The law is supposed to fulfil two important functions in society: protecting people’s persons and property, and conflict avoidance.
This is according to Martin van Staden, a legal researcher at the Free Market Foundation, who notes that South Africa’s current TV licence system currently stands opposed to these principles.
“There’s a deeper significance to section 27 of the Broadcasting Act that few people consciously realise,” he says.
“This provision, while elaborate, simply says that you are required to have a licence for your television set – and if you do not have one – you can be fined.
“By implication, if you continue to evade paying, imprisonment is also on the cards,” he said.
However, he notes that there is clear difference between this provision and similar provisions across the breadth of South African law that require conduct on behalf of the public and are usually treated with a modicum of concern and seriousness.
“We have reached a point most South Africans couldn’t care less about government’s television licensing regime. ”
The rule of law
Van Staden said that with South Africa’s weak economy and allegations of state capture, the law requiring South Africans to give money to keep the SABC propped up is not a moral or a legitimate demand that would satisfy the imperatives of the Rule of Law.
“Section 1(c) of the Constitution, which states that the Constitution and the Rule of Law are supreme in South Africa, is grossly infringed when Parliament allows the television licencing regime to exist, especially when South Africans no longer care to pay those licences,” he said.
“Government endangers the Rule of Law when it forces citizens to choose between following their conscience – and thus not throwing their hard-earned money down the pit of SOE financing – and being punished for disobeying the law.
“Obedience to the law and obedience to one’s conscience should, ideally, never contradict one another.”
He added that for the SABC to survive outside of a market context, it should no longer be a requirement to force South Africans to pay for the service.
Forcing people with the threat of a fine or imprisonment is a despicable undermining of constitutional democracy, he said.
“In the interests of protecting the integrity of the law, section 27 of the Broadcasting Act and similar provisions in other laws, should be repealed.
“There is a pressing need to restore the law’s dignity and this can be done only if the law is used to protect person and property and not used as a tool of expediency in the arsenal of the political class.”