Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
8 May 2008

What now for the SABC board?

Members of the SABC board might feel more than uneasy today about the security of their positions on the SABC board. But it would be premature for them to pack their bags because it does not seem as if the National Assembly – who nominated the board – would be able to get rid of them that easily.

However, I wonder whether someone has informed the ANC members in the National Assembly that the Broadcasting Act 4 of 1999 does not give them the power to fire the board en mass? Maybe the ANC MPs are advised by the same lawyers who wrongly told the minister of Justice that she could instruct Vusi Pikoli to stop the investigation into Police Commissioner Jackie Selebi.

How else to interpret the announcement of the ANC caucus today that the National Assembly will debate a vote of no confidence in the board of the SABC in two weeks time. This comes after the CEO of the SABC, Dali Mpofu, was suspended by die Board after he in turn had suspended the group executive of news and current affairs, Snuki Zikalala.

Last week the portfolio committee on communications passed a motion of no confidence in the board, but this vote had no legal effect. In terms of the Broadcasting Act 4 of 1999 the National Assembly (on advice of the portfolio committee) nominates the board and the President must then appoint those members of the board nominated by the National Assembly. (The President was wrongly vilified for appointing the board after his loss at Polokwane, because he had no discretion in the matter and merely had to appoint those members nominated by the National Assembly.)

Section 13 of that Act states that the non-executive members of the board must be appointed in a manner ensuring participation by the public in a nomination process; transparency and openness; and that a shortlist of candidates for appointment is published, taking into account the objects and principles of this Act.

Late last year, after the portfolio committee finalised the list of nominees (after a process that included public participation) ANC headquarters ordered the party’s MPs to accept a list of new SABC board appointees. The Sunday Times reported at the time that angry ANC MPs at first refused to endorse a list of names forwarded to them by then ANC deputy secretary-general Sankie Mthembi-Mahanyele because the list given to them by the ANC differed in significant ways from that on which the committee had agreed upon. After they were instructed to do so by the Minister of Defence, they nevertheless endorsed this new list, thus circumvented the National Assembly process as prescribed by section 13 of the Broadcasting Act.

At the time I had my doubts about the legality of the this process. The South African Constitution requires the National Assembly to “facilitate public involvement” in its work and the Broadcasting Act explicitly provides for public involvement as well. In the Doctors for Life case, the Constitutional Court declared invalid an act of Parliament because it had not provided for reasonable and effective participation in the law making process by the public.

As Justice Ngcobo said in the Doctors for Life International case, the need for public participation:

[E]ncourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and to become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.

This means the National Assembly – elected by almost 15 million South Africans – cannot merely rubber stamp a decision taken by a few party leaders (or was it President Thabo Mbeki?) who are not members of the National Assembly. They cannot replace a decision they had reached after a process of public participation, with a decision of non-Parliamentarians. If they did this it would subvert the participatory aspect of our democracy. Yet that is exactly what happened with the appointment of the SABC board. I suspect a constitutional challenge to the appointment of the board would have had a very good chance of succeeding.

Having said this, I am of the opinion that a vote of no confidence in the board by the National Assembly will have no legal effect on the position of the board. It would be like bolting the stable door after the horse has already bolted. The ANC MPs should never have illegally abdicated their power to appoint the board to Luthuli House, but they cannot fix it by now instituting a vote of no confidence in the board.

Section16 of the Broadcasting Act states that the National Assembly may remove a member of the board from the office but only “on account of misconduct or inability to perform his or her duties efficiently” and only “after due inquiry and upon recommendation by the Board”. There is no provision in the Act that would allow for the board as a whole to be fired.

There are good reasons why the National Assembly does not have this power. It would be untenable for the National Assembly to be able to fire the SABC board because it would place far too much power in the hands of the majority party in the National Assembly to influence the board. If the board as a whole could be fired by the majority party in the National Assembly, the independence of the SABC as guaranteed by section 6 of the Broadcasting Act would be fatally compromised.

It therefore appears as if a vote of no confidence in the National Assembly will not and cannot affect the legal standing of the board as a whole or of individual board members. Maybe someone should inform the members of the ANC caucus that they are wasting their time in moving for such a vote of no confidence. Or is this move only part of a larger battle to discredit the board with a view of getting at least some of the members to resign?

Only time will tell.

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