ACDP Parliamentary newsletter - 17 October 2003
In this issue:
1. Christian community radio stations under threat
2. Is smoking more dangerous than premature sex?
3. Road Accident Fund amendments will not benefit victims
4. Richtersveld claim a victory for poor
5. Child porn court ruling welcomed
6. Aids drug ruling welcomed
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1. Christian community radio stations under threat
The decision by the Independent Communications Authority of South Africa (Icasa) not to grant licences to three Christian Community radio stations in Gauteng is regrettable, says ACDP spokesperson on Communications Mr Louis Green.
Icasa has refused licences for Impact Radio, Rippel 90.5 and Radio West Rand and as yet, no reasons for this have been provided to these stations.
"It is regrettable that successful stations such as Impact radio, which has been operating for eight years and has a listenership of 21 000 was not granted a licence. The station is financially stable and has been a model community station, even reaching out to help train other community station personnel. If this radio station was not serving the community adequately, why would it have such a high listenership?
"Legislation provides for community radio stations to be granted licences based on their community of interest and it seems that Icasa has a narrow interpretation of these communities. Christian stations such as Kingfisher Radio, Link-FM, Good News Community Radio, Radio-7 and KNI Radio in various other provinces have also been refused licences and it appears that Icasa is particularly harsh on this community," Mr Green said.
"It has been mentioned that Icasa has taken a strong stand against stations that are not perceived to be headed by previously disadvantaged groups, yet the Broadcasting act does not state this is a requirement for a licence.
"We are also concerned that there is no appeal procedure for these stations. Currently the only way for stations refused a licence is to win a legal review for the case in order to win the right to a re-hearing," Mr Green said.
"I will be taking this matter up in the Communication Portfolio Committee and will propose an amendment to the Bill in order to allow an appeal process in order that a lot of money is not wasted in court. A non-judicial appeal process administered by an independent body will be necessary to ensure that this process is fair."
The process of granting licences to community radio stations by Icasa is also far from transparent and not in keeping with a policy of public accountability, says Mr Green.
"While radio stations hold public interviews and reviews during their licence application process in order to be transparent, Icasa discussions take place behind closed doors and when the licence announcements are made, the reasons for a licence refusal are not made public.
"We have asked Icasa for the reasons why three Christian radio stations in Gauteng were refused a licence and were told that the reasons are not available. This process should be dealt with in a transparent manner and the reasons for licence refusals should be given at the same time that licence announcements are made.
"If the process is not made transparent, the public may speculate about whether Icasa is accountable and whether the licensing process is fair," Mr Green said.
"Community stations that have been refused licences are then given 30 days from the publishing of the reasons to close unless they intend challenging the decision in court. Thirty days is an unreasonable period to allow stations to either prepare court documentation or allow employees time to find alternative employment. We believe that this should be extended to at least 90 days," Mr Green said.
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2. Is smoking more dangerous than premature sex?
The proposed amendments to the Tobacco Act to increase the age when teenagers can purchase cigarettes from 16 to 18 is hypocritical, says ACDP spokesperson on Justice Mr Steve Swart.
"Whilst we support the intention of this Bill to protect teenagers from the detrimental health effects of cigarette smoking, this increase in the age limit flies in the face of the proposed amendments in the Criminal Law (Sexual Offences) Amendment Bill which reduces the age of consent for sexual activities," Mr Swart said.
"The public is outraged at provisions in the Criminal Law (Sexual Offences) Amendment Bill seeking to allow children between the ages of 12 and 16 to engage in sexual experimentation with partners below the age of 16, as well as reducing the age of consent for homosexual relations from 19 to 16 years.
"For a variety of moral and health reasons, it is equally, if not far more dangerous, to engage in early sexual activities than smoking cigarettes. Besides concerns about children contracting HIV/Aids and other sexually transmitted infections, the vulnerable immature reproductive system of adolescent girls is at risk of being damaged by prematurely engaging in sexual activities. Furthermore according to medical reports, teenage promiscuity can increase a girl's vulnerability to cervical cancer by as much as five times.
"The ACDP recommends that the age of consent for sexual activities should be raised to 18, the age when teenagers are considered mature enough to get married, purchase liquor, vote, obtain a driver's licence and now purchase cigarettes. It is also the defining age for a child in terms of the National Constitution as well as the Criminal Law (Sexual Offences) Amendment Bill.
"We urge the Justice Portfolio Committee to consider lifting the age of consent for sexual activity to 18. This view is supported by various organisations, including the South African Council of Churches, Doctors for Life and the Children's Rights Project at the University of the Western Cape. Anything less would be a bizarre contradiction to the government's stated aim of protecting our children," Mr Swart said.
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3. Road Accident Fund amendments will not benefit victims
Certain proposed amendments contained in the Road Accident Fund Amendment Bill are ill-considered and unconstitutional, says ACDP spokesperson on justice Mr Steve Swart.
"The amendment proposing the payment of general damages and loss of earning capacity to victims of road accidents in instalments, as opposed to the existing practice of paying a lump sum, is unacceptable," Mr Swart said.
"Instalment payments would place road accident victims at the mercy of the Road Accident Fund. In view of the existing financial crisis and poor management of the Fund highlighted by the Satchwell Commission, we find this totally unacceptable.
"The Quadriplegic Association of South Africa (Qasa) has accused the Road Accident Fund undertakings department of being obstructive and unhelpful, making members' lives a misery as they go for long periods without treatment and the equipment they need.
"We consequently share the concerns of the Qasa that the system of payment by instalments would not provide victims with the necessary capital to finance the adjustments, such as building alterations or equipment required as a result of a serious injury.
Calls by the ACDP for a Parliamentary legal opinion regarding the constitutionality of certain amendments in the Road Accident Fund (RAF) Amendment Bill have been acceded to by the Transport Portfolio Committee.
"There are various provisions of the Amendment Bill that infringe upon common law principles, such as the deduction of collateral benefits (following insurance for example), and the exclusion of claims for emotional shock," said Mr Swart.
"Additionally, the retrospective application of the provisions of the Bill to apply to claims that have not been finalised infringes the Rule of Law principle. This principle enables citizens to organise their affairs, secure in the knowledge that they can perform any action not prohibited by law.
"It would be grossly unfair to claimants to apply these far-reaching amendments in this manner.
"The proposed compulsory undertaking system of payment of future medical expenses also infringes various constitutional provisions, such as the right to access to health care and the right not to be unfairly discriminated against," Mr Swart said.
In light of these legal implications, Mr Swart requested that the Parliamentary Legal Advisors provide a full legal opinion on the constitutionality of various provisions of the Amendment Bill.
"In view of the widespread dissatisfaction with the provisions of the Bill amongst various sectors, including representatives of road accident victim's organisations, members of the medical industry and legal fraternity, a constitutional challenge is almost a certainty," Mr Swart said.
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4. Richtersveld claim a victory for poor
The restitution of land to the Richtersveld community in the Northern Cape is a genuine victory for the poor in South Africa and the ACDP wishes the community well, says ACDP spokesperson on Agricultural and Land Affairs Mrs Cheryllyn Dudley.
"One cannot help but feel joy for the people of the Richtersveld who have genuinely suffered and lived in poverty after being dispossessed of their land," Mrs Dudley said.
"This has been a long-running and consistent action on behalf of community to take back ownership of their land and we are encouraged that the community sees this as an opportunity for empowerment and creating lasting benefits rather than a get-rich-quick scheme.
"I believe that this community has a mature outlook and we urge them to take responsibility in addressing ownership of the land and their interest in the mine, which is expected to be exhausted within 10 to 15 years.
"Government's reluctance to part with Alexkor has been ludicrous, they must put their money where their mouth is and be prepared to surrender assets from which they have unfairly benefited for so long. Let's see them lead by example instead of looking to others first. The government's offer of a mere 10% equity stake in Alexkor to the community of Richtersveld during the privatisation of the company is not a strong enough commitment to poverty alleviation and restitution.
Mrs Dudley reiterated the ACDP's support for finding fair and reasonable solutions to issues surrounding land restitution, emphasising that each situation must be addressed on its own legal and moral merits in a principled manner.
"Non-state owned land must be dealt with on a willing-buyer willing seller basis and investments must be cautiously and respectfully handled. Land restitution is a sensitive issue, let's see government setting the pace instead of passing the buck," Mrs Dudley said.
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5. Child porn court ruling welcomed
ACDP spokesperson on Justice Mr Steve Swart has welcomed the Constitutional Court ruling that the possession of child pornography is, and will remain, a crime.
The court dismissed an application by Tasco Luc De Reuck to strike down sections of the Films and Publications Act making it an offence to possess child pornography without a permit, even for researchers.
"The prohibition on the possession of child pornography is necessary to combat this evil and protect our nation's children. Pornography is the theory, but rape is the practice" Mr Swart said.
"There is no excuse for the possession of child pornography, and in our opinion, the question arises as to why there is even an exemption for purposes of research. We agree that outlawing child pornography is a justifiable and necessary limit on the rights to freedom of expression and privacy.
"The ACDP wholeheartedly agrees with Deputy Chief Justice Pius Langa who said in his judgement that 'child pornography is universally condemned for good reason. It strikes at the dignity of children, it is harmful to children who are used in its production ,and it is potentially harmful because of the attitude to child sex that it fosters and the use to which it can be put in grooming children to engage in sexual conduct'."
"Whilst the constitutionality of this Act has been upheld, we are concerned about delays in the amendments to the Film and Publications Act that deal with provisions for the prohibition of child pornography accessed through the internet and for more effective investigation and prosecution of child pornography offenders.
"These amendments must be finalised as a matter of urgency if we are committed to eradicating this evil and protecting our children."
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5. ACDP welcomes Aids drug ruling
The ACDP welcomes the finding by the Competition Commission regarding abuse by drug companies GlaxoSmithKline and Boehringer Ingelheim in respect of antiretroviral medicines that will result in cheaper generic antiretroviral drugs being made more accessible for all South Africans.
"The benefits of this ruling are expected to be immediate as competition between generic producers increases. We must emphasise however, that while these drugs do prolong the lives of those living with HIV, helping them to be more productive and take care of their families and allowing children who would otherwise be orphaned to be cared for by their own parents, these drugs are not a cure," says ACDP spokesperson on health Mrs Cheryllyn Dudley.
"In 2001, the ACDP called on government to explain their refusal to offer a tender which would have enabled South African pharmaceutical firm Aspen to start producing cheaper generics. These delays have cost South Africa dearly.
"Recent developments which ensure that the government is no longer able to shirk its responsibility in terms of providing ARD, efforts to get business to come to the party are far more credible," Mrs Dudley said.
"There is sadly a flip side to freely available medicine as healthier people living with HIV are also more likely to be sexually active and there is now an even greater need for the realities of HIV to be clearly spelt out and not glamorised.
"If South Africans are really serious about winning the war against HIV/Aids, we would accept compulsory testing as an obvious necessity. Government is too scared to address this issue so we encourage people to take a stand and call on government to do what needs to be done.
"Government's handling of the HIV issue has to date proved that they will not do anything without being forced into it by a groundswell of pressure," Mrs Dudley said.
Mrs Dudley emphasised that knowingly passing on HIV must become a criminal offence and for this to happen, individuals would have to take reasonable steps to know their HI status.
"Prevention is critical in addressing HIV and therefore mixed messages regarding abstinence along with the present attack on the institution of marriage are damaging. They undermine the only message (abstinence before marriage and faithfulness in marriage), that will ultimately deal a death blow to the pandemic which is still raging out of control," Mrs Dudley said.
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