Minister of Communications on actions against Director-General for misleading of Parliament; SABC Board member interim appointment

Meeting report

Briefing by the Minister on actions taken against the Director-General for misleading Parliament
Ms Dina Pule, Minister of Communications, apologised for the incident with the Director General. It was necessary for her Ministry to deal with the issue.

The Minister referred to the matter of inconsistencies of statements made by the DOC Director-General, Ms Rosey Sekese, concerning the signing of a performance agreement for 2012/13. The Committee had written to the Minister on 7 November 2012 to request that appropriate action was taken.

The Minister reported that she had sought appropriate legal advice, and advice from the Portfolio Committee, who had cautioned that she had to speak to the Department of Public Service and Administration (DPSA). The appointment of a DG was shared between the Department of Communications (DOC) and the DPSA. The Minister noted that she had engaged with the Minister of Public Service and Administration. After seeking legal opinion, the DG was placed on leave, on 14 December 2012.

Whilst on leave, the DG took the Department to the Labour Court. The Labour Court ruled that the DG be reinstated until there was a decision about charging or disciplining the DG. There was an opportunity to seek advice about steps to take about other issues in the Department. When the DG was reinstated, it was decided to review her Human Resources responsibilities, as she had not fulfilled them. The HR responsibility was handed to a Deputy Director-General.

The Minister continued that she had engaged State Law Advisers, to work on appropriate steps to take, and was working with the DPSA. She had recently met with the Minister to check how far the matter had progressed. There would be legal opinions available by the coming Friday.

The Minister also referred to the meeting of the Appropriations Standing Committee the previous week, where there were problems with the delegation of authority by the DG to a Deputy Director-General, as a result of which the meeting had adjourned.

Discussion
Ms M Shinn (DA) noted that the Committee had decided at the end of the previous year that the Minister had to take the matter up. But it was already the beginning of June, six months later. Why it had taken so long?

The Minister replied that there was reason for concern about timelines. It was a problem for the Department. It was not possible to work without a DG. The DG was first administrative adviser to the Minister. The DG was appointed by Cabinet through the Minister. The Minister could not act on her own, she had to go through the Department of Public Service and Administration (DPSA). It was generally difficult to deal with DGs. It was not only the DOC that was challenged. In the past people had to be transferred to other departments. There was a legal lacuna. The State Law Advisers were working on how to take the process forward. It was not possible to take a decision immediately after the Portfolio Committee raised the matter. The DG could simply have run to the Labour Court.

Ms J Kilian (COPE) asked if an Acting DG had been appointed, and if so, how much had been paid out. She asked if it was currently a matter of having to pay for two DGs.

The Minister responded that no allowance had been paid out to an Acting DG.

Mr A Steyn (DA) asked if legal advice sought when the DG was placed on special leave, was separate from the legal advice currently sought. He asked about legal advice sought when the Labour Court ruled that the DG be reinstated.

Mr Steyn remarked that the HR situation in the Department was crucial. Responsibility for that had been taken away from the DG. He asked if that was a correct action to take. He asked about the legal advice that was due at the end of that week.

Ms S Tsebe (ANC) said that she understood the delegation of powers to be the responsibility of the Minister. The DG had provided an apology for her absence at the Appropriations Committee the previous week, in which she had stated that all powers had been taken from her. She asked if removal of powers had been communicated in writing.

Ms Tsebe asked what the DG was currently doing. She had not attended budget process meetings. She asked why nothing was heard from the DG, when she had been reinstated.

The Minister replied that she had not known that the DG was not attending budget process meetings. The DG was preparing for the budget speech in April, but then she disappeared. She was not there to finalise the budget speech. She was obliged to hold Executive Committee meetings, which she did not do. She did not commit herself. When she was reinstated, she asked for leave straight away, but she still insisted to deal with her documents. The Minister was not seeing her face to face. She had asked the DG the previous week for diaries from her and the DDG. She said that she could not send the diary because her HR responsibility had been reviewed. The DG did not understand what was meant by review. The Minister could delegate authority to the DDG. HR functions had been delegated to Mr Gift Buthelezi. But the DG was still the DG, and she was obliged to do the work. The delegation of HR to Mr Buthelezi had resulted in progress with the appointment of senior officials in the Department.

Ms Tsebe agreed with Ms Shinn that the matter was proceeding very slowly. She asked when it would be concluded.

Mr C Kekana (ANC) referred to the way in which powers had been delegated to the DDG for the adjourned Appropriations Standing Committee meeting the previous week. There were whisperings going on about the DG being absent. In situations like that, the Committee had to be kept informed. The letter received by the Appropriations Chairperson, Mr Sogoni, did not explain powers delegated from the DG to the DDG. Not having any written explanation complicated matters. If the DG was not there, the Minister had to explain how things had to proceed. The matter had caused unhappiness and embarrassment.

The Minister replied that it had been embarrassing for her as well. She had written to Mr Sogoni that same afternoon. The DG had not indicated to the Minister that she would not be attending. The DG had written a letter to the Appropriations Committee that she would not be able to attend. She had claimed that her delegation of authority had been reviewed by the Minister. Yet she had delegated authority to Mr Gift Vilakazi, the DDG. The Minister stated that she had not withdrawn powers of delegation. The DG had used the phrase “reviewed”, not “removed”. But she did not say what had been removed. Then she had in fact delegated, although she claimed that she did not have that power. Only her HR responsibility had been taken away and reviewed. She was not coping well with that responsibility. Posts advertised the previous year had not been processed and filled. When she was sent on leave, there was delay caused by the Court decision. An Acting DG was appointed, who was doing well with HR at the time. The Minister wanted him to continue with that responsibility. All other responsibilities still rested with the DG.

Ms Kilian referred to the delegation of authority. In terms of law the DG was the Chief Accounting Officer of a department. It was important in terms of the Public Finance Management Act (PFMA). The Minister had said that she was responsible for the functioning of the Department. The Minister was politically accountable, and the DG was administratively accountable. There had been unnecessary expenditure on labour matters due to lack of advice from State Law Advisers. The DG had to delegate in terms of the organogram in collaboration with the Minister. If all responsibility rested with the Minister, there was cause for concern. The DG was the administrative head, and tampering with DG functions could run the risk of going against the PFMA. The DG could protest that her administrative functions had been tampered with. She asked if all responsibility was currently with the Minister. The Public Service Act stated that the DG was the administrative head.

The Minister replied with regard to legal advisors, that she had to delegate power to the appointed DG. She herself could not implement spending. It had to be delegated to someone who could give administrative assistance. In that situation the Minister was in an oversight capacity. The Minister had to review, withdraw, or hand a responsibility to a person who could do better. She said with regard to other issues, that she did not want to put the DG in a defensive mood.

Mr Steyn agreed with Ms Killian in questioning the legality of taking the HR function away from the DG. He asked about legal advice sought when the DG was on leave, and who had been involved.

Mr Steyn referred to the statement by the Minister that there had been no face to face meetings with the DG since she had been reinstated. The DG had been sent back by the Court as Head of the Department. If there were no meetings of the Executive Committee, it meant that the DOC was a leaderless department. The Minister had to contact DDGs to present reports. The DG had been told by the Court to fill her job, and she was not doing that. The Minister should have dealt with the matter earlier. The Minister was not firm enough with the DG.

The Minister told Mr Steyn that it was important that he understand precisely what she had meant. She had not said that the DG and herself did not meet at all. Fact was that the DG disappeared from time to time. She had asked for leave, and had then said that she was not well. The Minister said that she understood what was happening in the Department. A Strategic Plan aligned to the budget, had been presented. It was hard to work with someone who chose when to render support.

Ms W Newhoudt-Druchen (ANC) referred to the fact that the Minister was the political head, and the DG the administrative head. If administrative duties were taken from the DG, the question was who took responsibility. She asked if the Minister of Public Service and Administration was involved. Had it been reported to the DPSA that the DG had been absent from budget debates?

Ms Druchen asked if the DG had sent a certificate when she said that she was sick. She asked if such a certificate had to go to the Minister or to the Minister of Public Service and Administration. It was normal practice for the DG to sign documents. She asked why documents did not go to the DDG.

Mr Kekana remarked that he understood the Minister to be saying that powers delegated to the DDG for the previous week’s Appropriation Committee meeting had been in order. The meeting could have continued. For future reference it was necessary to first present an explanation. He asked if it was necessary to insist that the DG come to Parliament, or whether the Minister advised that DDGs be delegated to. It was a clouded situation.

The Minister replied that the DG had to go to the Appropriations Committee. As for the previous week, the DG had in fact delegated properly to the DDG of Government and Administration. But she herself did not even know that the DG would not go. She only heard about it when the meeting had been adjourned.

Ms Tsebe noted that only the HR responsibility had been reviewed, and that good progress had been made with HR since. The letter of apology for absence from the DG had made it look like all her responsibilities had been removed. The DG had misled Parliament.

The Minister replied that when she read the letter of apology she realised that it contained a contradiction. The DG had claimed that she had no powers, but yet had delegated powers to the DDG. That was why she had written to Mr Sogoni.

The Chairperson commented that a look at Committee reports since 2009 indicated that the Committee had been complaining since then about the slow pace at which vacancies were filled. It was not an occasion for blame, the Committee wanted to listen to the Minister’s views.

The Minister replied that that was the reason why she did not want to speak about other processes.

The Chairperson remarked that there had to be balance. The Minister had to take appropriate actions for the misleading of Parliament. The Minister had to wait for the report from legal advisers, and then had to take final actions.

Ms Shinn asked if the operations of the Department were being legally jeopardised on account of the absence of the DG.

The Minister replied that the work of the Department had not been compromised. All DDGs worked through the DG, and all documents were signed by her. There was communication, and at least a paper trail of work.

Ms Kilian asked if the Department had complied fully with the reinstatement order. She asked if removal of functions could amount to contempt of Court.

The Minister replied that the DG had been fully reinstated. The review of responsibilities had only been done after legal advice had been sought.

Mr Kekana asked that the Committee be kept abreast and updated about the positions of the DG and the DDG.

The Chairperson concluded that the Minister would wait for the legal information, and inform the Committee once she had received it. He told the Minister that the Committee would interact with her once she had received it. The Department had started to fill vacancies. He hoped that there were no legal challenges. He told the Minister that Committee Members were asking her to take control. If the DOC did not perform, she would be in the firing line. She had to take responsibility within the rules. The Department had to lead the ICT sector in the country.

The Minister thanked the Committee for support and guidance.

Appointment of a person to the interim SABC Board
The Chairperson noted that the ANC had not been ready to engage about the matter, the previous week. The IFP wanted to seek legal advice, and had said that they would report to the House.

The Chairperson continued that the issue of a conflict of interest within the SABC, had been raised. The Interim Board only served for six months. The matter had to be revisited. The SABC had challenged the Act, which contained loopholes. The Committee had to decide what had to be done. The question was whether to appoint a Board within the current legislation. There were problems with said legislation. It could be decided to fix the legislation. But challenges would keep cropping up until the legislation was fixed. The question was how to handle the current situation with the interim Board, and whether the replacement person on the Board would be taken from the Party.

Ms Killian asked how much time remained for the current interim Board, and whether that could be probed. It would not do to appoint someone without a proper background. The short space of time remaining could be the reason for the lukewarm reception of the matter by the Committee.

Ms Tsebe said that she agreed with Ms Kilian. If barely four months remained, it was not possible to know how it would turn out. The relevant Portfolio Committee had failed to start the process. There were legislation challenges. Her take was that it had to be asked if it was possible to extend time for the current interim Board. Legislation could be dealt with at the time of re-appointment. It could be possible to extend time for the interim Board, and to deal with legislation in the meantime.

The Chairperson announced that it had come to his notice that the period remaining was three months and fifteen days.

Ms Shinn stated that the legislation limited the time to six months. Any changes to the Broadcast Act could take years. In the meantime a full-time SABC Board was needed. It was necessary to get candidates for the Permanent Board.

Ms Kilian said that the six month term was the law. She shared Ms Tsebe’s concern that the SABC problem was the Act. The process for appointing the Board did not create stability. It was a pity that parties had brought names to the appointment process. It politicised the SABC. Legislation could be adjusted so that the Committee would fulfill a different role. Process detail had to be looked at. Legal advisers had to be asked whether the six months could be extended to grant opportunity to look at legislation. It was only 10 months to election time. The election would put pressure on processes to appoint a permanent Board. Election processes would replace the Board. SABC politics destabilised the process. She asked if amendment of legislation to extend the six month period would demand public hearings.

The Chairperson commented that there was a problem with ambiguous legislation about responsibilities. It was not normal to have so many Boards over time. All parties had to have an influence, not just the ruling party. Legislation for the Board was not working. He agreed with Ms Kilian that the Board was not appointed in a healthy way. There had to be continuous advertisement, so that people could be appointed to solve problems. The present Board would be affected by the ambiguities. Nothing was stopping the Committee from extending the Board period or amending the law. The Committee appointed the Board. There was correct procedure to go back to if time did not allow. The Board had to be placed in an environment where it could succeed. Currently it was just setting up people. The Committee appointed the Board, and was responsible for the legislation.

The Chairperson suggested that Members think the issue over, to interact about it later. A month was needed to advertise. Things had to be done differently. It was a Committee responsibility to say when things were not working. Responsibility had to be taken if there was a wrong decision.

Ms Shinn opined that there was no time to tinker with the legislation. There would have to be thorough revision and that could not be done soon. It was necessary to operate within the Act. The process was fatally flawed, but had to be proceeded with. There had to be advertising for the Permanent Board, which required thoroughly vetted people.

Ms Tsebe said that the ANC had to lead society, and had to take responsibility. It would not do to close one’s eyes and say that all was well at the SABC. The Committee had to correct, panel beat and do the right thing. The challenge had to be resolved. Even if there was no appointment in the current term, the way had to be paved for the future. It was not about the Committee, but rather about citizen interests. She agreed with Ms Kilian that the elections were approaching, and there would not be time for interviews. The opposition had to help the ruling party. She agreed with the Chairperson that the matter could not be dealt with immediately. Members had to sit down and reflect. She asked legal advisers present how long technical amendments to the Act would take.

Ms Kilian said that there was a need for practical time frames. There was merit in extension and possible adjustment of the legislation. She agreed with Ms Shinn that there would have to be thorough scrutiny of the Act, but there was at least time until November, and in the following year until the elections. There had to be thorough recruiting. Nothing prevented nomination through a better process. The Committee had been late in pushing for amendment. The Minister could be asked what she foresaw. The whole matter was not, as she put it, an altogether no-no.

The Chairperson reiterated that the Committee had a responsibility to say if things were not working. The ANC would be blamed if things were not good in the Committee. A good foundation had to be laid for the Fifth Parliament. It was important for the country to have a good public broadcaster. Stakeholders had to be engaged in broadcasting. There had to be a look at public engagement.

Adoption of minutes
Minutes of 14 and 28 May 2013 were adopted.

The Chairperson adjourned the meeting.