Thloloe also told the Council that the waiver system would remain in place, but – in effect announcing a response to ANC criticism, he said it would henceforth be accompanied by an explanatory note as follows:
“This waiver is designed to avoid tribunal-hopping and to prevent a publication having to answer twice on the same complaint - to us and then later to the courts or other tribunals. We thus give you a choice of tribunal upfront. If your goal is to clear your name quickly and cost-effectively, you would choose our system. If it is other relief you seek, you might choose another route to suit your goal.”
In summary, the system did not address all the ANC’s criticisms around rights, policing and scrapping the waiver. But it did demonstrate strong independence of the press, and responsiveness on the waiver issue - all within the framework, however, of application of the Code of Conduct.
Duncan (2008) has argued that the Press Council does not exhaust “the whole notion of media accountability, because it’s actually quite a passive mechanism”. At the same time she has branded the Media Appeals Tribunal idea as “obviously unconstitutional”, adding “I don’t understand why they put it out there in the first place as a proposal from their policy conference.” Whether this unconstitutionality is the case, and whether the proposers of the tribunal were aware of the ultra vires potential at least, is not something that can be definitively established. What is clear, however, is that the threat alone seemed to galvinise editors into taking the Press Council more seriously. The system under attack from the ruling party was, it will be recalled, already one that had been revamped from the days of being a lone and low-visibility Ombudsman.
There is no evidence that the Ombudsman and the Appeals Panel have sought to placate the ANC since the tribunal proposal – on the contrary. There is also no evidence that editors have been self-censoring for fear of inflaming ANC reaction. What would seem