Icasa sports regulations pose a threat to constitutionalism

Constitutionalists have long cringed at the mention of “public interest” or “national interest” because of their inherent vagueness. Whatever government does or politicians or officials do, is justified as being in the public interest, even though this is rarely the case.

The latest instance of this is communications regulator Icasa’s proposal to force sporting bodies to make “games of national interest” freely available to the SABC, which will have unintended consequences not only for sports but also for constitutionalism.

Threats of expropriation without compensation since December 2017 have caused repeated contractions in the agricultural industry, with the latest figures for the second quarter showing a 4.2% decline in productivity. But expropriation without compensation is justified as being in the public interest.

The National Health Insurance Bill, also justified as being in the public interest, has caused doctors’ associations to threaten a total exodus of medical practitioners from our shores. The prospect of private hospitals and clinics being brought under the “stewardship” of our incompetent government scares the daylights out of most people. As do the long waiting times and the discretion governments have to decide whether a treatment is “effective” before releasing funds to try it that come with governmental healthcare as we see in Canada and the UK.

The “public” or “national” interest, despite being contained (but not defined) in the constitution, is a term that needs to be treated with extreme scepticism by all observant South Africans. Especially since a more basic, perhaps juvenile misconception of this term has now been adopted by Icasa.

‘National interest’

In South Africa’s broadcasting regulations there is talk of sport “games of national interest”. The regulations currently say that when South Africa’s national teams play, those games must be broadcast on free-to-air television (that is, of course, the SABC). In its proposed amendments to the regulations, Icasa wants to expand this notion to include ordinary matches between provincial and other sub-national (even international!) teams.

Understandably and rightly, the sporting federations and private broadcasters oppose this. The sport bodies will no longer be able to profit from selling the television rights of their games to the broadcasters and the broadcasters will no longer be able to profit from selling entertainment to their customers. While the emotional response might be, “Good! Sport should not only be for the elite who can afford DStv!”, a more rational response demands careful consideration of the unintended consequences of these amendments, and perhaps the existing regulations themselves.

Sporting bodies rely in large part on the revenue generated from selling broadcasting rights. These bodies have testified, in no uncertain terms, that these amendments would be a death knell to their continued existence. Thus, with (enforced) free-to-air sporting events, there will be no sports to broadcast.

The author, Martin van Staden, argues that Icasa’s ‘strangling regulations on the broadcasting industry must be done away with’

We must also acknowledge that there is no right to entertainment in the Bill of Rights. This is with good reason. Constitutions — including our constitution — are meant to provide a framework of government and protect against abuse of public power. The so-called socioeconomic rights in the constitution, in turn, are intended to provide a basic social safety net that presumably (but ostensibly) protects the poorest among us from succumbing to the elements. Constitutions and constitutionalists omit certain “rights” such as a right to entertainment, or a right to Internet access, because they devalue the concept of a right.

When everything desirable (even deeply desirable) becomes a “right”, and rights are no longer merely the protective measures individuals and communities use to develop themselves and attain prosperity, they become meaningless. The more so-called “rights” are added to what is supposed to be a closed list of human rights, the more incapable government becomes of protecting and advancing them, and the more expectations are created among an already-despondent citizenry that can’t be met.

The very premise of the broadcasting regulations is therefore flawed. They implicitly give effect to a right that does not exist. By implying that these sporting games are in the “national interest”, Icasa has hidden under clever wording that, actually, these games are “interesting” to the nation. By doing so, to justify the expansion of its own bureaucratic empire, it is evoking a constitutional concept — the public interest — which must be reserved and used only in a considered manner.

There is, of course, a perfectly rational solution to this problem.

Icasa’s strangling regulations on the broadcasting industry — the lot of them — must be done away with. This will reduce the compliance costs that broadcasters bear, which, inevitably, will cause prices to drop.

Enterprise-killing policy

South Africa’s current government-imposed economic quandary can also not be discounted. Everything is getting more expensive for everyone, especially the poor who cannot afford DStv. But this is almost exclusively a result of government’s enterprise-killing policy environment of high taxes (we have some of the highest corporate taxes in the world), and threats to private property like expropriation without compensation and National Health Insurance (which causes investors to look elsewhere, and established, wealthy South Africans to leave), among a multitude of other interventions. The 10 million unemployed — who are kept unemployed by laws like the Labour Relations Act and the National Minimum Wage Act — also have no hope in hell of affording DStv right now.

If government’s mindset were to change from central planning to creating an enabling, enterprising environment, the cost of living would become more bearable for millions.

Government, and particularly Icasa, must abandon any plans to make the broadcasting sector, or the economy as a whole, a more restrictive environment for business to operate in. Instead, measures must be adopted to liberalise the economy and, specifically, broadcasting, the result of which will be to allow more poor South Africans to access premium services. Above all, South Africans need to understand that the fundamental problem here is a government-induced one, not market failure.

  • Martin van Staden is head of legal policy at the Free Market Foundation and is pursuing a master of laws degree at the University of Pretoria. He is author of The Constitution and the Rule of Law: An Introduction (2019)
This article was first published on Techcentral.co.za on 13 September 2019

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