Public entities and accountability: The South African Broadcasting Corporation

14 October 2016

On Wednesday 5 October, the Parliamentary Portfolio Committee on Communications (the Committee) convened a meeting with the beleaguered Board of the South African Broadcasting Corporation (SABC) to allow the latter to brief the former on the state of affairs at the public broadcaster. This was done in light of the recent Supreme Court of Appeal (SCA) judgment concerning its newly appointed Group Executive for Corporate Affairs, Hlaudi Motsoeneng, and the problems that have recently plagued the SABC. It is worth noting that this meeting was conducted during a period of Parliamentary recess, which indicated the gravity of the matter.

Prior to the meeting, the Committee furnished the SABC Board with a list of questions to which they were required to give answers. At the meeting, the Committee heard the presentation prepared by the Board and made by its Chairman, Professor Mbulaheni Maguvhe. When the time came for questions to be posed by the Members of Parliament, it was evident that the Committee could not be swayed by the answers proffered by the Board as excuses for the dire state in which the Broadcaster finds itself. Two weeks ago, the SCA denied Motsoeneng leave to appeal the decision of the High Court that found his appointment to the position of Chief Operations Officer invalid and irrational. Mere days after the ruling was delivered, Motsoeneng was appointed to his current position. This was done despite the absence of an advertisement for the position internally or otherwise, and without any application on the part of Motsoeneng. In fact, Bessie Tugwana, who occupied that position, was given Motsoeneng’s post as Chief Operating Officer. On the face of it, these actions appear questionable.

When quizzed on the process followed in making this new appointment, the Committee was told that while the Court declared Motsoeneng’s appointment as COO invalid and unlawful, it did not bar the Broadcaster from placing Motsoeneng in a different position at the public entity. Furthermore, the Board opined that the ruling did not require Motsoeneng’s dismissal as an employee of the Broadcaster. It is illogical that after adverse findings by both a Chapter 9 Institution, as well as three court decisions - one of which confirmed the binding nature of the recommendations of the Public Protector - that the intent was to allow Motsoeneng’s continued employment at the SABC. It is important to follow not only the letter of the decisions concerned because they are binding, but also the spirit of the same. The seeming loopholes that are being clutched at by the SABC are indicative of a poisonous disrespect for the Rule of Law and supremacy of the Constitution. The Constitution in section 165 requires organs of state such as the SABC to assist and protect the effectiveness of the courts. The way in which these decisions were dismissed by the SABC goes against this obligation.

The holding of a position in the SABC by Motsoeneng is not the only point of contention. His conduct during his tenure also flouts the principles of good governance and accountability as enshrined in the Constitution. There were the unprocedural increments in earnings for himself and other SABC officials, irregular and unlawful decisions sanctioned by his office, permitting the unlawful interference in SABC functions by the Communications Minister, and the belittling of the confirmed powers of the Office of the Public Protector and decisions of the Judiciary. It is clear that there is no intention on the part of Motsoeneng to follow (even) the letter of the law in his dealings at the SABC.

The unexpected resignation of two non-executive Board Members - Krish Naidoo and Vusi Mavuso - at the meeting, citing separatism and exclusion as some of the problems they encountered in the Board, is telling of the dysfunctionality plaguing the Broadcaster. Furthermore, their exit from the Board means that it is no longer quorate in terms of the provisions of the Broadcasting Act (the Act). Section 15 of the Act provides for the removal from office of Board Members. It cites inability to perform duties efficiently as one possible reason for such removal. From the recent events, it is clear that there is a lack of functionality at the SABC. The same section allows for an inquiry to be conducted prior to the removal from office of Board Members and it is under these auspices that the Committee has determined to approach Parliament for an inquiry into the fitness of the remaining Board Members.

Section 13(4)(a) of the Act stipulates that Members of the Board must be persons suited to serve by virtue of, amongst other requirements, their qualifications. Sub-section (b) of the same section requires these members to be “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”. These values have not been upheld by the current Board, from the insistence that the media refrain from reporting on the events surrounding the SABC’s embattlement, to the refusal to publicise financial documents, as well as details of Motsoeneng’s disciplinary hearing.

It is a cause for concern that the SABC needs a constant reminder that as a public entity it is obliged to perform its functions transparently according to section 195 of the Constitution. Moreover, contrary to the actions of the Board of the SABC, it is also required to account to Parliament when requested to do so. The continued defence of Motsoeneng - despite the plethora of evidence against him - on the part of the remaining Board Members, as well as on the part of the Minister, point to a threat to the constitutional standard required in the operation of a public entity. The disrespect of Parliamentary authority, even after the special meeting by the concerned individuals, must be cautioned against. However, the unity displayed by the Members of Parliament from different political parties serving on the Committee is commendable. It serves, to some extent, as a reassurance that in a time where the future of our democracy is challenged daily, the Rule of Law and the Constitution cannot be flouted without consequence.

By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights