SABC Board inquiry: deliberations on the way forward

Meeting report

Adoption of Agenda of the Ad Hoc Committee for the day
Mr N Singh (IFP) explained his presence at the Ad Hoc Committee was due to informing the Office of the Speaker and the Committee Section on 25 November 2016 that two Members representing the other parties were discharged – these Members were Ms L Van der Merwe (IFP) and Mr AM Shaik Emam (NFP). He and Prof. N Khubisa (NFP) had replaced those Members with Mr Kwankwa (UDM) and Mr S Swart (ACDP) as alternate Members. This had not yet been reflected in the ATC. In light of the court challenges and consideration of the agenda for the Committee today, he wanted to know what impact the court challenge had on the agenda and all its items.

Dr M Khoza (ANC) stated that should the meeting proceed, she would have to be excused at 14h00.

The Chairperson said this was fine although the meeting would not extend beyond lunch.

Mr M Ndlozi (EFF) said the request of the Member could be dealt with later under the “opening and apologies” item.

Dr Khoza pointed out that the first item on the agenda of the Committee was “opening and apologies”.

Mr Ndlozi thought the agenda should be adopted.

Mr H Chauke (ANC) moved for the adoption of the Committee’s agenda for today. The motion was seconded by Ms J Killian (ANC).

Chairperson’s Remarks
The Chairperson noted that the task before the Members of the Ad Hoc Committee felt like the start of a marathon – the task may seem daunting but he trusted that as each day ended, the Committee would experience a sense of accomplishment. The work before the Committee would no doubt push Members beyond mental and psychical barriers but Members would be amazed by what they were capable of and what they would learn about each other in the process. Those who have come before have taught Members not to pray for tasks that were equal to their ability but to instead pray for the know-how to be equal to the task. The work of the Committee over the next two months or so was not only about fulfilling the mandate of the resolution adopted by the National Assembly on 3 November 2016 – it was rather about ensuring all actions as Members of the National Assembly and as representatives of the people, duties were fulfilled without fear, favour and prejudice. The responsibility of the Committee was to conduct duties with fairness, transparency and integrity. Members needed to work together in a matter which would contribute to restoring trust in elected representatives to do the right thing. It was also about reaffirming Parliament as the supreme oversight mechanism over the activities of the executive arm of government as dictated by Section 55 (2) of the Constitution.

The Chairperson felt it important to raise this because Members were politicians and the temptation to score party-political points or to grandstand would always be there. Notwithstanding this reality, he was more than confident that all Members would work as a team with a common goal of producing a report that would withstand all scrutiny when presented to the National Assembly at the end of the process. The marathon for the Committee started now – a good race must be run because this was a duty the Committee must see through to the end.

The Chairperson noted that on 17 November 2016, the day after the Ad Hoc Committee’s first meeting, the Committee requested the SA Broadcasting Corporation (SABC) provide the Committee with documents to reach the Committee no later than 21 November 2016. This request had not been honoured - on Wednesday, 23 November 2016, Parliament issued summons against the SABC for the non-arrival of the documents. As he spoke, the documents had still not been delivered. Despite these challenges, the Ad Hoc Committee was confident and more than prepared to continue with the work.  The Committee had the Shareholders Compact, Memorandum of cooperation, Broadcasting Act, Public Finance Management Act, ICASA ruling, Auditor-General report, Public Protector report and the ability to hear the testimonies of witnesses.

In the Committee’s programme of witnesses to hear, SABC board chairperson, Prof Mbulaheni Maguvhe, was the second last witness to be heard by the Ad Hoc Committee around about 14 December 2016. This was done to afford him an opportunity to hear first what all the other witnesses had to say and if he so wished, to interrogate the aspects of the witnesses testimony to ensure the Ad Hoc Committee remained committed to maximum fairness, transparency and integrity. By way of correspondence, Prof. Maguvhe subsequently requested he be heard around 9 December 2016 due to unavailability thereafter. At that point, the request was granted but in light of the court action, by necessity, this request would have to be reviewed.

In terms of the witness list, on 16 November 2016, the Ad Hoc Committee jointly identified 39 potential witnesses to participate in the meeting. Every effort was made to contact each witness to notify them that they had been suggested as witnesses and to request an interview to be conducted by the evidence leader. The evidence leader interviewed 24 witnesses who all indicated willingness to participate – four of the 24 raised concerns which were since addressed. Six witnesses indicated unavailability to participate. Members would be provided with communication between the Committee and the Minister, Committee and the Acting GCEO of the SABC, Committee and Prof. Maguvhe and the Committee and the Public Protector. Members should also have transcripts of all interviews conducted.

The Chairperson informed the Committee that he was only notified of the court action on Sunday at 22h00. Yesterday, Monday 28 November 2016, representatives of the legal division of Parliament went to Court to indicate the institution’s position to oppose the interdict. A date had since been set for Friday 2 December 2016 at 14h00. He was confident that the court would rule in Parliament’s favour and he hoped the matter is put to rest as soon as possible after the court hearing on 2 December. As soon as the court made a ruling and that the ruling was that the Committee could continue its business, the Committee would be ready to roll 24 hours thereafter. It would also mean that the Committee would have lost two and a half days i.e. proceedings scheduled for this afternoon, tomorrow’s scheduled meeting and Friday’s scheduled meeting – these interactions were put on hold until after the court hearing. He did not think this would be a train smash because the Committee could make up the lost time by meeting on a Monday and Thursday – days not included for meeting initially. This was all dependent on the outcome of the court hearing.

Of the six potential witnesses which indicated unavailability, these included Mr Tembinkosi Bonakele (former Board member – he did not believe he could add value to the process as he resigned from the Board in 2014), Ms Nomvula Mhlakaza (former Board member – refused to participate because of being a former Board member), Mr Jimi Matthews (former Group Executive – travelling abroad), Ms Verona Duwarkah (former employee – matter before the Labour Court and could not travel due to health reasons for the next four weeks), Ms Lorraine Francois (former audit executive – nature of her profession would be compromised as it required 100 per cent integrity and confidentiality), Adv. Thuli Madonsela (initially indicated she would be travelling and  further contact could not be made with her due to her travelling) and Adv Busisiwe Mhkwabane (unavailable due to previous engagements – she did indicate three of her staff members would be competent to testify before the Committee on condition it was done in-camera). Four of the SABC 8 would be participating in the inquiry of the Committee – the four would talk on behalf of the 8 members.

The work of the Ad Hoc Committee would commence as soon as it was given the go ahead – with the work done this far, the Committee should be in the position to run the good race and see it through the end with a report that would withstand any scrutiny.

Discussion
Mr J Mahlangu (ANC) commended the Chairperson and his team for the work executed over a very short period. He felt the invitation to Adv Madonsela, and the team of the Public Protector needed clarity – he would assume that Adv Madonsela would form part of the Public Protector’s team and not be coming separately as an individual. If Adv Madonsela came as an individual that would be problematic – she should instead come as part of the Office of the Public Protector. This was the main matter. It would also be important to engage the evidence leaders in terms of the individuals who could not appear before the Committee and whether the Committee should look at means at forcing them to appear. The failure to submit the documents after Parliament sent the summons was a worrying factor – he wanted to know what action the Committee would now be taking to sort the matter out. The Committee should have recourse to take action.

Ms P Van Damme (DA) also expressed gratitude to the Chairperson for the great work he had done with the team to ensure the Ad Hoc Committee was ready. Reading through the correspondence, she was pleased to see that the Chairperson stood his ground in defence of the Ad Hoc Committee and she was very grateful for this. From the remarks of the Chairperson, she asked if the Committee had now resigned to not receiving those documents that were summonsed – if not, what would be done to receive the documents? She suggested the Committee not move the date to hear Prof. Maguvhe – he should not be given any leeway to go to court again. She was very worried about the manner in which Adv Mkhwebane responded to the Committee and that she said she did not understand why the Ad Hoc Committee was continuing with its work when there was only one Board member left. Adv Mkhwebane also said it was her prerogative to decide whether to come to Parliament or not. The suggestion that her staff at the office of the Public Protector appear in camera before the Committee should absolutely not be agreed with – the report of the Public Protector was in the public domain and the Public Protector’s office should be able to defend and speak to the report in public. The Committee should not permit any interviews happening in camera.

Mr Chauke thought that the next step of the Ad Hoc Committee was simply to take action against those who were not complying with the rules of Parliament.  Perhaps the legal team needed to assist the Committee with the recourse available for those who undermine Parliament because the matter could not just be left there – action must happen even if those who were refused to submit the documents were arrested or put before the police. This needed to be dealt with to receive the documents and take action against those undermining the Committee.

Mr Singh noted that one of the prayers of the applicant in the court application was to suspend and prohibit the Ad Hoc Committee Inquiry into the SABC Board from continuing until the National Assembly complied with the order in paragraph three. He wanted to know, from the legal advisers, what impact this had on the Committee doing any work at all until the court had decided. Not complying with a summons amounted to contempt of court and the person was then arrested for not complying with the summons – legal advice was required by the Committee on what could be done to bring those responsible to book for not complying with a summons of Parliament. He agreed that no one should be allowed to be interviewed by the Committee in camera – the process was public, the Committee was set up by Parliament and all evidence and witnesses before the Committee should be done publically. He wanted to know what the power of the chairperson of the Board was – he wanted to understand how a chairperson could sit there alone when there was no Board. How did due legal process occur in this regard?

Dr Khoza wanted a sense of what sort of issues would be discussed under the “legal matters” item on the agenda because she would love to hear what would be spoken to. She was also interested in hearing the state of the meeting in light of the court order to halt the Committee from proceeding with the inquiry. This made her question when the work of the Ad Hoc Committee would actually start. She also agreed that Parliament was a transparent institution and so it would be important to ensure the work of the Ad Hoc Committee was conducted in a transparent manner however, those witnesses who feared for their safety should be seriously considered.

Mr Ndlozi thought the Committee should spend time on getting the legal report because there was a parliamentary rule that the Committee could not discuss matters before the courts. He suggested the Committee receive a briefing on what would happen on Friday 2 December 2016 – he emphasised that he did not want to lose in court. He wanted to hear that Parliament’s legal team was pursuing the application with the necessary expertise and speed that it ought to be given. He also thought Members should take exception to how the new Public Protector was addressing the Committee – he trusted the Chairperson would persue it. Many people hired by Parliament, like the chairperson of the SABC, did not want Parliament to hold them accountable. The new Public Protector must be told unequivocally that Parliament was the constitutional institution she reported to and if Parliament wanted her to come and speak on certain matters, it was part of her job description to appear. Parliament was the boss of the Public Protector – she could not question why the Committee was calling her to speak to a report of the office of the Public Protector or that interviews be conducted on condition that they were in camera. He thought the Committee should take exception to this. During its last meeting, the Committee discussed the matter of Adv Madonsela extensively and a conclusion was reached – he did not feel the matter should be rehashed and perhaps minutes needed to be made available to Members earlier so that they were aware of what was discussed and conclusions reached in earlier meetings. The interdict was not a big thing and should be attacked by the Committee. He would really have liked to hear some of the individuals who indicated they would not be able to appear before the Committee – perhaps they should be notified that more time was made available because of the interdict process and they now had more time to avail themselves to the Committee. Perhaps clarity was required on the remit of the Ad Hoc Committee which was wider than the remaining SABC Board member. The Committee should proceed with its work in confidence.

The Chairperson noted in terms of the status of the meeting, from where he was sitting, the meeting was a preparatory one and the Committee was more than entitled to sit to bring everyone up to speed – he did not think there was anything to worry about in this regard. He thought the Committee was in agreement about in camera interviews – everything would be held in a transparent manner however if there were compelling reasons for individuals, not institutions, it would be incumbent on those individuals to provide the compelling reasons to the Committee for consideration. The Committee, with everyone on the same page, would plan accordingly. The Committee was not resigned to not getting the documents but this was a matter the legal team would talk to. The intention was to keep Prof. Maguvhe until the very end because the Committee wanted to give him a chance to listen to everybody but he wanted the date to be moved forward – as the matter stood, Prof. Maguvhe was scheduled to be heard Wednesday, 7 December. The Committee would pursue those witnesses who indicated they were unavailable and Members would be kept up to date as they were negotiated. With those witnesses who had confirmed their participation, the Committee would have more than enough information to work with.

Legal Matters
Adv Zuraya Adhikarie, Chief Parliamentary Legal Adviser, began by noting that around 08h30 yesterday morning, she was alerted to the fact that there was an attempt to serve documents on the Ad Hoc Committee. Parliament served at effectively 12h30 after having informed the attorney and having expedited authorisation in terms of section five of the Powers, Privileges and Immunities of Parliament Act from the Speaker’s Office to accept service – in terms of the Act, service could not be accepted until authorisation was received. What was first thought of as humanely possible was achieved in a short amount of time although multiple people attended to the matter to explain to the court at 10h00 that service had not been received yet. Counsel was also brought on board without the necessary authorisation in place. The court agreed for the matter to stand down until Counsel agreed on more reasonable timelines – in the meantime, authorisation was received and Counsel was subsequently briefed. The gist of the timeline agreed to, which was now an order of the court, was that the matter would be heard on Friday 2 December 2016 as already indicated. The court would be requested to provide an expedited order due to the nature of what still needed to be done by the Ad Hoc Committee.
In essence, the motion of notice served sought to challenge the, alleged, unprecedented public condemnation by certain Members of the National Assembly. It further alleges that Members of the Ad Hoc Committee were not competent because there was no guarantee of impartiality or independence. Counsel was confident that there was no merit in the allegations and there was indeed judicial precedent to the effect that everyone had a predisposition or view on a matter but that this did not necessarily exclude that person from being able to consider a matter or evidence before him/her impartially and independently.
Adv Adhikarie explained that with the summons and alleged defective nature of the summons, section 14 (2) (b) of the Powers, Privileges and Immunities of Parliament Act needed to be read with section 56A of the Constitution– section 14 stated that a summons in terms of section 56A to produce documents must be issued by the Secretary to Parliament on the instructions of the Speaker. This was in fact what was done so the matter was also without merit because the summons was issued correctly in terms of section 56A. With the criminal prosecution of someone who failed to comply with a summons, the Powers, Privileges and Immunities of Parliament Act did open to person up to criminal prosecution but in terms of the pending court case, Counsel would ask the court to pronounce itself on the validity of the summons as this validity was what was under attack. Once this was done, the Committee could take the matter further. This tied in with the failure to produce documents – there was in fact an obligation to produce the documents but such decisions should be taken after the court had pronounced on it as she was sure it would.
In terms of the powers of the chairperson of the SABC Board, the Broadcasting Act did require that there needed to be a least nine members for the Board to be functioning albeit that one could fill the vacancies in line with section 15A of the Broadcasting Act. Due process was required for removal of the Board or any remaining Board members. In terms of fairness and the rules of natural justice, one had to provide the remaining Board member with a fair opportunity.
Discussion
The Chairperson requested that Members not engage on the merits of the legal matters they were just briefed on as this could jeopardise the court case – the Committee should pronounce on whether it was comfortable with the direction. The merits or demerits of the legal matters would not be discussed.

Mr Chauke insisted that it was important that the Committee receive the documentation as contained in the summons and that the summons could not be undermined – where did this matter stand? Clarity was required.

Mr Singh noted that at least three Members were cited in the court application – who would represent these Members? Would Parliament arrange that these Members be represented in court on Friday? Timeous notification and interview with those particular Members was required.

Mr Ndlozi did not understand why the Committee could not discuss the merits of the matter because he felt the lawyers needed to be instructed – as a Member of Parliament, he wanted to give the lawyers instructions. This was also because his name appeared in the legal application. With the matter of the summons, in principle, all South Africans must know that Parliament did not play games and it could not be defied as an institution. Constitutionally and democratically, Members of Parliament were the ultimate public representatives – it was arrogant for an institution, especially a public one, to give Parliament the merry-go-round and the Committee should take exception to this to ensure Parliament was taken seriously. He was also really worried about the approach of the current Public Protector to the Ad Hoc Committee. The defiance of the summons was criminal and there must be consequences – to defy a summons by Parliament was a serious breach of the law. He urged that the lawyers be provided with instructions by Members especially when they were named in the court application.

Ms Van Damme highlighted that the Democratic Alliance would be joining Parliament in opposing the matter. She sought clarity on the opposing motion of Prof. Maguvhe and if he was opposing the current Ad Hoc Committee or another Committee because the application cited herself, Ms L van der Merwe (IFP) and Mr F Shivambu (EFF).

Prof. N Khubisa (NFP) thought that a summons was a legal matter and so defiance of that summons would also be a legal matter – the Committee required advice in this regard. Legal direction was also required on the Members cited in the application.

Adv Adhikarie outlined the summons was a very powerful right the Constitution conferred on Parliament and, by extension, the Ad Hoc Committee. However, the very essence of what was challenged was the validity of the summons – whilst there were serious consequences for someone who did not comply with the summons, out of deference for the court, the next step could only be taken once the court pronounced on the summons and to hold off on the Committee proceeding until the court had made that decision. In essence, there could be no further action on non-compliance of the summons until the court considered the matter. Counsel was happy to represent all the respondents in respect of the Speaker, Secretary, Ad Hoc Committee, Chairperson of the Committee and individual Members. The matter of the DA joining the opposing motion would be taken further with the Chairperson and Counsel. It would be neater if the Committee opposed the interdict as a whole with the abidance of all Members – this would be ideal but if Members had differing views this would need to be dealt with politically.

The Chairperson noted that at some point the Committee would need to move on to other matters on the agenda today.

Mr Mahlangu thought the Committee would need to consider having an in-house executor for any other summons issued, beyond the pending court action on Friday to ensure gaps were closed. Bringing this capacity closer to Parliament would assist moving forward.

Mr Ndlozi outlined that Members were protected by the Constitution by the things said in the House and that it could not be used against Members elsewhere. There would need to be discussion of the legal strategy of Parliament and its Counsel in terms of the hearing on Friday – this would determine whether the political parties acted in unity to oppose the interdict.

Dr Khoza agreed that there was merit to what Mr Ndlozi was proposing – with Members cited as respondents in the application, logic dictated that those cited Members needed to be taken through the charges to better understand the legal process and strategy going forward.

Mr Chauke agreed as the issue was about the protection of Members for them to be able to do their work. He proposed that the Chairperson and Parliament’s legal team, consult the Chief Whips of parties and that the legal approach be discussed in the matter. Members could then be briefed accordingly at party level. It was very important that there was consultation with all parties especially when Members were cited in the application.

The Chairperson noted that legal strategy could not be discussed publically – all eyes were on the Ad Hoc Committee. He suggested the Committee retreat to a small room privately behind closed doors to discuss the legal business. Members could then confer with the Chief Whips on the direction and take matters from there. He emphasised that legal strategy could not be discussed publically. In terms of the impact of the legal process on the programme of the Ad Hoc Committee, this was dependent on what transpired on Friday, 2 December 2016 – if the ruling was favourable to the Committee, Members would have to be prepared to work two Mondays and two Thursdays going forward due to the days lost this week. If the individuals who indicated they were not available to participate were now available because of the changed programme of the Committee in terms of timeline, this would also have to be factored in in terms of dates. On Friday, Members would be provided with an updated programme.

He then requested that the Committee move to the next item on the agenda – summary of issues emanating from research analysis of the SABC’s performance between 2013/14 and 2015/16. The intention of this item was to bring Members up to speed on the Corporation’s performance through a high-level analysis. This would further empower Members during interactions to follow. Some more insight would also be provided by the Portfolio Committee on Communications researcher as the next item on the agenda.

Mr Singh proposed that, in deference to the court, all business of the Committee be suspended for now until the court hearing on Friday.

Ms F Loliwe (ANC) understood this but noted that Members did adopt the agenda with all its items. As long as the inquiry was not discussed, she felt that Members should be equipped through briefings – this would ensure the Committee was ready should Parliament emerge victorious in court on Friday.

Prof. Khubisa disagreed – Members were cited in the interdict and he did not think the Ad Hoc Committee would be continuing in the bounds of the law if it continued with proceedings. Perhaps legal advice on how to move forward was required.

Dr Khoza supported the view that outstanding items on today’s agenda stand down and that the Committee proceed to its private meeting.

Mr Chauke concurred.

The Chairperson ruled that outstanding items on the Committee’s agenda for today would stand down. All Members would now retreat to a private venue to be briefed further by Parliament’s legal team. Time was against the Committee and adequate legal preparation was crucial. Unfortunately no one besides Members of Parliament would be allowed in the meeting as it was a strategy meeting – he trusted the media respected this although they would be informed as to how the Committee would proceed. He thanked Members for working well together thus far. The commitment was that 24 hours after the court made a decision, the Committee would be “ready to roll”.

The meeting was adjourned.