Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
25 August 2008

President must refuse to sign SABC Bill

Section 79 of the Constitution states that if the President has reservations about the constitutionality of a Bill passed by Parliament, he or she must refer it back to the National Assembly for reconsideration. If the National Assembly fails to address the President’s concerns he or she can refer it to the Constitutional Court for a decision on its constitutionality.

The final version of the Bill recently passed by Parliament to amend the manner in which the SABC Board is appointed and fired must surely be such a Bill. If I was Mujanku Gumbi I would advise the President not to sign this Bill and to refer it back to Parliament.

This is because the Bill seems to provide for an inappropriate conflation of  the executive power – exercised by the President – and legislative power – exercised by the Speaker, nogal – as it dilutes the power of the President to appoint the SABC Board and to determine its term of office by stating that the President must fulfill these functions “in consultation with” the Speaker of Parliament.

Thus the head of Parliament and the head of the executive are now required to exercise this function jointly. This raises a separation of powers concern between the legislature and the executive. The Speaker is not given executive powers by the Constitution while this Bill purports to give her such power, thus probably rendering these sections unconstitutional. These sections are also nonsensical because the President and the Speaker do not have an discretion but must appoint the Board “on the advice of the National Assembly” which probably mean these two MUST appoint the Board as recommended by the National Assembly.

The Bill also states that the chairperson of the Board will no longer be appointed by the President on his or her discretion but must be appointed “on recommendation of” the National Assembly by the President acting in consultation with the Speaker. It is unclear what the difference is between “on recommendation of” and “on advice of”, but it could be argued the former provides for a discretion for the President and the Speaker to appoint a chairperson after taking into account the recommendation of the NA. This is also almost certainly unconstitutional.

The Bill also provides for the President and the Speaker MUST remove a member of the Board after the NA adopted a resolution to this effect on rather broad grounds including “inability to perform the duties of his or her office efficiently”. No inquiry is needed and the NA can decide whether a member of the Board failed to perform his or her functions efficiently. Efficiency is such a broad term that it allows for removal on completely non-objective terms as the majority party in Parliament may decide.

The Bill also states that the President and the Speaker MUST remove the ENTIRE Board on the basis of one of the following criteria: if it fails to discharge its fiduciary duties; it fails to adhere to the Charter of the SABC; or it fails to carry out its duties in terms of this Charter to pursue its objectives and exercise its powers, to provide creative and programming independence.

These grounds are extraordinary broad and leaves the door wide open for abuse by a majority party in Parliament. In effect the Board will now be accountable to the Parliament and if it fails to do what Parlaiment wants, it can be fired – even without having a proper hearing into the matter. It can therefore be argued that it kills off the independence of the SABC Board and thus of the Public Broadcaster because the Board will be beholden to the NA for their jobs.

If the Board fails to perform in accordance with the National Assembly wishes, it could be fired at will. It is unclear whether this is an infringement of the Constitution as section 192 of the Constitution merely states that “National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”. If the Broadcasting Act is seen as part of this legislative framework it is a problem. But if this section merely refers to ICASA – the body overseeing all broadcasting in South Africa – it is not. The latter interpretation is less strained.

On a more principled level (for what its worth) the problem with the Bill is that it legislates for a specific situation and not for the future or in general terms. It tries to fix the problem that arose when the ANC MPs were instructed to appoint members of the Board it had not agreed to. This is the worst kind of expediency and a very bad way to legislate. One should not legislate for a specific event because it is a kind of erosion of the Rechstaats principle that law should have general application.

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