As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The South African Broadcasting Corporation (SABC) may not have a validly constituted Board that can take binding decisions and steer the broadcaster through these turbulent times. At the very least, it may become inoperable within the next 3 months. The National Assembly (NA) must therefore urgently dissolve the non-functioning Board and appoint an interim Board, or appoint new members to the Board to ensure that it can make binding decisions.
Over the past 18 months the SABC has been shedding Board members like a German Shepard sheds hair in shedding season. As far as I can tell there are only 4 non-executive Board members left. The Board normally has 12 non-executive Board members who are joined by the Group Chief Executive Officer, the Chief Operations Officer and the Chief Financial Officer or their equivalents.
Section 13(10) of the Broadcasting Act states that “[n]ine members of the Board, which must include the chairperson or the deputy chairperson, will constitute a quorum at any meeting of the Board”. The Board cannot take any binding decisions unless it is quorate.
Last week two more Board members resigned. In terms of section 15 of the Act a non-executive Board member “may resign by three months’ written notice addressed to the appointing body, provided that the appointing body may on good cause shown allow a shorter period”.
It is unclear whether the appointing body (which in terms of the definition appears to be the President, who must act on the advice of the NA) will allow a shorter notice period to apply to the Board members who resigned last week. But if these members consider themselves of no use within the Board and fail to attend Board meetings, the Board will in any event not be able to make any binding decisions as it will not be quorate.
The SABC Board has not been functioning optimally for quite some time (to put it mildly) and there are probably ample reasons for the NA to dissolve the remainder of the Board. It failed to abide by the binding findings of the Public Protector and irrationally and unlawful appointed Mr Hlaudi Motsoeneng as Chief Operations Officer of the SABC – an appointment since declared invalid by the High Court.
As the Supreme Court of Appeal (SCA) noted in scathing criticism of the existing board in South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others:
It is important to emphasise that this case is about a public broadcaster that millions of South Africans rely on for news and information about their country and the world at large and for as long as it remains dysfunctional, it will be unable to fulfil its statutory mandate. The public interest should thus be its overarching theme and objective. Sadly, that has not always been the case. Its Board has had to be dissolved more than once and its financial position was once so parlous that a loan of R1 billion, which was guaranteed by the National Treasury, had to be raised to rescue it. Here as well, the public interest appears not to have weighed with the Board of the SABC.
The Board also failed to act when Mr Motsoeneng was again irrationally and unlawfully appointed to a new position two weeks ago.
It is unclear whether the Board is also currently unlawfully purporting to make binding decisions while it may not be quorate and may not be legally empowered to make such decisions, or whether it intends to do so in the coming days and months. If it does, the Board would provide another legal reason for the NA to dissolve it.
Over the weekend ANC spokesperson Zizi Kodwa said that Communications Minister Faith Muthambi must “immediately fire or suspend the remaining Board members”. This has not happened.
In any event, the Minister almost certainly does not have the power to fire or suspend Board members. Previously Minister Faith Muthambi has argued that various subsections in section 71 of the Companies Act empowers the Minister or the Board to remove Board members.
However, section 15 of the Broadcasting Act provides for entirely different procedures for the removal of Board members.
Section 15(1) allows for the removal of individual board members by the President on the recommendation of the NA “on account of misconduct or inability to perform his or her duties efficiently after due inquiry and upon recommendation by the Board”.
Section 15A(1) also requires the President to dissolve the Board if he is told to do so by the NA. In terms of this section the NA may, after due inquiry and by the adoption of a resolution, recommend the removal of a member from office on account of – amongst other reasons – misconduct, or the inability to perform the duties of his or her office efficiently.
When two pieces of legislation (in this instance the Companies Act and the Broadcasting Act) seemingly apply to the same body and the one (the Companies Act) deals with the removal of Board members in general terms and the other (the Broadcasting Act) prescribes more specific procedures for the removal of Board members (procedures that require the intervention of the democratically elected NA), the more specific provisions in the Broadcasting Act would normally trump the more general provisions in the Companies Act.
There are very good reasons that the Broadcasting Act prescribes more onerous provisions for the removal of SABC Board members. Section 192 of the Constitution notes that broadcasting must be regulated in the public interest to ensure fairness and a diversity of views broadly representing South African society.
If the Minister were empowered to remove individual Board members by invoking the Companies Act, the Minister would have absolute political control over the Board. If the Board refused to implement any political instruction they would face immediate removal. This would threaten the idea of the SABC as a public broadcaster serving the public interest as the SABC would then, in effect, become a mouthpiece of the government of the day.
It is for this reason that a court would almost certainly rule that the provision on the removal of Board members contained in the Companies Act does not apply to the SABC and if it does, must surely be constitutionally suspect.
In terms of section 15A(2) of the Broadcasting Act the NA may also instruct the President to suspend a member of the Board from office at any time after the start of the proceedings of the NA for the removal of that member.
The NA now has two options. It can fill the existing vacancies on the Board, or it can dissolve the Board and instruct the President to appoint an interim Board. But what happens if the Board is dissolved?
Section 15A(3) of the Act states that once the Board is dissolved the President (on the advice of the NA) must appoint an interim Board consisting of the three SABC executives mentioned above and five other persons recommended by the NA. The interim Board must be appointed by the President within 10 days of receiving such recommendations from the NA and is appointed for a period not exceeding six months.
But what must now happen to Mr Motsoeneng? It appears that his new appointment was also invalid and a new Board will have to nullify the appointment because it had no legal force and effect to begin with.
The High Court nullified Mr Motsoeneng’s appointment as COO and he thus legally ceased to be an employee of the SABC when it did. He was then appointed to another position within the SABC without any of the normal procedures being followed. In its previous judgment on the SABC and Mr Motsoeneng, the SCA had already made some adverse comments about such an approach in the context of Mr Motsoeneng’s appointment as COO, stating that:
Moreover, on the evidence, the claim that they were intent on engaging the Public Protector rings hollow. The permanent appointment of Mr Motsoeneng as the COO in the face of the extremely serious findings made by the Public Protector against him is inconsistent with that claim. It appears to be undisputed that: (i) the position of COO was not formally advertised and, accordingly, no other candidates were considered for what, after all, was a very senior position at a public broadcaster; (ii) the filling of that position did not appear on the agenda for the meeting at which the decision of the Board to recommend the appointment was taken; and (iii) no interviews were held, not even with the single candidate that the Board chose to recommend. All of that despite the SABC’s own Articles of Association that required the Board to interview other candidates and prepare a shortlist.
It is important to note that Mr Motsoeneng’s appointment to all of these posts are not invalid because Mr Motsoeneng does not have a matric certificate. A person could be suitably qualified not only through formal qualifications but also through experience.
Mr Motsoeneng is not qualified to be appointed to any post at the SABC because of the findings of the Public Protector which held that Mr Motsoeneng was guilty of dishonesty, maladministration, improper conduct and abuse of power. Unless these findings are reviewed and set aside by a court of law, Mr Motsoeneng could not possibly be legally appointed to any position at the SABC.
The chairperson of the SABC Board and the remaining members of (a now non-functioning) Board have vowed to fight on and the chair suggested that it might challenge any move to have the Board removed in court. If the Board does challenge the process in court, it should be prepared to lose yet another case.
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