Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
24 January 2017

Only a new SABC Board can right the ship at the “public” broadcaster

The ad hoc committee investigating into the fitness of the Board of the South African Broadcasting Corporation (SABC) to hold office has so far done a remarkable job. While it has not yet finalised its report, the committee (comprising of 6 ANC and 7 opposition members of the National Assembly) has so far put political differences aside in an attempt to address the catastrophic management implosion at the public broadcaster. However, the committee almost certainly does not have the legal power to fix the problems at the SABC – although the NA can appoint a competent Board who does have such power.

The SABC has for some time operated as a state broadcaster (promoting the interests of the dominant faction within the governing party), instead of as a public broadcaster serving the interest of all South Africans. As the draft report of the ad hoc committee of the National Assembly (NA) suggests, the now defunct Board of the SABC (and previous iterations of the Board) and the Minister of Communication are at least partly to blame for this sorry state of affairs.

In terms of the Constitution and the Broadcasting Act the NA has an important but limited role to play an overseeing the SABC Board and senior management of the SABC.

In terms of section 55(2)(b) of the Constitution, the NA must provide for mechanisms to maintain oversight over the exercise of national executive authority, including the implementation of legislation; and over any organ of state. The NA thus has an oversight function over the SABC, as the SABC is an organ of state.

Oversight resembles but is distinct from accountability. It entails the watchful, strategic and structured scrutiny over various bodies to check whether they comply with the law and to expose wrongdoing by such bodies where these occur. It does not entail interference in the day to day running of an institution that is being overseen.

The NA has broad powers to enable it to fulfil its oversight role. In terms of section 56   of the Constitution the NA and its committees may summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; require any person or institution to report to it; and compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons.

As far as the SABC is concerned, section 20(3) of the Broadcasting Act also requires the Minister of Communication to table the SABC’s annual financial statements in the National Assembly. The appropriate committee of the NA can then call the Minister or SABC Board to come and answer critical questions about the financial statements of the SABC (or about any other aspect of the management of the SABC).

The relevant committees of the NA (whether an ad hoc committee or the Communications Committee) do not have the power to issue binding instructions to the SABC Board or management, as the SABC is supposed to be independent from the political branches of government. It is for this reason that section 13(11) of the Broadcasting Act states that: “[t]he Board controls the affairs of the Corporation” and must ensure compliance with the Broadcasting Charter of the SABC. The Act does not allow either the NA or the Minister of Communications to control the affairs of the SABC.

This does not mean that the NA and its committees do not have the power to put pressure on the SABC Board and management to comply with their legal duties.

First, in terms of section 13(1) of the Broadcasting Act the twelve non-executive members of the Board must be appointed by the President on the advice of the NA. In this regard the President does not have any discretion: he or she must appoint the twelve members selected for appointment to the SABC Board by the relevant committee of the NA.

If the relevant committee of the NA does its job properly and in compliance with the Broadcasting Act, it will select appropriate individuals with the requisite skills and integrity to serve on the Board. In fact, section 13(4) of the Broadcasting Act places a duty on the NA to select a Board that, when viewed collectively, are:

* persons who are suited to serve on the Board by virtue of their qualifications, expertise and experience in the fields of broadcasting policy and technology, broadcasting regulation, media law, business practice and finance, marketing, journalism, entertainment and education, social and labour issues;

* persons who are committed to fairness, freedom of expression, the right of the public to be informed, and openness and accountability on the part of those holding public office;

* persons who represent a broad cross section of the population of the Republic;

* persons who are committed to the objects and principles as enunciated in the Charter of the Corporation.

The NA obviously failed to comply with this obligation in the recent past, appointing SABC Boards which, viewed collectively (and with some notable exceptions), lacked the skills and commitment to fairness and free expression as required by the Broadcasting Act. There is therefore some evidence that the NA had previously acted in breach of its legal duties when it appointed previous SABC Boards.

Second, the NA has the power to remove SABC Board members (or the entire Board) from office if an investigation by the relevant committee of the NA concludes that a Board member (or the entire Board) is guilty of misconduct or is unable to perform his or her duties efficiently. The current ad hoc committee of the NA was set up to conduct just such an investigation in terms of section 15A(1)(b) of the Broadcasting Act.

In fulfilling its oversight role over the SABC Board, the threat of removal for misconduct or incompetence provides the NA with some leverage over the Board. While it cannot issue binding instructions to the Board to take certain decisions or to refrain from taking other decisions, it can assist the Board to do better by pointing out weaknesses and by suggesting ways in which the Board can fix management problems and can address maladministration.

However, at present there are no SABC Board members left: they have all resigned. The legal reason for establishing the ad hoc Committee (to decide whether to remove the SABC Board) has therefore fallen away. This means that legally the nature of the enquiry by the NA ad hoc committee has essentially changed. Instead of an enquiry to determine whether the SABC Board should be removed from office, the ad hoc committee is now fulfilling an oversight function.

In as much as the draft report of the ad hoc committee purports to instruct the soon to be appointed interim SABC Board to take certain steps to address the corruption, maladministration and governance failures at the SABC, the ad hoc committee is probably overstepping the mark: it cannot issue legally binding instructions to the SABC Board as this would interfere with the independence of the SABC.

It is perfectly within the rights of the ad hoc committee to make recommendations to the new SABC Board. If these recommendations are sound in law, the new Board would be well advised to implement the recommendations.

As the draft report from the ad hoc committee now stands, it contains several instructions to the new SABC Board. The draft report instructs the interim board to investigate all irregular, fruitless and wasteful expenditure and to take appropriate steps against employees guilty of authorising such expenditure. It also instructs the SABC board to institute a forensic audit on the transfer of the SABC archive to a private monopoly.

These are all important issues that a proper functioning Board will have to address. If the ad hoc committee rephrased these as recommendations a new Board will be hard pressed to ignore them. One could advance a plausible argument that it would be irrational for a proper functioning Board to ignore such valid recommendations.

Given the fact that the ad hoc committee has so far, by and large, conducted itself in an exemplary manner and given the fact that there is an extreme crisis at the SABC, it might be tempting to turn a blind eye to any behaviour by the NA that encroaches on the independence and impartiality of the SABC. But this would be a mistake.

It is therefore important to insist that – as a matter of law and as a matter of principle – no committee of the NA should claim the power (which it does not legally have) to instruct the SABC Board to do or not to do anything.

The ad hoc committee can make recommendations and if these recommendations are sound in law and if their implementation would help to address the catastrophic governance failures at the SABC, any half credible SABC Board will implement them.

But the most urgent task of the NA is to appoint an interim Board which will serve for the next six months until such time as the NA can appoint a permanent Board. If the NA is serious about dealing with the problems at the SABC, it will appoint members to an interim Board and then a final Board who have the requisite qualifications, experience and fix the problems at the SABC.

The real test of the NA’s commitment to re-establish a well-functioning public broadcaster will arise when it has to select an interim and final Board for the SABC. Hopefully the NA will select appropriate individuals who will have the skills and integrity to right the SABC ship.

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