DA considers petitioning President Mbeki to reject Broadcasting Amendment Bill

I am asking the Chief Whip of the Democratic Alliance (DA), Ian Davidson MP, to consider petitioning President Mbeki not to assent to the Broadcasting Amendment Bill if Parliament passes it in the form adopted today by the ANC majority in the Communications Committee, but to send it back to Parliament.

The ANC has invented an unprecedented "appointing body" which both appoints and removes members of the SABC Board on the advice of the National Assembly: it consists of "the President acting in consultation with the Speaker of the National Assembly".

This is surely antithetical to the Constitutional doctrine of the separation of powers.  The President leads the executive authority of the State while the Speaker is the executive officer only for Parliament as an institution not the Republic.

In the case of every Chapter 9 independent institution on which the appointment and removal provisions of the SABC Board are based, the President appoints the commissioners or members chosen by Parliament.  He has no discretion in the matter, but he is the appointing body because Parliament has no executive powers. 

He can hardly be asked to perform the purely executive aspects of this function in consultation with another arm of State.  The fact that our Speaker is the Chairperson of the ANC is an unhappy political reality which simply underscores, but has no bearing on, the legal point.

I am approaching the DA Chief Whip as the senior officer closest to the Speaker to consider this matter out of respect for the Office of the Speaker.

President Mbeki in April 2006 sent the Icasa Amendment Bill back to Parliament because the role of Parliament was being usurped by the executive.  This time, it is the role of the executive being usurped by Parliament.

I also find problematic the absence of any explicit requirement for due enquiry before the National Assembly adopts a resolution to remove a member, or to dissolve the entire Board.  Implicit administrative justice is not enough administrative justice when it is abundantly clear that a purge is being proposed for political reasons.

The proposition that the entire Board may need to be removed is offensive and will be seen for what it is: an attempt to get rid of persons duly appointed prior to the installation of a Board complaint with the new ANC rulers.

The Constitutional Court has on more than one occasion ruled that appointment, security and removal provisions are decisive for the independence of a body.

That court in Van Rooyen and Others v S and Others (2002) said that the determining factor (to judge the independence of an institution) is whether, from the objective standpoint of a reasonable and informed person, there will be a perception that the institution enjoys the essential conditions of independence. 

The factors such an observer may look to in order to determine whether an institution is independent include the security of tenure of appointed office bearers, along with the appointment and removal provisions.

The summary removal today of reference to due enquiry will satisfy the South African Communist Party, whose Communications Head, Mr Malesela Maleka, in a public submission expressed impatience with the idea of due process.  He said "the forces of counterrevolution will always be opposed to progressive changes and will cloak their opposition in legal concepts to protect the ideological space of the bourgeoisie."

His understanding of due process is public participation (no doubt the kind that occurred outside the High Court in Pietermaritzburg).  He regretted the absence of a provision "on how the public can initiate a process of dissolution of the Board."

Statement issued by Dene Smuts MP, Democratic Alliance spokesperson on communications, August 13 2008