Film & Publications Board briefing, request to House to conduct inquiry into SABC board Chairperson, in presence of Deputy Minister

Meeting report

Film & Publications Board (FPB) mandate, successes and challenges: briefing
The Chairperson noted the presence of the Deputy Minister of Communications, Ms Stella Ndabeni-Abrahams.

The Film and Publications Board (FPB) was represented by its Chairperson, Ms Thoko Mpumlwana, and its Chief Executive Officer, Mr Themba Wakashe, as well as other office-bearers who contributed to the discussion.

It was noted that the vision of FPB was that it be a leading and credible content classification authority in South Africa. Its mission was to eensure efficient and effective consumer protection through regulation of media content, while empowering the public, especially children, through information sharing. The values of FPB included accountability, fairness, integrity, transparency and professionalism.

The historical background to the FPB was explained. It had been started as the Censor Board within the Department of Internal Affairs, which was governed under the Publications Act of 1974, with the main task of censoring undesirable content. In 1994, it shifted its focus from censorship to content classification and the Film and Publications Act No 65 of 1996 allowed for content classification and age ratings. Only child pornography and depictions of bestiality were prohibited from distribution.

The strategic goals were then outlined, and it was explained that this included:
-Effective and visible monitoring of the industry throughout the entire value chain, for the protection of children and adults through information
-Consumers, general members of the public and the industry were to be informed about the mandate of the FPB
- Effective and efficient management of FPB Operations
- Revised, effective and innovative regulation of the content distributed online, mobile and related platforms, for the protection of children and adults, whilst ensuring that they had access to information
-Expansion of the FPB footprint through effective partnerships and stakeholders in pursuance of its mandate.

Some of the successes of the FPB were then announced. It had national, regional, and international visibility. It had managed to enter into Online Regulation Agreements with distributors, such as Altech, Apple and Google. Its classification processes and governance were more rigorous and effective due to online submission of games. Finally, its financial systems were sound evidenced by 5 years of unqualified audit reports.

The FPB had managed to reduce the percentage of appeals to classified material, due to improved operational efficiencies and training of classifiers. It had developed a training manual for the classifiers, which would be accredited through UNISA as a formal training programme.

FPB had also isolated some challenges These included:
- Inadequate empirical research and industry-specific expertise
- Proliferation of content on various platforms (local and international), accessible to South African citizens, especially online
- Increase of illegal content and user generated content (especially Child Pornography)
- Cyber-safety issues, particularly in relation to children
- Inadequate regulatory tools for online content distribution. It was explained that there were pending legislative amendments. FPB had an Online Strategy that it was implementing, and it was using ICT tools also
- Limited enforcement of FP Act provisions, with inadequate enforcement provisions
- Reduced funding sources to meet an expanding mandate. It was explained in this regard that the FPB had experienced decreased revenue generation, due to the shift from physical to online distribution
- Staff Misconduct Matters. These included misrepresentation of qualifications, failure of employees to relocate in line with contractual obligations, absenteeism, and  misconduct at an official FPB function. Other misconduct had involved theft of material submitted to the FPB for classification and the accessing of viewing facilities and utilising equipment and materials without authorisation. Other issues included collusion with a service provider, and non-compliance with supply chain management procedures and regulations

It was noted that the FPB organisational capacity was hindered by its funding. Ideally, it required R3.8 million to resolve current salary disparities and achieve the mandate. The implementation of the communication strategy required R10.3 million during the 2015-2016 financial year. The strategy would be focussing on the implementation of a media engagement strategy, stakeholder relations, public relations and marketing and community forums and outreaches. The implementation of an improved ICT infrastructure and optimisation of its ICT services to meet its business requirements would require R32.4 million.

Discussion
Mr G Davies (DA) thanked the FPB for a thorough presentation and protecting children from pornography. He commended the FPB for detecting misrepresentation of qualifications from one of its employees, commenting that this appeared to be “an epidemic” affecting the communications sector. He asked at what level in the organisation this employee was placed and whether there had been any legal action taken.

Mr Duncan asked how FPB defined blasphemy. He wanted to know how many publications were classified XXX and if they could be made available to the Committee.

Mr Duncan noted that Professor Duncan, on ,19 August 2014, said the FPB was moving away from a regulator to a censor, and that it sometimes made embarrassing decisions, for example in the case of the Spear painting. He asked if the relocation of the FPB from the Department Home Affairs was in fact creating a Ministry of Propaganda. He noted that the FPB Act gave the Minister a lot of power as he/she could appoint the chairperson, deputy, board members and chief executive officers of the FPB. For this reason he also wanted to hear whether the FPB felt that it was sufficiently protected from political interference. He asked if the Deputy Minister of Communications, Ms Stella Ndabeni-Abrahams, could explain any legislative challenges to the work of the FPB.

Ms V Van Dyk (DA) asked if FPB controlled the kind of information that South Africans received and whether, given the powers of the Minister in its Act, the Minister had too much power to censor movies, books and magazines that may be hostile to government, and whether having that power would not lead to propaganda supporting the ruling party.

Ms van Dyk asked if the FPB would examine what kind of mobile and computer applications could be developed in South Africa. She asked if FPB worked with the Independent Communications Authority of South Africa (ICASA) on the three pornography channels that ICASA wanted to license.

Mr W Madisha (COPE) welcomed the FPB’s presentation, especially the Human Resources plan and expressed hope that it would be effective. He commended the financial stability and overall objectives of FPB. However, he did need clarity on the work it had done in tackling child pornography, as the problem seem to be continuing. He asked if the FPB had any power over the workers in the realm of distributors. He asked what FPB needed government to do, in order for it to meet its challenges.

Mr R Tseli (ANC) commended the five year unqualified audit outcomes. He asked what interventions were put in place to achieve strategic goals not yet achieved. He suggested that there was no need for the FPB to address the questions asked earlier about why it was moved from the Department of Communications (DOC) from DHA.

Mr M Kekana (ANC) said the FPB had “a good story to tell” and hopefully other entities in the communications sector would follow its example on an unqualified audit outcomes. He noted that the FPB had many advocates in its organisation, and asked if the employee who misrepresented his/her qualification could not be criminally charged, and even required to return all the money earned under false presences to the FPB. In the State of Nation address, the President emphasized fighting corruption and creating jobs. He wanted to know, if a person was dismissed, how long FPB then took to replace that person, and where it advertised its posts.
 
The Chairperson asked what the FPB did in terms of  in consumer outreach and protection. The Committee would be working with DOC on issues in the Act that needed amendment. A lot of effort was being put by the FPB into boosting its credibility and she too commented that its governance seemed to be sound. However, one worrying point was the strategic goal of a revised ICT strategy, because this was still in draft stage, and she expressed caution that the entity may be overtaken by events. A lot of effort needed to be put into upgrading ICT, as technology was developing at an increasingly faster pace. She asked the criteria used in choosing the universities UNISA and Nelson Mandela Metropolitan University (NMMU) to run the accredited curriculum.

Deputy Minister of Communications, Ms Ndabeni-Abrahams, replied that challenges for the FPB emanated when it imposed a penalty for non-compliant distributors as the Act was not clear. There were certain questions that may be asked to the public service, while others may be asked to political counterparts. Within the democratic South Africa, the ANC was given a clear mandate to govern the country and the only person given the power by the Constitution to increase or decrease the size of departments was the president. When President Zuma made a proclamation that FPB would in future under DOC, he did that without consultation with the FPB, and therefore the FPB should not be asked to answer why it was moved there from DHA. It was important for Members not to put officials in an awkward position through their questions, and politicians could only “play politics” amongst themselves.

Mr Davies said it was not the prerogative of the Deputy Minister to come and tell the Committee how to debate. This was censorship. Mr Davies insisted that this was a meeting in Parliament, and the Deputy Minister, as a member of the executive, could not tell the Committee what to do. This was not a Cabinet meeting, but a Portfolio Committee meeting.

Ms Ndabeni-Abrahams said Mr Davies repeatedly made reference to DOC seeking to embark on propaganda, and that was wrong.

The Chairperson said the Deputy Minister was now responding to political questions asked by the Members.  It was important to understand what was meant by oversight. However, she wanted to stress that there was no “Department of Propaganda”.

Ms Ndabeni-Abrahams also stressed that there was no “Department of Propaganda” and there would not be political interference in the FPB. The FPB had been under DHA, before its move, and that had been no allegations that that ministry had interfered with its work. The FPB Act was passed by MPs in Parliament, and if certain provision were being violated and manipulated, then Members were free to revise and amend that Act. She repeated that there would be no political interference, but interventions would be made, should need arise, through the powers vested with the Minister.

Mr Davies said he was now confused, since the agenda referred to a briefing by FPB, and not by the Deputy Minister.

Ms Ndabeni-Abrahams said Mr Davies must learn to respect her. Departments had political principals that provided direction and when entities appeared before Parliament, their political principals also accounted. Although there were three spheres of government, they interacted. Members needed to understand that the political principals answered questions that the administration officials from entities were not able to answer, hence their important presence at meetings.

Ms Thoko Mpumlwana, Chairperson, FPB, said that trauma counselling to classifiers was a requirement in terms of the Act. Classifiers were appointed from academics, community, industry, religious leaders and young people, and put through some training. The FPB only censored depictions of bestiality and pornography. The FPB would like to engage with Professor Duncan, because the comments that the FPB was becoming a censor board were very harsh. She noted that only magazines were rated XXX, and it was not the choice of FPB to allow pornography in South Africa, because the Constitution gave freedom of choice to adults on what they wished to watch. She stressed that the FPB classified to ensure that children were protected from watching adult content.

Mr Themba Wakashe, CEO, FPB, said blasphemy was defined in terms of religious beliefs. If there were, for instance, films about Jesus Christ, the Christian community may raise the complaints that some of the issues in the movie demeaned their faith.

Mr Sipho Risiba, Chief Operating Officer, FPB, expanded on this by explaining that, in certain instances where there might be contentious religious issues, FPB put a descriptor warning viewers about the sensitive religious content. The content that FPB dealt with included films, games and magazines and also traditional platforms such as theatres and art galleries.

Mr Wakashe said that the FPB would like the government to upgrade the ICT infrastructure of FPB, which was fundamental to its work, as technology was moving very fast.

Mr Wakashe explained that employees working for distributors were protected by the Labour Relations Act. The FPB verified all qualifications of employees within its own organisation, and all new employees were subject to vigorous checks.

Mr Wakashe said the ICT strategy had been developed, and was thus no longer in draft, and the costs associated with this had been projected at R32 million until 2017.

Mr Wakashe said that the choice to use UNISA and NMMU was taken after looking at specialised skills within these institutions and matching them to FPB needs, and then leveraging their institutional capacity. NMMU had ICT research centres which were core to the work of FPB.

Mr Sipho Risiba, Chief Operating Officer, FPB, said FPB did not have the power to deal with distributors. FPB ensured that distributors were registered with FPB. Considerable work had been done at FPB, as evidenced by the Auditor-General’s reports. The reduction of traditional platforms and conversion of content into digital content was causing revenue reduction for FPB. The outreach programmes of FPB included rural areas, because issues of child pornography and child trafficking were taking place there also.
 
Ms Natalie Skeepers, Deputy Chairperson, FPB, said that classifiers worked for a maximum of six years for objectivity and balance. If they need to reapply, they could do so, and be re-employed, but only after they had taken some time off.

Mr Tebogo Matabane, Acting Chief Financial Officer, FPB, said the decline in revenue was mainly caused by three major distributors who stopped distributing content. FPB also made use of radio and television in its outreach programmes as it could not reach out to all rural areas itself. FPB had come up with revenue-enhancement measures, which would only be applicable after amendment of the Act, albeit that this would be insignificant to cater for all FPB needs.

Mr Davies asked Ms Ndabeni Abrahams if she was agreed that Hlaudi Motsoeneng, Chief Operations Officer of the South African Broadcasting Corporation, who had also misrepresented his qualifications, should be criminally charged for misrepresenting his qualifications and pay back all the money.
Mr M Kalako (ANC) asked when issues with the contractor who did not complete his job would be finalised. He asked if the FPB employee who was suspended for misrepresenting his/her qualifications was suspended with pay.

Mr Kalako said that, in general, there were mechanisms to hold Cabinet accountable and the tendency of some Members to try to “smuggle in” issues by asking officials of entities to speak to them must be discouraged. The Chairperson must not allow Members to ask officials political questions, as entities were here to only account for their own work only. The Committee could call the Minister to account at any time. The tendency of politicising the administration and public service must be discouraged. 

The Chairperson said that Members could engage in certain areas that needed a “snap” political debate in the right platforms, but not in the presence of officials from entities. Members could initiate areas that needed debate.

Mr Davies asked the Chairperson to provide a precise guideline on issues that could then be talked about in the Committee, and those which would not be allowed in the Committee.

Mr Tseli said there was nothing wrong in engaging in political issues in the absence of public officials.

Mr Davies said that the issues that were raised in discussion were being asked as part of effective oversight.

Advocate Job Molapo, Chair Remuneration and Human Resources, FPB, answered the specific question in relation to the FPB employee who misrepresented her qualifications, and said that she could be criminally charged as the qualifications that she misrepresented that she had were not necessary for her appointment. Therefore there was no rationale in suing her. She was dismissed for being dishonest.

Mr Davies said many issues were becoming intertwined with politics, because entities themselves were becoming intertwined with politics.  For example, the Deputy Minister was now instructing the FPB not to answer certain questions.

Mr W Madisha said it was important to protect the officials from the FPB, and urged that MPs should discuss the political questions alone.

Mr Kalako agreed with Mr Madisha on the need to protect the FPB officials. The Committee was dealing with an entity and Mr Davies was  apparently wanting to use officials from FPB to turn against the Minister. Mr Davies must not be a coward, and should raise his questions directly to the Minister. He commented that this was a tendency within the DA, and it should not be allowed. He suggested that Mr Davies was “living in another world of conspiracy”, that people with such attitudes had grown up with the idea that people should be censored, and this was what the DA was doing. Officials from the FPB only accounted for their work as a board.

Ms Ndabeni-Abrahams agreed that there was a political platform. She wanted clarity on the meaning of “political interference” from Mr Davies. No responsible adult should be asking FPB why it was relocated from DHA to DOC, and she would not allow any officials to answer such questions in her presence.

The Chairperson released the officials from FPB at this point, and they left the meeting.

Members then engaged in a debate as to what they understood by “oversight”.

Mr Kekana said that oversight, legislation and debate were different. All Members must be reminded that oversight entailed monitoring the work done by an entity or government. Debate was done in the National Legislature. He said to Mr Davies that “his games” were not good for the Committee, and particularly not in the presence of the officials. The National Assembly had time for debate, motions and statements. Mr Davies must be given an opportunity to define political interference, oversight and debate. Mr Davies had attempted to “smuggle in” the Hlaudi Motsoeneng issue, which was irrelevant to the FPB issues. He suggested that Mr Davies was not seeing the ANC Members as “human beings”, pointed out that South Africa had a well-managed democratic government, but, also if he was reminded by events on the previous day, Mr Kekana could not see himself sitting next to Mr Davies. Whilst Mr Kekana had shown a huge amount of forgiveness, when his family members had been killed by people of the same colour as Mr Davies. Although this was a trauma that he would live with for the rest of his life, he and other members of the ANC had sacrificed everything for the opportunity now to sit with Mr Davies and his colleagues in the Committee. Mr Davies was trying to undermine his fellow Members, by suggesting that they could not think, and this was not a good attitude.

Mr Davies said he was stunned by Mr Kekana’s accusations, and he did not really understand what he was insinuating. In a constitutional democracy, oversight did not include defending the political party one might have fought for.

Mr Kekana said Mr Davies’ party had never fought for democracy.

Mr Davies said that his understanding of oversight meant that Parliamentarians must speak freely, and be free to question everybody who stood before the Committee, scrutinising what they were doing for the people in South Africa, whom the Members represented. That, to his mind, was the true test of patriotism. There was nothing in the Committee that must be taken as “off limits”. This was the definition the Constitution envisaged.

Mr Tseli said this was not the first time that issues had been derailed in the Committee. There was nothing wrong in asking officials from entities any and every question about their work. However, there was everything wrong in asking questions to the entity that were of a political nature and were irrelevant to the entity. When issues raised had nothing to do with the entity, that was not oversight. Oversight entailed requiring officials from entities to account on things that went wrong, commending them on work well done, and finding ways of improving their work. There were certain issues that he was not happy with in the conduct of the DA, but this was not the correct platform for him to express his grievances. Mr Davies was not assisting the Committee.
 
Mr Kalako was surprised with Mr Davies’ definition of patriotism, as he believed that patriotism entailed being loyal and committed to the development of your country. The DA community in South Africa, the whites in particular, were voted in, year in and year out after 1948 elections.

Mr Davies asked the Chairperson if such racial remarks were tolerated.

Mr Kalako said the terms “white”, “African”, “coloured” and “Indian” were in the Constitution and various other legislation, and Mr Davies was completely wrong in considering his statements racial. The behaviour of the whites, of trying to equate themselves with others in the struggle for the democracy of the country was wrong. He asked “What democracy did the whites fight for?” as they supported the dictatorship over and suppression of black people in this country for years. The whites were against majority rule in this country.

Mr Davies asked if the Chairperson was going to allow such racist contributions to continue and whether the Deputy Minister has a right to call a Committee to order, as she was a member of the executive.

Mr Kalako said if Mr Davies wanted to debate fair and square, they could debate, as politicians. However, it was wrong to try to turn a Committee session into a plenary. The Committee was for holding officials and Ministers to account. It was wrong for Mr Davies to ask the FPB if it would censor books and movies that seemed to be against the ruling party. He asked what kind of free speech Mr Davies had known, when “his people” had suppressed free speech amongst the black people for centuries. Helen Suzman never fought for democracy in South Africa. She was against the “one man one vote” and campaigned internationally against the ANC government. Mr Davies’ definition of constitutional democracy was off-side as it entailed engaging officials from entities in political debates. This would not be allowed. The Committee must learn that, in the Committee, no officials from entities should answer political questions.
 
Mr Davies said it was a pity that the Committee discussion had reached the point of involving racial allegations. Helen Suzman once said  that it was not her questions that embarrassed the then-government, but its answers. This Committee seemed to be embarrassed for the answers it would get from officials. The Committee should have freedom of speech, and feel free to ask everything from officials. It also could not choose to prevent them from answering, even if that answer was that they chose not to answer.

Ms Ndabeni-Abrahams said any questions could be asked, but stressed that they must be asked at the right platforms. She did not think that it was right to ask political questions of entities. It was good to get publicity and favourable tweets, but whatever was said must not divide the country.  It was wrong for Mr Davies to think that he had the monopoly over wisdom amongst all other Committee Members. No member from the FPB was going to answer any question on decisions taken by President Zuma, in any year. Deep down, the Members must know that such questions being asked was indulgence in the “games of politics”.

Mr Davies said the Deputy Minister should not try to come and tell Members on how to conduct the business of Parliament. This was an affront to every Member in the Committee, as she belonged to the executive.

Mr Kekana said Mr Davies was now testing Members’ patience and he should not hide under freedom of speech. If he had been in the same position, he would have withdrawn what he said. Mr Davies knew what he was doing was wrong, and he had the impression that he simply wanted to test whether other Members were wise to this. He pleaded with Mr Davies to stop playing political games in meetings. Mr Davies was a colleague in the Committee, and an opposition Member in the august House. Mr Davies should not be a coward by attempting to challenge someone who had no weapons to fight back. There should not be opposition in the Committee, as everyone needed each other. Political questions should not be asked in a Committee meeting.

Mr Davies was not sure what Mr Kekana was suggesting that he should withdraw. Whether defined as a colleague or opposition member, he was not going to modify his behaviour in debating, but would continue holding the government to account on behalf of all South Africans.

Mr Kekana said that his remark that “Davies go to hell” was only freedom of speech.

Mr Kalako said Mr Davies seemed to be under the impression that he was the only one who understood the functioning of the South African Parliamentary system. Everybody knew of the separation of powers between Parliament and Cabinet. The Deputy Minister was a Cabinet official who accounted to the President, and Members accounted to the Speaker of Parliament. There was no need for Mr Davies to lecture anyone on the separation of powers. This was a hangover mentality of “Darkaism” which suggested that anyone with a dark skin could not think. Those days were over. Mr Davies had a short memory. Race was a determinant of life in South Africa in politics and the economy – which caused there to be two South Africas and two Cape Towns – one in Langa, Nyanga, Khayelitsha and the other in Camps Bays and the Kloofs. This must be subject to debate some other time. He urged that from today into the future, the Committee was not going to allow Members of the DA to turn a Committee meeting into a plenary.

Mr Davies proposed a simple way of resolving the conundrum, simply by referring to the National Assembly handbook on limitations to questions that could be asked to officials.
 
The Chairperson said she had chaired other Committees and she had never seen issues emerging as were seen in the Communication Committee. The Committee Members were becoming “Mickey Mouse”, in front of officials. A Committee should not be run in such a way that it caused the agenda of the meeting to collapse. She was completely comfortable with the idea of free speech, but if it diverted attention away from the points on which Members were supposed to work, and for which they earned their salary, it was wrong.  Members must deal with oversight in a Committee meeting, and political questions somewhere else. She was also unhappy that sometimes her authority as Chairperson was not recognised. It was incorrect for Members to refer to the DOC as a Department or Ministry of Propaganda, simply because somebody wanted to call a government department to disrepute. It was imperative for Members of the Committee not to run down the Committee.

SABC board Chairperson
The Chairperson said she had been reluctant to bring up this issue, as she was still picking up on the responses. She summarised the current status. After allegations in newspapers, and a request from the DA about the misrepresentation of academic qualifications, the Chairperson had written to the Chairperson of the SABC board, Ms Zandile Tshabalala, asking her to respond to the allegations before 12 August. Ms Tshabalala then requested an extension from the Chairperson, and that was granted, to 26 August. However, by that date, she did not respond by giving the information that had been requested, but instead submitted an affidavit that she had lost her bag with the qualifications.

Mr Kalako said the issue had dragged on for some time. He said that if the person requested for information did not reply to it, that left the Committee with no other option than to institute an inquiry. This was a serious matter, as it was easy to get copies or proof of academic qualifications. He studied at University of Cape Town in the past decades and even if he requested his academic record today, he knew he was going to be provided with a printed copy of those academic records.

Mr Davies seconded Mr Kalako’s proposal to institute an inquiry. He had the CV of Mrs Tshabalala, and a letter from UNISA’s legal department showing that she did not hold the qualification claimed. The inquiry should be done as soon as possible.

Mr Kekana said he studied at Wits Technikon, currently the University of Johannesburg, and he too had no doubt that he could still be provided with copy of his academic record. He reminded Mr Davies that what he was doing now was oversight, rather than what he had been doing previously. He proposed the suspension of the SABC Board Chairperson, with immediate effect, until the Committee was able to reach the conclusion on this matter.

Mr Davies seconded the revised proposal for a suspension. Mr Davies said the ANC nominated Ms Tshabalala, and the ANC asked her to provide certified copies of her ID, CV and qualifications. He wanted the ANC representative who wrote a letter demanding particulars from Ms Tshabalala also to account before the Committee on whether due diligence was applied in nominating Ms Tshabalala. Noting that Ms Ndabeni-Abrahams had her hand raised, he wanted to object to her speaking at this point.

Mr Ndabeni-Abrahams said Mr Davies seemed to be suffering from some phobia. She reminded the Committee that the SABC board Chairperson was appointed by the President, after recommendations from Parliament.

The Chairperson agreed that an inquiry should be constituted in terms of Section 15 of the Broadcasting Act (1999). The Committee needed legal advice on the way forward. Any recommendation that the Committee came up with must go to the House, before being implemented.

Mr Ntuthuzelo Vanara, Senior Legal Officer, Parliament, said the fundamental principle of holding any inquiry was that the person being investigated must be furnished with a notice for the inquiry, allegations that would be discussed during the inquiry, when the inquiry would take place, whether the accused was afforded legal representation, and the available evidence against the relevant individual. The Committee must do attend to all these logistical arrangements. If there was to be a recommendation to suspend, that must be a recommendation from the Committee to the House. The House then would forward the recommendation to the President,  to effect the suspension. Any decision on the future of the SABC board Chairperson was dependent on recommendations from the Committee.

In summing up, the Chairperson said the Committee would recommend to the House that an inquiry be constituted in terms of Section 15 of the Broadcasting Act (1999). The decision of the inquiry will be discussed in the next meeting, pending the legal advice from Parliament, taking into account the resources available to the Committee.

Strategic Planning for the Committee
The Committee proposed and agreed that 22, 23 and 25 September 2014 should be set for the strategic planning session for the Committee’s work over the next five years. The draft programme was to be emailed to Members.

The meeting was adjourned