Independent Communications Authority of South Africa Amendment Bill [B18-2013]: Amendments proposed by Select Committee, SABC Board short-listing

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Communications

26 February 2014
Chairperson: Mr S Kholwane (ANC)
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Meeting Summary

The Department of Communications outlined the changes that were proposed, to the Independent Communications Authority of South Africa (ICASA) Amendment Bill, by the NCOP, in clauses 6 and 9. Members were generally agreed that the procedure set out for appointment of an Acting Chairperson strengthened the Bill. Members debated whether the words “content in any form” in clause 6 were precise enough, suggested alternative wording and wondered whether the term did not need to be defined, but the Department advised against this, noting that there was a risk of excluding certain factors if there was an attempt to define “content” too precisely, and also made the point that content production was still in its infancy in South Africa. One Member pointed out that if the need to define this term later became apparent, this could be done during the amendments that would be made to the Act in the following year. Members then agreed that they were in favour of adopting the amendments and would formally take that decision at the following meeting.

The parties submitted their preferred names for the short list of candidates to be interviewed for the vacancy on the SABC Board. COPE noted that it was important to address gender equality and had proposed female candidates. The DA’s two candidates were not female, but the DA felt that they had the required skills and expertise, although the past connection to a media venture by one would need to be checked. The ANC supported three nominations from COPE, was prepared to support one of the DA candidates, but later withdrew this support when the DA indicated its preference for the other, and made its own proposals. The following candidates would be interviewed on Tuesday 4 March: Ms Leah Thabisile Khumalo, Ms Vuyelwa Qinga-Vika, Mr Chose Andrew Kenilworth Choeu, Ms Ntombenhle Khathwane, Mr Rammutlana Boelie Sekgala.

The nominations for the shortlist for interview for the Media Development and Diversity Agency Board vacancy would be debated at a meeting on 27 February, with the interviews hopefully to take place by 5 March.

The Committee further debated a letter from DA Member Ms Shinn to the Chairperson of the Committee, calling upon the Committee to ask the SABC Board Chairperson and Deputy Chair to explain their reaction to the PriceWaterhouseCoopers skills audit, in view of concerns that their responses, given during media interviews, suggested that they wished to have time to “approve” the report, which indicated that they may not understand or appreciate their fiduciary duties to the Board. It was emphasised by both Ms Shinn and the Chairperson that this issue could be treated separately from any further debate between the Board and the Committee on the Public Protector’s Report, which was supposed to have been discussed by the Board on 24 February. The ANC Members, after debate, supported a suggestion that Ms Shinn’s letter be forwarded to the Board, with a covering letter from the Chairperson of the Committee, calling upon the Board to respond, but that the Board should not necessarily be called in to debate the issues with the Committee, and the COPE and DA Members wanted their extreme disappointment at this placed on record, saying that they did not believe that the Committee was giving sufficient regard to its duty to oversee the SABC stringently, particularly in view of the many problems with the Board in the past. Whilst Committee Members agreed that there were other issues that the SABC Board still needed to discuss with this Committee, including a follow up on the Auditor-General’s report and the Public Protector’s report, this was not something that could be done immediately and this would be identified in the Committee’s legacy report as something that the Fifth Parliament needed to take up. The Chairperson would, however, call upon the Chairperson of the SABC Board also to give a report to the Committee in writing on the Board’s response to the Public Protector’s Report, as discussed in the SABC Board meeting of 24 February.
 

Meeting report

The Chairperson stated that there were four issues which the Committee would address. Firstly, the Committee would consider the proposed amendments to the Independent Communications Authority of South Africa Bill by the Select Committee on Labour and Public Enterprises. Secondly, the Committee would finalise the short-listing of five candidates who would be interviewed for the vacant post on the South African Broadcasting Corporation (SABC). Thirdly, the Democratic Alliance’s (DA) request that the SABC board be invited to come before the Committee to answer questions on certain issues. Fourth, the Committee would discuss how it would approach the short-listing of candidates for the Media Development and Diversity Agency (MDDA).

Independent Communications Authority South Africa Amendment Bill: NCOP proposals for amendment: Department of Communications presentation
The Chairperson outlined that the Independent Communications Authority South Africa (ICASA) Amendment Bill, having been dealt with by this Committee, had been taken to the National Council of Provinces (NCOP), who had made some proposals that the Committee would have to consider. The Department of Communications was requested to make a presentation on the proposed amendments.

Ms Rosy Sekese, Director-General, National Department of Communications, noted that the Select Committee on Labour had proposed amendments to clauses 6 and 9 of the Bill. Those amendments were presented to the Portfolio Committee.

Ms M Shinn (DA) sought clarity on the amendment to clause 6, section 5(b)(ii) of the proposed amendment to the Bill, by asking what was meant by the term “content in any form”. Furthermore, she requested clarity on what was meant by “in the office at the time” in clause 9, amending section 11(3). She wished to know if the term referred to geographical location.

Mr Themba Phiri, Deputy Director General, Department of Communications, responded to the first issue by noting that in the present context a performing arts person could be a producer of content. Thus the term “content” was to be understood broadly in the present world’s converged market. In response to the second issue by noting that the Department of Communications (DOC or the Department) had looked at the wording of legislation used to establish similar institutions. He noted that meetings of the Council could take place in many forms, including via video link. This would still be deemed to be a duly convened meeting.

Ms J Kilian (COPE) noted that the proposals by the NCOP, as presented by the DOC, were an improvement, specifically as far because the amendment would allow for those who were part of a meeting to decide who its Acting Chairperson would be, in the absence of the Chairperson. This was good business practice. She added that the amendment showed that application of the mind to fine tune legislation would ensure a general greater understanding. On the “content in any form” issue, Ms Kilian asked whether this was the best description and proposed the term “content production” as an alternative, accepting that the term was broad.

Mr A Steyn (DA) supported the proposals for amendments to the Bill but had similar concerns regarding the term “content in any form” as the word “content” had not been defined. He noted that whilst the legal profession may understand the term, it was important to make sure that ordinary South Africans were clear on the interpretation.

Ms Sekese responded to the issue of content by noting that there was a risk of excluding certain factors if there was an attempt to define “content” too precisely. She added that South Africa was still in its infancy regarding content production, and cautioned against attempting to define the term.

Mr Alf Wiltz, Director: Legal, Department of Communications, added that the clause had been adopted by the Portfolio Committee in Communication and was merely being repeated in this clause, according to the Select Committee on Labour and Public Enterprises, for technical purposes.

Ms Kilian sought further clarity and said her question was whether the term “content” was defined. She also asked whether a definition for the term ought to be included in the Bill.

Mr Phiri noted that the term “content” had not been defined, nor was the term “journalism”. He added that the term encompassed a lead actor in a movie who had training in drama. He too advised the Committee not to attempt to define the term “content”, owing to the complexity of the matter, especially in regard to the telecommunications sector.

Ms Kilian added that it was suggested that the Committee should not “fix what was not broken”.

The Chairperson then noted that the amendments were either to be accepted or rejected, and not modified.

Ms A Muthambi (ANC) proposed to Ms Kilian that the term “content” could always, if necessary, be defined in the fuller review of the ICASA Act that would be done by the next Parliament. She suggested that the Committee should agree with the amendments.

Ms Kilian agreed with the Chairperson, and formally proposed the adoption of the amendments, since they were constructive and she had received an adequate explanation.

Ms Muthambi supported her proposal.

The Chairperson concluded that this Committee would report to the House on its acceptance of the NCOP amendments.

Ms Shinn wished it to be recorded that while the DA had opposed the Bill in the National Assembly (NA) and the National Council of Provinces (NCOP), it was in favour of the amendments.

South African Broadcasting Corporation (SABC): Short listing of candidates to be interviewed to fill the Board vacancy
Ms Kilian noted the current gender imbalance on the SABC board, and noted that her nomination list for the position on the SABC board would give preference to female candidates. She nominated candidates 4, 6, and 7.

The Chairperson noted Ms Kilian's issue regarding gender equality on the SABC board and a matter of principal.

Ms Shinn put forth the Democratic Alliance’s (DA) nominations as candidates 9 and 11. Both were identified as male candidates.

Ms Muthambi proposed the African National Congress (ANC) nominations for short-listing as being candidates 4, 6, 7 and 8.

The Chairperson thanked the members for their nominations and highlighted that candidates 4, 6 and 7 were supported by the ANC and COPE, and would be short listed, but that since the Committee had previously agreed to short-list five candidates for the interview, two more had to be selected. Candidates 8, 9 and 11 were not supported by more than one party.

Ms Muthambi agreed that the ANC would agree to candidate 11, who had been short listed also by the DA.

Ms Shinn noted that candidate 9 had had practical experience in running a company. Ms Shinn added that the recommendation letter for candidate 9 noted that the candidate was a shareholder and director of a media company which was a privately held entity specialising in radio, television and print media. The DA believed that this would serve the candidate well, but the candidate had not declared that information in his submission. She noted, therefore, that this association would have to be followed up on, as there may be a conflict of interest. Ms Shinn added that the candidate also had skills in financial management, sorely lacking in the SABC, and that he had been a director and a senior manager in private companies, which afforded him experience in how companies worked. She felt that the SABC needed a candidate with more business experience.

The Chairperson noted that the ANC had indicated that it was willing to support the DA's nomination for candidate 11, and questioned whether the DA was now saying that it would prefer to support candidate 11.

Ms Shinn suggested, tongue in cheek that since the Committee had to nominate five candidates, both the DA’s suggestions should be followed. She said that candidate 9 should also be considered. She pointed out that candidate 11’s background in finance might be considered too academic but serving on an audit committee added to his understanding of big corporations. She added that either of these two candidates would suitable add to the candidates which the ANC and COPE had agreed on.

Ms Kilian stated that during November 2011, one of the current candidates, Professor Verumal, had been interviewed before.

Ms Shinn added that Ms Lea Khumalo had also been interviewed before.

Ms Muthambi added that candidates 1 and 3 had also previously been interviewed. Ms Muthambi noted that if candidates 9 and 11 were to be added to the list that the Committee would not be giving preference to female candidates, as the majority selected for short-listing would be male candidates. She further noted that consideration was also to be given to capabilities and experience. She then stated that candidate 8 was a woman who had obtained a Master's degree in South African politics and political economics, who had also done project management and political science. Ms Muthambi noted that if candidate 8 was compared with candidate 9, there was a potential conflict of interest for the latter and she felt that candidate 8 was preferable.

Ms Shinn responded that while the potential conflict of interest may exist, it was possible that candidate 9 may not have mentioned his involvement with the media company if he was not currently involved, and this was something that would have to be verified. If it was true, then this candidate would have had experience in the industry. Although candidate 8 had some experience as well, she did not believe that she would add much new to the SABC board.

The Chairperson added that if COPE's argument for gender equality was to be accepted then candidate 8 would be preferred for short-listing. He asked Ms Shinn to indicate which of the candidates it would prefer to be selected for short-listing.

Ms Shinn noted that she preferred to emphasise ability and fitness for purpose over gender equality, and indicated that she would opt for candidate 9 to be selected.

Ms Muthambi then withdrew her support for candidate 11, and asked for the inclusion of candidate 8.

Mr C Kekana (ANC) suggested that candidates 8 and 11 be added to the three cited already. Had it not been for the history of patriarchy, “ready-made” female candidates with equal experience to male candidates would have been produced. He believed that candidate 8 showed good potential for personal development. There should not be an expectation that women were necessarily already available in the industry, and for this Committee to be stuck on the issue of short-listing indicated that the Committee could be short-sighted.

The Chairperson noted that COPE's motivation for a female candidate would also favour candidate 8, and noted that the Committee had received 11 nominations, of whom the Committee had agreed to the following five to be short listed for interview:

1.         Ms Leah Thabisile Khumalo
2.         Ms Vuyelwa Qinga-Vika
3.         Mr Chose Andrew Kenilworth Choeu
4.         Ms Ntombenhle Khathwane
5.         Mr Rammutlana Boelie Sekgala

The Chairperson said that the candidates would be contacted, to be interviewed in Parliament by Tuesday, 4 March 2014.

Media Development & Diversity Agency Short-listing for candidates for vacancy
The Chairperson noted that the Committee must discuss the processing of the short listing for the vacancy on the Media Development & Diversity Agency (MDDA).

Ms Kilian noted that there was a provisional sitting of the Committee on Friday 28 February 2014, but due to the three day rule, the sitting scheduled for the reading of the Bill may not happen.

The Chairperson said he was about to propose that if the majority of the members were going to be present at Parliament on 28 February, they should meet then to finalise the shortlist, and try to conclude the MDDA interviews by Wednesday 5 March 2014.

Ms Shinn agreed, and proposed that the Committee should meet on 28 February, to address this matter and finish its programme for the year.

Ms Muthambi said that Friday was a difficult day, due to Members having to catch flights and asked if it was possible to meet earlier.

Ms Kilian, stating that she was ready to make her proposals, suggested a meeting on the following day, 27 February, to conclude the MDDA list, if there was likely to be a problem getting a quorum on Friday.

The Chairperson noted Members’ agreement to this, and said that the ICASA Amendment Bill would be officially finalised at this meeting.

Letter from Ms Shinn asking that SABC Board be called to the Committee
The Chairperson noted that this matter had been discussed at previous meetings, following a letter addressed to him by Ms Shinn asking that the SABC Board be called to the Committee. He said that he had also received a letter from the Chairperson of the SABC, regarding an article published in the Mail and Guardian Newspaper on 21 February 2014. The letter noted that the SABC Board and relevant committees had scheduled special meetings on 24 February 2014 to deliberate on the report by the Public Protector. It was suggested that it would be frivolous and premature for the Chairperson of the SABC to take cognisance of the statements published before the Board had taken a considered decision. Feedback on that deliberation would be given to the Portfolio Committee, and the Board would ensure that the matter would be resolved in everyone’s bet interests.

The Chairperson noted that if the Committee were to call the SABC board for questioning, all Board members would have to be afforded time to read the Public Protector’s report, as well as the Minister, as the report made mention of the Minister as well.

Ms Kilian noted that it was very important for the Committee also to read the report. The letter to the Chairperson said that feedback would be given after the meeting on 24 February and she thought it would have been appropriate for that to have been provided already. It was important for the SABC board to realise that it was accountable to Parliament and the Committee. She was concerned about the lack of acknowledgement of this accountability from the SABC. She wished to know if the Chairperson had received any feedback on the SABC’s meetings, and believed that the Committee should demand that the SABC appear before the Committee, which could not conclude its Parliamentary business without having had direct engagement with the SABC on various matters.

Ms Kilian noted that any application by the SABC board to take the report of the Public Protector on review should be paid for by the individual taking the report on review. There had already been large amounts of money of the SABC lost through certain individuals challenging cases in the Commission for Conciliation, Mediation and Arbitration (CCMA), believing they were above the law. She emphasised that it was a complete scandal that TV licence fees were being abused by the top echelon of the SABC. She concluded that, regardless of the media statements, the SABC should appear before the Committee so that the board members may be asked direct questions, and for the Committee to get direct answers to the questions posed.

Ms Muthambi noted that the Committee wished to get the facts of the matter from the SABC. However, the letter from the SABC clearly indicated that the board was doing something about the matter. She asked the Chairperson to get feedback on the outcome of the SABC board meetings on 24 February. She believed that the SABC board should be allowed to deal with the reports and then give its responses to the Portfolio Committee afterwards. Whilst she agreed that the SABC was accountable to the Committee, it would have to be afforded the opportunity to go through the report before coming to Parliament.

Ms Shinn took the point that the affected parties, such as the SABC, would take time and get legal opinions on the report. However, her letter to the Chairperson had requested that the SABC board appear before the Committee in relation to the PriceWaterhouseCoopers (PWC) audit skills report, and the purpose of it appearing before the Committee was not to interrogate the findings of the PWC report, but to question and assess the attitudes of the Chairperson and Deputy Chairperson to the findings of the report. She added that the Board Chairperson of the SABC had made it clear that her priority was not to oversee and interrogate the executive management of the SABC, but to actively support and protect those decisions. This was not in fact the job of the Chairperson, and it seemed to indicate that she did not understand her fiduciary duties. Ms Shinn wished to get the assurance of the SABC Chairperson that she would exercise the duties for which she was appointed. She argued that the Board Chairperson should be questioned on the statements she had made to the media about her role.

The Chairperson said that if the Committee was intending to question the Board Chairperson on the PWC report, then she must be informed of this. The skills audit was a matter separate from the Public Protector’s report. He urged members to read the latter report, and noted that the implementation of the Public Protector’s report would require legal consultation. If the issues were separated, then that would be acceptable. The Public Protector’s report would have to set aside for the moment. If the Board Chairperson was to be called to the Committee to speak to the PWC report, then no questions could be entertained in that meeting that related to the Public Protector’s report.

Ms Muthambi said that anything raised by Ms Shinn had to be factual and evidence based. She noted that Ms Shin had suggested that the Chairperson of the SABC did not appear to know what her fiduciary duties were, based on media reports. The content of the letter by the Chairperson of the SABC noted that she had denounced the media reports. Ms Muthambi added that if the Chairperson knew of the board committees to process the matters, this was an indication that she did know her fiduciary duties. Any suggestion that the Board Chairperson was failing to exercise her fiduciary duties would need to be proven, before the Committee would come to such a conclusion.

Ms Shinn noted that the reports themselves were not to be interrogated by the Committee. The purpose of calling the Chairperson of the SABC to Parliament would not be to go through the Public Protector’s report, but to ensure that the Chairperson understood her duties as a non-executive chairperson. Ms Shinn wished the Committee to have clarity on whether the SABC Chairperson had been misrepresented by the media, and to get an assurance that she knew and understood what her duties were, because there had been some doubt that she was impartial in making decisions.

Ms Muthambi noted that when the board members were appointed, they were checked to determine whether they possessed the minimum requirements for the position. The mere fact that those individuals were appointed to the Board was an indication that they knew of their fiduciary duties. They also presumably knew what the criminal liability consequences were of their board appointments. Parliament had appointed the SABC board, believing that Board  members had the capacity to carry out their fiduciary duties.

The Chairperson said that isolating the SABC Chairperson and Deputy Chairperson would be a challenge, as the SABC board acted as a collective, with collective responsibility. It could be assumed that when the SABC Board Chairperson made a statement, it was to be read as one on behalf of the board.

Mr Kekana thought that for this Committee to call special meetings, based on a report by the press, would set a bad precedent. The Committee was not to be driven by the press. He thought that the Committee should wait on the SABC board to make a presentation on the Public Protector’s Report.

Ms Shinn then requested a formal reply to the letter she had addressed to the Chairperson, and suggested the Committee must vote on whether to call the Chairperson of the Board, and perhaps other members of the Board, to explain their reaction to the skills audit report. She emphasised that this was a matter separate from the Public Protector’s Report, on which no questions would be asked at this point. The SABC matters were of great public interest, and the Committee was to take its oversight role over the SABC more seriously.

The Chairperson then asked if he could write an attachment letter to the one written to him by Ms Shinn, which explained the issues, and then forward it to the SABC board for their response. All of the Committee members understood this Committee’s duty of oversight over the SABC.

Ms Muthambi noted that the content of Ms Shinn’s letter had outlined her concern that the SABC could have contemplated “doctoring” the skills audit report, and proposed that that it was appropriate for the Chairperson to write a covering letter, attach Ms Shinn’s letter, and have the Board respond to the matter.

Ms Shinn said that if SABC was asked to respond, there would be no time to have a face-to-face interrogation before Parliament rose. She felt it would be better to have people in a face-to-face situation to gain greater clarity on the matter. Writing a letter would cause delay. She moved that the Chairperson, the Deputy Chairperson, and other members of the Board should be asked to come before the Committee.

Ms Kilian supported Ms Shinn, and failed to understand why Committee Members appeared to be so sensitive about calling the SABC Board to account. She noted that the SABC board was also overdue on accounting to the Committee on the Auditor-General’s report. She found no reason not to have the SABC come to Parliament and present on how it would deal with its various issues. She called for the SABC board to be engaged with, face-to-face, so that the Committee would be able to understand how the SABC would respond to its various issues.

The Chairperson noted that it would not be enough to call the SABC board on the issues of the skills audit only. He thought that the response of the SABC to a letter from the Committee would assist the Committee in identifying the issues which it would want to address in a face-to-face meeting, but wanted Members to agree whether Members wanted the SABC Board to appear before the Committee just on the skills audit.

Ms R Morutoa (ANC) was unsure as to what Ms Shinn wished to have the Board discuss, as the letter from the Chairperson would surely set out the concerns, and they could respond in writing.

Ms Muthambi said that the Committee had previously discussed the skills audit, and reiterated her point that she believed the Board members would understand their fiduciary duties in protecting the company’s interests. She was concerned that the letter from Ms Shinn was making certain assumptions based on media reports. She then suggested that Ms Shinn’s letter, together with a covering letter from the Chairperson, be addressed to the SABC for its response. She averred that the desire by some of the members to call the SABC board to Parliament may be linked to the up-coming national elections.

The Chairperson did not want to leave Members with a sense that the Committee did not want to hold the SABC to account. He assured all Members that the Committee would do so until its last day in office. He noted that the ANC had clearly opted for calling for a written response.

Ms Kilian wanted to have her bitter disappointment in the Committee’s majority decision recorded. She did not believe that the Committee desired to hold the SABC to account. This issue was not about what was reported in the media, but about the very many serious matters raised regarding the SABC.

The Chairperson interrupted Ms Kilian and stated that she had already been allowed previously to make open-ended statements, and the focus for this discussion was Ms Shinn’s request to call the Board to report on the skills report only.

Ms Kilian continued that whilst the SABC had previously been called to the Committee to engage on the skills audit, this Committee had still not engaged in other matters with the SABC board. She added that the feedback on the Chairperson’s letter to the SABC board must be received within a reasonable time. She also failed to understand how the Committee was responsible for appointing board members, when the Board would not regard itself accountable to Parliament.

Ms Morutoa noted that it was in the interests of the Committee to hold the SABC to account, which was why the two letters, from Ms Shinn and the Chairperson, would be sent to the SABC Board for its response.

Ms Shinn noted that if the matter was to be resolved within two weeks, then the Chairperson would have to write to the SABC board also inviting them to appear before the Committee as soon as possible to explain their comments made after the skills audit, and to embark on a discussion regarding their fiduciary duties. Furthermore, she noted that the SABC would still have to, if possible, make presentations on the other matters to which it had not yet responded, such as the Public Protector’s report.

Ms Muthambi noted that the Committee was not running from its responsibility to hold the SABC accountable. She repeated that she felt that the desire to call the SABC to Parliament to engage on matters was opportunistic. She noted that the proposed letter would be a means of holding the SABC accountable to Parliament.

The Chairperson summarised the majority decision of the Committee. Firstly, Ms Shinn’s letter to the Chairperson expressing concerns about the attitude to the skills audit was to be sent, with a covering letter from the Chairperson, asking for clarity. Secondly, he would call upon the SABC to give a progress report arising out of the SABC Board meeting on 24 February 2014, and the Board’s response to the Public Protector’s report. The Committee would take the process forward after receiving the responses.

Ms Shinn asked whether the Chairperson had rejected the DA’s request to call the SABC board to Parliament.

The Chairperson noted that he had not rejected the request as the SABC board would be able to appear before Parliament after responding to the letter, and requests of the Committee.

Ms Shinn reiterated that there were only two weeks left to the Parliamentary term, and believed that the SABC board was being allowed to escape from being held accountable to the Committee. She requested, from the Chairperson, a commitment that the SABC board would be invited to Parliament within the last two weeks of the Parliamentary term to address the issues.

The Chairperson questioned what Ms Shinn would hope to achieve by inviting the SABC board to Parliament, given the emphasis that there were only two weeks left. The Fifth Parliament would be able to take up the matters raised in the Committee’s legacy report.

At this point Ms Kilian left the meeting.

Mr Kekana noted that the issues within the SABC would not be solved within two weeks. It made sense to make use of other mechanisms in the remaining time.

Ms Morutoa thought the Chairperson had already summarised what the Committee would be doing.

Ms Shinn asked for it to be noted that she did not support the majority decision, which she thought was a delaying tactic. She believed that this was a critical issue which the ANC “did not have the guts to address”.

The meeting was adjourned.

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