ICASA Councillor fraud charges; interim SABC Board member appointment; Director-General misleading Parliament: legal opinions, with Deputy Minister present

Meeting report

Legal opinions by the Constitutional and Legal Services Office of Parliament
The Committee had requested legal opinions on three matters from the Parliamentary Legal Adviser. The Constitutional and Legal Services Office was represented by Mr Michael Prince, Parliamentary Legal Adviser. Copies of the opinions were circulated to Members of the Committee for consideration

Legal opinion on Committee mandate to monitor charges brought against an ICASA Councilor
The matter arose after it came to light that Mr Mohlaloga, an Independent Communications Authority of South Africa (ICASA) Councilor, had been charged with defrauding the Land Bank. The Minister of Communications had requested guidance from the Committee on what appropriate action needed to be taken.

Ms M Shinn (DA) expressed disappointment with the advice that no action could be taken against Mr Mohlaloga. She understood that charges had been brought but Mr Mohlaloga had not yet been convicted by a court of law. However, the charges were laid shortly after his appointment as ICASA Councilor. In her opinion, Mr Mohlaloga would have been aware of the investigation into his wrongdoing at the time when he was appointed to the position. The ICASA Council was also aware of the allegations against Mr Mohlaloga. She felt that Mr Mohlaloga should be persuaded to resign his position as ICASA Councilor. The Committee should not be seen to condone the appointment of a person who was facing such serious charges.

Ms R Lesoma (ANC) pointed out that the legal advice provided to the Committee was that Mr Mohlaloga was presumed to be innocent of the charges brought against him until otherwise proven by a court of law. The Committee cannot pre-judge him before he is convicted by the court.

Mr C Kekana (ANC) said that it was important that the Committee respect the rule of law (i.e. innocent until proven guilty) and refrain from taking action until judgment was handed down by the court.

Ms R Morutoa (ANC) agreed with the position taken by Ms Lesoma and Mr Kekana.

Ms J Kilian (COPE) was also disappointed by the advice that no action could be taken at this time. The matter had a negative effect on the credibility of the Committee. The Minister had approved the appointment of Mr Mohlaloga in September 2012. Charges were laid against him soon after his appointment to the ICASA Council. Mr Mohlaloga had not revealed to the Committee that allegations of fraud had been made against him during the interview process. She asked if Mr Mohlaloga was currently being paid and if he was participating in Council meetings. She wondered what the impact of the allegations had been on ICASA. The legal process was lengthy and Mr Mohlaloga had the right to lodge an appeal against a guilty verdict. The Committee was unable to legally remove Mr Mohlaloga from the position but it was important that the current situation was clearly understood so that alternative courses of action could be explored. The current situation was untenable.

Ms Lesoma said that all parties were concerned over the loss of credibility. The matter did not arise during the interview process and the Committee only became aware of the allegations after Mr Mohlaloga was appointed to the position. The Committee had immediately requested legal advice on the matter. The advice was that the Committee request the Minister to keep it informed of all matters related to the fraud case. The ICASA Council was likewise unable to take any action while the case was pending. The Committee needed to carry out its oversight responsibilities and ensure good governance at the entities it was responsible for conducting oversight over.

Ms Morutoa said that the legal advice given to the Committee was clear. The questioning of the advice could be interpreted that the Committee did not have confidence in the Parliamentary Legal Adviser.

Mr B Steyn (DA) agreed that a person was innocent until proven guilty. The Committee had not requested advice on what action could be taken if Mr Mohlaloga was aware of the case against him when he was interviewed for the position and if he had willfully misled the Committee.

Ms Shinn said that the Committee was in an untenable position and needed to find a way to deal with the situation. It was accepted that there were no legal means to remove Mr Mohlaloga from the post. She understood that Mr Mohlaloga continued to be employed by the Department of Communications (DOC) and that he had not yet taken up his position as ICASA Councilor. She suggested that Mr Mohlaloga be encouraged to stand down. It was her understanding that the allegations against Mr Mohlaloga had been an “open secret” but Members of the Committee only became aware of the matter after it was reported in the press. The appointment of a person who was accused of fraud had caused significant embarrassment to ICASA and to Parliament.

Ms Morutoa asked if a “Hansard record” of the interview with Mr Mohlaloga was available. She could not recall what questions were asked to the candidate by the Members.

Ms Lesoma pointed out that Members would have asked about the allegations if they had been aware of the accusations.

Ms F Muthambi (ANC) suggested that the Committee accept the legal advice and advise the Minister accordingly. The Committee could not pre-empt the verdict of the court and Mr Mohlaloga should be allowed to continue to occupy his current position.

Ms Kilian disagreed with the position taken by the ANC. The Committee had asked all the candidates if there was any reason that would compromise their appointment to the position of ICASA Councilor. She recalled that the Committee had requested written statements of suitability from candidates on previous occasions. The Committee would be blamed for the fiasco and needed to be seen to have taken action to prevent any recurrence in future. She wanted to know if Mr Mohlaloga was participating in ICASA Council meetings.

The Chairperson said that Mr Mohlaloga had not yet been found guilty of the charges against him by a court of law. He was not sure if the law enforcement agencies were obliged to inform anyone that a person was under investigation. It was not known that Mr Mohlaloga was aware of the allegations against him at the time he was being interviewed by the Committee. The charges of fraud were only laid after his appointment. The Committee could not be held accountable if accusations were made after the parliamentary process was completed. He understood that Mr Mohlaloga had not yet entered a plea. The Minister had referred his appointment back to Parliament and as far as he was aware, Mr Mohlaloga had not taken up his duties as Councilor. He understood that the DOC had also sought legal advice on the matter and had received the same opinion as was given to the Committee. No action could be taken until a fraud conviction was handed down by the court.

Ms Shinn suggested that the Committee investigate whether or not Mr Mohlaloga was aware of the Land Bank investigation at the time he was being interviewed for the Councilor position and if he had made a truthful declaration. A person with any integrity would have excused himself from the appointment. She suggested that the Committee find a way to resolve the situation diplomatically. She warned that the matter would not be allowed to rest until it was resolved.

Ms Morutoa disagreed with the position taken by Ms Shinn. She suggested that the Committee accept the legal advice received.

Ms Kilian agreed to the suggestion made by Ms Shinn. She asked for copies of any undertakings signed by Mr Mohlaloga, transcripts of the interview and the responses to questions be made available to the Members of the Committee. It was accepted that the law would take its course but it was necessary for the Committee to determine if there were any weaknesses in its own processes. It was necessary to establish if the legal process was under way at the time the interview took place. The Committee needed the assurance that Members had carried out their duties to the best of their abilities.

The Chairperson suggested that the relevant provisions in the ICASA Act be reviewed. He had explored all possible alternatives but had come to the conclusion that the Committee had no other legal recourse. He was not convinced that the alternative suggestions made by the Members would bear any fruit.

Mr Steyn said that the legal advice provided to the Committee was not under dispute. He asked if the Committee could request written confirmation whether or not Mr Mohlalago was aware of the fraud allegations at the time of the interview.

Mr Prince referred the Committee to Section 5 of the ICASA Act. Subsection 4 listed the requirements Councilors had to adhere to. Subsection 6 specified that a Councilor could be dismissed from his post if he was convicted of fraud. The Act made no provision for instances where a Councilor was charged with fraud. He could not express a view on any action that fell outside the legal framework.

Ms Shinn said she was attempting to establish if any undertaking to the Committee that was signed by Mr Mohlaloga, was truthful. She wanted formal assurance that Mr Mohlaloga was not aware of the fraud charges that were subsequently laid against him when he appeared before the Committee.

The Chairperson said that it was immaterial whether or not Mr Mohlaloga knew about the allegations. He had not yet been convicted of fraud and the Committee cannot take any action that would infringe on his constitutional rights.

Ms Shinn felt that the Committee would not have recommended the appointment of Mr Mohlaloga to the position if the Members were aware that he was being investigated by the Land Bank for fraudulent activities.

Mr Kekana and Ms Lesoma agreed that the Committee could not pre-empt the verdict of the court and could not take action that would violate a person’s rights or compromise his reputation. The Committee should take the legal advice provided by the Parliamentary Legal Adviser and act within the legal framework.

The Chairperson said that the Committee would consider amendments to the ICASA Act in the light of the practical experience that had been gained.

Ms Kilian agreed that the legislative provisions could be improved. It was essential that persons with integrity were appointed to such positions. She suggested that the Committee consider requiring candidates to sign a document attesting to their suitability for the post. She observed that the matter had been costly in ways other than financial.

The Chairperson said that the Committee could only act within the law. He would seek advice on the legality and content of a document as suggested by Ms Kilian.

Legal opinion on the appointment of a member of the Interim SABC Board
The matter arose from the appointment of Dr Iraj Abedian to the Interim Board of the South African Broadcasting Corporation (SABC). Dr Abedian was Chairman of Bigen Africa (Pty) Ltd. The policies of Bigen Africa prevented its directors from being employees of the State. The appointment of Dr Abedian to the Interim Board of the SABC classified him as an employee of the State. Dr Abedian had raised his concern with the Company Secretary of the SABC that his appointment to the Board was a possible conflict of interest and would negatively affect his company and his position as Chairman. The Chairperson of the Interim SABC Board had requested the Minister of Communications appoint a replacement Board member in his stead, preferably someone with legal skills.

The legal advice provided by the Parliamentary Legal Adviser was that the Committee had the obligation to report the situation to the National Assembly and to recommend a suitable candidate to replace Dr Abedian. Section 15A of the Broadcasting Act did not specify the procedure that had to be followed in the recommendation of a member of the Interim SABC Board.

Ms Kilian was concerned that the Committee did not have a document from Dr Abedian that set out his concerns and was reliant on a communication from the Chairperson of the SABC Board, which could be an interpretation.

The Chairperson advised that he had included a letter from Dr Abedian in the documents forwarded to the Parliamentary Legal Adviser.

Ms Kilian asked for a copy of the letter to be made available to the Members of the Committee. She had been surprised by the conclusion that a member of the Board was regarded as a State employee. Members of the Boards of State institutions received remuneration but were not entitled to full employee benefits.

Ms Shinn had been dissatisfied with the process followed in the appointment of the Interim Board. She felt that the process had been unduly rushed. She suggested that the Committee approach the Institute of Directors and request a list of suitably qualified candidates that could be considered for appointment to the SABC Board. This approach had been successful in the appointment of the Board of Telkom. She suggested the Committee consider amendments to the applicable legislation to make provision for the appointment of members of an interim Board.

Ms Stella Ndabeni, Deputy Minister of Communication, understood that Dr Abedian had raised concerns over his appointment in the first instance. The issue was not raised by the Committee or the Minister. The fact was that Dr Abedian did not wish to accept the appointment. She supported the suggestion that the Institute of Directors be approached and suggested the Committee requested the Institute to provide a list of at least ten potential candidates. The responsibility for recommending a replacement member of the Interim Board rested with the Committee. She agreed that the legislative provisions could be improved.

Ms Lesoma accused Ms Kilian of inferring that the appointments made by the Committee could not be trusted. She felt that doubt had been cast on the ability of the Chairperson of the Interim Board of the SABC. She felt that the issue was being complicated by the raising of side issues and that the focus should be on the matter at hand. She asked if it was necessary to appoint another member as the term of office of the Interim Board expired in four months’ time.

Ms Morutoa supported the comments made by Ms Lesoma. The matter was straightforward and Members should refrain from raising other matters that delayed the process.

The Chairperson said that the Committee needed to report on the matter to the National Assembly. Consideration needed to be given to whether it was necessary to appoint a replacement member of the Board and the process to be followed to identify suitable candidates.

Ms Shinn pointed out that the Act required at least five persons to serve on the Board. The Chairperson of the Interim Board had requested that a person with legal and corporate governance experience be appointed. There was clearly a need for legal expertise on the Interim Board of the SABC. She suggested that the process to appoint a replacement member of the Board be finalised as a matter of urgency as the term of office of the current Board expired in four months’ time.

Ms Kilian was of the opinion that the Committee was legally compelled to appoint a replacement Board member. The process to identify suitable candidates needed to commence as soon as possible. The Committee needed to consider the reports of the DOC in following meetings. She had always supported the concept of free debate in the Committee but had become aware of a tendency by Ms Lesoma and Ms Morutoa to “attack the person rather than the issue”. Members should not cast doubt on the integrity of other Members of the Committee. She asked for protection from the Chair.

The Chairperson observed that English was not the first language of all Members of the Committee and that the remarks made could have been misinterpreted. The Committee needed to find a replacement for Dr Abedian and to identify a suitable candidate for recommendation. The person concerned should have expertise in corporate law.

Legal opinion on action to be taken by Minister of Communications against the Director-General of the Department of Communications for misleading Parliament
The matter arose when the Committee observed inconsistencies in statements made during meetings held in October/November 2012 by Director-General of the DOC, Ms Rosey Sekese, and the Deputy Minister of Communications concerning the signing of a performance agreement for 2012/13. The Committee had written to the Minister of Communications on 7 November 2012 to request that appropriate action was taken and that the Committee was informed accordingly.

The advice from the Parliamentary Legal Adviser was that the onus was on the Minister to decide what disciplinary action was appropriate (if any was necessary), after an internal investigation was undertaken. The Committee had the authority to call on the Minister to provide a report on the matter.

Ms Shinn did not find the advice provided to be helpful. The Minister had not responded to the Committee’s previous request and she doubted if a second letter to the Minister would resolve the matter.

The Chairperson observed that the Minister had responded positively to all previous requests from the Committee to provide input. The Committee would invite the Minister to report on the action that had been taken in this matter.

Committee Report on Government Communication and Information Service (GCIS) and Media Development and Diversity Agency (MDDA) 2013 strategic plan and budget: adoption
Copies of the draft report dated 7 May 2013 were circulated to Members for comment. The Committee Secretary had incorporated suggestions to improve the grammar and had corrected spelling errors in a subsequent version of the draft report. The report would omit mention that Budget Vote 9 was not supported by the DA as such declarations were more appropriately made in the House.

The Committee considered the draft report at length and made further suggestions for improvement. The Committee adopted the report, with amendments.

Ms J Kilian (COPE) and Ms M Shinn (DA) advised that their respective parties supported the report as an accurate reflection of what had transpired during the briefing on the strategic plans and budget of the GCIS and the MDDA. Both parties reserved their positions on the budget of the entities concerned.

Other matters: Responsibility for Brand SA
The Chairperson advised that the Committee would remain responsible for Brand SA although the entity was not the responsibility of the GCIS or the DOC. Brand SA would be included in the President’s Vote. The strategic plans and budget of Brand SA had been published but would not be presented to the Committee.

The meeting was adjourned.