POLITICS
11/12/2017 08:45 SAST | Updated 11/12/2017 08:55 SAST

Naspers/MultiChoice: When Does Lobbying Tip Over Into Capture?

MultiChoice and Naspers are in the crosshairs of public opprobrium for playing tough tackle in their negotiations to protect their market dominance.

Halden Krog/Bloomberg via Getty Images

"This company is aggressive and entrepreneurial. We often go with our gut," says a MultiChoice executive to explain revelations of the company's negotiating tactics, which have landed its parent company Naspers in a mighty pickle.

Naspers is facing three investigations: a litigious class action by a US law firm is exploring the allegations; a parliamentary inquiry on the scale of the Eskom probe is being planned for early 2018; and MultiChoice's board is engaged in a probe to get to the bottom of the allegations.

MultiChoice and Naspers are in the crosshairs of public opprobrium for playing tough tackle in their negotiations to protect their market dominance, but the company says this is standard lobbying. Here's a recap of what's bugging the global Internet and media company:

  • An investigation by News24 into the #Guptaleaks emails revealed how a company regulatory affairs honcho wrote policy for government that landed up on the email servers of the Gupta family after being mailed through by former communications minister Faith Muthambi.
  • A set of minutes, which the DA calls secret, but which MultiChoice says never was, alleges that MultiChoice tied an agreement to pay the SABC for digital channels to support for a position that excluded encryption and protected the company's position.
  • MultiChoice's support and contracts with the National Association of Manufacturers in Electronics components in return for their lobbying against encryption.

Analysts say industry incumbents who write policy for government engage in regulatory capture -- this is where private interests drive public policy. In mining, a similar trend is apparent. Special interests that are not immediately visible to the public motivate the writing of draft laws and practices such as aggressive inspections and work stoppages.

Standard lobbying

Executives at MultiChoice who spoke to HuffPost SA on condition of anonymity are taken aback at the allegations. The company would not formally respond as lobbying and regulatory affairs are part of the ongoing probe at the company. (See statement below.)

One said that companies often wrote draft policy positions for government as part of the lobbying process. Broadcasting is complex and the South African state's governance thereof has been sclerotic: there have been five communications ministers in the eight years that President Jacob Zuma's been in office.

"In lobbying, we are saying what we think the law should say." As to how the email landed up on a Gupta company server, an executive said: "Faith Muthambi told us she didn't like those people [the Guptas] at all."

The executive says only 10% of its recommended policy proposals ended up in the final law, which clarified what the respective functions would be of Telecommunications and Postal Services Minister Siyabonga Cwele and the communications minister after Zuma split the department in two.

"[It's true], though, that we lobbied everyone and their dog on encryption," said an executive. This is a separate policy to the one that ended up in the hands of Gupta man Ashu Chawla.

ANC MP and former communications minister Yunus Carrim says Naspers chairperson Koos Bekker "...almost saw himself as an adviser to me [on encryption] as somebody new to the sector. And yet, because of his vested profit and other interests in the pay-tv sector, he obviously couldn't play any such role."

A DStv decoder for you, you and you

As a young MP, Carrim sat on parliament's communications committee. One day, he remembers a furious Frene Ginwala, who was the National Assembly speaker, calling out MPs for taking MultiChoice's gifts of decoders for MPs. She said it was absurd because "we have to make policy impacting broadcasters".

Carrim would like to see an end to gifting by MultiChoice and other government-facing companies, which depend on public regulation or licence to operate.

In my experience, there seem to be various forms of 'regulatory capture' including perks to MP's and the preparation of documents for other stakeholders to advance MultiChoice's interests.Yunus Carrim

He says the lobbying become more aggressive as certain members of the ANC study group were courted by MultiChoice to take positions against encryption, even though the ANC policy at the time was for conditional access to the set-top boxes that will enable converting old TVs for digital television.

Marc Davies

"Of course, business should lobby government as vigorously as they want, but they can't seek to buy government policy. Lobbying should be within reasonable limits and within a generally accepted framework of ethics," says Carrim.

DA MP Phumzile van Damme says establishing a code of conduct for public policy lobbyists is essential and will be part of an investigation into state capture in the communications sector in the new year.

MultiChoice responds

We note that your questions deal with the parameters of an acceptable level lobbying. We think it is inappropriate to deal with that at this time, as the MultiChoice Board's Audit and Risk committees are specifically and currently reviewing these matters. We don't want to pre-empt or influence the outcome of that process. The audit and risk committees are chaired by an independent non-executive Director. Their report will be submitted to the MultiChoice Board on completion of the review. When this process is concluded, we will communicate the outcome.

We believe that no improper conduct took place in our meeting with the SABC. It was not a clandestine meeting. The meeting was held at the request of the SABC, on their premises and was recorded. Top management and board members of both parties were represented. No kickbacks were paid. It was a negotiation meeting and the final decision on our proposal lay with the SABC Board.

As you know, the Constitutional Court has found in favour of the Minister's policy. Ultimately, the SABC considered its position and decided to enter into the agreement. Our position on encryption of set-top box for digital migration was well known and had been in the public domain.

We have a long-standing relationship with the SABC dating back to the early 1980s. The parties have bought and sold content from and to each other for many years and will continue to do so.