DA MPs devaluing the brand of South Africa - Faith Muthambi

Minister says alleged legal opinion on SABC board member removals contravenes and offends the doctrine of separation of powers

Address by the Minister of Communications, Faith Muthambi, to the Portfolio Committee on Communications which is to discuss on the legal instruments which govern the work of SABC, ICASA, MDDA, Brand SA and Film and Publication Board

23 June 2015

Honourable Chairperson; and
Honourable members of this House

Before I introduce the discussion on the legal instruments which governs the work of all entities under the Ministry of Communications, I wish to remind members of the opposition, especially the Democratic Alliance about the constitutional position of this house.

The constitution entrusted this house with law making powers and to oversee the work of the Executive and hold the Executive to account, members of the Democratic Alliance in this house deem it fit to go around  “shopping for gossips” about the SABC affairs and bring such “gossips” to this house with the intention to divert the attention of this house from debating matters of National importance like transformation of the media, overarching National Communication Strategy, the role of ICASA as the regulator to develop policies to spearhead economic growth and job creation in the communication sector of our economic, development of community media and policies to deal with harmful information which our children encounters in various platforms.

In fact most of the time when DA members in this house speak, the devalue the Brand of South Africa. The Ministry will continue to ensure that the SABC inform the public about the work of this government that the SABC together with Brand South Africa will continue to work to build the spirit of patriotism amongst our people and to be proud of their country and their government.

DA has brought to this house “gossip about the MoI of the SABC, the MoI in law is a shareholder document which constitute a company, SABC is a State Own Company incorporated in terms of the Companies Act 71 of 2008, the sole shareholder of the SABC is the state represented by myself at the behest of the President, I am the Executive entrusted with the administration of the Broadcasting Act, I am entitled in terms of the Companies Act  to adopt a special resolution to amend the MoI.

In this regards I have amended the MoI, inter alia to empower the Group Chief Executive Officer, Chief Operating Officer and the Chief financial Officer of the SABC to handle matters relating to discipline, employment and dismissal of their junior staff, this is an Executive act which I do not need approval from the Democratic Alliance.

The Democratic Alliance uses their Parliamentary positions to encroach into the constitutional position of the Executive.

The Democratic Alliance has brought another “gossip” to this house about the removal of the three former Non-Executive Directors of the SABC, this has led to soliciting of the “legal opinion” from Parliamentary officer, the said legal opinion concluded that “the Companies Act 71 of 2008 on the other hand, whilst it is applicable to the board, where it is conflict and cannot be reconciled with the Broadcasting Act. The latter act would find precedence over the Companies Act”.

It also stated that “It is our view that in this instance the Broadcasting Act is applicable to the removal of a Board member and that any conflicting provision of the Companies Act would be proceeds by the relevant provisions of the Broadcasting Act”.

And further the said legal opinion stated that “any removal of a SABC Board member that is not effected in line with the provisions of the Broadcasting Act as stated is invalid and therefore unlawful”

The said legal opinion by the Parliamentary officer is unprecedented since it had made this house to be the interpreter and the enforcer of the law of which the constitution reserve this to judiciary and the Executive respectively.

Let me inform the DA that the function of this house is to make laws and expect the Executive to implement all the laws from this house, the Broadcasting Act and the Companies Act 71 of 2008 are all the legislations from this house and this house must expect members of the Executive to apply all the provisions of the Companies Act and the Broadcasting Act.

The Democratic Alliance should know that, it is not the function of this house to tell the Executive which law to be applied to any particular circumstances over the other legislation.

And further the Democratic Alliance should know that, it is not the function of this house to declare the provisions of the Companies Act and that of the Broadcasting Act to be in conflict with one another.

It is the duty of judiciary to interpret the law and to declare any conflict in the legislation if any.

The conclusion of the alleged legal opinion contravenes and offends the doctrine of separation of power, since it had usurped the role of judiciary to interpret and declare the conflict in any law.

In fact our constitution has empowered only the constitutional court to declare any legislation of this house unconstitutional.

The Democratic Alliance, have no right to tell the Executive  which law to apply, the Executive is bound by the constitution to apply all the laws from this house until such time the said laws are declared unconstitutional.

The directive of the legal opinion to the effect that the SABC board cannot apply section 71(3)(a) and (b) of the Companies Act 71 of 2008 amount to encroachment on the constitutional position of the Executive, the Executive has to apply all the laws.

Separation of powers requires this house to expect that all laws of this house are to be implemented by Executive, separation of power also requires that judiciary interpret the law.

In the event of any genuine concern about a possible conflict of certain legislations, this house must make its submission to the Speaker of this house to inform the Executive to consider the matter.

If the Executive agree with you, the Executive will then approach the court to make declaration that such legislations are in conflict and the court will make an appropriate order in that regard.

As far as the section 15(1)(a)and (b) of the Broadcasting Act and section 71(a) and (b) of the Companies Act 71 of 2008 are concerned, such provisions do not conflict each other.

What is clear from the two statutory provisions is that the National Assembly, no doubt in its own wisdom, decided in enacting section 71(3) of the Companies Act, to empower the SABC Board on its own, to remove  its members without the involvement of the “appointing body”. In addition, the National Assembly decided to exclude itself from the process contemplated in section 71(3) of the Companies Act – presumably because it is satisfied with the power that it has in terms of section 15(1)(b). In doing so, the National Assembly, again in its own wisdom, decided not to repeal section 15(1) of the Broadcasting Act. It retained the whole of that section because it intended both provisions to stand together and to be applied concurrently in respect of different grounds of removal of directors.

There is nothing wrong in Parliament enacting overlapping authority and procedures for different functionaries. The fact that this may be undesirable or may lead to confusion does not mean that Parliament is not competent to do it or that there is necessarily a conflict. On the contrary, there is no conflict provided that the relevant provisions are able to stand together as the same time and can be obeyed at the same time.

On a proper interpretation of section 15(1) of the Broadcasting Act, the removal process may, in terms of subparagraph (a) be initiated by the SABC Board itself or, in terms of subparagraph (b), be initiated by the National Assembly itself. The process provided for in section 71(3) does not involve the appointing body and the National Assembly. Certain interest groups may be unhappy with this because it leaves the matter entirely in the hands of the SABC Board – but this is what the legislature chose and intended.

The fact that certain interest groups may not be happy with the fact that the SABC Board may on its own (without the involvement of the appointing body and the National Assembly) remove a member of its board in terms of section 71(3) does not mean that there is a conflict and it is irrelevant in the process of interpretation.

The powers of the National Assembly in terms of section 15(1)(b) to recommend the removal of directors of the SABC Board have not been diluted or removed by section 71(3). It is therefore, not necessary to canvass this issue any further.

There is an overlap between section 15(1) of the Broadcasting Act and section 71(3) of the Companies Act in respect of the removal of members of the SABC Board for alleged misconduct or dereliction of duty.

There are three procedures to remove SABC Board member namely: (SABC Board member may)

- may be removed by the President on the advice of the Nation Assembly after due inquiry and upon recommendation by the SABC Board (section 15(1)(a) of the Broadcasting Act);

- must be removed by the President after a finding of misconduct by a committee of the National Assembly and the adoption by the National Assembly of a resolution calling for that member’s removal from office (section 15(1)(b) of the Broadcasting Act); and

- may be removed by resolution of the Board where a director has alleged, and the Board has determined, that he or she has neglected, or been derelict in the performance of the functions of a director (section 71(3)(b) of the Companies Act).

The provisions of the Companies Act and the Broadcasting Act in this scenario are capable of concurrent application.

The Democratic Alliance is misdirecting this house to be a forum to argue which laws are to be applied or not and to argue interpretation of the laws, this attempt must defeated.

I hope you will interact with the presentation in good spirit and provide inputs which will move South Africa forward.

I thank you.

Issued by the Department of Communications, June 23 2015