MALABA
DCJ: The
two cases were heard together because they raised the same constitutional
questions for determination. The cases
are about the constitutionality of the provisions of the Broadcasting Services
Act [Cap. 12:06] (“the Act”) on
funding for the provision of public broadcasting services.
In
each case five questions were referred to the Supreme Court for determination
by a magistrate in terms of s 24(2) of the former Constitution upon
request by the applicant. The learned
magistrate was of the opinion that the request for referral of the
constitutional questions which had arisen in the proceedings before him was not
frivolous or vexatious. The referral
took place in proceedings in which the
applicant faced a criminal charge of possessing a television set without a
viewer's licence in contravention of s 38(B)(1) as read with s 38E(1)(h)(i) of
the Act.
The questions
presented in argument for determination at the hearing in each case were whether ss 38B(1), 38C, 38D(2)
and 38E(1)(C)and 38E(i)(h)(i) of the Act each infringe the applicant's constitutional
right to protection from compulsory deprivation of property (Section 16(1) the right
to the protection of the law (Section 18(1)) and the right to freedom of
expression (Section 20(1)).
The applicant in each case seeks a
declaration that each provision of the Act infringes each of the fundamental
human rights enshrined in the relevant provision of the Constitution and is
invalid.
At
the hearing, Mr Mpofu for the applicants,
indicated that the determination of the question whether each of the provisions
of the Act referred to infringes the fundamental right of the applicants
enshrined in ss 19(1) (freedom of conscience), 21(1)) (freedom of association) and 23(1)
(protection from discrimination) is no longer sought from the Court. Those contentions may therefore be put out of
view.
For the purposes
of the determination of the questions referred by the court a quo the “former Constitution” is
referred to as “the Constitution”.
The
Court holds in each case that each provision of the Act the constitutionality
of which is challenged does not contravene the fundamental human right
enshrined in the relevant provision of the Constitution. Each provision of the Act is a legitimate
exercise by the Legislature of the constitutional power vested in it in respect
of the matters legislated upon. The
provisions of the Act in question are valid.
The detailed reasons for the decision now follow.
The background
facts are not in dispute. The applicant
in the first case had under his possession at his place of abode a television
set without a licence. On 5 July 2012 he
was charged in the Magistrates Court with the offence of being in possession of
a receiver otherwise than in accordance with the terms and conditions of a
licence issued by the Zimbabwe Broadcasting Corporation (ZBC) or its agents. The alternative charge was that the applicant
contravened s 38D(2)(b) as read with s 38E(1)(c) of the Act. The allegation was that being a listener in
possession of a receiver he failed to produce a valid licence in terms of a
notice served on him in terms of subs(2) of s 38D of the Act.
The
applicant admitted that he knowingly possessed the television set without the
requisite licence. There was no defence
to the charge on the merits. He raised as a defence the allegation that
the provisions of the Act under which he was charged are constitutionally
invalid. On 13 July 2012 the applicant requested the presiding magistrate to
refer to the Supreme Court for determination the questions of the
constitutionality of the relevant provisions of the Act in a bid to escape
conviction.
The
applicant in the second case is a company with limited liability incorporated
in terms of the laws of Zimbabwe. It carries
on a hospitality business in Odzi under the style “Musangano Lodge”. The applicant company was arraigned before
the Magistrates Court in Mutare on a charge of contravening s 38(B)(1) as
read with 38E(1)(h)(i) of the Act. The
allegation was that it had under its possession at the business premises, eight
television sets without a licence issued by the ZBC or its agents. The alternative charge was that the applicant
contravened s 38D(2)(b) as read with s 38E(1)(C) of the Act in that its
director failed to produce a licence in respect of the television sets in terms
of a notice served upon it in terms of subs(2) of s 38D of the Act.
The
applicant company admitted that it knowingly possessed, at the place of
business, eight television sets without a licence. There was no defence to the charge on the
merits. The company raised as a defence
the allegation that the provisions of the Act under which it was charged are
constitutionally invalid. It requested the
presiding magistrate under s 24(2) of the Constitution to refer the
question of the constitutionality of the relevant provisions of the Act to the
Supreme Court for determination.
The
provisions of the Act are as follows:
“38B Licensing of listeners
(1)
No
listener shall have in his possession in Zimbabwe a receiver otherwise than in
accordance with the terms and conditions of a licence issued by the Zimbabwe
Broadcasting Corporation or by agents of the Zimbabwe Broadcasting Corporation
appointed by it in terms of subsection (a1) of section thirty-eight D.
(2)
The fees payable on the issue of licences
referred to in subsection (1) shall be fixed by the Zimbabwe Broadcasting
Corporation with the approval of the Minister by statutory instrument and the
Zimbabwe Broadcasting Corporation may fix different fees for different
prescribed classes of listeners:
Provided the Minister may, after
consultation with the Zimbabwe Broadcasting Corporation, exempt any class of
listeners from payment of all or any of the fees referred to in this subsection.
(3)
…
38C Collection
of licence fees
Licence fees referred to in
subsection (2) of section thirty-eight B, less such amounts as may be payable
for the services of the agents of the Zimbabwe Broadcasting Corporation
referred to in subsection (1) of section thirty-eight B, shall be paid into the
general funds of the Zimbabwe Broadcasting Corporation for the use of the Corporation.
38D Appointment of inspectors and powers of
inspectors and police officers
(a1)
The Zimbabwe Broadcasting Corporation may appoint persons employed by it to be
inspectors for the purposes of this Part and shall furnish each person so
appointed with a certificate signed on behalf of the company stating that he
has been appointed as an inspector.
(1)
An
inspector or police officer may require a person who he has reasonable cause to
suspect is a listener to produce his licence for inspection.
(2)
If a person referred to in subsection (1):
(a)
is unable to produce his licence on
demand; or
(b)
cannot be located at his usual or last known
place of abode or business;
the inspector or police officer concerned
may serve on that person a notice in the prescribed form requiring that person
to produce that notice and his licence to the police officer in charge of a
police station within a period of seven days from the date of service of that
notice.
(3)
…
(4)
If a person referred to in subsection (1)
who is unable to produce his licence on demand or cannot be located at his
usual or last known place of abode or business is served with a notice referred
to in subsection (2) and
(a)
fails to comply with the requirement
contained in that notice, he shall be presumed, until the contrary is proved
not to have been issued with a licence.
(b)
…
38E Offences and penalties under Part VIIIA
(1)
A
person who
(a)
…
(b)
…
(c)
fails to comply with the requirements
contained in a notice served on him in terms of subsection(2) of section
thirty-eight D shall be guilty of an offence and liable to a fine not exceeding
level five or to imprisonment for a period not exceeding six months or to both
such fine and such imprisonment.
(d)
…
(e)
…
(f)
…
(g)
…
(h)
contravenes–
(l)
subsection (1) of section thirty-eight B shall be guilty of an offence and
liable to a fine not exceeding level three.”
Section
38(B)(1) as read with s 38E(1)(h)(i) of the Act imposes an obligation on a
person who is in possession of an apparatus capable of receiving broadcasting
service and is not exempted from obtaining a listener's licence. Sections 38(B)(1) and (2) as read with
s 38E(1)(h)(i) of the Act, impose an obligation on a person who is in
possession of a receiver to pay an amount of money fixed by the ZBC as the
appropriate licence fee in terms of subs(2) of s 38B. The licence fee must be collected by the ZBC or
its appointed agents. The money is
required to be paid into the general funds of the ZBC before it can be used by
the corporation as revenue to meet the costs of performance of its functions in
providing public broadcasting services in terms of the Act. The primary purpose of the provisions is to
establish a mechanism for the funding of the provision by the ZBC of public
broadcasting services without interference from government, corporate or other
powerful interests.
The
provisions the validity of which is impugned form part of the Act containing
other provisions on non-financial matters relating to the provision of public
broadcasting services. In s 2A the Act
sets out the purposes for which it was enacted and the objectives to be
attained by means of the provisions it contains. The Act provides in s 2A(1)(e) and (f) that
its purpose is to regulate broadcasting services to attain, amongst others, the
following objectives:
“(e) to
promote public broadcasting services in the interest of the public;
(f) to
ensure the independence, impartiality and viability of public broadcasting
services.”
The regulatory
power is vested in and exercised by the Broadcasting Authority of Zimbabwe (“the
Authority”) the establishment of which is provided for under the same Act. This means that when it is providing public broadcasting
services the ZBC is under the supervision of the Authority. Section 2A(2) requires every person who is
required or permitted to exercise functions under the Act to pay regard to the
objectives set out when exercising those functions.
Part 1 of the
Seventh Schedule to the Act on programming by Public Broadcasters provides:
“REQUIREMENTS FOR PUBLIC BROADCASTERS:
The
broadcasting service operated by a public broadcaster shall,
(a)
make programmes available to Zimbabweans
in all the languages commonly used in Zimbabwe; and
(b)
reflect both the unity and diverse
cultural and multilingual nature of Zimbabwe; and
(c)
strive to be of high quality in all the
languages served; and
(d)
provide news and public affairs
programming which meets the highest standards of journalism , and which is fair
and unbiased and independent from government, commercial or other interests;
and
(e)
include significant amounts of educational
programming, both curriculum – based and informal including educative topics
from a wide range of social, political and economic issues such as human
rights, health, early childhood development, agriculture, culture, justice and
commerce; and
(f)
enrich the cultural heritage of Zimbabwe
by providing support for traditional and contemporary artistic expression; and
(g)
strive to offer a broad range of services
aimed in particular at children, women, the youth and the disabled; and
(h)
include programmes commissioned from
independent producers, and
(i)
include programmes featuring national
sports as well as developmental and minority sports.”
Taken as a whole,
the relevant provisions of the Act give effect to a complex statutory scheme carefully
designed for the purpose of furnishing a non-profit public broadcasting service
operated by the ZBC in the interest of the public. In the fulfilment of their mandate, public
television and radio stations operated by the ZBC in the provision of
broadcasting services are required to provide high quality news and public
affairs, educational, cultural and entertainment programmes that would
otherwise not be available from profit and commercial broadcasting.
Each provision,
including those the validity of which is impugned, has as its purpose the
promotion of the attainment of the public objects prescribed by the Act. The efficacy of the scheme for the provision of
public broadcasting services embodied in the Act is made to depend upon the existence
of institutional, editorial and financial independence of the ZBC in the
performance of the functions necessary for the attainment of the objects
prescribed by the Act.
DEPRIVATION
OF PROPERTY
The
applicants contended that the provisions of s 38B(1) and (2) as read with
s 38E(1)(h)(i) of the Act violate the fundamental right protecting them against
compulsory deprivation of property guaranteed under s 16(1) of the Constitution.
Section 16(1) of the Constitution provides as follows:
“16:
Protection from deprivation of property
(1)
Subject to section sixteen A, no property
of any description or interest or right therein shall be compulsorily acquired
except under the authority of a law that” … [the terms, substance and purpose
of the provisions of the law on the basis of which property other than
agricultural land acquired for resettlement of people in accordance with a
programme of land reform may be compulsorily acquired are then set out].
Section
16(7) provides:
“(7) Nothing contained in or done under the
authority of any law shall be held to be in contravention of subsection (1) to
the extent that the law in question makes provision for the acquisition of any
property or any interest or right therein in any of the following cases –
(a) in
satisfaction of any tax or rate.
(b)
…”
The
Constitution demands that statutory provisions be looked at from the point of
view of fundamental human rights and freedoms enshrined in the Declaration of
Rights. That means that, taking into
consideration the requirements of permissible limitation, statutory provisions
must not violate fundamental human rights.
If the provisions of the Act the validity of which is impugned are
provisions in respect of taxation, the effect of s 16(7)(a) of the
Constitution is that they are not a violation of the right to property. They are an infringement of the right if they
are shown not to be reasonably justifiable in a democratic society.
The obligation to
pay the fee and obtain a licence for possession of a receiver is imposed by
law. The imposition of the obligation in
respect of the possession of a receiver, the fixing and collection of the
licence fee are all designed to enable the ZBC to compulsorily acquire property
in the form of money from a person who possesses a receiver. The question for determination is whether the
provisions of s 38(b)(1) and (2) of the Act for the acquisition of the licence
fee compulsorily paid to the ZBC or its agents are in satisfaction of a tax
within the meaning of s 16(7)(a) of the Constitution? There is no question that the mechanism of
funding given effect to by the provisions of the Act the validity of which is
challenged, is based on the public as the source of the revenue needed by the
ZBC to finance its operations. The
method of funding chosen gives the ZBC direct access to and control of the use
of the revenue collected.
Section 16(7)(a) of
the Constitution relates to acquisition of property under the authority of a
provision of a law enacted by the State in the exercise of the constitutional
power of taxation vested in the Legislature by s 50. Section 50 of the Constitution provides that
“Parliament may make laws for peace, order and good government of Zimbabwe”.
The power of the State to impose taxes has
been described by Cooley in Constitutional
Limitations at p 986 as:
“One so
unlimited in force and so searching in extent, that we scarcely venture to
declare that it is subject to any restrictions whatever except such as are put
in the discretion of the authority which exercises it. It reaches to every trade or occupation, to
every object of industry, use, or enjoyment; to every species of possession;
and it imposes a burden which, in case of failure to discharge it, may be
followed by seizure and sale or confiscation of property. No attribute of sovereignty is more
pervading.”
There is no
denying the general power of the Legislature to impose taxes. Although the constitutional power to impose
taxes is wide as to matters that may be chosen as subjects of taxation, a
measure representing its exercise must be strictly scrutinized to protect the
right to property. The provisions must
be construed with the view of giving a full measure of protection to the
fundamental human right alleged to be infringed. It is also a well settled rule that the
citizen is exempt from taxation unless the same is imposed by clear and
unequivocal language. Where the
construction of a tax law is doubtful, the doubt is to be resolved in favour of
those upon whom the tax is sought to be laid.
The general
principle is that a tax is the obligation or burden (debt) to pay a specific
amount of money to a designated agent imposed (levied) on a person by the State,
in the exercise of the constitutional power of taxation. The obligation is imposed in relation to or
by reference to an activity in respect of property selected in the exercise of
a wide discretion as the subject of taxation.
The obligation for the payment of the tax is imposed by the State in
terms of a law of general application on the public or a substantial section of
the public to raise money for a public purpose.
The primary meaning of taxation is, therefore, raising money for the
purposes of government by means of compulsory contributions from individual
persons.
A tax is not a tax merely because the word
“tax” is used to describe the obligation to be paid for a public purpose. The word “tax” is a generic term or “genus” covering a variety of species of
obligations to pay money for public purposes.
An obligation of the same cannot be
excluded from proper classification because of the name by which it is
called. In other words the fact that the
fixed amount of money compulsorily payable by members of the public who possess
receivers is called a “licence fee” would not alter the fact of its being a
“tax”. The term “licence fee” is not a
definition but is a conclusion. It is a
label describing a debt imposed on a person by a statute in respect of an
activity in relation to property.
There are many kinds of taxes that may be
imposed by the State in the exercise of the power of taxation. In the American case of Hylton v United States 3 Dall 171 (Supreme.justice.com) it was held
that the term “taxation” covers every conceivable exaction which it is possible
for a Government to make, whether under the name of a tax or under such names
as rates, assessments, duties, imposts, excise, licences, fees or toll. In fact s 113(1) of the Constitution defines
“tax” to include “duty or due”. The Concise Oxford Dictionary (7ed) defines
the word “due” to include “fee” as the concepts connote an obligation or debt
owed to some other person.
In Alberts
v Roodepoort – Maraisburg Municipality 1921 TPD 133 at 136 money
compulsorily paid under the name “sanitary fees” charged by a local authority
was held to be a “tax”. In Permanent EST Finance Co Ltd v Johannesburg
City Council 1952(4) SA 249(W) RAMSBOTTOM J (as he then was) at 259A
expressed the view that “to require any person who carries on a business or who
owns a dog or a motor car to pay a prescribed fee is … to impose a tax”. So a tax is not any the less a tax because a
different name is given to it.
In the Australian case of Leake v COT (State)(1934) 36WALR 66
DWYER J at 67 said:
“A
compulsory contribution or an impost may be nonetheless a tax, though not so
called; the distinguishing features of a tax being in fact that it is a
compulsory contribution imposed by the sovereign authority on and required from
the general body of subjects or citizens.”
In Constantinides v Electricity Authority of
Cyprus (1982) 3CLR 798 the Supreme Court of Cyprus held that:
“an
imposition is a tax if it is found to fulfil certain characteristics, namely,
(a) it is compulsory and not optional, (b) it is imposed or executed by the
competent authority, (c) it must be enforceable by the law, (d) it is imposed
for the public benefit and for public purposes and (e) it must not be for a
service for specific individuals but for a service to the public as a whole, a
service in the public interest.”
In this
jurisdiction the authority on the elements which designate a tax is the
decision of the Supreme Court in Nyambirai
v National Social Security Authority & Anor 1995(2) ZLR1(S). Tax was defined in Nyambirai's case supra at 8B-D as “a compulsory, and not an optional
contribution, imposed by the legislature, or other competent authority upon the
public as a whole or a substantial sector thereof, the revenue from which is to
be utilised for the public benefit and to provide a service in the public
interest”.
The question
whether the provisions of the Act the validity of which is challenged are provisions
in respect of taxation requires a finding to be made on the nature of the
law. “Law” is used to mean a provision
of the Act as is so defined in s 113 of the Constitution. In determining the nature of a law a court
should examine the substance of the provisions to decide whether the matter
they deal in is a matter in respect to which the State has power to legislate. The court would be concerned with what the
provisions of the law are doing.
The applicants
conceded through Mr Mpofu that the
obligation to pay a licence fee provided for under s 38B(1) as read with s
38E(1)(h) (1) of the Act ensures that the licence fee is a compulsory
contribution to the general funds of the corporation. The provisions impose an obligation to pay
the money to the ZBC for a public purpose.
It was common cause that the obligation is imposed on a substantial
sector of the public. All persons who
have in their possession equipment capable of receiving broadcasting service
bear the obligation to pay the licence fee for the possession of the gadget.
On the question
whether the compulsory contribution is imposed by the legislature or other competent
authority, the applicants' position was that it is the ZBC that exacts the
licence fee. Mr Mpofu argued that as the ZBC was incorporated in terms of the
Companies Act [Cap. 24:03] it is a
private company carrying on the business of providing broadcasting service. He
argued that a provision of a law which gives a private company power to fix and
collect licence fees to raise funds for its own operations is not a law in
respect of taxation.
According to Mr Mpofu,
the purpose of the provisions of the Act the validity of which is challenged is
to give the ZBC an unfair financial advantage over other competitors in the
business of providing broadcasting services.
Mr Musarurwa for the respondents
argued that notwithstanding its incorporation in terms of the Companies Act,
the ZBC is a “public broadcaster”. The
effect of Mr Musarurwa's argument
is that the ZBC is a “public broadcaster” because the statute in terms of which
its incorporation was authorised says it is a “public broadcaster”.
The argument by
the applicants is misplaced. The
obligation to pay the licence fee is imposed by the Legislature on every person
who possesses a receiver. It is the Legislature
that exercised its wide discretion to select possession of a receiver as the
subject for the purposes of imposing the obligation to pay the money on all
persons who get to be in control of a receiver.
The fact that the Legislature gave the ZBC the power to fix the value of
the obligation with the approval of the Minister of State for Information and Publicity
in the President's Office (“the Minister”) by a statutory instrument does not
make the ZBC the legislative authority. The
Legislature is unrestricted in its choice of subjects on the basis of which to
impose the obligation to pay the money.
Section 3 of the
Zimbabwe Broadcasting Corporation (Commercialization) Act, 2001 (No. 26 of
2001) provides:
“3. Formation
of signal carrier and broadcasting companies.
The Minister shall take such steps
as are necessary under the Companies Act [Chapter 24:03] to secure the
formation of the following two successor companies, limited by shares, which
shall be the successor companies to the corporation for the purposes of this
Act,
(a)
A broadcasting company, which will,
subject to this Act, take over the functions of broadcasting, and such assets,
liabilities and staff of the Corporation as are connected with those functions;
--“
Section 2 of the Act
defines a “public broadcaster” to mean the Zimbabwe Broadcasting Corporation
referred to in s 3 of the Zimbabwe Broadcasting Corporation Act [Cap. 12:01] or any other broadcasting
entity established by law which is wholly owned or controlled by the State.
(the underlining is mine for emphasis).
Section 5 of Act No. 26 of 2001 makes it clear that the ZBC is wholly owned
by the State. It provides:
“5. Initial
shareholding in successor companies.
(1)
All
the shareholders of the signal carrier company and the broadcasting company on
incorporation shall be persons nominated by the Minister, after consultation
with the President and in accordance with any directions that the President may
give him and shall hold their shares on behalf of the State.
(2)
Any person so appointed to hold shares,
shall do so nominally as an agent for the State.”
There is no doubt
that the ZBC is a “public broadcaster” incorporated to carry out the functions
of providing public broadcasting services.
The primary purpose for the creation of a public broadcaster is to ensure
that there is a balanced and consistent presentation to the public of a variety
of ideas and information on diverse matters of public concern. The communication is made through programmes
broadcast on television and radio in accordance with the public's collective
right of access to such ideas and information.
A “public
broadcaster” is distinguishable from the other two types of broadcasters,
namely commercial broadcaster and community broadcaster. The ZBC is not a State broadcaster. Incorporation of the ZBC in terms of the
Companies Act gives it the mark of institutional independence as it is a legal persona distinct from its shareholder.
The contention
that the obligation payable by those who are in possession of receivers is not
a tax because its value is fixed by the ZBC and collected by it for payment
into general funds for use in its operations overlooks important factors. Firstly, the fixing of the amount to be paid
is an obligation imposed on the ZBC by the Parliament. It is part of the obligation to pay the money
imposed on every person in possession of a receiver who falls outside the class
of people exempted from the liability.
There is no legal
limitation on the value of the obligation the ZBC may fix. That fact attests to the exercise of the
constitutional power of the State to impose taxes. The ZBC would be exercising delegated
power. As long as the delegated power is
exercised in the manner set out and within the limits imposed by the delegating
law for the specific purpose prescribed, the result is the same at law as if
the power is exercised by the principal.
The ZBC would be exercising the power to fix the amount of the
obligation to be paid as tax on behalf of the Parliament. That is why the delegation is in the form of
an obligation.
Collection of the
payment of the obligation imposed on those who are in possession of receivers
is imposed on the ZBC as an obligation. When
the ZBC and its appointed agents demand, in appropriate circumstances,
production of a listener's licence from a citizen, they are discharging a legal
obligation. Collection is in aid of
revenue. It occurs after the obligation
to pay the money fixed by the ZBC in terms of the Act has been imposed. Collection has no relevance in the
determination of the question whether the obligation to pay the money is a tax
or not.
The requirement
that the money collected as payment of licence fees should be paid into the
general funds of the ZBC and not into the Consolidated Revenue Fund is
consistent with the provisions of s 101 of the Constitution. The earmarking of the money for payment into
the general funds to be used as revenue by the ZBC to meet the costs of its
operations underscores the intention to protect the financial independence of
the ZBC. State revenue cannot be
earmarked except at the point of expenditure by appropriation. The section provides:
“101 Consolidated Revenue Fund,
All
fees, taxes and other revenues of Zimbabwe from whatever source arising, not
being moneys that –
(a)
are payable by or under an Act of
Parliament into some other fund established for a specific purpose; or
(b)
may by an Act of Parliament, be retained
by the authority that received them for the purpose of defraying the expenses
of that authority;
shall
be paid into and form one Consolidated Revenue Fund.”
In the first place
it may be admitted that revenue is essential to the effective operation of the
public broadcasting service and the existence of the ZBC. The State used its power to provide the ZBC
with a reliable source of funding to enable it to properly fulfil its statutory
obligations. The money received constitutes
the proceeds of the discharge of the obligation. The obligation is separate and precedent to
the proceeds. The authorization of any
agent by the Legislature to collect the proceeds of the performance of the
obligation to pay the money is a matter that cannot be prevented by any legal
decision.
The Legislature,
with full power over the subject of taxation, short of arbitrary and
unreasonable action which is not to be assumed, inserted these provisions on
payment of the revenue into the general funds operated by the ZBC in an Act
specifically providing for the raising of revenue. It is sufficient for determination of the
question of their validity that these provisions have a reasonable relation to
the exercise by the Legislature of the taxing power conferred on it by the
Constitution.
It must follow
that the ZBC is required to use the revenue to meet its obligations in the
performance of its functions as a public broadcaster. The revenue raised from compulsory payment of
the money is to be used in the provision of broadcasting services in the public
interest. The ZBC is required under Part
1 of the Seventh Schedule to the Act to make programmes available to
Zimbabweans in all the languages commonly used in Zimbabwe. One of the purposes of providing public broadcasting
services is to meet the needs of the unserved sections of the population.
The ZBC said that
the revenue collected from members of the public as listener's licence fees is
used for the benefit of the public. It revealed
that the money is channeled towards ensuring that all parts of the country have
access to television and radio programmes that meet the interests of different
classes of society.
The applicants'
contention in each case was that it is a matter of speculation whether the ZBC
is utilizing the revenue accruing to it from the listener's licence fees for
the public purposes prescribed by the Act.
The argument was that there is lack of transparency and accountability
in the manner in which the revenue is administered. The reason given was that financial
activities of the ZBC are not subject to mechanisms that ensure public scrutiny
and accountability.
The requirement is
not that the licence fees collected must be shown to have been used in the
public interest for the obligation to pay them to qualify as a “tax”. The element of the test is that at the time
the value of the obligation is fixed and collected it must be intended to be
used for the public benefit. At that
stage there is no requirement that the competent authority should show that the
money has actually been put to its intended purpose.
Whether the ZBC does
not use the funds for the purposes of the statute is not a matter going into
the determination of the question whether the money compulsorily payable as a
licence fee is a tax. If the amount paid
into the general funds was used towards an unauthorised object that cannot
reflect back upon the provision imposing the tax or authorizing its collection
so as to make it invalid. The use of
public funds is not an issue in an action for a declaration on the
constitutional validity of a statute. A
law cannot be declared invalid simply because it is misused. In any such event, the appropriate remedy
would be a mandamus compelling the
authority administering the public funds to utilize them for their intended
purpose.
The mechanism of
funding was adopted as an alternative to ordinary State budget appropriations
because it would enable the ZBC to operate free of government administrative
regulations. The method of funding would
also enable the ZBC to avoid government oversight of its day-to-day
operations. The idea was to keep the
Government out of control of the purse strings of the ZBC and ensure that the
ZBC receives its funding directly from the public through taxation.
State funding
would give the Government the power to control the public broadcaster's
activities particularly the selection and presentation of television and radio
programmes. There is nothing unusual
about the obligation to pay the amount of money fixed by the ZBC with the
approval of the Minister by statutory instrument as a licence tax on possession
of a receiver.
Whilst giving
effect to a tax-based mechanism of funding, the provisions also give the public
broadcaster the right of direct access to and control of the use of the revenue
thereby protecting it from interference by the State. The mechanism of funding
given effect to by the provisions of the Act the validity of which is
challenged, shows that the scheme of public broadcasting service provided for
is not a State enterprise nor is it a State sponsored enterprise. It is a public sponsored enterprise.
In imposing the
obligation on every person who possessed a receiver to pay the amount of money
fixed and collected by the ZBC as a licence fee, the provisions authorized the
acquisition by the ZBC of property in satisfaction of the obligation. Section 38(B)(2) of the Act makes provision
for the acquisition of property in satisfaction of a tax within the meaning of
s 16(7)(a) of the Constitution. The
primary object of s 38(b)(1) and (2) of the Act is the raising of revenue. However labeled the obligation imposed by s
38(b)(1) of the Act on persons in possession of receivers is a “tax”.
In the light of
the contention advanced on behalf of the applicants that the money compulsorily
paid to the ZBC as a licence fee is not a tax, no argument was made to the
effect that s 38(B)(1) as read with s 38E(1)(h)(1) of the Act is not
reasonably justifiable in a democratic society.
The onus was on the applicants to show that the provisions went further
than was reasonably justifiable in a democratic society. The standard of proof is a preponderance of
probability. See Nyambirai's case supra at 13B.
The presumption is that the provisions of the Act the constitutionality
of which is under attack are reasonably justifiable in a democratic society.
They are not in violation of s 16(1) of the Constitution as they incorporate
the just demands of a democratic society.
PROTECTION
OF THE LAW
Section 18(1) of
the Constitution reads: “Subject to the provisions of this Constitution, every
person is entitled to the protection of the law.” Section 113 defines “law” to mean any
provision of the Constitution. Section
18(1) of the Constitution provides protection to every person against a
legislative measure which does not meet the requirements of legality. To be a law the measure that is required by
the Constitution is to define the
prohibited conduct in sufficiently clear and adequately precise language to
enable a person to know in advance what not to do so that he or she may
regulate his or her conduct accordingly.
In Chimakure & Ors v A-G 2013(2) ZLR
466(S) at 497D it is said:
“A
compliant law must, in accordance with the principle of legality, enable a
person of ordinary intelligence to know in advance what he or she must not do
and the consequences of disobedience.”
The right also
provides protection to a person under a legal system that is fair in the sense
that it guarantees to him or her all the procedural and substantive benefits of
due process. In other words the right to
the protection of the law guarantees to a person protection against an unfair
legal system.
The applicant in
each case complained that s 38A of the Act defines a “receiver” too broadly to
mean any “apparatus which is capable of being used for the reception of a
broadcasting service”. The contention
was that by criminalizing the possession of a “receiver” as defined in s 38A
without a listener's licence issued by the ZBC, s 38B(1) is too wide and
falls foul of the principle of legality enshrined in s 18(1) of the
Constitution. The argument was that a
person would not know in advance whether s 38B(1) applied to possession of a television
or radio set only or it applied to every gadget capable of receiving a
broadcasting service. As this aspect of
the broadcasting service regulation has the effect of restricting the exercise
of the right to freedom of expression it must be shown that it meets the
requirements of legality to be legitimate.
Section 2(1) of
the Act defines “a broadcasting service” to mean “any service which delivers
television or radio programmes to a person having equipment appropriate for
receiving that service whether the delivery is effected by means of or uses the
radio frequency spectrum, cable, optical fibre, satellite, or any other means
or combination of those means …”.
Section 38B(1) must be read together with ss 38A and 2(1) of the
Act.
By limiting the
definition of “broadcasting service” to service which delivers “television or
radio programmes”, s 2(1) of the Act effectively limited the commission of
the offence under s 38B(1) of the Act to persons who possess equipment
appropriate for receiving broadcasting service.
There are two types of broadcasting, television and radio broadcasting.
Section 2(1) of
the Act is wide enough to bring under the definition of broadcasting service
any equipment capable of receiving television or radio programmes broadcast. In other words the gadget does not have to be
a television set or a radio set. It can
be a smart phone, for example, provided it is capable of receiving television
or radio programmes as they are being broadcast. Television or radio programmes do not
necessarily have to be received by a television or a radio set.
The fact that the
ZBC has, in practice, demanded payment of licence fees from persons who possess
television sets or radio sets only, does not mean that the provisions of the
Act on what is a receiver are unconstitutionally vague. The law was obviously drafted with effects of
changes brought about by technological development in mind. There was no suggestion that the decision by
the ZBC to demand payments of licence fees in respect of possession of
television sets and radio sets only was a result of vagueness and ambiguities
in the language of the statute.
A person who has
paid his or her television or radio licence fee to the ZBC would however, not have
to worry about what equipment he or she may possess without the requisite
licence. Possession of a listener's
licence provides greater protection and legal security in the exercise of the
right to receive ideas and information from a medium of one's free choice
without fear of being sanctioned. The
person who, like the applicants, is in possession of a television or radio set
without a licence falls within the class of persons under the obligation to pay
the licence tax. He or she cannot escape
the consequences of the obligation by claiming protection from the very law he
or she is required to obey unless the law is unconstitutional.
A law abiding person would, upon a proper
reading of the provisions of s 38B(1) together with ss 38A and 2(1) of the Act,
with legal advice if necessary, receive the guidance from the law as to which
gadgets would attract criminal charges if possessed without a licence. Chavunduka
& Anor v Minister of Home Affairs & Anor 2000(1) ZLR 552(S) at
560-561. There was failure by the
applicants to read and understand the provisions of s 38B(1) in the context of
the other provisions with a direct bearing on its meaning.
The allegation
that s 38B(1) of the Act falls foul of the requirements of legality and violates
the right to the protection of the law is unfounded. The prohibited conduct is clearly and
precisely defined in content and scope.
It is possession of a receiver without a listener's licence. A receiver is then defined in terms which
ensure that any person of ordinary intelligence would be able to know the types
of gadgets the possession of which requires a listener's licence. The terms of the provisions are couched in
language that ensures that the right of an individual to do that which is not
prohibited by law is not infringed. What
is prohibited is previously established in a law that is precise and clear,
both in a material and in a formal sense.
The applicants remained protected by a norm that meets all the requirements
of legality in accordance with the fundamental right guaranteed to them by the
Constitution.
It is worth noting
that consistent with the right to the protection of the law, the procedural and
substantive remedies for alleged contravention of s 38B(1) of the Act are based
on the principle of respect for due process of the law. A person who fails to
produce a television or radio licence at a designated office within seven days
of written notice to do so must be brought before a court where he or she is afforded
an opportunity to defend his or her conduct.
That person has a right which the applicants exercised, to raise as a
defence to a charge, the question of the constitutionality of the provisions of
the Act he or she is alleged to have contravened. The applicants failed to
establish on a balance of probabilities violation of the fundamental right to
the protection of the law as they alleged.
FREEDOM
OF EXPRESSION
Each
applicant sought to impugn the constitutional validity of s 38B(1) of the Act on
the ground that it violated the fundamental right to freedom of expression enshrined
in s 20(1) of the Constitution by prohibiting, under threat of criminal sanctions,
possession of equipment capable of receiving a broadcasting service without a
licence.
Section 20(1) of
the Constitution recognizes and guarantees to every person a right to freedom
to hold opinions and to receive and impart ideas and information. The right protects the person from any
hindrance in or interference with possession of equipment capable of receiving ideas,
information and messages delivered by television and radio programmes.
Article
19 of the Universal Declaration of Human Rights (UDHR) guarantees freedom of
opinion and expression in the following terms:
“Everyone
has the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.”
Zimbabwe is a signatory to the
International Covenant on Civil and Political Rights (1966) (ICCPR) which is
legally binding in international law and guarantees in Article 19, the right to
freedom of opinion and expression in similar terms to Article 19 of the UDHR.
There
is need to first consider the context of the principles of the law of public
broadcasting service and the exercise of freedom of expression.
Broadcasting,
as a wide dissemination of ideas and information on a variety of subjects by
television or radio, is a means of exercising freedom of expression. As a medium through which ideas and
information can be received and imparted, broadcasting is intrinsically linked
to freedom of expression. It is a medium
specifically dedicated to the exercise of the right to freedom of
expression. The one is the life blood of
the other. Any public broadcasting service
system must meet all the requirements of freedom of expression in order to pass
the constitutional muster.
The legislation
providing for a public broadcasting service system must be in line with the
fundamental principles behind freedom of expression. This means that the conditions of use of the
public broadcasting service for conveyance of ideas and information must
conform to the requirements of this freedom.
These principles can be summarized as being that:
1. Everyone
has the right to express himself or herself freely through the medium of his or
her choice.
2. This
implies the right to access, receive and disseminate ideas, information and
messages of all types through all communication systems and media – in this
case electronic media.
3. The
public broadcasting service media shall in the public interest enjoy editorial
independence from undue influence from both State and corporate actors.
There is intertwining
of the public interest standard governing the provision of public broadcasting service
with freedom of expression interests.
The public interest is viewed through the protection of the right to
freedom of expression. In that sense the
public interest standard is a statutory security for the freedom of expression
doctrine in public broadcasting.
The public
interest standard necessarily invites reference to freedom of expression
principles. The question of how the
legal provisions governing the structuring and dynamics of the provision of
public broadcasting service relate to the principles of freedom of expression is
central to the determination of the question of the constitutional validity of
the legislation.
Each
applicant argued that by prohibiting the possession of a receiver without a
licence issued by the ZBC, s
38B(1) of the Act infringes the right to receive ideas,
information and messages from a broadcasting service of his or its choice. In other words what is regulated is the
possession of the means by which to benefit from the services provided by the
ZBC or any services like them.
The right to
freedom of expression as enshrined in s 20(1) of the Constitution is not
absolute. The right is subject to
limitations contained in or done under the authority of any law in the cases
and for purposes specified under s 20(2) of the Constitution unless the
limitation is shown not to be reasonably justifiable in a democratic
society.
The effect of
s 20(2) of the Constitution is that the same document that entrenches the right
to freedom of expression as a fundamental right acknowledges that the right is
not absolute. The onus was on the
applicants to show that the restriction on the right to possess a “receiver” without
a listener's licence is not reasonably justifiable in a democratic
society. The applicants failed to
discharge the onus.
The
principles governing the relationship between public broadcasting service and
freedom of expression reveal the justification for the restriction on the
possession of receivers for the purpose of raising revenue for the ZBC. The Zimbabwe Broadcasting Corporation is a
central medium of expression. As a
public broadcaster it must be a central institution for the effective
protection of freedom of expression in the provision of public broadcasting
services in a democratic society.
One of the
objectives of mass communication in a democracy is the development of an
informed public opinion through the public dissemination of news and ideas
concerning important public issues of the day.
According to Article VI of the Declaration of Principles on Freedom of
Expression in Africa adopted by the African Commission on Human and Peoples'
Rights at the 32nd Session, 17th - 23rd
October 2002 Banjul, Gambia, public broadcasting service is a vital element of
modern democratic societies.
Public broadcasting
service models were developed to remedy weaknesses inherent in the other
broadcasting service systems namely State controlled broadcasting service and
profit oriented commercial models. A State
controlled broadcaster's programming is essentially driven by the political interests,
while commercial broadcasters are driven by commercial interests. The programming of a public broadcaster is required
to be driven by the public interest.
A public broadcasting
service is a national asset that must be independent of both political and
commercial pressures in the performance of its mandate. In its ownership, funding and programming the
concept of “public” has always defined the logical boundary of any public broadcasting
service organization. As a public sphere
essential for a well functioning democracy, public broadcasting service is of
the public, for the public and by the public.
In other words public broadcasting service belongs to the entire
community, not to the abstraction known as the State nor to the government in
office nor its political party. Patriotic
Party v Ghana Broadcasting Corporation [1992-93] GBR 522 at 536 (Supreme
Court of Ghana).
There has been no
doubting that it is in the public interest to encourage the growth and
development of public television and radio broadcasting for informational,
educational, cultural and entertainment purposes. A public service broadcaster thus requires a
particular legal framework and certain structural attributes to enable it to
execute its mandate effectively. Public
broadcasters are generally defined in terms of their characteristics and
purposes.
International
standards require States to ensure that public broadcasting services operate in
an independent manner. This means
fundamentally guaranteeing their administrative and editorial freedom. It also means guaranteeing their financial
independence.
Article VI of the
Principles on Freedom of Expression in Africa provides that for a public
broadcasting service system to comply with the requirements of freedom of
expression, the following must be observed in the relevant broadcasting legislation
framework:
·
Public broadcasters
should be governed by a board which is protected against interference,
particularly of a political or economic nature;
·
The editorial
independence of public service broadcasters should be guaranteed;
·
Public broadcasters
should be adequately funded in a manner that protects them from arbitrary
interference with their budgets.
·
Public broadcasters
should strive to ensure that their transmission system covers the whole
territory of the country.
·
The public service ambit
of public broadcasters should be clearly defined and include an obligation to
ensure that the public receive adequately, politically balanced information
particularly during election periods.
The features
referred to in Article VI of the Declaration of Principles on Freedom of
Expression in Africa are structural in nature.
They address requirements of a public service broadcaster to ensure that
it effectively delivers on its mandate.
The question is, to what extent are the provisions of the Act on various
aspects of the provision of public broadcasting service based on the principle
of promotion and protection of freedom of expression.
How
does the legal framework for broadcasting service ensure that the public broadcaster
provides the public with the opportunity to exercise their right to speak and
have access to television and radio broadcasting as means of communication? How
does the legislative framework also ensure that what is broadcast is in the
public interest and the programmes meet the standards prescribed in Part I of the
Seventh Schedule of the Act? To what
extent, does the legal framework on provision of public broadcasting services
comply with the recognized international norms on provision of public
broadcasting services?
The
contents of the objects of the Broadcasting Authority of Zimbabwe and the
requirements of the broadcasting service operated by a public broadcaster as prescribed
under Part 1 of the Seventh Schedule to the Act, allow the ZBC freedom to
express opinions in the process of the exercise of editorial discretion through
selection and presentation of programmes in ways that could not become vehicles
for government propaganda.
When the ZBC as a
public broadcaster speaks it should not be government speaking. The right to freedom of expression does not
extend to protecting government from itself.
In an article
titled “The Unneccessary Gravity of the
Soul: Public Service Broadcasters or Government Mouthpieces – An Appraisal of
Public Service Broadcasting in Botswana” Vol. 10 Issue 1 April 2013 SCRIPT ed TB Balule writes that public
broadcasting service “which is a particular way of exercising freedom of
expression, serves as a vehicle for self-expression, a reflection of public
opinion, an informer of the public, and a participant in the formation of
public opinion”.
Pluralism
and diversity of programmes promote the full enjoyment of freedom of expression
in that they ensure that citizens have access to a wide range of information
and ideas on a variety of subjects. One
of the fundamental requirements of the right to freedom of expression is the
need for a broad plurality of information:
Inter American Court of Human
Rights Rios et al. v Venezuela, Judgment of January 28, 2009 para.
106. A public broadcaster that is free
from political interference and commercial pressures has the potential to
ensure quality programming covering a wide range of interests that respond to
all sectors of the public thereby promoting pluralism and diversity of
programme content. Balule at pp 81-82.
What
is of paramount importance is not the rights of the public broadcaster. What is paramount is the collective right of
the viewers and listeners in receiving a balanced presentation of ideas and
information on diverse matters of public concern by television and radio. The public's free speech interest in broadcasting
is a collective and not an individual right in that the people as a whole
retain their interest in free speech by radio and television. The people as a whole also retain the
collective right to have the medium of television and radio broadcasting
function consistently with the ends and purposes of the constitutional
protection of freedom of expression. Red Lion Broadcasting v FCC 395 US 367
(1969) at 390, 389-91. FCC v League of Women Voters 468 US
364(1984) at 380.
It
follows that for a public broadcaster to effectively discharge its mandate of
serving the public interest, it needs protection of a legal nature. The legal protections aim at creating an
appropriate structure that will ensure that the public broadcaster is able to
discharge its mandate in an independent manner.
These legal protections include a clear statement of the purposes and objectives
of broadcasting service provided. There
must be a guarantee of the public broadcaster's editorial independence in the
law.
A report by Robert
Corn-Revere: Washington DC, May 2002 on “Freedom
of Expression in Public Broadcasting” defines editorial independence as:
“the responsible application by professional practitioners of a free and
independent decision – making process which is ultimately accountable to the
needs and interests of all citizens”.
The financial
independence of a public broadcasting service requires that its funding
arrangements should not be used to directly or indirectly exert any influence
over the public broadcaster's editorial independence and institutional
autonomy. The institution must be
adequately funded in order to provide citizens with high quality programmes. There is a direct relation between financial
independence and editorial freedom of a public broadcaster. They are both guaranteed primarily for the
benefit of the public.
Being wholly owned
by the State, the ZBC as a public broadcaster could be compromised by the
pressures of operating with an inherent conflict of interest in the discharge
of the dual responsibility of reporting information and bringing critical
judgment to bear on public affairs.
The
structuring and dynamism of the public broadcasting service system provided for
by the provisions of the Act reveal an acceptance of the principles of institutional
and editorial independence. Section
2A(f) of the Act provides that one of the objectives of the Act which the
Authority must have regard to as the regulatory authority is “to ensure the
independence, impartiality and viability of public broadcasting services”. Part 1(d) of the Seventh Schedule to the Act
requires the ZBC to “provide news and public affairs programming which meets
the highest standards of journalism, and which is fair and unbiased and
independent from government, commercial or other interests”. The provisions show a commitment to freedom
of expression.
Selection and
presentation of programmes should be an exercise of editorial discretion. For better or for worse editing is what
editors are for, “and editing is selection and choice of material”. Columbia
Broadcasting System v Democratic Nat'l Comm 412 US94 (1969) at 124. The
provisions of s 2A(f), Part 1(d) of the Seventh Schedule to the Act and
the application of the principle of company law to the effect that shareholding
and management of a company must always be kept separate are important in this
respect. They show that the public
broadcaster is vested with substantial editorial discretion and judgment in
deciding how to meet its journalistic purposes, achieve high standards of
quality in the programmes broadcast and fulfil statutory obligations.
The ZBC is not
permitted but required to exercise independent editorial discretion and judgment
in the performance of the functions necessary for the fulfillment of its
journalistic purpose and statutory obligations.
It is for the ZBC in the exercise of editorial discretion to decide
whether a programme is compatible with the requirements of freedom of
expression by adhering to the standards of programming prescribed in Part 1 of
the Seventh Schedule to the Act.
The editorial
independence of the ZBC is further guaranteed by the requirement that the board
to which the ZBC is accountable and has the power to appoint its Chief
Executive Officer must not interfere in the day-to-day management of the
ZBC.
Public
broadcasters, particularly when they effectively delegate editorial discretion
to professional journalists, may perform their functions and fulfil statutory
obligations admirably. In any case the
public interest standard on the programmes broadcast by the ZBC in respect to
their geographic reach, content, subject – matters, linguistic presentation,
independence from governmental, commercial or any other interests and quality
prescribed by Part 1 of the Seventh Schedule of the Act requires that a
substantial degree of editorial discretion must remain with the public
broadcaster.
In the exercise of
editorial discretion the ZBC has power under Part 1 of the Seventh Schedule of
the Act to decide on what programmes to broadcast, at what time, on which
subjects and for what purposes. It has
the power to decide on who participates in the programmes, provided it does not
exclude people because it disagrees with their points of view on matters of
public interest and complies with the relevant requirements of programming
prescribed in Part 1 of the Seventh Schedule of the Act. The decision must be reasonable and viewpoint
neutral. In other words the legal
discretion granted to the ZBC and its editors is not limitless or expressed in
terms of an unfettered power.
The existence of provisions
which underpin the presence of editorial discretion in the public broadcasting service
system gives rise to a presumption against State involvement in the programming
decisions of the ZBC. In fact
governmental involvement in decisions as to which programmes to broadcast would
be incompatible with or antithetical to the editorial discretion vested in the
ZBC by the statute.
The system imposes
on the ZBC programme and content obligations that protect freedom of expression
in the public sphere. The provisions of
the Act reveal the symbiotic relationship existing between the provision of public
broadcasting service and freedom of expression in the public sphere.
The principles on
the provision of public broadcasting services and the exercise of freedom of
expression are now related to the method of funding chosen for the ZBC. In other words, how does the mechanism of
funding chosen fit into the structure and dynamics of the relationship between
the provision of public broadcasting service and freedom of expression? Does the method of funding promote or violate
the right to freedom of expression?
As a public
broadcaster ZBC is able to enjoy and maintain the independence guaranteed to it
by the law and achieve the objectives for which it was established as it relies
on funding from members of the public and not on State resources.
In that way it is able to provide access to the speech market to a
broader section of the public thereby ensuring greater participation.
In ensuring that
broadcasting services reach as many people as possible who also would want to
enjoy the right to receive and impart ideas or information, the ZBC is
promoting freedom of expression. Provision
of public broadcasting service is by its nature intended to reach the poor,
marginalized and illiterate sections of society. In this sense, the regulation of public
broadcasting service is part of a proactive policy of social inclusion that
tends to reduce pre-existing inequality in access to the media. Nyambirai's
case supra at 14G. The method of
funding and the objectives prescribed for the corporation as a public
broadcaster are influenced by the considerations of the right to freedom of
expression.
The system of
funding the provision of public broadcasting service through the payment of
listener's licence fees is commonly used in many democratic societies. The African Charter on Broadcasting 2001
Windhoek which inspired the Declaration of Principles on Freedom of Expression in
Africa to which Zimbabwe is a signatory provides in Part II s 5 that:
“Public
services broadcasters should be adequately funded in a manner that protects
them from arbitrary interference with their budgets.”
The
report by AFRIMAP, OSISA & OSIMP on Zimbabwe in Public Broadcasting in
Africa Series 2009 commented on the funding of the ZBC as follows:
“(1) Licence
fees form the backbone of the ZBC revenue sources because they provide stable,
predictable multi-year funding and allow the broadcaster to plan and implement
the necessary investment in programming and operational improvements.”
The system of
licence fees is used in the funding of the British Broadcasting Corporation (the
BBC) and the South African Broadcasting Corporation (the SABC). The money from licence fees is collected by
the BBC – rather than by a governmental organisation – and then utilized to fund
its programming and operations. In the
United States of America citizens pay the Federal Communication Commission (the
FCC) taxes. The amount of the fee is
calculated based on the needs of the FCC.
The taxes are collected by cable providers through the monthly fees paid
by television watchers.
The difference between
the FCC and the ZBC method of funding is that, instead of the money being
collected directly from the public by the public broadcaster the taxes are
collected by cable providers as middlemen for onward transmission to the
FCC. See Andrew Giarolo “Public Broadcasting” Seton Hall Journal of Sports and
Entertainment Law: Vol 23.2(2013) 439 at 457.
Unlike our statute
the South African Broadcasting Services Act expressly provides that the licence
fee must be paid by a person who owns a television set or a radio set. The system of funding adopted for the BBC and
SABC is based on a restriction on the exercise of the right to receive
television or radio programmes broadcast.
The applicants did not refer the Court to any authority from these
democratic countries to the effect that the use of licence fees to fund the
public broadcaster under a system of law that guarantees editorial independence
is a violation of the fundamental right to freedom of expression.
The Report of the
Independent Review Panel on the future funding of the BBC indicated that
funding the public broadcaster through television licence fees remained the
most viable option if public broadcasting was to remain in existence. It said at p 137:
“The
best means of funding such broadcasting yet devised is a licence fee. However, broadcasting which the market will
not provide may (almost by definition) be broadcasting that is not very
popular. At least, it will not
necessarily be the kind of “lowest common denominator” which can command the
largest audiences. And people naturally
resist the proposition that they should pay for programmes that they do not
wish to watch. Hence we have a debate
which veers dangerously between the purist view of public service broadcasting,
the so-called “Himalayas” view, which has it just producing programmes at the
top end of the market, and the impure view, which interprets, “public service”
as potentially embracing any broadcasting, however populist, which a public
broadcaster chooses to put on the air.
We have
not resolved this conundrum, perhaps because it is unresolvable. We do believe that public service broadcasting
however defined, can play an important role in the competitive and complex
broadcasting environment of the multi-channel, digital future. There is good reason to suppose that the market,
left to itself, will not provide the broadcasting which our society wishes to
foster.
Public
service broadcasting exists to service the community by providing distinctive
programmes which inform, educate and entertain.
It can help to ensure that the benefits of the information age are
available to all at a reasonable cost and that viewers and listeners have
access to quality services which cater for a wide range of interests. In all these respects, it can correct the
tendency of the market to pull too far in the opposite direction.”
Each applicant
failed to show that the use of a licence tax as a method of funding the ZBC as
a public broadcaster under the Act, with its attendant condition on the
possession of receivers, is not reasonably justifiable in a democratic society.
Countries like Germany which abandoned
the funding model of a licence fee based on ownership of television and radio
sets did so, not for the reason that the model of funding violated the
fundamental right to freedom of expression.
Germany did so upon the realization that reliance on ownership of
television and radio sets limited the source of funding for the public
broadcasters as people now used other appliances to watch and record television
programmes.
The other reason for abandoning the funding model
based on ownership of television and radio sets, was that the costs of
enforcement of the law against evaders who had increased in numbers, was too
high. The law governing public
broadcasting service in Germany, now requires every household to pay a fixed
licence fee annually, regardless of whether the household owns an appliance
capable of receiving broadcasting
service or not.
The example of the
funding method adopted by Germany shows that, whatever model is adopted for
funding public broadcasting service, it must ensure that the funding is
protected against arbitrary governmental interference. Institutional and editorial independence of a
public broadcaster such as the ZBC is not likely to be effectively guaranteed
if government can exert pressure on its programming through control of the
financial resources. The example of the
model of funding adopted by Germany helps to show that public financial support
is a sine qua non of a public broadcasting
service system.
There is a close
link between the funding model adopted and the type of broadcasting service to
be supported. It is often argued that
the mechanism of funding adopted by the State is critical in determining the
nature of a broadcasting institution with fears that commercial funding methods
have the tendency to undermine public broadcasting service values. One of the important definitional features of
a public broadcasting service system is absence of efforts to raise funds from
viewers and listeners. The usual source
of revenue is taxation.
It follows that
taxation as the mechanism of funding adopted by the State cannot be examined
without reference to the substance of the scheme for public broadcasting service
embodied in the provisions of the Act of which it is an integral part. What is clear is that the mechanism of
funding adopted by the Parliament is part of a system of broadcasting service. The primary object of the broadcasting
service is to protect and promote the right of the public to receive suitable
access to social, political, cultural, moral and other ideas and experiences by
television and radio programmes consistent with the requirements of freedom of
expression. The method of funding,
combined with the editorial independence and the public interest standard, provides
a viable solution to the governmental control problem consistent with the
principles of freedom of expression. The
issue of an appropriate method of funding for a public broadcaster like the ZBC
is intrinsically linked to the fundamental question whether the country should
have a public broadcasting service system or not.
The applicants labored
under the mistaken belief that the purpose of s 38 B(1) of the Act is to compel
the holder of the television or radio licence to view or listen to programmes
broadcast by the ZBC. Both applicants
said the reason why they were opposed to the licensing fee system of funding in
this case is that they did not want to receive broadcasting service from the ZBC. Musangano Lodge went further to say it did
not want to pay the licence fees because there was no broadcasting service from
ZBC reaching the area where its business is located. It said it subscribed to DSTV. Mr Wekare
also said DSTV was the broadcasting service provider of his choice.
It is true that
freedom of expression goes further than the theoretical recognition of the
right to receive ideas and information.
It also includes, and cannot be separated from the right to choose from
which effective medium of communication one wants to receive ideas and
information.
Section 38B(1) of
the Act does not guarantee the ZBC an audience.
It does not compel the holder of a listener's licence to receive the
broadcasting service from the corporation.
All it does is to compel a person who is in possession of a receiver to pay a licence fee because the gadget in
question is a “receiver” capable of receiving a broadcasting service from any
provider. It sets a pre-condition for
the exercise of the right to freedom of expression by the person in possession
of a receiver. The fact that any given
listener is averse to the material that the ZBC broadcasts, whether from a
recreational or political perspective, does not necessarily violate his right
to freedom of expression.
Section 38B(1) of
the Act is not to the effect that the equipment possessed by a person under the
obligation to pay the licence fee should be capable of receiving a broadcasting
service from the ZBC. The right of a
person who does not want to view or listen to programmes broadcast by the ZBC
by television or radio is not violated. The
person is obliged to pay a licence fee for the possession of the receiver whether
he or she wants to receive broadcasting service from ZBC or not.
Once a person has
paid the licence fee for the possession of the receiver he or she is free to
receive a broadcasting service from a provider of his or her choice. In other words, his or her right to freedom
of expression is then not hindered or interfered with. The law is, however, intended to serve the
public interest. It does not follow that
because an individual does not want to receive ideas and information from a
public broadcasting service the law should be changed.
It cannot be
overemphasized that a public broadcasting service is established to serve the
public interest in the exercise of freedom of expression. The interests of the individual to access
ideas and select programmes of his or her choice may be satisfied by the
ever-expanding availability of channels.
This is particularly so through cable broadcasting. The channels allow for some degree of
individual preference in programme selection.
It would not
matter for the purpose of the obligation to pay the licence fee for possession
of a receiver in terms of s 38B(1) of the Act, that there is no signal from the
ZBC reaching the area where the equipment is located or that one prefers to
watch DSTV programmes. Payment of a tax
has always been a social responsibility of the individual placed under the
obligation to pay. No direct benefit
needs to accrue to a tax-payer for discharging a social duty. This is not to say the ZBC is doing well by
failing to ensure that its broadcasting services reach all areas of the
country.
The law governing
the public broadcasting service system, expressly imposes an obligation on the national
broadcaster, to ensure that its programmes are available to Zimbabweans in
languages commonly used in Zimbabwe.
This means that the ZBC is under an obligation to make its services
available throughout the country.
Failure by the ZBC to fulfil its mandate does not mean that the law by
which the obligation is imposed is unconstitutional.
The contention was
that s 38(b)(1) of the Act violates the applicants' right to freedom of
expression because it has the effect of prohibiting possession of appliances
for receiving programmes broadcast by television and radio. The applicants overlooked an important point
relating to the nature of the constitutional power of taxation exercised by the
legislature. In the exercise of the
constitutional power of taxation, the legislature has an absolute discretion to
select an activity or conduct and not others, as a subject of taxation. In this case it selected receivers and chose
to prohibit their possession without a listener's licence as the subject of
taxation. The Legislature may prescribe
the basis of tax, fix the value and require payment as it may deem proper. Within the limits of the constitutional
power, it is supreme in its action. McCray v United States 195 US 27 at 57.
The fact that
other motives may impel the exercise of taxation power does not authorize the
courts to inquire into that subject.
Whether the choice of the activity or conduct as a subject of taxation,
has the burdensome regulatory effect of restricting the activity or conduct in
relation to the use of the appliance as a means of exercising freedom of
expression by receiving broadcasting service from a provider of one's choice, cannot
be investigated by the Court. Every tax
is in some measure regulatory in effect.
To some extent it interposes an economic impediment to the activity or
conduct taxed as compared with others not taxed. But a tax is not any the less a tax because
it has a regulatory effect.
If the legislation
is within the taxing power it may not be declared unconstitutional because its
effect may be to accomplish another purpose as well as the raising of
revenue. The argument is the same as saying
that the question of power depends not upon the authority conferred by the
Constitution, but upon what may be the consequence arising from the exercise of
the lawful authority.
If a tax be within
the lawful power, the exertion of that power may not be judicially restrained
because of the results that arise from its exercise. The power to tax is exercised oppressively
upon persons who have fundamental rights.
The rights are not destroyed.
They are restricted to the extent necessary for the public purpose of
raising revenue consistently with the principles of freedom and justice upon
which the Constitution rests. McCray's case supra at 64.
As pointed out,
inquiry into the hidden motives which may have moved the Legislature to
exercise the power of taxation constitutionally conferred upon it, is beyond
the competence of courts. The Court will
not undertake a collateral inquiry, as to the measure of regulatory effect on
the conduct of possession of an appliance capable of receiving a broadcasting
service because of alleged violation of the right to freedom of expression. To do so would be an attempt to undermine the
exercise by the Legislature of the constitutional power of taxation. Sonzinsky
v United States 300US 506(1937).
The challenges to
the constitutionality of the relevant provisions of the statute, appear to have
been motivated by what each applicant said was decreasing public confidence in
the programmes broadcast by the ZBC. The
grounds of the complaints were that the programmes broadcast by the ZBC tended
to be monotonous and of poor quality. The applicants also complained that there
is no transparency and accountability in the way the ZBC uses the funds it gets
from the public. These are concerns
which the ZBC must welcome and take seriously.
There is need to
ensure that the managers use the revenue from licence fees to get the best
value for money with programming choices.
There is need to ensure that the programmes produced and broadcast by
the ZBC are of high quality, challenging,
engaging and innovative in accordance with the requirements of Part 1 of the
Seventh Schedule to the Act.
There is nothing
wrong in the public telling the ZBC what they think about the quality of its services
to help it police its own conduct. In
that way the ZBC would have a close relationship with its audience treating the
public as “owners” of the broadcasting service rather than licence fee
payers.
The ZBC as a
public broadcaster cannot work in a culture which is that it does what it likes
without having to be accountable. The
applicants, like all tax payers, have a right to know how their money is spent. There was, however, no evidence that any of
the applicants used the procedure provided by the ZBC in terms of s 40 of the
Act for handling complaints from the public about programme content. They should have used the procedure to bring
the complaints referred to in this application to the attention of the ZBC
before approaching the Court.
The reasons given by the applicants for not
complying with the law relate to accrual of benefits. Their contention is that programmes broadcast
by the ZBC are not of the quality they expected to receive in return for the
money they would have paid as licence fee for possessing a receiver.
Accrual of direct
personal benefits is not a factor for consideration in the determination of the
question whether s 38B(1) of the Act is unconstitutional for allegedly violating
the right to freedom of expression. One
does not pay tax to derive a direct personal benefit. Tax is paid for a public purpose as opposed
to a private purpose. In other words tax
is not paid to protect personal interest.
One pays a road tax for construction of a road one may never use.
The argument on
encryption is also based on the principle that a person must pay for the
programmes he or she wants to watch. The
principle is alien to the purposes of the provision of public broadcasting
services.
Each application
is dismissed with no order as to costs.
ZIYAMBI JCC: I agree
GWAUNZA JCC: I agree
GARWE JCC: I agree
GOWORA JCC: I agree
HLATSHWAYO JCC: I agree
PATEL JCC: I agree
GUVAVA JCC: I agree
MAVANGIRA AJCC: I agree
Mtetwa & Nyambirai,
applicants' legal practitioners
Mambosasa, respondent's legal
practitioners
