (7) working days of notification by BSLs21. |
The Authority’s decision
| 3.2.13.3 | The Authority’s decision is that the amendment will streamline the process in the following manner: After the publication of the Elections Regulations, a workshop will be conducted within the twenty working days after the publication of the Election Regulations to ensure that BSL are able to communicate whether they will be participating in the broadcasting of PAs and/or PEBs or non-broadcast thereof. |
| 3.2.13.4 | Once the BSLs have indicated their intention to participate in the broadcast of PAs and/or PEBs, the Authority would then publish a list of commercial and community broadcasters that will be carrying PEBs together with the SABC stations for the different provinces. This is to ensure that political parties and independent candidates are aware of the additional BSLs in addition to the public broadcasters to submit their content for broadcast in provinces where they will be contesting. |
| 3.2.13.5 | The Authority’s decision is that political parties and independent candidates submit their PAs and PEBs materials electronically (through Aspera or other file transfer platforms) and/or physically through other devices prescribed in the Regulations. |
| 3.2.14 | Regulation 4(14)(d): Pre-recorded tail disclaimers |
| 3.2.14.1 | The SABC points out that in as much as it acknowledges the rationale of tail disclaimers, in terms of being identifiers of political advertising from normal programming, the responsibility of the production of these disclaimers should reside with political parties and independent candidates. The SABC states that it is its considered view that shifting this responsibility will minimize potential contraventions on the part of the SABC. According to the SABC, this risk needs to be transferred from the SABC to the political parties and independent candidates. The SABC points out that the Authority is encouraged to prescribe the wording of the tail disclaimer to be used by political parties and independent candidates to ensure uniformity.22 |
| 3.2.14.2 | CAP supports the Authority’s amendment of the disclaimer that it be before and after the advertisement, to only have the disclaimer before the advertisement. Furthermore, CAP advises that the disclaimer should also include consumer protection information, such as information to warn of explicit material and violence which is not appropriate for children or sensitive listeners and viewers, or of flashing images which may pose a threat to persons with photosensitive epilepsy.23 |
The Authority’s decision
| 3.2.14.3 | The Authority has decided to amend paragraph (d) in sub-regulation 14 to require BSL that broadcasts a PEB to clearly identifies all PEBs through only a standard pre-recorded concluding message (tail) disclaimer. Therefore, the single disclaimer at the end of a PEB is sufficient to ensure that listeners or viewers are aware that the PEB is separate from the normal programming of the BSL and that views expressed in the PEB are not the views of the BSL. To ensure the viability of the broadcasters, the Authority is of the view that removing the obligation to have two disclaimers allows BSL to fill the airtime that would have been used for a disclaimer with its normal programming Further, the usage of a single disclaimer is standard industry practice. |
| 3.2.14.4 | The Authority has decided that it is the broadcaster’s responsibility to record the disclaimer. This decision is aligned with industry practice and allows the broadcaster to have control over the disclaimers (including the length and wording). |
| 3.2.14.5 | The Authority notes that the disclaimer should also include consumer protection information. In this regard, the Code of Conduct for broadcasters24 will be sufficient to protect consumers against explicit material, violence and other harmful content. |
| 3.2.15 | Regulation 4(24) |
| 3.2.15.1 | The SABC supports regulation 4(24) which gives political parties and the independent candidates that will have submitted the PEB material to BSL in accordance with regulation 4(2), the opportunity to surrender PEB slots that will not be utilized. The SABC further submits that should political parties and independent candidates not respond in accordance with regulation 4(24) they should forfeit the slots. The SABC further suggests that the Authority should provide for a deeming provision indicating that failure to respond to the Authority will automate the forfeiture of the PEB slot.25 |
| 3.2.15.2 | The SABC further supports the provision of regulation 4(19) stating that if political parties and independent candidates do not adhere to the singular cut-off date for submission of PEB material, they will be deemed to have forfeited their allocated airtime. This position will allow the SABC to utilize unused airtime for commercial revenue and for mandate delivery.26 |
| 3.2.15.3 | MCMT proposes deletion of regulation 4(24). According to MCMT regulation 4(24) will provide additional logistics for BSLs, political parties and independent candidates, and is of the view that parties should not “pick and choose which slot they prefer”.27 |
The Authority’s decision
| 3.2.15.4 | The Authority notes the different views of the stakeholders regarding regulation 4(24). The Authority is of the view that regulation 4(19) is sufficient in reducing the risk of unused slots. Regulation 4(19) provides that if a political party or an independent candidate fails to deliver the PEB to the BSL within 5 calendar days after publication of the list of broadcasters that will be carrying PEBs, then the political party or independent candidate is deemed to have forfeited its allocated airtime. |
| 3.2.16 | Principal broadcast language |
| 3.2.16.1 | The SABC submits that it supports regulation 4(25) which facilitates that the principal broadcast language of each SABC service is honoured to reach the relevant targeted language group, as it will ensure that the PAs and PEBs reach the target language groups of each service. The SABC states that the usage of the principal broadcast language will also ensure that all official languages are adequately promoted. The SABC points out that further, universal access would be realised for audiences whose only source of news and information is radio services. The SABC states that additionally, the usage of the broadcast language of the station will reinforce the prescripts of the licence conditions. Thus, the broadcast language clause should remain as per the provisions of the previous elections.28 |
The Authority’s decision
| 3.2.16.2 | The Authority clarifies that Regulation 4(25) prescribes that a PEB submitted to a broadcaster must be in the language(s) of the relevant broadcasting service licence. Therefore, the Authority confirms that a PEB may be in any of the languages reflected on the licence of the broadcaster and is not exclusively subjected to the principal language of such a broadcaster. |
| 3.2.17 | Regulation 4(26) |
| 3.2.17.1 | CAP proposes that regulation 4(26) which provides that Low Power Broadcasting Service Licensee must not broadcast PEBs should be amended. CAP reasons that the political adverts can be a good income stream for low powered radio stations which are already disadvantaged in finding advertisers. Further, CAP is of the view that allowing the broadcast of PEBs by Low Power Broadcasters will give political parties and independent candidates a way to target specific areas with targeted messaging.29 |
The Authority’s decision
| 3.2.17.2 | Section 57(8) of the ECA states that “a commercial or community broadcasting service licensee is not required to broadcast party election broadcasts, but if he or she elects to do so, the preceding provisions of this section applies, with the necessary changes.” However, the Authority believes that this section will not apply to Low Power Broadcasting Services. The Authority’s position is that Regulation 10B of the Standard Terms and Conditions Regulations states that Low Power Broadcasting Service licensees must source advertising only from within the coverage area. The majority of political advertisements therefore fall outside of this requirement. Further, the regulations require that low power broadcasting service licensees broadcast programmes that are specific to their coverage areas which include malls, sports grounds, show grounds, old age homes, places of worship or any other like service. The Regulations explicitly prohibit Low Power Broadcasting Service Licensees from broadcasting news and current affairs. This sets Low Power broadcasting service licensees apart from other licensees as they do not have an obligation to inform their listeners on events relating to news and current affairs.30 |
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| 6 | Mutsindo Community Media Trust submission on Draft Amendment to the National and Provincial Party Elections Broadcasts and Political Advertisements Regulations, 16 November 2023, page 2. |
| 7 | Ibid. |
| 8 | SABC Submission on the National Elections Draft Regulations, 17 November 2023, page 2. |
| 9 | Ibid, page 3. |
| 10 | Ibid, page 4. |
| 11 | Kanyamazane FM submission on the Draft Regulation, the National and Provincial Party Election Broadcast, page 1. |
| 12 | Voice of Community FM submission on the National and Provincial Party Elections Broadcasts and Political Advertisement Regulations 2014, 17 November 2023, page 1. |
| 13 | SABC submission on the National Elections Draft Regulations, 17 November 2023, page 5. |
| 14 | Ibid, page 5. |
| 15 | Ibid, page 5. |
| 16 | Ibid, page 6. |
| 17 | DA submission on Draft Amendment to the National and Provincial Party Elections Broadcasts and Political Advertisements Regulations, 2014, 17 November 2023, page 4. |
| 18 | The SABC submission on the National Elections Draft Regulations, 17 November 2023, page 7. |
| 19 | The SABC submission on the National Elections Draft Regulations, 17 November 2023, page 6. |
| 20 | Ibid, page 6. |
| 21 | DA submission on Draft Amendment to the National and Provincial Party Elections Broadcasts and Political Advertisements Regulations, 2014, 17 November 2023, page 4. |
| 22 | The SABC submission on the National Elections Draft Regulations, 17 November 2023, page 7. |
| 23 | Consumer Advisory Panel submission on CAP Comments on the “Draft Amendment to the National and Provincial Party Elections Broadcasts and Political Advertisements Regulations, 2014”, 17 November 2023, page 5 |
| 24 | Regulations regarding the Code of Conduct for Broadcasting service licensees issued in terms of section 54, published in Government Gazette 32381 of 6 July 2009 |
| 25 | The SABC submission on the National Elections Draft Regulations, 17 November 2023, page 9 |
| 26 | Ibid, page 9 |
| 27 | Mutsindo Community Media Trust submission on Draft Amendment to the National and Provincial Party Elections Broadcasts and Political Advertisements Regulations, 16 November 2023, page 2. |
| 28 | The SABC submission on the National Elections Draft Regulations, 17 November 2023, page 7. |
| 29 | Consumer Advisory Panel submission on CAP Comments on the “Draft Amendment to the National and Provincial Party Elections Broadcasts and Political Advertisements Regulations, 2014”, 17 November 2023, page 05. |
| 30 | Explanatory Memorandum on the Draft Amendment to the National and Provincial Party Elections Broadcasts and Political Advertisements Regulations, 2023, published in Government Gazette 49406, of 4 October 2023, page 8. |
