SABC Board on Public Protector Report; SCA ruling; appointment of former COO; implications of court & ICASA rulings; Broadcasting Act compliance

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Communications and Digital Technologies

05 October 2016
Chairperson: Mr H Maxegwana (ANC)
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Meeting Summary

The Committee called a meeting to discuss urgent issues about the Public Protector Report: When Governance and Ethics Fail which dealt with the South African Broadcasting Corporation (SABC) Board. The SABC Board gave a briefing to the Committee on five matters the Committee had requested it to elaborate on. According to the SABC Board, it had taken the Public Protector Report and implemented some of the remedial actions. The Committee however was not satisfied with the Board’s presentation and strongly felt that it lacked substance. They wanted to know how far the Board had come with the implementation of the remedial actions recommended by the Public Protector. The appointment of Mr Hlaudi Motsoeneng as Group Executive: Corporate Affairs also came under the spotlight and the rationale behind the process followed. The Committee questioned the disciplinary hearing instituted against Mr Motsoeneng and whether this was an independent and transparent process.

In a sudden turn of events, two non-executive SABC Board members resigned with immediate effect. They felt that they had been excluded from the appointment of Ms Bessie Tugwana as Acting Chief Operations Officer (COO) and were not aware of her appointment at all until one day prior to this meeting. These Board members believed that the Board had acted illegally in appointing Ms Tugwana without their consultation. Members of the Board tried to give answers to the Committee but also reminded them that all finance related questions would be addressed the following week when the SABC Annual Report was presented. Committee members were disappointed by the actions of Mr Motsoeneng who had addressed the media outside of Parliament saying that he was “not going anywhere”. According to some Committee members, this indicated his “arrogance”.

The Committee was unhappy with the SABC Board Chairperson and regarded his lack of answers to their questions as a sign that the Board was not taking the Committee seriously. The role of the Minister as shareholder had to be strengthened. After the resignation of the two Board members, the Committee believed that the Board was no longer quorate and therefore could not exist. They discussed at length the various options available to the Committee. After legal advice was provided by a Parliamentary Senior Legal Advisor, and based on Section 15A of the Broadcasting Act on board dissolution, the Committee resolved to put a written request to the remaining Board members to tender their resignation from the Board, and if not, the Committee would implement an inquiry into the Board’s fitness to hold office. However, a recommendation for board dissolution  could only be made after an inquiry had established that the Board had failed to adhere to the SABC Charter and/or failed to fulfil its fiduciary duties, and/or failed to fulfil its obligations in terms of section 13(11) of the Broadcasting Act. In the meantime the Committee would explore legal options to implement an interim SABC Board.

Meeting report

SABC Board briefing
Prof Mbulaheni Maguvhe, Chairperson, SABC Board, said that with regards to the implementation of the recommendations of the Public Protector Report, the Board had approved the submission of a detailed implementation plan together with supporting documents relating to the improvement of governance throughout the SABC. This was submitted on 22 August 2014 to the Public Protector who submitted a written acknowledgement of receipt on 25 August 2014.

He said that on 12 February 2016, a further request for the Implementation Plan was received from the Office of the Public Protector. A copy of the Implementation Plan was submitted on the same day. He said tHe HHw ehe Board and employees of the SABC regarded corporate governance as fundamental to the success of the business and were fully committed to ensure that good governance was practiced in order that the SABC remained a sustainable and viable business. This commitment was embraced at every level of the SABC.

Prof Maguvhe described the actions the Board had taken in light of the decision of the Supreme Court of Appeal (SCA) judgement [which upheld the Western Cape High Court decision that Mr Hlaudi Motsoeneng appointment was unlawful and irrational]. However, in terms of the Western Cape High Court judgement of Judge Davis, paragraphs 52 and 53 stated:

[52] There is a further implication which follows therefrom. As indicated earlier, this case is not about Mr Motsoeneng. Mr Maenetje, who appeared together with Ms Rajah on behalf of first to third respondent, submitted in his careful argument that there is no basis by which this court could determine the outcome of this disciplinary hearing. Accordingly, if Mr Motsoeneng is acquitted of all of the charges which are to be determined by a disciplinary tribunal, it was possible that he could then be considered for appointment as a permanent COO of the SABC. In other words, it would be “a bridge too far” to grant the applicant relief within the terms sought, namely to direct the Board to recommend the appointment of suitably qualified COO within 60 days of the order of this court and hence ignore the outcome of the disciplinary process.

[53] Much has been made by respondents of Mr Motsoeneng’s achievements at the SABC and his ‘unique’ ability to be the COO of the SABC. If it is properly shown that none of the allegations made against him are sustainable, it would be unfair and, hence premature at this stage, to preclude him from such consideration. In summary, it is preferable to allow the relevant disciplinary proceedings to run its course and to reflect this finding in the order. Hence, I agree with Mr Maenetje that this is the prudent course of action. Accordingly I propose to tailor the order which is to be granted accordingly.


Prof Maguvhe went on to explain that Mr Motsoeneng went through a transparent and independent disciplinary hearing and was cleared of all charges. Based on the ruling from Judge Davis in the Western Cape High Court (case no. 12497/2014), Mr Motsoeneng ought not to be excluded from applying for the position of COO once it was advertised. In fact the ruling did not exclude him from being appointed as the Acting COO. Consequently the Board was requested to approve a recommendation to the shareholder to appoint Mr Motsoeneng in the position of Acting COO on a round robin basis and this resolution was approved by the majority of the Board.

The Minister then declined the appointment and requested that additional names of senior employees be submitted. This was done and an Acting COO was appointed. In the process of appointing an Acting COO, SABC management and the Board held the rule of law sacrosanct in that they have complied with the judgements handed down. At no time did any of the judgements state that Mr Motsoeneng had to be dismissed as an employee.

Prof Maguvhe highlighted the process followed in appointing Mr Motsoeneng in the position of Group Executive: Corporate Affairs. He said that the SABC considered the judgement, which set aside the appointment of Mr Motsoeneng as the permanent COO. In terms of the law they could not place someone in a worse position. The Executive Directors reviewed the options for him to be appointed in a suitable executive position. The only vacancy was that of the GE: HR but because he had no competency in this regard, he could not be considered for this position.

Prof Maguvhe said Ms Tugwana’s services had been retained in order to transfer her broadcasting skills and she could therefore be placed in the position of GE: Special Projects since Mr Motsoeneng’s competency was in stakeholder functions and which was the position he occupied prior to being appointed as the Acting COO and subsequently the permanent COO. The SABC reorganised its structure which was approved by the Board at its meeting of 25 February 2016, in order to improve deliverables and the position formerly known as GE: Stakeholder was renamed GE: Corporate Affairs which dealt with all matters relating to stakeholders.

Prof Maguvhe said that there were no implications of the High Court, SCA and ICASA rulings on the Board Charter. In terms of Section 13 it was the role of the Portfolio Committee on Communications to select the non-executive SABC board directors for recommendation to the National Assembly for appointment by the President. In terms of compliance of the Board to Section 13 and Section 15 of the Broadcasting Act, the Board complied.

Prof Maghuve referred to the Western Cape High Court ruling in the matter of Democratic Alliance v South African Broadcasting Corporation Soc Ltd and Others. He stated that the DA was against the appointment of Mr Motsoeneng as COO. It was found that his appointment was irrational and unlawful. It was important to create a clear distinction between the appointment to COO which was challenged and Mr Motsoeneng’s employment at the SABC. He was an employee at the SABC and an executive prior to his COO appointment. Judge Davis ruling was against his appointment as COO and not his employment at the SABC.

Discussion
The Chairperson noted that there were two people missing from the Board complement present.

Prof Maguvhe apologised on behalf of those not present.

Mr M Kalako (ANC) said that he had read the presentation submitted by the Board. However, there were more issues than the answers given about the Public Protector Report. In this presentation it was questionable whether the Board was aware of the remedial actions that needed to be taken according to the Public Protector Report. The Board would have to clarify its answers. There was a call for a public apology to affected persons. The Public Protector Report was binding. How many meetings had the Board attended for this year and what resolutions were taken so one could see whether the problems had been addressed and if the Board had implemented the Public Protector Report.

Mr J Selfe (DA) said that the Public Protector Report was binding. The Board was comprised of 15 members; 12 non-executive and three executive positions. The current situation saw the Group CEO in an Acting position. Already this indicated a shortage in the Board. He asked what the Board’s role was in the court cases and who paid the court costs of these cases. Was it the SABC or the individual members involved?

Mr M Gungubele (ANC) said that it was important to look at the gist of the meeting and the Board had to be the focal point as they were to be seen as a responsible corporate citizen. The Public Protector Report was legal and binding and it seemed as if after it was released, there was a reviewal by the Board whereby the disciplinary committee established by them sought to review this report. There were clear findings that the COO increased his salary three times a year, made illegal appointments and illegal dismissals. The remedial actions by the Public Protector however remained binding and it meant that the Board’s role was to implement those actions. If the Board had a different view, it had to ask a court to review. Instead the Board appointed an official who was not acquitted and used their own process to achieve this. The question was whether Mr Motsoeneng qualified to be appointed to any position within the SABC without breach of governance. He requested a record of the transcript of disciplinary process.

The Committee Chairperson formally requested a copy of the disciplinary record.

Mr R Tseli (ANC) asked what the process was in the appointment of Mr Motsoeneng to his current position. What was the policy related to this process? Was the reorganisation of the SABC structure done at the same stage as Mr Motsoeneng appointment? He noted there were three executives in acting positions.

The Chairperson asked what the impact of all the acting positions were and what the Board has done so far to end these acting positions and appoint permanent positions.

Ms L van der Merwe (IFP) commented that the SABC had a lot of smoke and mirror explanations. It was a politically compromised Board which ignored court findings. It was not only about Mr Motsoeneng but the Board had failed the SABC as an organisation. The Public Protector Report was binding and no disciplinary hearing could overrule it. She asked about the increase in salary and bonuses. Would the Board be held accountable for the court costs? The take from the CEO and the Prof was that political parties should not interfere. The Board was essentially saying “hands off” but the general public were the ones paying TV licences. She commented that the Board failed in its duties and were not fit and proper to lead the Public Broadcaster. The appointment of the Board was a failed process and she felt sorry for Mr Naidoo for speaking out.

Mr F Shivambu (EFF) referred to the judgement made on 1 March by the Chief Justice for the EFF. The judgement indicated that the investigative powers of the Public Protector should not bow down to any other organisation. This was the same as the Public Protector findings on Mr Motsoeneng, yet he was “a MacGyver who could get out of all things”. Mr Motsoeneng made the allegation that he had completed Matric when he knew he had not. This substantiated maladministration as he was appointed through improper conduct. He asked what the way forward for the Board was and whether it was going to reverse the appointment of Mr Motsoeneng. He wanted the Committee to institute an inquiry into the Board. He was also concerned that Board members were removed without consulting Parliament. The Board could not do that since it was a parliamentary process to appoint Board members. The Board gave a “lousy presentation which showed its arrogance”.

The Chairperson warned that Committee members were to engage with the presentation first. They would have a separate session to discuss what needed to be done.

Ms R Van Schalkwyk (ANC) referred to 25 February 2016 when the Board approved its reorganised structure. She asked when the structure changed, how it impacted on benefits, salaries and new positions. She asked whether the position of GE: Corporate Affairs was vacant when Mr Motsoeneng was appointed and what the process was for his appointment.

Mr C Mulder (FF+) said that according to an SABC press conference, its deficit was “only” around R400 million. The top management was currently running the SABC and therefore the emphasis should be on top management. The SABC used to be at a gold standard. He emphasised the Board should know that the Public Protector Report findings must be implemented. He asked if it was true that Mr Motsoeneng’s salary increased from R1.4 million to R1.7 million and then to R2.4 million and whether 53% of SABC staff had resigned.

Prof Maguvhe replied that the SABC had over 4 000 staff members. If 53% had resigned there would only be around 2 000 staff left. This was not the case. Almost 200 staff members had left the organisation and of those, 53% were resignations. The R400 million loss would be addressed in the Annual Report meeting the following week.

Mr James Aguma, SABC Acting Group Chief Executive Officer, explained that the Board had 123 medical and fraud cases against employees and those employees chose to resign.

Ms V Van Dyk (DA) asked whether any of the monies spent on court cases had been recovered and if the Board had followed disciplinary actions against Mr Motsoeneng.

Mr W Madisha (COPE) commented that the SABC belonged to all people of South Africa and the Committee could not allow one individual to destroy it. The Board was comprised of two types of people; one “culprit” and many other persons. He wanted to check why the Board had employed and saved “a fraudster”. A person who misrepresented his qualification; how sure was the Board that he would not continue to be fraudulent? In his own opinion, the Committee was dealing with “a fraudster”. To receive such a high salary despite no qualifications was a major fraud. Students were unable to go to university because of a lack of money yet here was someone who took money and bonuses for himself. The country was collapsing economically and here Mr Motsoeneng took what belonged to other people. Was it proper that Mr Motsoeneng could hire and fire people? The Board was unfit and even the President wanted to look into this issue. Essentially the Board was saying to the Committee that the Public Protector, the Supreme Court and the Western Cape High Court could not tell it what to do. The Board had indicated that it came up with a disciplinary committee but who appointed the people on that committee and what was the process in appointing them. These were very serious problems. In the past, Board members earned R5 000 per meeting.

The Chairperson asked Committee members to tone down their language and be mindful of calling someone, who could not respond, a “fraudster”.

Mr Shivambu referred to the Public Protector Report which indicated that Mr Motsoeneng fraudulently represented his qualifications. He felt that there was nothing wrong with Mr Madisha’s comment.

The Chairperson replied that he understood English and was merely going on the last meeting where it was said that members were not honourable. Members were to be careful of what they said as Mr Motsoeneng could not defend himself.

Ms M Matshoba (ANC) said that he had two questions. Before Mr Motsoeneng was appointed what was his position and package? Who was in his position before and why was this person removed?

Ms N Tolashe (ANC) commented that the SABC was established according to the law and therefore the Chairperson of the Board could not say that political parties should not get involved. If he understands correctly, the SABC was constitutionally protected and therefore it should do what it is expected to do. Was Prof Maguvhe prepared to apologise to 50 million people? Does he understand the implications if he does not? Secondly, the briefing said that the Board was trying to implement the Public Protector Report but how far were they with that process? And also the monies that needed to be recouped?  

Mr L Mbinda (PAC) said that a lot of issues had been raised. He wanted the Board to explain how and why Mr Motsoeneng misrepresented his qualifications.

Mr F Mokoena (EFF) felt that the issue was about corporate governance. The report presented by the Board dealt with superficial issues. There was a certain level at which government could not interfere. The role of the Board was to act according to the highest ethical standards. The key issue was the ramifications of what the Board does, which goes beyond the responsibility of Parliament. He explained that if the Board went and then appointed Mr Motsoeneng to another position, it had gone over corporate governance principles which then put the Board’s actions into question.

Prof Maguvhe replied that the Board has taken the Public Protector’s findings and would ensure that the matter was taken forward. He was merely responding to the questions addressed in the letter from the Committee inviting the Board to this meeting.

Mr Gungubele felt that the SABC Board Chairperson was not taking the Committee seriously.

Prof Maguvhe responded that the Board did not know what was in the minds of Committee members.

The Chairperson highlighted that the Committee could not request everything in a letter and the Board should not have confined its presentation to the five issues requested.

Mr Tseli said that the Committee invited the whole Board to a meeting, not only the Board Chairperson. There were three executive members who could also try and clarify answers. Therefore Prof Maguvhe should not find himself in a problematic position.

Ms Van der Merwe said that Parliament was not currently in session but this was a national crisis and they were called here to discuss these issues. If the Board Chairperson felt uncomfortable to answer, he should get others to answer.                                 

Mr James Aguma, SABC Acting Group CEO, explained that the Board sought an independent person to adjudicate the disciplinary hearing and appointed an advocate. Witnesses were called to testify but the Board found that there were disparities between what the witnesses were saying and the Public Protector findings. The report was taken as a review and Mr Motsoeneng was found not guilty by the disciplinary committee. Therefore the Board looked at where it was best to put Mr Motsoeneng. As far as his salary was concerned, the Committee could look at the Annual Report. He did not want to talk about it.

Dr Aaron Tshidzumba, Non-executive SABC Board Member, said it would submit the disciplinary hearing report to the Committee. The report had also been published online. The Board was appointed by this Committee and through the Department, it reported to the Committee. The meetings attended would be tabled in the Annual Report and there was no non-compliance on that aspect. He highlighted that when the Board came in, its task was to turn around the SABC. Emphasis was on adherence to compliance of the Board to run the SABC which it had done. It submitted its quarterly reports and everything was reflected there. Maybe some issues had to be categorized but there was not enough time to go through this.

Mr Tshidzumba added that the Board was stuck with the Public Protector Report and received the report during the process of the disciplinary hearing. Part of the recommendations was to implement the disciplinary hearings which the Board did. From 14 witnesses called, the top four or five never met any investigator from the Public Protector. When the court found that Mr Motsoeneng had to step down, it became an issue of labour relations and the Board was faced with that as an issue. They then consulted with Human Resources and Employee Relations. Whether the Board was fit or not could be analysed through compliance with the PFMA and other relevant laws. They were not functioning through individual ideas but through proper governance and compliance.

Ms Bessie Tugwana, SABC Acting COO, explained that the SABC would not be able to show a picture or play a voice on television and radio if its operations were not running efficiently and effectively. The allegation that Mr Motsoeneng, as then COO, had a salary increment two to three times was correct as the SABC was able to offer its entire staff an annual salary increment.

Mr Leah Khumalo, Deputy Chairperson: SABC Board, explained that the posts of GCEO and COO were vacant. It was a process still unfolding. The position of Group CEO would be advertised.

Mr Krish Naidoo, SABC Non-executive Board Member, said that it was the first time he had seen the presentation as the Board had not met to put together this presentation. The Western Cape High Court judgement ruled that Mr Motsoeneng’s appointment was irrational and that the incumbent should no longer be an employee. For a period of time until the SCA made a decision, Mr Motsoeneng was no longer an employee. The fact that the Board was saying that the SCA ruling had nothing to do with Mr Motsoeneng as an employee, was not true. He had been listening to the inputs and reasons why the Board should be dissolved. As a non-executive member, he had been giving the Board advice but it simply did not comply. As for the Multichoice contract, that was also illegal. The Board tended to skirt around issues in a superficial way. It had the Public Protector Report since February 2014 and all these were clear and binding judgements. It had been a long process to undermine the Public Protector and now only had the Board decided to take the findings under review. He heard all the explanations but was still not satisfied and as a Board member himself he felt that the presentation was “amateurish”. The Board was spending valuable time talking about mundane issues and therefore he was personally resigning as a Board member immediately.

Mr Vusi Mavuso, SABC Non-executive Board Member, told the Committee that he did not know what the Board was doing. He also had not seen the presentation before it was presented to the Committee. Some processes left much to be desired such as the fact the 11 executives were offered severance packages but this was not brought to the attention of the Board. What was going to remain? The Board was playing musical chairs and he had only heard about the appointment of Acting COO Ms Tugwana today. The Board was not following due process and therefore he was tendering his resignation with immediate effect.

Mr Gungubele said that there was no better time to ask whether the Board was fit. He had listened to a series of responses as to why the Board decided to appoint Mr Motsoeneng. The same Board has now decided to go for a review of the Public Protector’s recommended remedial actions. What did the Board owe Mr Motsoeneng as the allegations against him were very serious? The Board claimed that Mr Motsoeneng had unique skills, but if Verwoerd had offered artists 90% exposure on local television in order for apartheid to continue, the Board would not have accepted that. How does Ms Tugwana think society views the SABC?  If the disciplinary committee met and cleared Mr Motsoeneng what was the Board trying to do by applying for a review. The court had already spoken and the remedial action of the Public Protector was binding. The Committee was yet to be convinced as to why there should not be an inquiry into the Board. If the Board respected the Committee it was supposed to anticipate what possible questions and issues would be raised. The Board was confirming that the SABC was in trouble.

Ms Tolashe was hoping for responses. The SABC Board Chairperson had decided to be “sarcastic” and not one question was responded to. The Board had a whole scenario for what would be asked by the Committee and it presented a piece of paper as a response. This had gone too far and was enough. She felt that the Board was not fit to hold office and it was unfair that Mr Motsoeneng was being attacked as a person.

Ms Van Schalkwyk said that the questions raised were not answered and it was clear that a solution would not be found as the Board needed to be honest. She asked the question previously whether the position renaming as part of the organisational review included an upgrade of the actual post. Was there an improvement of benefits and were the deliverables new or did they remain the existing deliverables?

Mr Selfe commented that the SABC was supposed to be transparent and independent. Mr Motsoeneng wanted to keep his job and had made a false affidavit. If the Board was satisfied, why had they applied for a review? All these court cases were costing the SABC a lot of money. It made the Board look like a “dog show”.

Ms Van Der Merwe applauded the two non-executive Board members for being brave and honest. She felt that there was fear and intimidation at the SABC and therefore the witnesses did not show. She asked who the independent company was that conducted the disciplinary hearing. She felt that the Committee was not going to get answers. The Professor and Mr Aguma were upset because they felt that political parties should not interfere, but viewership was dropping. The Board believed it was fit and proper but the Auditor General report would show that it was non-compliant with laws and regulations.

Mr Shivambu felt that it was apparent that Mr Naidoo and Mr Mavuso saw the bigger picture. Yet when the High Court and SCA said it was wrong, the Board felt it was not wrong. When the Chief Whip spoke, he was isolated by Hlaudi. When the Public Protector spoke and realised Hlaudi must go, she was wrong. When Parliament spoke, everyone was wrong. Everything was “sacrificed for Hlaudi”. In the past, the ANC Youth League advocated for 90% or a certain representation of local South African content. This was not a new idea implemented by Mr Motsoeneng. The Board members must dissolve themselves and “tell Hlaudi to leave”. He did not want the Board members to make it a long and drawn out process. It was not about them, it was about the country. It should not be as easy as this to destroy institutional memory. Perhaps a new Board with new skills needed to be recruited.

Mr Mokoena addressed the Acting GCEO and pointed out that the Board had come here to mislead Parliament. The disciplinary hearing was part of the Public Protector’s remedial actions yet it seemed as if the Board was undermining the Office of the Public Protector. Therefore, the Board was not fit to stand.

Mr Mbinda said that based on the discussion taking place, the Committee should have a debate and see whether a commission needed to be established. He was not happy with the Board’s responses and did not know why some Board members were excluded. There was an issue with policy direction around recruitment and whether the Board followed it.

Mr Madisha felt disappointed. He hoped that the Committee and Board would be able to move forward. He had found the answer to the question of whether the Board was fit. The Board members were not fit to do what they were supposed to do. He was unhappy with the Acting GCEO who refused to answer questions when asked about finances, only responding that the Committee would get the answers next week as part of the Annual Report presentation.

Mr Mulder said that he personally told Mr Motsoeneng that he was not going to pay his TV licence. He did not need to go into more questions and details as he now knew how the Board functioned. He felt that an investigation into the SABC was needed.

Ms Van Dyk said that the lack of supporting documents to the presentation was disappointing such as the disciplinary hearing outcomes and Board meeting minutes. The Board was now six members and dysfunctional and the Minister needed to appoint an interim Board.

Mr Kalako said he felt there was no need to go further. There were only four people left on the Board and in essence there was no Board. The Committee could not keep things as they were. He wanted the Chairperson to ask the SABC officials to leave so the Committee could conclude on the way forward.

The Chairperson noted the end of the session. He felt that members were not satisfied and they would discuss the way forward.

After the SABC Board delegation left, the Chairperson highlighted that the SABC Board members were not chased away by the Committee, they were merely released from the meeting.

Mr Kalako noted the Committee was in agreement about the dysfunction of the Board. He officially proposed to dissolve the Board and immediately institute an inquiry into the SABC as a whole. Parliament’s legal advisors would assist the Committee.

Mr Selfe agreed that the current Board was dysfunctional. According to Section 15A(1)(b) of the Broadcasting Act: “The National Assembly may, after due inquiry and by the adoption of a resolution, recommend the dissolution of the Board if it fails in any or all of the following: (i) it fails to carry out its fiduciary duties; (ii) it fails to adhere to the Charter; and (iii) it fails to carry out its duties as contemplated in section 13(11)”. He asked whether the Board could be dissolved before due inquiry. The SABC would litigate if the Committee got the decision wrong. He disagreed with Mr Kalako and believed that an inquiry was needed into the SABC Board and not the SABC as a whole.

Mr Mbinda said that he was not comfortable with the dissolution of the Board if the Committee was still investigating it. If the Committee could not act with due diligence, it would be better to suspend the Board. This was an issue of employees and therefore the Basic Conditions of Employment Act (BCEA) would apply. He was not saying that something was not right, just that proper process needed to be followed.

Ms Van Der Merwe said that there was a general consensus on a move for the resolution of the dissolution of the Board. The Committee just needed to check the relevant laws.

Mr Tseli noted that Mr Kalako’s comment was based on the two Board members who had resigned. He agreed the Board had to be dissolved but a further inquiry into the SABC was necessary to delve deeper into other issues as well.

The Chairperson suggested that the Committee meet with Parliament’s legal advisors.

Mr Gungubele highlighted that after the resignation of the two Board members there was practically no Board. There was oversight to be done and the Board would be unable to carry out its oversight duties. An interim measure was needed urgently.

Mr Shivambu noted that there was no longer a Board who could take decisions as a minimum of nine members were needed. The Broadcasting Act did not make provision for a Board that had dissolved itself. He requested the Chairperson to convene a meeting with the Speaker of the National Assembly before the 25 October 2016 to appoint an interim Board. If nothing was done, the Committee would be leaving a vacuum as the remaining Board members could not take any decisions. The Act provided for an interim Board.

Ms Tolashe cautioned the Committee not to be in a hurry and take it step by step. He asked for the parliamentary law advisor to advise the Committee. The SABC Board needed to be investigated. The Committee was not dealing with “dumb people” and the Board members would check if there were any gaps.

Ms Van Der Merwe reminded the Committee that the current Board emanated from a Board that had collapsed. She agreed with Mr Shivambu that an interim Board needed to be appointed.

Mr Mokoena agreed that there was no Board and the correct step would be to appoint an interim Board as the SABC was “dying”.

The Chairperson agreed that the current Board was dysfunctional and an interim Board had to be appointed as soon as possible following due process within the law.

Mr Gungubele said legal process would assist and an investigation had to be done.

Mr Mulder commented he was not part of process when the previous Board was dissolved. He was concerned as to what would happen to the rest of the Board.

Mr Shivambu said that according to legislation, nine members had to be present for a quorum. An interim Board would not be a long process to appoint as it would not involve interviewing. Parliament was allowed to institute a parliamentary commission of inquiry and ask previous Board members what happened to give recommendations to the new Board.

The Chairperson agreed it was necessary to get advice.

Mr Mulder said he understood that the Board had to be nine members. He questioned whether it was possible to merely appoint two new members.

Mr Madisha was confused when the Committee used the word “recommend”. This meant that the Board could continue working until such time that the Committee made its final decision. The 25 October as mentioned by Mr Shivambu was still a long time away. There was a lot of work to be done and persons on the Board who had already not been doing their work. He felt that the interim Board had to be implemented with immediate effect.

Mr Tseli said that according to his knowledge an interim Board could not be implemented until the National Assembly had taken a decision. He did not agree with Mr Shivambu calling an extraordinary meeting; it must not be a matter of too much urgency.

Mr Mbinda asked whether the Committee could ask for legal advice. He was concerned about shortcuts and felt that the meeting today did not constitute an inquiry but that the Committee needed to take a decision whether to investigate further or not. The Board members also had rights.

The Chairperson agreed that the Committee had to do a proper job. He wanted them to be in a hurry but slowly.

Mr Ntuthuzelo Vanara, Parliament Senior Legal Advisor, said he was appointed to assist the Committee to take decisions based on laws. There were four questions which he wished to answer:
(1) Was the Board in existence? Yes the Board was in existence but it could not be quorate.
(2) What was the process to dissolve the Board? Public institutions had to be guided by the Constitution and relevant laws. The answer to this was found in the Broadcasting Act, section 15A(1)(b): “The National Assembly may, after due inquiry and by the adoption of a resolution, recommend the dissolution of the Board if it fails in any or all of the following (i) Discharging its fiduciary duties; (ii) adhering to the Charter; and (iii) carrying out its duties as contemplated in section 13(11)”.
(3) Could an interim Board be appointed? Section 15A(2) of the Broadcasting Act made provision for an interim Board to be appointed. Subsection (2): “The panel must investigate the grounds for dissolution of the Board, compile a report and make recommendations to the President on its findings”. (3)(a) “Upon the dissolution of the Board contemplated in subsection (1), the President must appoint an interim Board consisting of the persons referred to in section (12)(b) and five other persons”.
(4) Could what unfolded today be regarded as an inquiry? No. What the Committee did today was to solicit. The Committee needed a dedicated legal advisor and decide whether or not the Board was fit. A lengthy process of due inquiry had to unfold. At the end of the inquiry and once recommendations had been made, it would go to the National Assembly. Due inquiry meant affording people their rights. The Committee could formulate charges and allow the Board to respond with legal representation. Due to previous experience and challenges in the dissolution of the Board, he recommended the Committee ask the remaining Board members to resign or step down.

Mr Mbinda said suspension should be with immediate effect pending the outcome of an investigation.

Mr Shivambu reiterated that the remaining members could not sit as a Board as it had no quorum of nine members. To suspend or remove the members would need an inquiry process which would take long. He agreed in principle to inquire into the Board and then dissolve it. The Committee could put an inquiry in place and determine the length of the inquiry. He did not want the Committee to rule out the option of advising the Board to resign as the Board members knew the Committee was not pleased. 

Mr Kalako asked whether the appointing authority could suspend the Board. He noted that the route of an inquiry was unavoidable. The Committee had to agree on it and the rest would follow.

Mr Selfe referred to an earlier question whether there was provision for the suspension of the Board. He suggested establishing an inquiry. The mandate of the inquiry should include a report to the National Assembly as soon as the 25 October 2016. He did not agree that formal charges needed to be formulated. If the Committee could resolve recommendations to the Board it, should be to resign or go through an inquiry.

Ms Van der Merwe agreed with the proposal by Mr Selfe and said it was the best way to go. The Committee did not need to have charges against the Board. She said the Committee had to write to the Board asking them to resign.

Mr Shivambu said there were grounds for the dissolution of the Board. This process was not a disciplinary hearing but a governance issue. He felt an inquiry could be a shorter process than a disciplinary route. The current Acting COO Ms Tugwana was appointed illegally as two Board members did not know about her appointment. He recommended that the Committee set one day aside for an inquiry into the Board and possibly table an urgent report.

Mr Madisha thought the Committee was done making its decision, but felt that members were going back and forth. An inquiry might take three years or more because of certain procedures that had to be followed. It could not take one day. He agreed that the Board was no longer in existence but the question remained what needed to be done.

The Chairperson noted that everyone had a chance to say what they wanted. Members agreed about having an inquiry but he first needed to contact the Speaker of the National Assembly. The Committee would write to the Board asking it to resign. They cannot be quorate. If they refuse to resign, then the Committee would proceed with the inquiry. If they agree to resign, it would make the process easier.

Ms Van Dyk wanted a timeframe put to the letter to the Board members.

Ms Van der Merwe commented that Mr Motsoeneng had been saying to the media that the Board would not go. He remained defiant. She felt that the Committee had to look at whether the Minister was aiding and abetting the Board as the Committee had not heard the voice of the Minister in the whole issue.

The Chairperson said in terms of the inquiry, they needed a technical team.

Ms Matshoba said she was worried as the appointment of the Acting COO was illegal.

Mr Shivambu said he was not worried about Mr Motsoeneng and that he needed to stop his “chicken bravery” as nobody was above the law.

The Chairperson closed off by reminding members that parliamentary processes had to be followed. He would write to the Board asking them to resign. He thanked members for their contributions and wanted to talk directly to the Minister and not Mr Motsoeneng as the Minister was the shareholder. He would also talk to the public on decisions made by the Committee.

The meeting was adjourned.

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