Public Protector releases report on rights of performing artist
Public Protector Adv. Thuli Madonsela on Monday released an investigation report titled Law and Justice on an alleged administrative injustice by the South Africa Broadcasting Corporation (SABC) and various other organs of state. The investigation followed complaints by a member of the public, Ms Tloledi Makudubela.
The other organs of state involved were the South African Police Service (SAPS), Legal Aid South Africa (LASA), the Department of Justice and Constitutional Development (DOJCD) and the Department of International Relations and Cooperation (DIRCO) and a medical practitioner at Steve Biko Hospital.
The main complaint related to alleged maladministration and prejudice by the SABC, which stemmed from alleged undue refusal by the SABC to play Ms Makudubela’s music and the national broadcaster’s alleged violation of copyright to Ms Makudubela’s music or intellectual property rights.
Ms Makudubela alleged that LASA failed to help vindicate her intellectual property rights against the SABC while the DOJCD allegedly failed to help her exact accountability against LASA and an independent lawyer that took her money and allegedly called the police who arrested her when she refused to leave without seeing the Minister of Justice with whom she had allegedly pre-scheduled a meeting. Ms Makudubela also alleged that the SAPS unduly arrested her, keeping her in prison for several days and releasing her without a trial
Other complaints were lodged against various police stations of the SAPS, mainly for alleged failure to investigate matters Ms Makudubela reported, with some involving alleged domestic violence and others concerning wrongful arrest and police brutality.
In one of the domestic violence complaints, Ms Makudubela complained against DIRCO for allegedly obfuscating the serving of domestic violence papers against her alleged domestic partner, a Russian diplomat. In the same complaint and the one involving arrest at the DOJCD, Ms Makudubela accused the SAPS of subjecting her to police brutality. She also complained against a doctor at a Steve Biko Hospital, who had allegedly treated her unprofessionally.
Findings and remedial action
The Public Protector found that the allegation that the SABC improperly refused to air Ms Makudubela’s music video for the song Goboima Lefaaseng was not substantiated. Though the SABC, as the national broadcaster, had a duty to ensure equitable access to its broadcast opportunities and to meet certain ICASA quotas, it did not have to play all music presented to it if such music did not meet its objective quality requirements.
The allegation that the SABC improperly changed the sound of the music video of the song Mpulele Ditsela thereby violating Ms Makudubela's copyright, was substantiated. The Public Protector found that the national broadcaster had no right to change Ms Makudubela’s sound as that, in doing so without her consent, violated her copyright to her music.
The Public Protector directed that the SABC apologises in writing to Ms Makudubela for failing to secure her consent before making changes to the music video she submitted to it to be played; the Board of the SABC adopts policies to guide its interface with artists and prevent the exploitation of their intellectual property; and that the Board put written contracts in place to regulate the relationship between the SABC and performing artists to ensure that all terms of engagement are in writing and comply with the Copyright and Protection of Performing Artists Acts.
Regarding whether or not the conduct of LASA in refusing to assist Ms Makudubela in the matter against the SABC was improper or constitutes maladministration and caused her to suffer prejudice, the Public Protector was unable to conclude that LASA deviated from its own policies.
Regarding SAPS’ alleged removal of Ms Makudubela’s from DOJCD premises by means of arrest and imprisonment, the Public Protector found while Ms Makudubela’s arrest may have been lawful, it was neither just nor fair and could not be said to have been the most efficient use of limited policing resources. The conduct accordingly constitutes improper conduct, maladministration and does border on abuse of power, the Public Protector said
She added that the conduct of members of the SAPS did not meet the standard of fairness and reasonability required by Section 195 of the Constitution. This was because there was no indication of when the conduct of Ms Makudubela, although it might have been unreasonable, crossed the boundary between unreasonableness and unlawfulness, which may have warranted her arrest as opposed to alternative options.
As part of appropriate remedial action, the Public Protector urged the Ministers of Public Service and Administration and Police to adopt a policy to guide public authorities on decisions relating to unreasonable conduct of members of the public and the limitation and refusal of services to such persons in a manner that is consistent with the Constitution to prevent arbitrary, in humane and discriminatory actions.
Regarding the conduct of DOJCD allegedly setting up a meeting with Ms Makudubela and failing to hold the meeting at the agreed date and time, the Public Protector found that the complaint was not substantiated as she could not find evidence buttressing the allegation that the Minister of Justice and Constitutional Development agreed to a meeting and later refused or failed to honour her undertaking.
Regarding DIRCO allegedly setting up meeting(s) with Ms Makudubela and not holding the meeting(s) at the set times and if such acts constitute improper conduct, the Public Protector found that DIRCO did set and later failed to honour meetings. However, the allegation regarding whether or not Ms Makudubela was advised before arriving for such meetings of the cancellation thereof was inconclusive.
“Such conduct can’t be said to be consistent with the standard of good administration expected under section 195 of the Constitution, which includes professional and responsive treatment of members of the public. Neither is the conduct consistent with section 33 of the Constitution,” the Public Protector said.
She added that the handling by DIRCO of Ms Makudubela’s request to be assisted with the alleged domestic violence by a Russian diplomat could have been handled better.
To remedy the situation, the Public Protector directed that DIRCO apologises to Ms Makudubela in writing for unduly failing to offer her responsive assistance, resulting in her arrest as she demanded responsive service.
Regarding the propriety of SAPS’ removal of Ms Makudubela from DIRCO by means of arrest and imprisonment, the Public Protector found that the conduct of members of the SAPS officials did not meet the standard of fairness and reasonability required by Section 195 of the Constitution. Like in the DOJCD case, this was because there was no indication of when Ms Makudubela’s conduct, although it might have been unreasonable, crossed the boundary between unreasonable and unlawfulness which may have warranted her arrest as opposed to alternative options.
As part of remedial action, the Public Protector directed the Station Commander of Brooklyn Police Station to issue an apology to Ms Makudubela for the imprisonment. In addition, the Ministers of Public Service and Administration and Police were directed to adopt a policy to guide public authorities on decisions relating to unreasonable conduct of members of the public and the limitation and refusal of services to such persons in a manner that is consistent with the Constitution to prevent arbitrary, in humane and discriminatory actions.DIRCO was also directed to apologise to Ms Makudubela in writing for failing to honour the appointment made with her, resulting in her arrest.
On the allegations relating to the investigation of a criminal case against Ms Makudubela’s then fiancé’s children by officials of the Sinoville Police Station, the Public Protector was unable to conclude that the investigation was not properly dealt with by officials of the SAPS and the ICD.
The Public Protector was also unable to make a determination on the conduct of the SAPS, with regard to allegations relating to the mysterious death of Ms Makudubela’s brother. She advised Ms Makudubela to consider referring the matter of the Civilian Secretariat for Police for investigation.
Regarding allegations involving the Brooklyn Police Station in relation to a Russian diplomat, the Public Protector found that available evidence showed that there was a discrepancy in the correspondence relating to the case of assault and intimidation by the diplomat.
She found that the SAPS and DIRCO did not conduct the investigation properly, conduct she found as constituting improper conduct and maladministration. However, no effective remedy could be provided to Ms Makudubela in this regard as the diplomat is no longer in the country.
As part of remedial action, the Public Protector directed that the National Commissioner of Police and the Director-General of DIRCO indicate what policies or directives are in place between the SAPS and DIRCO when dealing with matters concerning diplomats. DIRCO and SAPS were directed to apologise in writing to Ms Makudubela for failing to handle the matter properly.
On allegations relating to the investigation of malicious damage to property by the Brooklyn Police Station, the Public Protector found that the case was reopened and investigated. She also found that the docket was sent to the Senior Public Prosecutor for a decision because there were no grounds to arrest the suspect, or a witness or damages to prove the allegations.
For more information, contact:
Manager: Outreach, Education and Communications
Public Protector South Africa
012 366 7035
072 264 3273