Public Protector's SABC Report: response by Minister of Communications

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Communications and Digital Technologies

26 August 2014
Chairperson: Ms J Moloi-Moropa (ANC)
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Meeting Summary

The Minister of Communications, Ms Faith Muthambi, briefed the Committee on the actions taken in response to the Public Protector’s Report on the SABC. The Public Protector had found that the appointment of Mr Hlaudi Motsoeneng as the South African Broadcasting Corporation (SABC) Acting Chief Operations Officer (COO) was irregular. The findings also included that Mr Motsoeneng’s salary progression was irregular, he was involved in staff purging and he committed fraud by stating in his application form that he completed matric. It was found that the SABC Board failed to exercise its fiduciary obligations in the appointment and appropriate remuneration for the Acting COO and it failed to provide oversight to the National Broadcaster. Also, Mr Motsoeneng irregularly increased the salaries of various staff members and it contributed to an unprecedented salary bill escalation of R29 million.

The Minister gave an overview of what the Public Protector had found to be improper conduct by the former Minister of Communications, Ms Dina Pule and the former Acting Deputy Director-General of the Department, Mr Themba Phiri. She gave a summary of the recommended remedial action and the response by her department and the SABC to each recommendation and requirement by the Public Protector. The SABC response was that Mr Motsoeneng could not be disciplined, because he never lied about his qualifications, the salary increments were implemented through the relevant HR guidelines and there had been no purging of staff. On the recommendation that all irregular expenditure was to be recovered from the appropriate persons, the SABC response was that the funds were spent correctly and all the necessary approvals were given. On the recommendation that the Minister take urgent steps to fill the long outstanding vacant position of the COO with a suitably qualified permanent incumbent within 90 days of the report, the Department had appointed Mr Motsoeneng as COO of the SABC.

The DA expressed frustration at the Minister’s view that discussion of the details behind the decisions taken by the SABC and the Department was sub judice. A constitutional law expert and the first Speaker of the National Assembly were referenced, both of whom found that the sub judice rule did not prevent discussion of the subject matter before the courts, but was merely designed to prevent the predetermination of the outcomes of the courts. The Minister was asked why her response did not deal substantively with any of the remedial action raised. It was also questioned how a candidate could be deemed ‘suitably qualified’ if he was found by the Public Protector to have committed fraud by lying about his qualifications, to have purged staff and to have irregularly increased his own salary.

The Minister said she was not avoiding accountability, because this situation could have been avoided if the Democratic Alliance had utilised parliamentary processes to address the concerns rather than the courts.

The EFF said the Committee was toothless and the Chairperson was not assisting oversight by suggesting the sub judice rule complicated things - this was hogwash. When a protest action was unleashed again, it should not be said that the EFF was rowdy or childish while the ruling party was uninterruptedly ignoring everything about the proper running of government. The meeting should be adjourned, because it had been conceded that Members were useless in their capacity to exercise oversight and to hold the Minister accountable.

Members of opposition parties accused the Minister of protecting Mr Motsoeneng and hiding behind the sub judice rule to escape accountability. The Minister was also accused of disregarding the Public Protector's report and showing contempt for the Office of the Public Protector. A request was made for a parliamentary law advisor to interpret the sub judice rule but this was not taken up. Members raised several points of order during a heated discussion on whether the Committee was rendered powerless to exercise its oversight responsibility. The Minister in turn accused the Democratic Alliance of using the meeting to build its review application that was currently before the Western Cape High Court.

Meeting report

Minister of Communications briefing on action taken in response to Public Protector report on SABC
The Minister of Communications, Ms Faith Muthambi, thanked the Chairperson and the Committee for the opportunity. The Chairperson had asked for the submission of relevant and supporting documentation to be submitted by Tuesday, 19 August 2014. On that day, however, the matter was heard by the Western Cape High Court and it was deemed sub judice.

The Minister said the investigation by the Public Protector was based on complaints lodged by former SABC employees. The essence of the complaint focused on the alleged irregular appointment of and conduct of Acting Chief Operations Officer (COO), Mr Hlaudi Motsoeneng. It also focused on systemic maladministration, mainly related to human resources (HR), financial management and governance failure at the SABC.

The Public Protector’s Report on the SABC found that the appointment of Mr Motsoeneng was irregular, his salary progression was irregular, he was involved in staff purging and he committed fraud by stating on his application form that he completed matric. It was found that the SABC Board failed to exercise its fiduciary obligations in the appointment and appropriate remuneration for the Acting COO and it failed to provide oversight to the National Broadcaster. It was also found that the appointment of Ms Sully Motsweni to the position of General Manager was irregular, as well as Ms Gugu Duda’s appointment as Chief Financial Officer. The Public Protector also found that Mr Motsoeneng irregularly increased the salaries of various staff members and this contributed to an unprecedented salary bill escalation of R29 million.

The Minister gave an overview of what the Public Protector found to be improper conduct by the former Minister of Communications, Ms Dina Pule and the former Acting Deputy Director-General of the Department, Mr Themba Phiri. She further gave a summary of the remedial action recommended by the Public Protector and the response by the SABC. The SABC responded that Mr Motsoeneng could not be disciplined, because he had never lied about his qualifications, the salary increments were implemented through the relevant HR guidelines and there had been no purging of staff. The Public Protector recommended that all irregular expenditure was to be recovered from the appropriate persons. The SABC response was that the funds were spent correctly and all the necessary approvals were given. In response to the recommendation that disciplinary action should be instituted against Mr Phiri, the SABC said that Mr Phiri was now employed by the Department of Telecommunications and Postal Services. On the recommendation that the Minister take urgent steps to fill the long outstanding vacant position of the COO with a suitably qualified permanent incumbent within 90 days of the report, the Department had appointed Mr Motsoeneng as COO of the SABC. On the requirement that the Minister establish why Group Chief Executive Officers (GCEOs) could not function at the SABC and left prematurely, causing operational and financial strains, the response was that GCEOs left the SABC for various reasons that included changes in the Board of Directors, changes in Ministers or for personal or business reasons. On the recommendation to expedite finalisation of disciplinary proceedings instituted against Ms Duda, the Department response was that Ms Duda’s contract was terminated as a result of forensic audit findings against her. She was subsequently found guilty of all charges against her by the Commission for Conciliation, Mediation and Arbitration (CCMA).

The Minister concluded that as representative of the shareholder (State), it is her priority that there is stability and adherence to corporate governance at the SABC. She had made this clear in her introductory meeting with the SABC Board on 2 July 2014.

Discussion
Mr G Davis (DA) said it was quite clear from the presentation that the Minister and the Board had simply chosen to ignore the Public Protector’s report. They did not deal substantively with any of the remedial action raised and effectively said the Public Protector was wrong in her findings. As it was understood, the Minister had until 16 August 2014 to finalise the remedial action, not to come to Parliament to basically state her disagreement with the report. The contempt shown for the Public Protector was unacceptable and probably unconstitutional. This government had failed to implement the remedial action set out in the Public Protector’s report, just as they failed to implement the remedial action in the Nkandla report. This growing trend should be a great concern to every South African who cared about democracy.

Mr Davis drew attention to constitutional law expert, Mr Pierre de Vos, who said: “One of the most irritating phenomena of political life was the manner in which politicians wrongly invoked the so-called sub judice rule to avoid accountability. Because they did not want to answer difficult questions, or deal with politically awkward issues, such politicians invoke a rule that only exist in their imaginations.” The sub judice rule was not designed to exclude subject matter before the courts, but it was designed to prevent the predetermination of the outcomes of the courts. In 1998, Frene Ginwala made this very ruling as the Speaker of the House.

Mr Davis referred to the remedial action recommended by the Public Protector that stated that all monies were to be recovered which was irregularly spent through unlawful and improper actions from the appropriate persons. The response just stated was that all funds were spent correctly and all the necessary approvals were given. He asked whether the Public Protector was wrong or whether she was lying about her findings in this regard. He asked how the Minister explained the R29 million salary escalation that was irregularly done while Mr Motsoeneng was at the SABC and mostly at his behest. The report said that Mr Motsoeneng was dishonest as it related to the misrepresentation of his qualifications and abuse of powers and appropriate disciplinary action should be taken. The response was simply that the Board knew at the time that Mr Motsoeneng did not have a matric and he never lied about it. The Public Protector’s report said that Mr Motsoeneng knowingly lied about it, because he falsified his qualifications and he even falsified symbols. He asked how the conclusion was drawn that Mr Motsoeneng could not be disciplined for his actions, even if some people at the SABC knew about it, because then they should also be disciplined. The fact of the matter remained that Mr Motsoeneng lied about his qualifications according to the Public Protector’s report, he should be disciplined according to the recommendations, but the Minister was protecting him. The response showed that the salary increments were implemented through the relevant human resource (HR) guidelines of the SABC. The Public Protector was very clear on the specific clauses of the HR resource guidelines that were violated and he asked what the Minster’s response on this matter was. Similarly the response stated the salary increments were approved through the HR policies and procedures and the Minister needed to tell the Committee exactly why this differed from the Public Protector’s report.

Mr Davis said the Public Protector asked the Minister to urgently fill the longstanding vacant post of the Chief Operations Officer (COO) with a suitably qualified permanent candidate and the deadline was set for within 90 days of the Public Protector’s report. The deadline, which was on 18 May 2014, was originally missed and he asked why it was missed. The response said the appointment of Mr Motsoeneng effectively fulfilled the requirements of the Public Protector, but the post asked for a ‘suitably qualified candidate’. When the post was initially advertised in February 2013, it asked for someone with a tertiary qualification. Mr Motsoeneng did not have a matric and he asked the Minister to explain how Mr Motsoeneng qualified to be that candidate. He also asked how a candidate could be deemed ‘suitably qualified’ if he was found by the Public Protector to have committed fraud by lying about his qualifications, to have purged staff and to have irregularly increased his own salary.

Mr Davis asked if the legal deadlock with Mr Mvuzo Mbebe that had been holding up the process of appointing a COO for seven years was settled. He asked how much was paid to Mr Mvebe if the dispute had been settled. If the Minister disagreed with the Public Protector’s report, she was free to take it to court for review. She was not free however, to simply ignore the report, because she avoided accountability. He urged the Minister to take the report to court and let the courts decide on the report, as well as decide on the contempt shown by the Minister for the Public Protector.

The Chairperson commented that the Nkandla matter was not dealt with by this Committee.

The Minister replied that Section 165(3) of the Constitution stated ‘no person or organ of state may interfere with the functioning of the courts. Section 165(4) stated ‘organs of state are directed to assist and protect the courts, through legislative and other measures to ensure their independence’. The DA chose not to exhaust the internal measures of Parliament, but rather opted to take the matter to court. Once the matter was in court, it became sub judice and any interference could even jeopardise the urgent application and the review application the DA submitted to the Western Cape High Court. All the issues raised here formed the basis of the applications and affidavits submitted to court. The DA’s lawyers had raised these questions in court and the matter was sub judice. The Minister said she was not avoiding accountability, because this situation could have been avoided if the DA utilised parliamentary processes to address the concerns.

The Minister said she wanted it put on record that the Public Protector’s report accused Ms Pule of interference in the workings of the SABC. The Minister said she knew what her role as Shareholder Representative was and when the SABC Board members were appointed, they understood their fiduciary duties as imposed on them by the Companies Act. There would be no ministerial interference in the affairs of the SABC. The Minister said she exercised her powers in terms of the SABC Charter as empowered by the Broadcasting Act in appointing the SABC COO. This appointment was made upon receipt of recommendations from the SABC Board and after applying her mind to the matter. There was a pending review application, brought by the DA to the Western Cape High Court to set aside the Minister’s decision to appoint Mr Motsoeneng. The Minister said she would not labour this point further, because it was unfair to expect comment on a pending court procedure. Once the matter had been resolved by the courts, all the concerns by the Members would be addressed.

The Minister said the SABC submitted a report to the Public Protector, and the presentation was a summary of the report. The matter too was sub judice, because the DA in their review application asked for the decision taken by the SABC board to be set aside. There had been a meeting between the Minister, the SABC and the Public Protector the previous week. In the report, the SABC also compiled an action plan that addressed all the recommendations by the Public Protector. It was an indication that the SABC and the Minister regarded the constitutional position of the Public Protector. Details of how money was spent at the SABC, should be dealt with by the SABC and they had compiled an action that addressed the recommendations. The SABC presented evidence to the Public Protector in response to the Public Protector’s finding on the misrepresentation of qualifications. The Minister further said she resumed office on 25 May 2014. She could not be held accountable for deadlines set before that date. The priority was to implement the recommendations of the Public Protector. The SABC Board similarly indicated in a meeting on 7 July 2014 with the Minister, they were committed to implement the recommendations of the Public Protector. It was a difficult situation, but it should be noted that the DA chose to ignore parliamentary processes, but now wanted to engage in this manner.

Mr Davis said it was astonishing the lengths to which the Minister went to escape accountability. The issue was not the appointment of Mr Motsoeneng, but rather the Public Protector’s report on the conduct of Mr Motsoeneng and the conduct of various office bearers at the SABC. Just because something was happening on a related matter did not mean it could not be discussed in Parliament. It would imply that oversight over the Executive could not be exercised, which was paramount to democracy. It was ironic that when the Minister was in court she said the matter should be dealt with in Parliament, but in Parliament she now stated the matter should be dealt with in court. It should be dealt with in both forums and the Minister needed to account now for the remedial action that was not implemented. When the Minister appointed Mr Motsoeneng, Mr Davis said he wrote a letter to the Chairperson to request the Minister to account to the Committee and to explain the appointment of Mr Motsoeneng. The letter was tabled for discussion, but then ignored. Mr Davis said as far as he was concerned, every avenue to get the Minister here was exhausted. In the final analysis, discussion of this report in no way constituted sub judice. It would only be sub judice if the discussion somehow influenced the outcome of the court case. He asked how this discussion could possibly influence the outcome of the court case. Mr Davis appealed to the Chairperson to have a procedural officer or a Parliamentary Law Advisor come to the Committee to explain the sub judice rule and whether it was applicable in this case.

The Chairperson said she indicated to the Committee that there was a response required from the Minister to the Public Protector. The Minister was given a chance to respond to the Public Protector before responding to the Committee and now it was a dual process with the court process in progress. It was important, when exercising oversight, to look at the matters that affected the SABC concurrently. Some of these issues included the report of the skills audit of the SABC that needed to be interrogated, the Public Protector’s report the Committee was currently dealing with and the Auditor-General’s recommendations. Oversight should be exercised in an overarching matter and not be focused on only one issue that had garnered a lot of publicity.

Mr M Ndlozi (EFF) said the Committee was toothless and the Chairperson was not assisting. The Minister prepared this presentation, because it was an item on the agenda. The Chairperson wanted to divert the attention of the Members with other outstanding issues, because she was conceding that the Committee was ‘useless’. The Chairperson was suggesting that the sub judice rule complicated things which was hogwash. When a protest action would be unleashed again, it should not be said that the EFF was rowdy or childish while the ruling party was uninterruptedly ignoring everything about the proper running of government. The Public Protector’s report could not be ignored and even if the sub judice rule was not considered, the Minister would have given this “lousy non-report”. The support for the Minister’s premise that the matter was sub judice would come from the ruling party and the Chairperson should advise whether the Minister should either answer the concerns or the Members should concede that they were useless. It was very clear that the ANC wanted to govern this country alone and it was a game they were playing with the lives of the people of this country. The Minister of Communications was separated from Telecommunications, because Mr Motsoeneng was appointed so that he could be used by the ANC to implement political decisions at the SABC. The basic message today was that it was an ANC decision and there was nothing Parliament could do.

The Chairperson said Members were not useless, but Members were urged to rather exercise their oversight responsibilities on all matters concerning the SABC. The sub judice rule was not permanent and it was also a constitutional right to seek legal recourse.

Mr R Tseli (ANC) said the meeting was a briefing by the Minister on the remedial action taken in response to the Public Protector’s report and this is exactly what happened. He asked the Chairperson to rule on the language used by Mr Ndlozi which was not acceptable. The Minister managed to finalise the remedial action within 90 days as recommended by the Public Protector and it was good to hear of the meeting the Minister, with the SABC, had had with the Public Protector. It would be wrong of this Committee to create the impression that the investigation into the SABC by the Public Protector took away the powers of the Minister, Cabinet and the Committee. The Committee invited the Minister to brief the Committee and at the appropriate time the Committee would consider the briefing and take a decision.

The Chairperson said everyone was taught and nurtured to interact in a certain way and she would not be making a ruling on the manner or language Mr Ndlozi chose to interact with.

The Minister said Mr Davis was using these proceedings to build the DA’s review application in court. The application as it stood was built on parliamentary reports and questions sent to the Minister. The review was pending in court and any comments made in this meeting could be used in court, and that constituted sub judice. In a meeting with the Public Protector on 20 August 2014, the Public Protector expressed concern that the application submitted to court by the DA had comprised the Public Protector’s follow-up investigation into this matter. There was agreement between the Minister and the Public Protector on all matters concerning the SABC and the Public Protector had assured the Minister that she too awaited the outcome of the court proceedings before any further action was taken. The Minister said she understood the options available if the recommendations of the Public Protector were questioned, but it was premature since the processes of the Public Protector was not yet finished. The Public Protector had raised concerns with some of the remedial action taken by the SABC and they had been given an opportunity to put these recommendations into clear and tangible action plans.

Mr Davis said it was not up to the Minister to decide how parliamentary rules were to be interpreted. The last interpretation of the sub judice rule was from the Task Team on the Subcommittee On Rules where it was decided that it could not prevent a general political debate on a matter before the court. He asked for a Parliamentary Law Advisor to interpret the rule, because the Minister could not be allowed to escape accountability. He asked whether the Minister considered the remedial action finalised.

The Chairperson said the Minister felt the DA was using these proceedings to build a court case. The sub judice rule was not permanent and the input of a Parliamentary Law Advisor was not advised at this stage.

Mr Ndlozi said these matters were on the agenda for the meeting, but he suggested that the meeting be adjourned, because it had been conceded that Members were useless in their capacity to exercise oversight and to hold the Minister accountable. The Minister, together with the Chairperson and the ANC, had already decided what the outcomes would be.

The Minister said she had given an overview of the remedial action taken on the recommendations by the Public Protector. The legal route taken by the DA tied her hands at this point.

The Chairperson said the matter was still on the agenda, but processes would be allowed to be finalised before there was a follow-up meeting.

Mr Davis said at the last meeting the Committee was briefed on the allegations that the SABC Chairperson, Ms Ellen Tshabalala, too had lied about her qualifications. The deadline for Ms Tshabalala’s response to the parliamentary legal team’s questions was today and he asked when the Members could expect the legal opinion form the parliamentary legal unit. This had been asked in writing and there had been no response from the Chairperson and he asked for a response now.

The Chairperson replied that before a matter was presented as an item for the agenda, it was communicated with Members to give them an opportunity to do their own reading and research beforehand. The progress on this issue would be communicated to Members.

Mr Davis asked why could there not be a clear time frame of the process and he asked the Chairperson to be more proactive and brief the Committee in writing on what the processes would be. It had been over six weeks since the allegations surfaced that Ms Tshabalala had lied about her qualifications and no real progress had been made.

The Chairperson said as soon as the response from the legal unit was received, the processes would be communicated to the Committee.

Mr Ndlozi said the matter should be on the agenda for the next meeting, as well as a comprehensive report of what happened in the six weeks.

The Chairperson said if it was finalised before the next meeting, it would be put on the agenda.

Mr Ndlozi raised a point of order and said it should be up to the Committee to decide what should be on the agenda.

Mr M Kalako (ANC) raised a point of order and said a very dangerous precedent would be created by individual Committee members that wanted things to be dealt with as they saw fit. The Chairperson had indicated that the matter would be included on the programme of the Committee. There was an impression by Mr Ndlozi that Parliament was a “street where you could ‘toyi-toyi and throw things’ and his attitude was based on his threat of protest made earlier. The Committee would not be threatened and the work would be done according to the rules of Parliament. Members should not be an intolerant of the views of others just because it was not what they wanted to hear.

Mr Ndlozi said he proposed the Committee should commit to having the matter of Ms Tshabalala put on the agenda for the next meeting and the Chairperson should submit a comprehensive report of what was done in the six weeks.

Mr Davis said he supported Mr Ndlozi’s point of order, because it seemed there was an epidemic of people falsifying qualifications. He asked that the matter be put on a formal agenda, because it would prevent the Chairperson from excluding the media if it was not on the formal agenda. He said he was still waiting an explanation on why the Chairperson prevented the media from attending a previous Portfolio Committee meeting.

The Chairperson said she took serious exception to Mr Davis slotting in an irrelevant matter.

Mr Tseli said an agenda for this meeting had been adopted and the Committee should stick to the agenda. Mr Davis should have asked at the beginning to have an item added to the agenda.

The Chairperson said once the matter had been finalised, it would be brought before the Committee.

The meeting was adjourned.

 

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