TV li­cence penal­ties

Finweek English Edition - - INSIGHT: LOCAL -

The Na­tional Credit Act and the Con­sumer Pro­tec­tion Act are both in­tended to play a watch­dog role, pro­tect­ing con­sumers and the pub­lic from fi­nan­cial ex­ploita­tion. Un­for­tu­nately they do not of­fer pro­tec­tion to con­sumers in­so­far as TV li­cence fees are con­cerned.

The SABC is ev­i­dently a law unto it­self. It is con­ve­niently gov­erned by the Broad­cast­ing Act, which al­lows it to charge the pub­lic “penal­ties” on out­stand­ing TV li­cence fees of 10% a month on the out­stand­ing amount.

The Broad­cast­ing Act is of course an old piece of leg­is­la­tion. Mod­ern times have clearly over­taken the in­ten­tions be­hind the Broad­cast­ing Act, which en­joyed its hey­day when the SABC had no com­pe­ti­tion. As the Broad­cast­ing Act ef­fec­tively rules the man­ner in which the SABC can con­duct it­self with re­gard to the pub­lic, the SABC is a crea­ture of statute. It is reg­u­lated by an act of Government. This means that the pay­ment by con­sumers of TV li­cence fees is a statu­tory obli­ga­tion in terms of this Act.

This was con­firmed by our courts in 1999. The con­cep­tual frame­work is that the SABC con­ducts it­self strictly in ac­cor­dance with this Act and no con­trac­con­trac t ual re­la­tion- ship is formed be­tween a con­sumer/li­cence holder and the S A BC in re­spect of pay­ment of a TV li­cence fee. Pay­ment of t hese fees mu s t b e ma d e in ac­cor­dance with a statu­tory obli­ga­tion.

The SABC re­lies heav­ily on Reg­u­la­tion 17 of the Broad­cast­ing Act, which states: “All tele­vi­sion li­cence fees are payable in ad­vance.” On its web­site un­der its Terms and Con­di­tions, where it has sum­marised the pro­vi­sions of the Broad­cast­ing Act and its Reg­u­la­tions, the SABC quotes this Reg­u­la­tion and takes it fur­ther by stat­ing that the ef­fect of this is the fol­low­ing: Be­cause of this, the Na­tional Credit Reg­u­la­tor (NCR) lets the SABC do its own thing. Most con­cern­ing is that the NCR al­lows the SABC to charge the ex­or­bi­tant penalty of 10% each month on an out­stand­ing li­cence-fee amount. The NCR states that it can­not in­ter­fere. To make mat­ters worse, the con­sumer can­not help but won­der what he or she is ac­tu­ally get­ting for pay­ment of the li­cence fee. It is quite ob­vi­ous that many peo­ple are re­luc­tant to TV li­cence fees in the first place. The SABC’s an­swer to this ap­pears to be to pe­nalise con­sumers rather than im­prove its of­fer­ing.

If the SABC can es­cape the pro­vi­sions con­trolled by the NCR be­cause li­cence fees are deemed payable in ad­vance, the in­ter­est­ing ques­tion is what hap­pens when con­sum- ers make ar­range­ments with the SABC to pay off their TV li­cence fees in in­stal­ments?

This ar­range­ment must surely con­sti­tute a form of credit agree­ment be­tween the con­sumer and the SABC. Re­mem­ber that Reg­u­la­tion 19 of the Broad­cast­ing Act pro­vides the fol­low­ing: An­nex­ure A makes pro­vi­sion for a domestic li­cence to be paid off in in­stal­ments of R26 a month for 12 months. Af­ter a year this amounts to R312. Ob­vi­ously some form of fee has been levied by the SABC in re­turn for the in­stal­ment ar­range­ment – a typ­i­cal credit agree­ment within the mean­ing of the Na­tional Credit Act. This can only mean that the SABC is pro­vid­ing con­sumers with credit. The con­sumer gets to watch his or her TV through­out the year and pays off the TV li­cence fee over a pe­riod of 12 months. Surely the SABC is now a credit provider in this sit­u­a­tion? If so, it can’t have the best of both worlds. It can’t on one hand be a credit provider and on the other a statu­tory gov­erned body far re­moved from the pro­tec­tions of the Na­tional Credit Act.

The ob­vi­ous ques­tion is why should the SABC in ef­fect be placed above the law in to­day’s times? Surely fair­ness, rea­son­able­ness and the val­ues of the Con­sti­tu­tion of South Africa should pre­vail above any other piece of leg­is­la­tion, in­clud­ing the Broad­cast­ing Act and its Reg­u­la­tions? Garry Hertzberg is a prac­tis­ing at­tor­ney at Dewey De Souza At­tor­neys, Sand­ton. He is also the pre­sen­ter of “The Law and You” ra­dio show on ChaiFM 101.9 ev­ery Wed­nes­day be­tween 18:00 and 19:00.

Garry Hertzberg

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