Constitutional and Legal Services Unit on Legal Opinion relating to removal of SABC Board members; Shorlisting of candidates for SABC Board

Meeting report

Shorlisting of candidates for SABC Board

The Chairperson welcomed visitors and delegates from the Parliamentary legal service. At the previous meeting of 17 March, the Minister of Communications, Ms Faith Muthambi, had presented on the state of the SABC, dealing with its capacity and current affairs. There had been considerable discussion on whether the Committee was using the correct parameters to understand the removal of the SABC board members in terms of the Broadcasting Act or the Companies Act, and a legal opinion from Parliament’s legal services had been sought. The short listing of SABC board members had not been finalized, as the Committee had received another two positions from the Presidency that needed to be filled. Twenty-five applicants had applied and 97 had been nominated, so the sub-committee was now dealing with about 120 CVs. The short listing would be complete by Tuesday next week, and the Committee would take extra days to finalise the matter.

Mr R Tseli (ANC) said the short listing was long overdue. He proposed the Committee should proceed with the agenda of the day and reconvene next week on the short listing.

Mr M Ndlozi (EFF) said the sub-committee was not slow, but it had been dealing with 120 CVs.

Mr G Davis (DA) said the absence of many of the CVs was because of governance issues at the SABC. If the sub-committee did not get the quality it wanted, it had the right not to appoint anyone.

The Chairperson said Mr Davis must stop raising other matters, and asked Members to give the legal team an opportunity to present.

Legal Opinion on Powers to Remove SABC Board Members

Ms Zuraya Adhikarie, Chief Legal Adviser, Parliament, said the analysis had been based on the Acts and not on specific cases -- more like an academic exercise, which set out in broad general terms the procedure by which a board member of the said institution may be legally removed.

Mr Nathi Mjenxane, Legal Advisor, Parliament, said his office had received a request to advise the Committee on the powers and procedures for the removal of a board member at the SABC. In terms of the principle of legality, state organs could only exercise the powers and functions authorized by the law. Citing the case of the Speaker of Parliament v De Lille and Others (1999), he said the judge had ruled that the Constitution was the supreme law, not Parliament or the President, and no official could make any law or perform any act that was not sanctioned by the Constitution.

In terms of Section 13 of the Broadcasting Act, 12 non-executive members of the SABC board had been appointed by the President on the advice of Parliament. Section 15 of the same Act provided for the removal of board members by the appointing authority on account of misconduct or inability to perform his or her duties efficiently after due inquiry and upon recommendation by the board. A board member could also be removed after a finding to that effect by the committee of the National Assembly of a resolution calling for that member’s removal. Section 15 (1) (a) provided discretionary powers for the President to remove an SABC board member.

Section 71 of the Companies Act provided for the removal of directors by an ordinary resolution at a shareholders’ meeting. While the Companies Act was applicable to the board, it was in conflict and could not be reconciled with the Broadcasting Act, since the latter was specifically applicable to the appointment and removal of SABC board members. The common law and legislative principle of lex specialis derogat legi generali suggests that whenever two or more pieces of legislation deal with the same subject matter, priority should be given to the legislation that is more specific to the subject matter. The rationale was that the Broadcasting Act had priority over the Companies Act, as it related to the SABC board and was justified by the fact that such a special law is often more concrete, often taking better account of the particular features of the context in which it was to be applied than any applicable general law. The Broadcasting Act was applicable to the removal of a board member, and any conflicting provision of the Companies Act was preceded by the relevant provisions of the Broadcasting Act.

Discussion

Mr Davis asked if there were measures for recourse if members were arbitrarily removed from the SABC board.

Ms Adhikarie replied that the courts were always available for recourse.

Mr Ndlozi said apartheid had been wrong, and the people who were bureaucrats then were acting on the orders of the political dispensation of the day. In this democratic dispensation, people should follow the law without considering the political authorities of the day. The legal team had done a good job without looking at the government of the day. The analysis had been very educational.

The Chairperson thanked the legal team.

Mr Davis said the Committee had to discuss the legal opinion immediately for the public to know the position of the Committee.

Mr Ndlozi said this should be done while the legal service team was still so that the Committee could seek a legal opinion on its recommendations, as this would inspire confidence among the public.

Ms D Tsotetsi (ANC) appreciated the opinion from the legal team. There were other parties interested in this matter, and they should be given an opportunity to present their case before the Committee could continue.

Mr Davis said there was no need to involve the Ministry, as the Minister should not have interfered in the first place. The Committee was the only entity to stabilize the SABC.

Mr Ndlozi said he thought the other parties were the Presidency and the board. The Ministry had no relevance in the current discussion.

Mr Tseli said the matter has been in the public space for some time and the Committee had to expedite the matter. It would be procedurally incorrect for the Committee not to allow the Minister to give her side of the story, having received the legal opinion.

Mr Ndlozi said all Members were in agreement with the legal opinion, and nowhere did it include the Minister. She could be told that what she did had been unlawful and invalid. The Committee already had her opinion when she presented on the state of the SABC. The Committee must stand its ground. The legal opinion was enough, and whoever had been unlawfully removed must be reinstated. The process the Minister used to remove the board members was wrong.

Mr Davis said there was no need to consult the Minister. It was an exercise in futility to call the Minister. She did not have the power to remove board members. The Committee must draft a letter to those who had been removed and attach the legal opinion. Nothing the Minister could say would trump the legal opinion.

The Chairperson said the Committee needed to understand the Minister was the head of a government department, and the SABC was under her portfolio. It would be unlawful for the Committee to write to the SABC board members who had been removed.

Mr Ndlozi said the three stakeholders with an interest in this case were Parliament, the Presidency and the board. The Committee must write to the Presidency. The legal opinion had been very educational, stating that the Broadcasting Act took precedence over the Companies Act. The question that must be put to the Minister was, what was she trying to resolve by removing the board members?

Ms Tsotetsi said the Committee must not take shortcuts if it would not yield the desired results. The Minister would of course align herself with this opinion, and the Committee must conduct itself in a way that it would not have to apologise to anyone. The Minister should be given a chance to come and present her case.

Mr Tseli said all Members agreed with this opinion and the Committee should agree to reconvene and give the Minister the opportunity to state her case, as she remained Minister of Communications.

Mr Davis said the Committee must ask the legal advisors on the procedural steps to take for the recourse to follow.

The Chairperson said that question had already been answered. The Committee Members were decision makers, not trouble makers. In the light of the advice received, the decision by the Minister had been invalid and unlawful. The legal advice would be presented to the Minister to agree with it, and the matter could only escalated to the Presidency if the Minister disagreed with the opinion. An urgent meeting may be called in the coming week.

The meeting was adjourned.