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CASE NUMBER: 19/2012

DATE OF HEARING: 4 MAY 2012

VVM INC COMPLAINANT

vs

TALK RADIO 702 RESPONDENT

APPEAL TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON)

MR B MAKEKETA (DEPUTY CHAIRPERSON)

ADV ROBIN SEWLAL

MS GIUSEPPINA HARPER

PROF VICTORIA BRONSTEIN

THE COMPLAINANT: REPRESENTED BY MEMBERS OF THE FIRM AND ADV

CRAIG COTHILL

FOR THE RESPONDENT: MS JUSTINE LIMPITLAW ACCOMPANIED BY MS

KHAHLISO MOCHABA, HUMAN CAPITAL & REGULATORY AFFAIRS

MANAGER PRIMEDIA (PROPRIETARY) LIMITED.

Balance in talk show – invitation to complainant to reply not accepted – complaint

accordingly not upheld. VVM Inc vs Talk Radio 702, Case No: 19 /2012 (BCTSA)

__________________________________________________________________________

SUMMARY

A firm of attorneys complained about a broadcast which, as part of a daily talk show,

gave incorrect information as to the manner in which the firm dealt with the talk show

host and her stolen TV set and, generally, as to enforcement of TV licenses.

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The BCCSA Tribunal held that given the fact that the firm had been invited to take

part in the show and had declined to accept the invitation, a reasonable opportunity had

been granted to the firm to reply and address the issues.

The Complaint was, accordingly, not upheld.

__________________________________________________________________________

JUDGMENT

Prof JCW VAN ROOYEN SC

[1] A complaint in this matter was accepted by the Registrar. She referred the matter to

me and I decided to refer it to a Tribunal for a hearing. It should be pointed out that

the only Respondent in this matter is the radio station. It takes responsibility for the

acts and omissions in terms of the Broadcasting Code of its presenters. References to

the second and third respondents should, accordingly, be seen as references to the

presenters involved and nothing more.

[2] The Complaint read as follows:

“On 27 January 2011 at approximately 10:05 the respondents represented to the public facts

concerning the complainant (“VVM”) which were untruthful, inaccurate and unfair. This broadcast is attached as annexure “C1”

In the broadcast Tlhabi refers to two previous broadcasts held on her show on 28 November

2011 at approximately 11h15 and on 5 December 2011 at approximately 11h10. These previous broadcasts are annexures hereto as annexures “C2” and “C3” The names and examples of apparent complaints used in the latest broadcast all relate to the

previous broadcasts; The reference to Kim Novick relates to the previous broadcasts; Tlhabi’s reference in this broadcast to her personal experiences with VVM relate to the

previous broadcasts Tlhabi’s comments regarding VVM’s refusal to reply to events concerning the previous

broadcasts.

In making the comments Tlhabi made on 27 January 2012 she represented to the public facts concerning the complainant (“VVM”) which were untruthful, inaccurate and unfair. Tlhabi’s broadcast of facts concerning VVM were broadcast with the intent to intentionally, or negligently, depart from the known facts though the distortion and misrepresentation of facts known to Tlhabi and should have been known to the first respondent.

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In particular, the respondent’s decision to exclude known facts from the broadcast represents a breach of the code of conduct for broadcasters. Tlhabi has repeatedly refused to responsibly and honestly inform the public of her personal dealings with VVM. This refusal unfairly reflects on VVM. By saying things such as: “and I’ve had my own personal experience with them for a TV that I no longer own, and they

wanted me to produce an affidavit from 2003, and I have it now in 2012…” Tlhabi has distorted the truth of her dealings with VVM. As a prominent talk show host Tlhabi’s comments reflect negatively on VVM. This is compounded by the fact that VVM have gone to great lengths to resolve her issue concerning the SABC demanding she pay a television license. By stating that: “ what we did was, we invited VVM Attorneys to come on the show and they didn’t take up the

invitation. That was the first attempt…” And In reference to Kim Novick’s invitation, “that was last October. They didn’t take up the

invitation. But then they responded by taking me or the show to the Broadcasting Complaints Directorate – I don’t know for what because I’d given them two opportunities to come on the show and have rights of reply…”

Tlhabi has unfairly and completely out of context inferred that VVM refuses to debate issues and complaints with the public. In referring to an email from an individual by the name of “Johan Wilsenach” Tlhabi states that VVM sent this email to her. This is incorrect. VVM did not send this email to her. The reference to this e-mail is an example of Tlhabi’s biased attitude towards VVM. Whilst this email paints a better picture of the service provided by VVM, it also indicates that Tlhabi will broadcast emails sent to her concerning VVM. Yet Tlhabi refuses to broadcast the emails sent to her from employees of VVM. Absolutely no mention is made of them. On a perusal of these emails it is shown that VVM has promptly and efficiently offered to assist Tlhabi. The nature of VVM’s dealings with Tlhabi can be summarized as follows: On 7 April 2011 Tlhabi emailed Lior Woznica (“Woznica”), a representative of VVM. This email is annexed hereto as “C4”. Of importance in this email is the following:

Tlhabi had received various demands concerning an outstanding television licence. According to Tlhabi she has been harassed by VVM for approximately 6 years concerning this outstanding licence; According to Tlhabi she had informed the SABC that she no longer owned a television set as it had been stolen and quoted a reference number 422769935; In this email Tlhabi states: “Clearly your interview with my colleague, Bruce Whitfield, did very little to assuage the anxiety of our callers. I would

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therefore like to host you on my show for an hour, any weekday between 9AM and 12 midday…”

In reply thereto and on the same day (7 April 2011) Woznica replies in an email annexed hereto as annexure “C5” in which the following is stated: “… the context in which you are extending an invitation to myself is not an appropriate platform to resolve your personal query.”

We will commence an investigation into your account to ascertain the circumstances surrounding your complaint and of course find a resolution as to why there seems to be a problem with your cancellation.

I am copying representatives of the SABC as I have no doubt that the SABC will have an interest in putting forward some ideas on your SABC consumer show, which under your guidance and direction could be very informative to the public at large. The 702 listeners have been provided an email address to which they can escalate their problems with our firm, to date the response has been poor and for those consumers who have engaged with ourselves we have been most helpful in resolving queries and assisting many such indebted consumers with affordable repayment plans. Feel free to convey the email address to your listeners and colleagues: vavavoom@vvm.co.za

The next day on 8 April 2011 Elmi Relchel (“Reichel”), and employee of the SABC emailed Tlhabo (email attached hereto as annexure “C6”): “… I am dealing with your cancellation request. Please provide me with your phone number as I need to talk to you regarding the cancellation of your TV licence before I send the documentation to complete…”

In response to this request Tlhabi replied as follows in an email dated 8 April 2011 annexed hereto as annexure “C7” In this email Tlhabi denies that the invitation to her show was personal. Tlhabi also refused to

provide her personal cell phone number and suggested that all documentation be emailed to her and insisted that VVM has been making demands, on behalf of the SABC, since 2006.

Tlhabi stated that an affidavit was delivered to the SABC stating that her television set had been stolen and she no longer owned one. In the last sentence of the email Tlhabi states:

“I will send what I have, as soon as I have collected the letters and in the meantime, I am happy to fill any documents you wish to me to fill.” On the same day at approximately 14h36 Reichel replied in an email annexed hereto as annexure “C8” (the annexure to the email are annexed hereto as annexure “C8.1”):

In this email Reichel explains the nature of the amounts claimed from Tlhabi and refers to relevant legislation.

In particular Tlhabi is informed that:

“should a television set have been stolen, the date of the theft, the name of the police station to which it was reported and a police case number are required …

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The SABC’s electronic correspondence records do not reflect any correspondence or affidavit haven been received from you on the matter. The TV licence account is therefore not cancelled and remains active. In order to enable the SABC to resolve the matter and to comply with governance requirements you need to furnish the SABC with the required information by way of an affidavit. Enclosed please find a proforma affidavit that could be used for this purpose. Should you have a copy of the alleged previous affidavit that was submitted to the SABC, please forward a copy of same…

On receipt of the required documentation, the matter will be finalized. In the

meantime, debt collection action on this account has been terminated.” On 14 April 2011 Woznica emailed Tlhabi in an email annexed hereto as annexure “C9” in

which the following is recorded:

that no response has been received from the e-mail dated 8 April 2011; that VVM has only dealt with this account since midFebruary 2011 and requested Tlhabi to present to VVM all documentation sent to VVM prior to this date; Tlhabi is told that:

“Another firm of attorneys acting for the SABC has been dealing with this

matter in previous years. Nonetheless we are running with the matter and in the interest of finalization we would like to assist you.

You have leveled some serious accusations against our firm, whilst your

query is being resolved kindly substantiate your negative comments by providing at least one letter prior to 15 February 2011!”

The fact that this account was only handed over VVM for the period February 2011 to April 2011 is confirmed in an email from Mr.Mark Pillai in his capacity as the Arrear accounts: Co-ordinator for the SABC. This email is annexed hereto as annexure “C10”

Tlhabi responded to the e-mail from Woznica dated 14 April 2011 in an email on the same

day annexed hereto as annexure “C11”. This response does not deal with Reichel’s or Woznica’s suggestion that the documentation provided to Tlhabi be completed in order to finalise this matter.

Thereafter, and in two separate broadcasts the respondents chose to discuss both Tlhabi’s

and other consumers’ dealings with VVM. In these discussions Tlhabi omits to mention any of the contents of the emails quoted above.

These omissions are central to this complaint. THE BROADCAST ON 27 JANUARY 2011 In the broadcast Tlhabi, knowing about a complaint lodged against her, incorrectly infers to

her listeners that VVM will not and have not replied. Again, Tlhabi refused to provide her listeners with the email address vavavoom@vvm.co.za

offered by VVM as a platform to deal with complaints. Tlhabi’s statement that VVM have not taken up the offer to reply to her is false. The

correspondence between her and VVM are evidence of this.

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By selectively and arbitrarily referring to the previous broadcasts referred as Tlhabi has done makes those broadcasts relevant and important to this complaint.

The relevance of those two previous broadcasts are even more important as Tlhabi, without

providing any further facts to her listener’s states: “They didn’t take up the invitation. But then they responded by raking me or the

show to the Broadcasting Complaints Directorate” This statement is out of context and unfair as it insinuated that the only response VVM has

given to Tlhabi is the complaint referred to. The previous broadcast referred to are dealt with below. THE BROADCAST ON 28 NOVEMBER 2011 From this broadcast the following is relevant: Tlhabi states that “you know the battle I’m fighting with the TV licence, the legal

company…” Thereafter reference is made to “VVM”

Tlhabi states: “… they backed off now because I have sent them very angry emails but the SABC is asking for me to pay for a television I don’t have and it’s been 6,7 years and I don’t have the papers anymore…”

A person by the name of Kim, states: “So anybody from SABC or VVM, we would love you to explain what on earth you are doing because we hate you actually.” Tlhabi states: “I went to the police station, I cancelled the television licence. They obviously didn’t do it so they want me to give them the affidavit that I had from the Brixton Police Station in 2003. I don’t even have it. I handed it over.”

Later on, Kim states: “Well, if VVM dares to rear its ugly head and comes onto the show to explain to us what they are doing, but of course they are very scarce.”

This broadcast fails to deal with the email correspondence between Tlhabi, Reichel and

Woznica. In particular the following has not been mentioned. That VVM and the SACB would investigate Tlhabi’s complaint; That 702 listeners had previously been provided with an email address to lodge their

complaints; That thus far, the number of complaints emailed to VVM had been poor; That Tlhabi’s issue could be resolved by the completion of documents (annexure

“C8.1”) That prior to 15 February 2011, VVM had not dealt with Tlhabi. These omissions suggest that VVM are unprofessional and are not adequately providing the

SABC with an agreed service to collect amounts owed to it. The reference to “we hate you actually” and “if VVM dares to rear its ugly head and comes

onto the show”;

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Are unfair an unsubstantiated;

Are not in the interest of serving a platform for the public debate of an issue concerning the issue of television licenses.

Read as a whole this broadcast is not a true reflection of VVM and the SABC within the

context of collection outstanding licence fees. THE BROADCAST ON 5 DECEMBER 2011 From this broadcast the following is relevant: According to Tlhabi she has knowledge of at least 5 complaints concerning VVM and the

SABC. Kim States: “So we thought the only way to resolve this is to invite them onto the show to tell

us how they do what they do, their relationship with the SABC etc.” Tlhabi states: “I don’t want to compromise my integrity here. Let me put it this way.

When I am experiencing something I keep it away from the radio because I don’t want it to appear that we using this platform to solve my problem. It’s only after it transpired that a lot of our listeners, because I have been this battle with them for two years. I haven’t said a word about it. And then as I was moaning to Marvin he tells me about his issue, kate tells us about her issue, Thomas was telling that I thought ok, so it’s not just me and our listeners were smsing and emailing us so that is the purpose.”

Kim then says: “So we did ask them because that’s the way we like to deal with

it”…We got quite an interesting reply from Lior Woznica who is the CEO of VVM Attorneys and the reply said “thank you for the invite but unfortunately I will not be available. Please relay the message to your team…”

Tlhabi then states: “That’s not what this was about. It was about our listeners wanting

answers from VVM.”

Tlhabi later states that: “and you know what they want? They want me to file an affidavit that was given to me at the Police Station in 2003 that showed that my TV was stolen – a 2003 affidavit! Where am I going to find that?”

At the end of the broadcast Tlhabi states: “And as you heard this was not my story,

someone else’s separate story. My story is separate. Kate’s story is separate, Thoma’s story is separate, including the sms’s and emails that you guys have been sending us over a long period of time. I can hijack the platform since we are here. I have invited the SABC to come to my home and see for themselves that I don’t have that TV. They haven’t taken up the invitation. I will issue it again and see.”

This broadcast fails in any way to deal with the email correspondence between Tlhabi and

Woznica. The relevance of these omissions have been discussed in paragraph 19 above. This broadcast is unfair, biased and in breach of the code of conduct the respondents are

obliged to adhere to for the following reasons: Tlhabi mentions various separate complaints from consumers enquiring whether or not these

individuals had contacted the email address supplied to Bruce Whitfield on 702 on a previous broadcast and to Tlhabi in a previous email (annexure “C5”).

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Kim and Tlhabi’s reference to an email from Woznica dated 1 December 2011 (annexure “C12”) does not refer to the entire contents of the email and suggests VVM had no interest in the concerns of consumers concerning television licenses.

The reference to only a portion of this e-mail and excluding a fair and accurate reflection of

the correspondence between Tlhabi, Reichel and VVM indicates the respondents’ biased approach in dealing with this issue.

Tlhabi’s reference to “I don’t want to compromise my integrity here. Let me put it this way.

When I am experiencing something I keep away from the radio because I don’t want it to appear that we are using this platform to solve my problem.” Contradicts what she later says when making specific reference to her complaint:

“because I have been in this battle with them for two years”; They want me to file an affidavit that was given to me at the Police Station in

2003 that showed that my TV was stolen – 2003 affidavit!. Where am I going to find that?”

I can hijack the platform since we are here. I have invited the SABC to come

to my home and see for themselves that I don’t have that TV. They haven’t taken up the invitation. I will issue it again and see.

Read as a whole this broadcast is not a true reflection of VVM and the SABC within the

context of collection outstanding licence fees. CONCLUSION The comments on the latest as well as the other two broadcasts are out of context, unfair and

untrue. Tlhabi also allowed relevant and material facts to be omitted which unfairly and unjustly have

a negative impact on VVM. In the circumstances the respondents have breached the code of conduct for broadcasting

service licensees. Although this discussion presents a bona fide of public interest, the respondents’ economic

and biased version of the facts constitute a breach of the code the respondents are obliged to adhere to as:

Tlhabi’s comments were a honest expression of her opinion. Tlhabi made no reasonable effort to fairly present VVM’s point of view as expressed in the

correspondence between Tlhabi, Reichel and VVM. Accordingly the respondents are in contravention of the code and the complainant asks that

the Complaints and Compliance Committee recommended one or more orders as contemplated in section 17E of the Independent Communications Authority of South Africa Act 13 of 2000 or in terms of any other relevant legislation be granted.”

[3] The Broadcaster responded as follows: WRITTEN RESPONSE OF FIRST AND SECOND RESPONDENTS TO COMPLAINT

LODGED WITH THE BROADCASTING COMPLAINTS COMMISSION OF SOUTH AFRICA BY VVM INC.

1. INTRODUCTION

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1.1. We act on behalf of the First and Second Respondents in this matter, namely

a complaint before the Broadcasting Complaints Commission of South Africa (“the BCCSA”), lodged by VVM Inc on 14 February 2012 (“the Complaint”).

1.2. The Consumer Forum broadcasts which are the subjects of the Complaint

took place on 28 November and 5 December 2011 and 27 January 2012 respectively. Podcasts of the three broadcasts which are the subject of the Complaint have already been sent to the BCCSA’s Adjudication Panel.

1.3. The Complainant has not referred to any specific section of the Code which

the respondents are alleged to have breached. Instead it refers in vague terms to:

1.3.1. “the respondents’ decision to exclude known facts from the broadcast

represents a breach of the conduct of conduct for broadcasters”;

1.3.2. “[t]his broadcast is unfair biased and in breach of the code of conduct the respondents are obliged to adhere to for the following reasons…”;

1.3.3. [i]n the circumstances the respondents have breached the code of

conduct for broadcasting service licensees”; and

1.3.4. a “breach of the code the respondents’ are obliged to adhere to as:

31.1 Thlabi’s comments were a dishonest expression of her opinion; and 31.2 Thlabi made no reasonable effort to fairly present VVM’s point of

view as expressing in the correspondence between Thlabi, Reichel and VVM.”

[Three sub-paragraphs are left out; they dealt with a matter of jurisdiction and problems as to the Code involved and are not necessary to include in the light of the next point made by the Respondent]

1.4. Be that as it may, for the Adjudication Committee’s ease of reference, it

appears that the Complainant essentially alleges contraventions of section 12 and/or section 13 of the BCCSA’s Code and we set out our arguments in regard thereto below.

2. SETTING THE CONTEXT – THE CONSUMER FORUM ON THE REDI THLABI

SHOW

2.1. We think it critical to set out the proper contexts of the broadcasts complained of.

2.2. The First Respondent is a multi-award winning talk radio station.

2.3. The Second Respondent is an experienced talk show host who hosts Talk

Radio 702’s morning show, which is broadcast from 09h00-12h00 on Mondays to Fridays.

2.4. A great deal of the success of the Second Respondent’s show, as is almost

always the case with successful talk show hosts, comes from her personal vibrancy and personality and the fact that she puts herself front and centre of the show. This technique enables her audiences to connect with her and to engage in discussions about a wide range of topics: relationships, sex, political happenings, newsworthy events etc. with the feeling of being part of a personal discussion with the Second Respondent herself. Her show covers a

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variety of issues from nationally important political events to more localized issues such as environmental tips and consumer affairs.

2.5. The Second Respondent presents the Consumer Forum on Mondays at

approximately 11h05. 3. THE CONSUMER FORUM BROADCASTS CONCERNING TELEVISION LICENCE

FEES OF 28 NOVEMBER AND 5 DECEMBER 2011 AND 27 JANUARY 2012

3.1. If one listens to the podcast of the Consumer Forum that took place on 28 November 2011 it is clear that the main subject of that week’s Consumer Forum was an in-depth look at varying fees charged by travel agents. However, before that subject matter is addressed, the Second Respondent begins an aside discussion (it is clearly not the main topic of discussion of the show that day) on the problems that consumers have in getting the SABC and its agents or attorneys to stop insisting on the payment of television licence fees if they no longer have a television set.

3.2. The Second respondent begins by citing her own experience. However, it is

clear that her brief comments about her personal experience are a way of introducing the topic and that the discussion is clearly not limited to the Second Respondent’s personal experience as:

3.2.1. Kim Novick, a consumer affairs expert used to be the Consumer Forum

Editor, immediately relates a problem experienced by a person who has emailed her about a similar television licence problem also involving VVM Inc as the collecting attorneys;

3.2.2. the Second Respondent then cites another television licence problem

being experienced by one “Mava”, who is one of her producers; and

3.2.3. Kim Novick yet again relates a problem experienced by her domestic

worker in relation to demands for television licence fees when she does not have a television set.

3.3. Thereafter, the Second Respondent states that this subject will be the subject

of the next Consumer Forum.

3.4. It is clear from the above exchange (as can be clearly heard from the podcast) that:

3.4.1. the Second Respondent was not engaged in a detailed description of

the various correspondences that she, the SABC and VVM Inc had entered into over the course of some years (or months in VVM Inc’s case), nor was she litigating by way of radio. She was using her personal experience as a way of starting a discussion on what appears to be a wide-spread issue of concern to a large number of consumers;

3.4.2. Kim Novick was aware of at least two other people facing similar

problems, both of which were also dealing with the Complainant; and

3.4.3. the First Respondent was broadcasting a bona fide discussion on a legitimate consumer affairs issue that is of relevance, importance and interest to its listeners.

3.5. It is also clear from the podcast, that the Second Respondent and Kim Novick

were expressing personal views, including personal frustrations, about the manner in which the SABC proceeds to deal with licence fee collections

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generally and about the conduct of the Complainant, as one of the SABC’s licence fee collecting attorneys, in particular.

3.6. It is also clear from the above podcast that a request would be made to the

Complainant to avail itself of the opportunity to be part of the following week’s Consumer Forum in order to participate in a discussion on television licence fee collections practices. Kim Novick’s skepticism that the Complainant would so avail itself of such an opportunity is evident and, in light of subsequent events, appears not to have been misplaced.

3.7. The second podcast is of the following week’s Consumer Forum which took place on 5 December 2011. It is clear from that and from the transcript of the podcast that the Second Respondent goes to great pains to clarify that the reason the television licence fee issue is under discussion is not to enable her to use “this platform to solve my problem” but rather because a number of work colleagues and listeners had been emailing and sms-ing their similar experiences.

3.8. It is not in dispute that the Complainant declined the opportunity of

participating in the Consumer Forum. It is noteworthy that Kim Novick read much of the email to that effect from Mr Lior Woznica, a senior representative of the Complainant, in full on air as part of the discussion.

3.9. It is also clear that because of the Complainant’s refusal to participate in a full

discussion on the issue, the Consumer Forum for that week in fact focused on a different issue, another travel-related consumer issue.

3.10. The third broadcast took place on 27 January 2012. The Second Respondent

reads out a letter sent to her by the Complainant which reflects positive feedback that the firm had received from a member of the public. As part of the broadcast the Second Respondent says:

3.10.1. “I think it’s only fair that if we’re going to tell you there are these long

litany of complaints and disgruntled customer, we must reflect the good ones as well” and

3.10.2. “I imagine that they sent the letter to us so we can use it and not just

talk about the complaints but also reflect the good work that they are doing so that is the letter”.

4. ALLEGED VIOLATION OF SECTION 12 OF THE BCCSA’S CODE

4.1. Comment is dealt with in section 12 of the BCCSA’s Code. The section

provides as follows:

(1) “Broadcasting service licensees are entitled to broadcast comment on and criticism of any actions or events of public importance.

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

(3) Where such a person has stated that he or she is not available for comment or such a person could not reasonably be reached, it must be stated in the programme.”

4.2. There can be no doubt that:

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4.2.1. the payment and/or collection of television licence fees is an issue of public importance; and

4.2.2. Kim Novick clearly stated in the broadcast of 5 December 2011 that

the Complainant refused to participate in the Consumer Forum discussion on television licence fees. Indeed she read out the salient aspects of the email of the Complainant’s senior representative in which he refused to so participate.

4.3. Consequently we are of the view that the only possible aspect of Section 12

of the Code that could possibly form the basis of a complaint is section 12(2) which requires that comment must be an honest expression of opinion and must be presented in such a manner that it appears clearly to be comment, and must be made on facts truly stated or fairly indicated and referred to. In this regard:

4.3.1. the Complainant alleges that the Second Respondent’s comments

were “a dishonest expression of her opinion”. This is a serious charge. Essentially the Complainant is alleging that the Second Respondent was expressing an opinion that she did not have. In this regard we reiterate that:

4.3.1.1. the Second Respondent was not engaged in a detailed description of the various correspondences that she, the SABC and VVM Inc had entered into over the course of some years (or months in VVM Inc’s case), nor was she litigating by way of radio. She was using her personal experience of a six year old dispute regarding the payment of a television licence fee as a way of starting a discussion on what appears to be a wide-spread issue of concern to a large number of consumers; and

4.3.1.2. it is clear from the podcast, that the Second Respondent

(and indeed the Third Respondent) were expressing personal views, including personal frustrations, about the manner in which the SABC proceeds to deal with licence fee collections generally and about the conduct of the Complainant, as one of the SABC’s licence fee collecting attorneys, in particular. This clearly falls within the realm of “comment”; and

4.3.2. the Complainant alleges that the respondents’ “economic and biased version of the facts constitute a breach of the code”. We assume that this is intended to be a reference to the requirement in section 12(2) of the BCCSA Code that comment “must be made on facts truly stated or fairly indicated and referred to”. In this regard:

4.3.2.1. the Complainant appears to base this allegation of a so-

called biased version of the facts on the Second Respondent’s failure to deal in detail with specific items of correspondence between herself and the Complainant going back several months;

4.3.2.2. the Second Respondent was not engaged in a detailed

description of the various correspondences that she, the SABC and VVM Inc had entered into over the course of some years (or months in VVM Inc’s case), nor was she

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litigating by way of radio. She was using her personal experience of a six year old dispute regarding the payment of a television licence fee as a way of starting a discussion on what appears to be a wide-spread issue of concern to a large number of consumers;

4.3.2.3. the First Respondent would not allow itself to be abused by

an employee wishing to use his or her “voice” as a radio presenter to fight her own personal legal and other battles; and

4.3.2.4. we reiterate (as indeed the Second Respondent did on air

repeatedly) that although she does have personal experience of the Complainant’s activities in relation to the collection of television licence fees, the critical issue is that on-going disputes over payment of television licence fees is a general consumer rights issue that affects not only her, but a number of colleagues, listeners and indeed the public in general; and

4.3.2.5. lastly we think it critical to point out that the Complainant

was expressly invited to participate in a discussion on television licence fee collections. Consequently the Complainant could easily have made reference to any correspondence between itself and the Second Respondent on air if it felt that this was important. The Complainant can hardly charge that the respondents failed to put across detailed aspects of its side of the story when they expressly invited it to do so and it declined.

4.4. Consequently we are of the firm view that neither the First nor Second

Respondent violated the Comment provisions of section 12 of the BCCSA Code.

5. ALLEGED VIOLATION OF SECTION 13 OF THE BCCSA’S CODE

5.1. Controversial Issues of Public Importance are dealt with in section 13 of the BCCSA’s Code. The section provides as follows:

(1) “In presenting a programming in which a controversial issue of public

importance is discussed, a broadcaster must 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 reasonable period of time of the original broadcast and within substantially the same time slot.

(2) A person whose views are to be criticized in a broadcasting programme on

a controversial issue of public importance must be given the right of reply to such criticism on the same programme. If this is impractical, reasonable opportunity to respond to the programme should be provided where appropriate, for examples, in a right of reply programme or in a pre-arranged discussion programme with the prior consent of the person concerned”.

5.2. It is clear from the annexures to the Complaint and from the podcasts

themselves that the Respondents wanted and requested the Complainant to appear on the Consumer Forum precisely to present an “opposing point of view” to that of consumers and as voiced by the Second Respondent and Kim Novick on air.

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5.3. That the Complainant itself refused to avail itself of an opportunity to:

5.3.1. come on-air to present its opposing views on either:

5.3.1.1. the general issue of television licence fee collections

practices; or

5.3.1.2. the Second Respondent’s specific circumstances and experiences;

or

5.3.2. to come on-air to exercise its right of reply to the criticisms made of it

in the broadcast of 28 November 2011 does not result in any additional burdens being placed on any of the Respondents.

5.4. Further, in the third podcast the Second Respondent in fact reads out a letter

giving positive feedback to the Complainant, thereby effectively facilitating a right of reply which the Complainant itself steadfastly refused to exercise.

6. CONCLUSION

6.1. We are of the view that the Complaint does not have merit and that no

breach of any of the specific provisions of the BCCSA’s Code has even been alleged much less proved.

6.2. We are of the view that the broadcasts which are the subject of the Complaint

do not breach any of the specific provisions of the BCCSA Code, including in particular, sections 12 and 13 thereof.

6.3. We therefore ask that the BCCSA dismiss the Complaint.“

[4] I have followed the unusual approach of quoting the documentation received fully.

The value of this approach for this case is to grant the reader of the judgment the

opportunity to have a full view of all the matters raised.

[5] There is a long line of judgments of the BCCSA which allow for the personal

experience of a presenter to become the topic of discussion. Personal views of

presenters have equally been accepted. It is a matter of internal policy and the

BCCSA does not wish to involve itself with the internal policies of broadcasters as to

how they approach the duties of their presenters in this respect.1

1 See the following judgments which concerned the personal views of a Radio 702 host: Case No: 02/2000; Case

No: 20/2001; Case No: 48/2001; Case No: 30/2001, Case No 22/2002, Case No: 15/2003, Case No 36/2003.

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[6] This Tribunal has often held that since balance and fairness are difficult concepts to

apply and that a strict application of clause 12 (and its predecessor) could lead to a

chilling of speech, which is absolutely necessary within our new Constitutional

dispensation, the Tribunal will apply clause 12 with caution and only find against a

broadcaster where it is unequivocally clear that the clause has been contravened. In

this sense, freedom of speech is a bastion against the oppressive press control styles of

the apartheid regime.

[7] It is clear that the facts are in dispute between the present parties and that there has

been a misunderstanding, to a certain extent, by the presenter as to what her legal

duties are. On the other hand, this kind of misunderstanding as to what the law

requires from persons whose televisions have been stolen, is pervasive in our society.

It is obvious that acceptable evidence must reach the SABC or its attorneys to

substantiate the theft of a TV set. If that is not done, the person whose TV set has

been stolen remains responsible to pay the licence fee. It is, accordingly, not

unreasonable for the Complainant and the SABC to have demanded an affidavit from

the presenter. A mere complaint at a Charge Office would not suffice. Of course, the

affidavit need not be the original affidavit which was lodged with the Police when the

theft was reported. It could also be a later affidavit which is sent to the attorneys or

the SABC affirming the facts. It would also not be unreasonable for the SABc or its

attorneys to require such an affidavit again if it cannot be found. Of course, later

affidavits would be scrutinized more strictly, since a person could easily have been in

possession of the TV set and thought out a lie to evade the law. Every case will be

judged on its own facts.

[8] The way that the SABC proceeds to deal with licence fee collections generally is a

public issue. The complainant is one of the SABC’s licence fee collecting attorneys.

Hence it is closely associated with the public broadcaster and in that capacity

it fulfills a public function. VVM Incorporated is made up of qualified attorneys who

are articulate and capable of engaging with the public. Members of the public who are

often affected by the actions of the complainant are entitled to correct information

about their methods and procedures.

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[9] To our minds, accordingly, the Complainant should have accepted the offer of the

Respondent to join her in a programme and then have used the opportunity to explain

the whole system. This omission was not sufficiently explained at the hearing of the

matter.

[10] Our conclusion is, accordingly, that despite some factual errors which were made as

to the system by the presenter, the Complainant should have accepted the opportunity

to rectify them on air. Had the opportunity been to the dissatisfaction of the

Complainant, it could, at that stage, have approached this Commission.

In the result, the Complaint is not upheld.

It might be valuable if the Respondent were to, once again, extend an opportunity to the

Complainant to explain the system on air.

JCW VAN ROOYEN SC

CHAIRPERSON

4 June 2012

Commissioners Makeketa, Sewlal, Bronstein and Harper concurred with the judgment of

the Chairperson