Draft Broadcasting Act amendments [B72-2008]: public hearings

Meeting report

Draft Broadcasting Act Amendment Bill (the Bill): Public hearings
Professor Guy Berger’s Submission
Professor Guy Berger’s personal submission said that changing only the power of the National Assembly to get the South African Broadcasting Commission (SABC) Board members dismissed would not solve the problem. Power had to be located within a longer-term vision with more wide-ranging reforms.

He suggested that there had to be five additional amendments to the legislation. The term lengths of the Board had to be staggered, power had to be shared with non-political stakeholders, the top position in the corporation had to be unbundled, the accountability mechanisms of the corporation had to be expanded, and the concentration of power in a single broadcast entity had to be unbundled.

The SABC needed to be structurally depoliticised as far as possible. A change to give Parliament power over dismissals of the Board would not end the SABC's recent instability. As long as the SABC's governance was one of external contestation, rather than having different interests represented structurally within the governance itself, politics would find a way to prevail.

In terms of sharing the power with non-political stakeholders, he noted that each institution would have the power to propose and remove its representative. The new structure of the Board would include one Presidential appointment, one Ministerial appointment, one House of Provinces ruling party appointment, four Parliamentary representatives from the ruling party, three Parliamentary representatives from opposition parties, one from the trade unions, one from the churches, one University vice-chancellors’ representative, one from the Pan-South African Language Board (PANSALB) and one from the SABC staff.

Each political tendency had to recognise that it was not in their narrow interests if the public broadcaster fell under the sway of a sole hegemonic grouping. It should be made impossible for the SABC to become an instrument of any single grouping. The submission therefore proposed the unbundling of the broadcaster, where power was not concentrated in one Board of governance, but spread across national and provincial centres. The SABC management and Board should be required to be more directly accountable to civil society and the public.

Discussion
Ms D Smuts (DA) asked if Prof Berger thought that what he had proposed was “wildly” unrealistic. Ruling leaders of the ruling party gave direct orders to their party-members of Parliament (MPs) as to who should be appointed to the board. The MPs then agreed to the appointment. She asked if the present problem was the assault on independent institutions, starting with the Constitutional Court, and if what was being dealt with was simply the first move in providing for direct political appointments. A provision was being made in the Act that provided the President with the ability to appoint Board members without any fuss, interference or influence from any sector of society. The fact was that what the country had as the appointment mechanism for the SABC was something grander than what a public broadcaster would usually enjoy. The appointment mechanism was drawn directly from the “Chapter 9” provisions, and the first half of the proposal in the Bill was simply to make the removal provisions also consistent with Chapter 9. It would therefore give Parliament a role in the removal of Board members. She regretted to say that this proposal was her idea. She had made the suggestion to her colleagues when they were in a “state of terror” as a result of pressure from other sources. The second half of the Bill was the direct attack.

The Chairperson informed Ms Smuts that the Committee would discuss her suggestions later on and asked her to tell Mr Berger what her questions were.

Ms Smuts replied that she was not making any suggestions. She wanted to know if Mr Berger thought that his proposal was unrealistic and if the Committee should not rather retain the Bill that they had, with a Chapter 9 style removal provision. The last part of the Bill, to her mind, was utterly unacceptable, as it put the power into the hands of the Executive, which was always alleged to be the problem.

Prof Berger stated that he did not think that his proposal was “wildly” unrealistic, because it was in the interest of all political persons. The lesson was that the power was to be “squared” to the extent that the SABC Board would not be dominated by certain tendencies ever again. This was everybody’s short, medium and long-term interest. It was important that the legislature had its role to play, which was different to the Executive and different to the role of the parties.    

Dr P Mulder (FFP) addressed the issue of TV licences, as he found it to be a controversial issue. The public was forced by law to pay the public broadcaster, and this was seen as buying a service. By buying a service, the public wanted some way of helping to elect the Board. He asked if there were any examples in the world of a model where TV licence holders could have their say.

Prof Berger answered that there were many licensing models that could be looked at in terms of funding. The value of the licence fee was that it gave the public a direct stake, rather than an indirect stake in the public broadcasting sector.

Mr R Pieterse (ANC) stated that any references that were made about the ANC from any other party should be seen as gossip and “rumour mongering”. Nobody could speak on behalf of the ANC, particularly the opposition party. He hoped that Ms Smuts would speak only on behalf of the DA, however she had commented on the ANC. This had to be put on record as “rumour mongering”.

Mr Pieterse noted that civil society was unrepresented in Prof Berger’s proposal. He asked for more light on this. He noted that some of the challenges that were being experienced could not be linked to the amount of time that Members had in Office. One could not say that if the problem were not fixed immediately, then time would run out. Mr Pieterse also noted that Prof Berger’s proposal seemed to propose a federalist approach.

Prof Berger stated that it was his proposal that the Board include nominations for dismissals from different sectors of society, not only state institutions. There would be six members from civil society groups and ten representing state groups. He believed that political institutions as representative institutions represented both public interests and specific interests. Therefore it was important to have other groups that would show their different perspectives on issues. If the Presidency had to nominate one person as a Board member and the Minister had to nominate one person, then these nominees should not be members of the state. The nominations would come from a sector; but the nominees would not be members of that sector. Those that were nominated would not be officials in the Presidency. He shared the views of others who said that a Board member should not have party affiliations and should not be a state employee, as this would lose the public significance of a Board. He thought there was an opportunity to fix the issue now, as people wanted to see a more independent arrangement. He reminded the Committee to look at how the make-up of the SABC was agreed to initially. The National Party (NP) did not want the ANC to control the SABC after the elections, and ANC did not want the NP to control the SABC during the elections. It was therefore a mutual decision to make the SABC independent from both parties. There was a good balance of forces presently that could improve the independence of the SABC.

Prof Berger believed that the federalist approach could result in a much more accountable SABC. He thought that provincially based boards would result in much more accountability than one super-board. He was not saying that the entire SABC should be unbundled, as there were national stations that offered regional services. He combined the federalist with the nationalist perspective by saying that the country could have two different boards.

Mr K Khumalo (ANC) stated that South Africa was a country that had seen fifty years of racism, sexism and all forms of discrimination. He therefore wanted to know what Prof Berger considered to be a non-political stakeholder. Mr Khumalo quoted Prof Berger’s statement that “Current MPs from the ruling party in Parliament may believe that if their influence was greater, there would not be problems with the SABC governance. On the contrary, if and when political sands shifts, many current MPs could then find themselves excluded from any influence regarding SABC” and asked him what he had meant by this. He stated that South Africa was a cosmopolitan country but it was unfortunate that foreigners living in South Africa could not listen to radio stations from their home countries. The current SABC format, in terms of its programming, continued to be dominated by English-speaking radio stations. He wanted Prof Berger’s actual view on the amendment to Sections 15(a) and (b) of the Broadcasting Act of 1999, which dealt with the removal of Board members and the dissolution of the Board by the National Assembly or by the President.

Prof Berger stated that he was not saying that everybody was apolitical; he was rather saying that there were some political institutions, such as Parliament, the Presidency and the Ministry, who should not be the only institutions involved in appointing and removing Board members. The representatives on the Board should not only reflect the choices of those political institutions. He thought having Board members from different backgrounds would make a difference. He was not suggesting that the Board be de-politicised; but he was saying that people from different backgrounds and interests had to be appointed because everybody had different interests.

Prof Berger stated that there was a problem in the country in that national news was sometimes seen as Johannesburg news. He did not think that having provincial broadcasters meant that they did not broadcast nationally. It meant putting the sense of gravity in a region where most people were.

Prof Berger stated that he was worried about the Bill, as it would not let the Committee achieve what it wanted to achieve. Currently, there was a deadlock where neither the Minister nor the President would dismiss the Board, although the Committee wanted the Board to be dismissed. Even in the Bill’s present form, there was nothing stopping the President from delaying signing the amendment into law. There was also nothing stopping the President from appointing a new caucus. It seemed to him that the issue needed to be expanded, not only to include the terms and conditions of an interim board, but also to look at a new governance structure for the SABC board. He argued that to go through the route of making one amendment and leaving some power with the Presidency as an external agency, and then dismissing the Board while having investigations, would result in a long drawn out process. Therefore, it was important for the Bill to go straight in to a longer-term amendment process. The Minister in fact wanted to suggest a bigger review as well. There was no reason why the Minister and the Committee could not see eye-to-eye.

Ms S Vos (IFP) addressed the removal procedures in terms of the Bill. She asked if Prof Berger had looked back at the post-apartheid decision made at the Convention for a Democratic South Africa (Codesa), about the SABC Board and, in particular, at the mechanisms used to ensure its independence. She asked if he thought this could be an option to use again.

Prof Berger stated that the Codesa procedures were specific to the first post-Apartheid Board. There was no legitimate Parliament in those days; therefore it made sense to have Codesa’s proposal. He stated that elected MPs had a stake in what happened in the SABC. His only concern was that MPs should not be the only people involved. The Presidency and the Ministry, as well as civil society bodies, had a stake in the matter.

Mr M Kholwane (ANC) noted that Prof Berger’s proposal stated that stakeholders would appoint Board members, and that those stakeholders that appointed members would remove the members as well. He wanted to know to whom the members would account and how they would account for their actions. He wanted to understand how the process would work. He wanted to know why nobody had acted on the current crisis at the SABC,  and why the Committee should retain legislation that would not enable anybody to act in such a crisis.

Prof Berger stated that it was not true that nobody could act in the SABC crisis. Parliament could act and initiate the set up of a much broader review of the SABC governance. The Committee had the power to do this.

Prof Berger pointed out that the SABC accounted to the Minister, the Independent Communications Authority of South Africa (ICASA) and Parliament. It was the type of accountability that was required in each sector that was important. Civil society representatives that were nominated by trade unions and councils would have to account to the constituency that nominated them and set the terms for their appointment. These were terms under which they could be recalled. While accounting to their appointing body as individuals, they would also have to account to Parliament as a whole. Parliament may decide that these people were out of order, but if that was the case then it was not Parliament’s prerogative to remove Board members, but to call on the organisations that appointed the members to do so. 

Prof Berger summarised that he was suggesting that the power to appoint and remove the SABC Board be spread more widely.

South African National Editors’ Forum (SANEF) Submission
Mr Jovial Rantao, Chairperson, South African National Editors’ Forum, stated that the Bill should not be proceeded with, as it would have undesirable unintended consequences, which would go against the principles of public sector broadcasting. SANEF believed that a totally new approach should be adopted, whereby all stakeholders would gather and devise a method where civil society could make the election of Board members and call on them to report to the public at large and not to parliament. In this way, political influence and interference would be reduced, if not eliminated.

There were several authorities that clearly stated that a public service broadcaster had to be independent of political influence, including independence of Parliament, as it was a political institution. SANEF believed that the public service broadcasters had to be directly accountable to the public. They also agreed with the proposal by Dr Ivy Matsepe-Casaburri, the Minister of Communications, which said that there had to be a total review of the Board selection process and that MPs should possibly be prevented from having any direct role in Board appointments.

Mr Raymond Louw, Chairperson, SANEF's Media Freedom Committee,  stated that SANEF thought that Board appointments were crucial to the success of the SABC. It was clear that the current system failed the test of avoiding political interference and influence. The organisation believed that Parliament should consider including on the Board some representatives who were non-political and some from non-statutory organisations such as church bodies. SANEF strongly subscribed to the view that terms of office of all appointees had to be staggered. Rules of eligibility for membership of the Board had to be clear and explicit, to avoid incompatibility with the responsibilities of the office. The diversity of the Board had to take into account the desirability of reflecting different regional and cultural backgrounds and the fair balance of women and men. Accountability to the public, independence, freedom of operation, openness and transparency and the highest standards of media freedom and professionalism should be the watchwords of the SABC.

If Parliament assumed the power to dismiss the Board as an entity, it ran the danger of punishing Board members who acted properly and in accordance with their conscience and were guilty of no misdemeanour. This could lead to court actions on wrongful dismissals. SANEF was also concerned that the wording in the Committee’s proposed Bill was too vague and broad. SANEF stated that the wording of the proposed Section 15(b) was “draconian” in demanding the removal of a Board member after due inquiry by a Parliamentary committee. It was also worried that the President’s powers were to be increased, as the President would be laying himself open to being associated with unfair action against Board members. SANEF believed the wording around these areas of concern should be scrapped.

SANEF then requested that the Committee call a conference of interested parties to devise a new system of selection and appointment of SABC Board members, using a civil society approach, which would remove or dilute the involvement of Parliament so as to reduce substantially the capacity of politicians to interfere or influence the SABC's choices.

Discussion
Ms Smuts stated that the submission addressed a popular assumption that MPs were a problem in the SABC Board issue because they belonged to the political domain, and that the SABC should take their Annual Report to civil society. However, this ignored the fact that MPs were elected and that was why they were in their positions. At the end of the day it was the elected people who would have to make the decision and the President who had executive powers. MPs could not appoint and ultimately remove anybody. However, where a body was independent, the Committee could and should play a role in selecting the Board and taking a view on possible removal of Board members on strict grounds such as misconduct.

Ms Smuts welcomed SANEF's remarks about the dangers of what she considered to be an utterly unacceptable second half of the Bill.

Ms Smuts accepted the fact that SANEF had said that the danger of a mass sacking of the Board was that Board members who had acted properly and who were not guilty of any misdemeanours might also be sacked. She wondered if there was any single Board member who had done anything wrong, as she was not aware of anything.

Ms Smuts asked SANEF if the clause was indeed simply a political purge (which would be a dangerous issue) and, if so, asked why Mr Rantao said that the Board was in a political crisis. She asked also to have his comment on whether the print media had played an unfortunate role in this issue, and whether it had managed to reflect properly what was happening between the SABC management and the Board.

Mr Rantao stated that the political crisis he referred to was the dispute between the Committee and the SABC Board, and the dispute between the Board and SABC’s executive members. This was a clear indication that something was not right.

In terms of the print media, he said that there were strong mechanisms in place. SANEF felt very strongly that every citizen in the country was entitled to know what the issues were in terms of the SABC matter, even if this meant that the media were to be criticised for making the issues public.

Mr Kholwane focused on Section 194 of the Constitution. The Section spoke about the removal of the Auditor-General (AG) and the Public Protector. He asked if SANEF was saying that such sections in the Constitution were unconstitutional and undesirable, as if so, this could be seen as a direct attack on the Constitution. He did not understand what was so highly undesirable about the Committee’s proposal.

Mr Louw stated that he had spoken about the Chapter 9 principles, saying that the rest of the Chapter 9 provisions for dismissal of people should be ignored. These were perfectly proper provisions for the institutions for which they were developed, such as the Public Protector and the AG. However the public broadcaster, the SABC, had to be a well-protected institution that was independent of political influence, specifically political party influence. This required a special set of rules.

Mr Khumalo commented that the Committee understood SANEF's plea for the SABC Board to be appointed by the greater community, as they were a public broadcaster. This was a discussion that had to be continued. He stated that it was unfortunate that there was the perception that the current ANC ruling party wanted to replace the Board with ANC supporters. There was not even an audit done on the political affiliations of the members on the SABC board. There were two DA supporters in the board, three AZAPO members in the board, and a few other members who were affiliated to parties other than the ANC.

The Chairperson stated that SANEF was raising important points about procedures by which Board members were appointed. The Committee had decided that it was time to review the current model that was in practice. The Bill was thus attempting to address another model. He stated that even if the Committee decided to adopt any of the models for appointment that were being suggested in the submissions, this would not enable another SABC crisis to be addressed. The SABC was a state owned entity. In other countries it could be accepted that if the Board became dysfunctional, a shareholder meeting would be called and a new Board would be appointed in the interest of the entity. No adequate mechanism for the SABC was contained in the current legislation, as it was up to the Board itself to decide if it wanted to remove members. This was the issue that the Committee was trying to address. The Committee wanted to know what mechanisms would be put in place to enable Board members to be recalled. The answer might lie in the procedure that was used. The Committee believed that it needed to review the Broadcasting Act. The ultimate question was to whom the Board must be accountable.

Dr Mulder stated that he had been involved in appointing all the SABC boards except the last one. This was done intentionally. He had said in a statement that it was a waste of time. The Committee had started off very positively at first, deliberating, debating and compromising on issues, but slowly it became a one-direction process. There was a proportional voting system. However, if one looked at, for example, the German model, the strongest party there received 43% voting power. The reason South Africa’s voting system was not working was that at the moment there was a party with 70% voting power. He hoped still to be present at the point when no party enjoyed more than 50% voting power. The model that SANEF was proposing could work in this situation. He wondered if there should be a long-term model for the current proportional voting system.

Mr Louw stated that SANEF was opposed to the present system, which was a political system. SANEF suggested that a meeting be convened in which all the issues could be discussed and a process could be devised for the process of selection for the SABC board. 

Mr Pieterse stated that the Committee had decided to use its own initiative after the Minister was not present following numerous complaints from the Committee and her own party. He said that it was ironic that SANEF would come to the SABC’s rescue. There were talks about accountability to the public. He wanted to know how one could account to the public. He assumed it was through MPs, who were in office through the public process of voting. He wondered how the Board would get the public together to account for its actions.

Mr Louw stated that MPs were representatives of the public. They were also representatives of the majority party in Parliament, which meant that they were representatives of a section of the public. Therefore, they should encompass the majority of the public in an institution like the SABC, which was a public service broadcaster, rather than a section of the public.

Mr Louw stated that all the political parties who were members of the Campaign for Independent Broadcasting (CIB) agreed to the CIB proposals, which were in fact civil society operations. It was not as if this was an idea that “came out of the blue” without political support. The new government had, after the 1994 elections, decided to make this a purely political process by keeping it within the Parliamentary confines. The nominations for the Board came from the public but the selection and hearings of Board members were conducted within Parliamentary confines. Prior to the 1994 elections, all the parties had agreed to the CIB system. There was another system that could be used. The system already included a body that consisted largely of lawyers and some MPs. This was a distinct organisation that appointed members. SANEF was proposing a similar structure that was composed of civil society. The public service broadcaster was a very special institution, it was the only body of its kind in the country, and it required to be dealt with in a special way. 

The Chairperson stated that he had heard a lot about the central role that civil society had to play in the independent SABC Board accountable for its actions. He thought that people also had to think about financial accountability. If an institution was utilising public funds, there had to be a reporting mechanism that held members of that institutions accountable for the use of the funds.

Civil Society Coalition: Save Our SABC, the Media Monitoring Project, the Freedom of Expression Institute and the Independent Producers’ Organisation of South Africa (IPO) Submission
Ms Kate Skinner, Coordinator for the Civil Society Coalition, stated that piecemeal amendments to the Broadcasting Act would not solve the SABC crisis. The Committee needed an assessment of the root causes of the crisis, as well as a Green Paper/White Paper process leading to the promulgation of a new SABC Act. She stated that the Coalition would support the Amendment Bill as a short-term measure if the Bill’s scope were broadened.

The Committee’s Amendment Bill needed to be broadened to look at the appointment of the SABC board, qualifications of Board members, disqualification of Board members and conflict of interest issues. The Coalition had drafted a Bill that set out this broader scope and looked at public interest clauses for the establishment of an interim board. The Coalition’s Bill looked at appointment clauses that ensured greater public participation and transparency and dealt with the appointment of executive members to the Board. The Coalition’s Amendment Bill also looked at qualification clauses that would ensure that Board members were committed to freedom of expression and that the Board was broadly representative of society and various interest groups. The interim Board clauses ensured that the interim Board sat no longer than three months and that it never sat over an election period.

Ms Justine Limpitlaw, Senior Researcher, University of Pretoria, stated that the Committee’s Amendment Bill did not address the short-term problems in the Broadcasting Act that led to the current crisis ion the SABC. The Coalition’s Bill proposed a number of amendments to Section 13 of the Act, specifically to improve and strengthen the Board appointment provisions. The Coalition’s Bill also amended Section 14 to provide for the appointment of senior management in line with corporate governance principles. The Coalition proposed the replacement of Section 15 of the Act to set out objective criteria for removal of all Board members, to set out processes for the removal of both executive and non-executive Board members and to make provisions for an interim Board appointed by the President. Section 16 of the Act had to be replaced to avoid conflicts of interests and to protect against political interference as well as commercial interference. The Coalition then proposed the deletion of Section 17, as its provisions were incorporated in to the proposed Section 16.

Mr William Bird, Director, Media Monitoring Project (MMP), stated that the Bill in its current form would lead to further crisis. It was important that the public broadcaster was independent from political influence. The MMP thought that political parties had to be excluded from being able to nominate Board members, as the core principle of public broadcasting was independence. Political parties would always promote the views of the party, as was their right; however such views were always biased and would lead to the real or perceived undermining of the credibility and independence of the SABC.

Ms Jane Duncan, Executive Director of the Freedom of Expression Institute (FXI), informed the Committee that the Broadcasting Act gave the SABC editorial independence. However, the SABC’s corporatisation reconfigured the relationship of the Board to the Minister. The Broadcasting Act had to be amended to ensure that non-executive directors were responsible for appointing executive directors. To the point that the Articles of Association were illegal, they should be amended to ensure that the Board enjoyed the necessary levels of independence.

Mr Zaheer Goodman-Bhyat, Member of the Film Committee, Independent Producers’ Organisation of South Africa (IPO), stated that while many aspects of the crisis were regularly documented in the media, the impact of the crisis on the day-to-day management of the SABC was less well documented. The IPO noted the Committee’s recent deliberations on the SABC; but was mindful of the need to preserve the legal framework that entrenched the SABC’s independence.

The IPO pointed out that there had been significant problems in management and governance in the SABC that preceded the current crisis. The IPO believed that the current crisis was at least partly caused by actions that took place in the process of appointing the current Board.

The Committee’s Amendment Bill would allow for the Board to be removed by the President following a resolution of the National Assembly. It was the IPO’s considered view that the proposed amendment would undermine the SABC’s independence and the perception of its independence. The Act and the proposed Committee Amendment set out grounds for the removal of an individual member of the Board but did not set out any grounds for the removal of the Board as a whole. This was too broad a power, which further exacerbated the threat to the SABC's independence.

The IPO recommended that a Commission of Enquiry be established into the conduct of the SABC Board and that the Commission be appointed with terms of reference that allowed it to consider and make recommendations concerning the appointment process of the Board and processes for the removal of the Board. The IPO also recommended that the Committee request the Board to resign, on the grounds that there was an irretrievable breakdown in its ability to perform its duties. Alternatively, the Committee could request that the President ask the Board to resign on those grounds.

Discussion
Mr Pieterse stated that challenges with the SABC did not start when the Committee initiated the changes in the legislation. He wondered where the Coalition was before the amendments were proposed. He asked whether the institutions thought there was enough time to do a complete change in the legislation, given that the MP’s term ended in a few months.

Ms Skinner stated that the Coalition was now in full swing and that they had done a lot of work around the new Bill. The Coalition’s submission looked at the Green Paper and White Paper process.

Ms Skinner stated that the Coalition was not saying that it wanted to change the entire Bill; but it did want to broaden the scope of the Bill that the Committee had tabled. It was looking at the immediate concerns in the Bill, and the medium to long-term issues around the Green Paper and White Paper process.

Ms Duncan thought that Mr Pieterse’s implicit criticism that the Coalition was rather belated in its defence of the SABC was correct. The Coalition came together in recognition of the fact that there could be a stronger civil society organisation if they all acted together. The Coalition was committed to getting itself in order.

Mr Kholwane stated that the Committee and those making submissions needed to have continuous engagement. He observed that nobody had raised issues with the Committee before this amendment to the legislation was proposed. The Committee had to deal with matters as they happened. He stated that in the past everybody had “washed their hands” of the SABC matter. The Committee was now trying to fix the legislative shortcomings so that nobody could “wash their hands” of the matter in the future.

Ms Skinner stated that the Coalition welcomed the idea of consulting with the MPs about the legislation on a regular basis.

Ms Duncan agreed that the Coalition welcomed greater interaction with the Committee. The Coalition had voiced its complaints to ICASA about certain issues regarding the SABC. She stated that the Coalition wanted the opportunity to brief the Committee on those complaints, as it wanted to draw to the Committee’s attention the fact that the SABC's responses to the complaints were contradictory. 

Mr Khumalo explained that the Committee had concentrated on Section 15 of the Broadcasting Act because the Committee had found that there was a defect in the law around removal of Board members. After the Board had leaked a memorandum to the newspaper, they had told the Committee that they were going to investigate how it happened. That Board was still investigating the matter to this day, and this was what necessitated the amendment process. He stated that he was not sure about the idea to collapse Section 17 of the Act in to Section 16. The Committee needed to discuss the Coalition’s proposal that the interim Board should not to extend to more than three months, and that it was not to be implemented during the election period. He wondered what would happen if there was another SABC Board crisis during the elections. This needed to be discussed further.

Ms Limpitlaw answered that the Coalition was suggesting the removal of Section 17 only if the Coalition’s proposed amendments to Section 16 were not incorporated in to the Committee’s Bill.

On the issue of the interim Board, Ms Limpitlaw replied that this was a vexed decision for the Coalition. Initially, there were a number of people who thought that the very concept of an interim Board was problematic. However, the Coalition recognised that in the extraordinary event that Parliament fired each and every Board member, there was the chance that the SABC could not go on air. The Coalition recognised that this would be a crisis. The Coalition also recognised the Presidency’s role in the matter, but was unhappy with the complete and open discretion that the President had, in the Committee’s current Bill, to appoint exactly whom the President wanted. An appointed Board member need not have any expertise or experience in the field of broadcasting, and this could not, in the public interest, be correct. There had to be strict limits on this issue and therefore it was suggested that the interim Board could not last longer than three months. There could not be a handpicked interim Board during an election period. This would devastate the public perception of the independent broadcaster and it would call into question the legitimacy of the election itself.   

Ms Limpitlaw stated that the crisis issue was discussed in the Coalition’s submission. The issues around funding and the structural dysfunction between the public and commercial structures in the SABC were long-term projects. These were projects that the SABC was considering for a number of years. She did not think that this project could wait until after the elections. She wondered why the process could not be initiated with instructions from the Committee to the Department of Communications to start a policy review process of the SABC. There had to be a Green Paper process asking the correct questions and a White Paper process taking proper public consultations to develop the policy, and thereafter a properly structured SABC Act to put the Board in place.

Mr Pieterse stated that he understood the need for an independent board, but questioned whether they were taking a risk by questioning the work of good quality, high integrity people involved in public broadcasting.

Ms Limpitlaw stated that one of the great tragedies of the SABC crisis was the devastation on morale and the working ability of the SABC management. The fact of the matter was that in any large-scale corporation, the strength of any corporation lay in the quality of its leadership. Parliament had to take responsibility for the quality of the SABC's leadership and had to ensure the integrity of its work.   

Ms Smuts stated that the country was entering a really difficult era, and it was entering totalitarianism. She asked if it was possible for the Coalition to approach the court on the disparities between the shareholder agreements and the law, as this would be a more fruitful move than supporting an interim arrangement. She said that it was not true that everybody had “washed their hands” of the SABC matter. It was her understanding that the Board was trying to deal with the problem, which was the CEO, but he kept taking the matter to court.  Mr Dali Mpofu, Group CEO of the SABC, had told the Committee that issues at the SABC were being resolved. She asked if this was indeed the case. She asked if the IPO’s issue with the SABC was being resolved.

Mr Kholwane stated that the ANC would respond to Ms Smuts’ political assault.

Ms Duncan answered that the Coalition had every intention of approaching a court to get a declarator on the Articles of Association, but recognised that it was proper procedure to go through certain steps first. Firstly, the Coalition had met with the SABC to present the contents of the Coalition’s legal opinions. Secondly, the Coalition wrote to the Minister and sent copies of the legal opinions to her. The Coalition had since updated the legal opinions to take into account the revisions of the Articles of Association. It had found that in certain respects, the revised versions of the Articles of Association were actually worse than the 2003 version. These steps had been taken in order to give the Minister the opportunity to correct the deficits found in the Articles.

Ms Duncan stated that the SABC had informed the Committee that the SABC was in the process of implementing its findings. The Group CEO had admitted that there had been wrongdoing on Snuki Zikalala’s part. However, in response to the Coalition’s complaint to ICASA, the CEO argued that there was no wrongdoing on Snuki Zikalala’s part and fully justified his actions. The Coalition wanted the opportunity to interact with the Committee, and  to prevail on the Committee to pose the necessary questions not only to the SABC, but to ICASA as well. ICASA, frankly, was “sleeping on the job”. The Coalition did not hear ICASA’s voice in relation to what was happening at the SABC at the moment. The only reason that the Coalition submitted a complaint to ICASA alleging violations of licensing conditions in the Broadcasting Act was because ICASA failed to investigate the matter. The Constitutional Court made it clear that the fundamental feature of a regulatory power was the power to interrogate and investigate matters. ICASA was letting people down by not being proactive in the SABC crisis. 

Mr Goodman-Bhyat informed Ms Smuts that the IPO and the SABC had agreed to a process in which they were investigating international terms of trade. They expected to have results by the end of October. They were investigating international best practice, which they hoped the SABC would then implement.

The meeting was adjourned.