Minister of Communications on SABC Memorandum of Incorporation & removal of SABC board members

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Communications

23 June 2015
Chairperson: Ms J Moloi-Moropa (ANC)
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Meeting Summary

The Committee met with the Minister of Communications to hear the Minister’s response to the parliamentary legal opinion that the procedure followed to remove three SABC board members had been illegal. Minister Muthambi spoke to the separation of powers and the functions and duties of the legislature, executive and judiciary, the Companies Act and the Broadcasting Act, proper interpretation of the laws in question and their specific provisions and procedures which, in her opinion, permitted the removal of SABC Board Members by the Board itself. She did not agree that Broadcasting Act trumped the Companies Act but asserted that the two acts could work in tandem.

The Ministry’s legal adviser took Members through a broad presentation on the legal instruments which govern the Department of Communications: the Broadcasting Act, the Companies Act and the amended Memorandum of Incorporation (MOI).

The Committee questioned how the Minister’s opinion differed from that of Parliament; if due process was followed in the removal of the Board members; and requested replies from the Minister on key aspects of the parliamentary legal opinion as the Minister had not provided a detailed rebuttal of the opinion or dealt with the common law principle that the specific law overrides a general law of application. Some Members noted that no complaints or disputes were lodged with the Committee by the board members regarding their removal while others provided their own comments on the separation of powers. Some Members emphasised that it was the Board and not the Minister who was in control of SABC matters and provided examples of how the Minister undermined the MOI and unlawfully ignored sections of the Broadcasting Act, arguing that the MOI would turn the SABC from a public broadcaster to a state broadcaster run by the Minister. Other Members felt the Minister and her legal adviser had the wrong attitude and were lecturing Members on the separation of powers and what the duties of the Committee ought to be.

After this engagement, the Committee reconvened after a short break to develop the way forward on the issue. Members of the ANC, after hearing all sides, aligned with the explanation of the Minister in that processes were duly followed and there were not any complainants nor were formal disputes lodged. Members of the opposition however were disappointed at the perceived u-turn by the ruling party after the Committee had endorsed the parliamentary legal opinion and felt that the good work of the Committee was now being undermined.

Parliamentary Legal Opinion: Removal of 3 SABC board members [email info@pmg.org.za]

Meeting report

As Ms Moloi-Moropa was ill, the Committee elected Ms Tsotetsi as Acting Chairperson.  

The Acting Chairperson explained that in the previous Committee meeting regarding the legal opinion of the removal of some members of the Board of the SA Broadcasting Commission (SABC). The Committee would today deliberate until there was a general feeling. It also allowed the Minister an opportunity to present her views on the parliamentary legal opinion the Committee received and the Committee would deliberate thereafter.      

Minister on section 15(1) of Broadcasting Act & section 71(3) of the Companies Act
Minister of Communications, Faith Muthambi, reminded Members of the constitutional position of the House which was to make laws and oversee the work of the Executive and hold it to account. Since coming to Parliament, she observed some shopping for gossip on SABC affairs, some of which was brought to the Committee to divert the attention of the Committee from debating matters of national importance such as transformation of the media, an overarching communication strategy and the role of the regulator, the Independent Communications Authority of SA (ICASA). The Ministry would continue to ensure the SABC informed the public of the work of government and continue to build the spirit of patriotism amongst South Africans to be proud of the country. There was gossip about the Memorandum of Incorporation (MOI) of the SABC – the MOI was the shareholder document of a company. The SABC was a state owned company in terms of the Companies Act, 71 of 2008, where the sole shareholder of the SABC was the state in terms of the Broadcasting Act. The Minister was the Executive responsible for the administration of the Broadcasting Act and was entitled, in terms of the Companies Act, to take special resolutions to amend the MOI. The MOI was amended to empower the Group Chief Executive, the Chief Operating Officer and the Chief Financial Officer of the SABC to handle matters relating to the discipline, employment and dismissal of junior staff. This was an Executive Act for which she did not need the approval of any other person.

She believed some parties used their parliamentary positions to encroach on the constitutional provisions of the Executive. There was gossip relating to the removal of the three non-executive members of the SABC which led to the solicitation of a parliamentary legal opinion. The legal opinion concluded that the Companies Act, where it was applicable to the Board and where there was a conflict, could not be reconciled with the Broadcasting Act and the latter Act would find precedence over the Companies Act. The opinion also found the Broadcasting Act applicable to the removal of Board members and that any removal of SABC Board members which were not within provisions of the Broadcasting Act was invalid and therefore, unlawful. The Minister found the said legal opinion unlawful because it found Parliament to be the interpreter and enforcer of the law which was the function the Constitution of the country awarded to the Executive. The function of this House was to make laws for which the Executive was to implement. The Broadcasting Act and Companies Act were pieces of legislation from the House and the provisions of these laws were to be implemented by the Executive. It was not the function of Parliament to tell the Executive which law must be applied to any particular circumstance over and above other legislation. It was prudent to note that it was not the function of Parliament, or a Committee of Parliament, to declare the provisions of the Companies Act to be in conflict with the Broadcasting Act – it was the function of the judiciary to interpret the law and declare laws in conflict. The conclusion of the parliamentary legal opinion was in conflict with the doctrine of the separation of powers because it was the function of the judiciary to declare and interpret conflict in any law. In fact, only the Constitutional Court was empowered to declare any legislation of Parliament unconstitutional.

The Minister said she had received the letter indicating that the majority of Members agreed with the legal opinion of Parliament but the Committee had no right to tell the Executive which law to apply. The Executive was bound by the Constitution to apply all laws from this House until such time said laws were declared unconstitutional. The directive of the legal opinion, that the SABC Board could not apply Section 71(3)(a) and (b) of the Companies Act, amounted to an encroachment of the constitutional position of the Executive. Separation of powers meant that all laws of the House were to be implemented by the Executive. Separation of powers also meant that interpretation was conducted by the judiciary while parliament made law. In the event of any genuine possible conflict of pieces of legislation, the House should make a submission to its Speaker to inform the Executive to consider the matter. If the executive agreed, it would approach the court to make a declaration of conflict and make an appropriate order in this regard. Where section 15(1)(a) and (b) of the Broadcasting Act and section 71(a) and (b) of the Companies Act were concerned, the provisions did not conflict with each other. It was clear from the two statutory provisions that the National Assembly may not doubt its own wisdom in enacting section 71(3) of the Companies Act to empower the SABC Board, on its own, to remove its members without the involvement of the appointing board. In addition, the National Assembly decided to exclude itself from the process contemplated in section 71(3) of the Companies Act presumably because it was satisfied with the power that it had in terms of section 15(1)(b). In doing so, the National Assembly, again in its own wisdom, decided not to repeal section 15(1) of the Broadcasting Act but retained the whole section because it intended for both provisions to stand together and to be applied, concurrently, in respect of different grounds of removal of directors. There was nothing wrong in Parliament enacting over-locking authority and procedures for different functionaries – the fact that it was undesirable and brought confusion did not mean that Parliament was not competent to do it or that there was necessarily a conflict. On the contrary, there was no conflict provided that the relevant provisions were able to stand together at the same time and be obeyed at the same time.

On the proper interpretation of section 15(1) of the Broadcasting Act, the removal process, in terms of subparagraph (a), may be initiated by the SABC Board itself, or, in terms of subparagraph (b), be initiated by the National Assembly itself. The process outlined in section 71(3) of the Companies Act did not involve the appointing body and the National Assembly. Certain interest groups may be unhappy with this as it left the matter entirely in the hands of the SABC Board but this was what the legislature chose and intended. The powers of the National Assembly, in terms of section 15(1) of the Broadcasting Act, had not been diluted or removed by section 71(3) of the Companies Act. It was therefore not necessary to canvass the issue any further. There was an overlap of section 15(1) of the Broadcasting Act and section 71 of the Companies Act in respect of alleged misconduct or dereliction of duties. There were three procedures to remove SABC Board members:
1) SABC Board member pay be removed by the President on the advice of the National Assembly after due inquiry and upon recommendation by the SABC Board, in terms of section 15(1)(a) of the Broadcasting Act
2) Removal by the President after finding of misconduct by a Committee of the National Assembly and the adoption of a resolution calling for that member’s removal from office, in terms of section 15(1)(b) of the Broadcasting Act
3) Removal by the resolution of the Board where a Director had alleged and the Board had determined that he/she had neglected or been derelict in performance of the functions of a director, in terms of section 71(3) (b) of the Companies Act

The provisions of the Companies Act and Broadcasting Act in this scenario were capable of concurrent application. She did not want a situation where the House was misdirected to be a forum to argue which laws were to be applied or not and to argue the interpretation of law – this attempt must be defeated. 

Request made by a committee member
Before the legal adviser with the Minister could brief Members of the presentation, Mr M Ndlozi (EFF) said that he did not want a tutorial. He went through the presentation already and the Committee only wanted the Minister to respond to Parliament’s legal opinion. He did not want time to be wasted. If the presentation was a tutorial on the legal instruments, he appealed to Members not to indulge it.     

The Acting Chairperson outlined that Members were not the only ones present - the media and public was too and it helped them to present the full background before judgement was made. The presentation could provide further clarity and it was standard practice to hear the presentation before the Committee deliberated. Members would not receive a tutorial, as it was perceived, but a summary.

Mr G Davis (DA) supported with Mr Ndlozi in that Members had read the presentation and the Minister had summarised the substantive issues nicely already. The presentation was mainly a cut and paste from the various pieces of legislation which of course Members had all read and were very familiar on.

Mr M Kekana (EFF) asked that the Committee be controlled by the Chairperson and the agenda and that it not be selective in dealing with the issues. Whether Members had already read the presentation or not was not his concern – the presentation needed to be made in the meeting. If Members did not want to listen to the presentation, they should take a walk or go to the toilet

The Acting Chairperson noted that not everyone present was a legal expert so it was in the interests of the Committee to listen to the presentation because although the presentation document had been already received, it might be difficult to interpret for those who were not experts in the legal field. It was important that there was clarity about what was read for there to be common understanding

Mr R Tseli (ANC) suggested progress be made. The agenda had been adopted which included the delivery of this presentation and there was no objection to this agenda to suggest the presentation was irrelevant to the meeting. If this was the view, it should have been raised earlier when the agenda was adopted. He asked the Chairperson to direct the meeting and allow the legal adviser to continue.   

The Acting Chairperson said it was not the first time the Department was making a presentation to the Committee and Members never objected before or dictated what should be done. She emphasised that it was in the interests of the Committee to hear the presentation to allow for the same interpretation especially for the Members who were not legal experts. She appealed that the Department be given a chance to make the presentation. It would be unfair to engage in discussion before the presentation was delivered.    

Mr M Ndlozi (EFF) felt the Chairperson was taking the Committee for granted – if the ANC wanted a tutorial it could go to caucus. The agenda said there would be a presentation by the Minister and that was already done.   

The Acting Chairperson noted that it was agreed in the last Committee meeting that the Department should be given a chance to respond to the parliamentary legal opinion. Everyone was not lawyers and the presentation would be delivered as planned and no more time would be wasted.

Legal Instruments which govern entities under the Department of Communications
Mr Daniel Mantsha, Ministry legal adviser, took the Committee through the presentation speedily. To understand the Broadcasting Act, one should first consider the intentions of the Act. The most relevant sections of the Act in terms of the work of the Committee, was the constitution of the Board, dismissal of the Board, which was dealt with under section 15(1)(a) and (b) and section 15A, and matters relating to the public funds which the SABC received. Most of the work of the Committee was on the accountability of the Minister, in terms of the Public Finance Management Act (PFMA).

The Broadcasting Act did not apply in isolation to other laws. The SABC was a Pty Ltd so it was a company incorporated in terms of the Companies Act and this Act was the foundation of any company in SA. Whether state owned or privately owned, the company needed to satisfy the provisions of the Companies Act. The law required that a company must have a MOI which formed the constitution of a company. The shareholder of the company produced the MOI to regulate a number of affairs that set out the rights, duties and responsibilities of shareholders, directors and others within and in relation to the company and other matters as contemplated in section 15 of the Companies Act. In terms of section 15 and 16 of the Companies Act, the shareholder was entitled to amend the MOI per a special resolution.

The SABC MOI was amended in terms of the power given to the shareholder in terms of the Companies Act. Section 8A of the Broadcasting Act excluded certain provisions of the Companies Act from not applying as far as the SABC was concerned. In terms of the law, the executive who was in charge of a state owned entity must apply to the Minister of Trade and Industry to request sections of the Companies Act to not apply, given the dynamics of that state owned company. Upon consideration of that application, the Minister of Trade and Industry may exempt that state owned entity from complying with certain sections. The former Minister of Communications requested an exemption of certain sections set out in section 18A(6) that the SABC should not be subjected to – section 71(3) was not one of those sections which were excluded.

Mr Mantsha concluded by saying the SABC, as a company, operated in terms of the Companies Act, the PFMA, the Constitution, the Broadcasting Act and other relevant legislation.

Discussion
Ms M Nkadimeng (ANC) asked how the Minister’s opinion differed from the legal opinion of Parliament and what the Minister’s view was of that opinion.

Ms N Ndongeni (ANC) wanted to know from the Minister what the core status currently was.

Ms R van Schalkwyk (ANC) asked if due process was followed in the removal of the Board directors and what these due processes were according to the Minister.

Mr Kekana asked that since there was no notice of conflict or dispute received by the Committee on the removal of the Board members, were there any remedies available on the removal of directors.  

Mr Davis noted that it was true that the function of the House was to make laws but the other function was to oversee executive and administrative action by the state to make sure it was lawful and above law – this was precisely why Members were present today. While it might be for the judiciary to interpret the law, it was also for Members to interpret the law so that there was no wrongdoing and if necessary, refer such cases to the judiciary – this was how the separation of powers worked so that the legislature, executive and judiciary did not work in silos but together towards a common aim. If the Minister said the judiciary was there to interpret laws, why was the Minister interpreting the law because she was giving Members her interpretation of the law? Looking at the MOI and the illegal removal of the Board members, this was unlawful. He found it strange that the legal adviser did not mention section 13(11) of the Broadcasting Act which said the SABC Board controlled the affairs of the Corporation – this was the fundamental section of the Broadcasting Act which was being ignored by the Minister. He emphasised the Board, and not the Minister or the CEO, was the only entity lawfully in charge of the SABC. Perhaps this was obviously why the section was omitted from the presentation. The MOI was unlawful because it ignored this prescript of the Broadcasting Act.

Mr Davis provided examples in the MOI of how the Board was undermined by the Minister, including, section 5 where the Board had to seek the approval of the Minister for any rule change relating to the governance of the SABC. Under the previous articles of association, no such approval was previously required. This undermined section 13 (11) which said that the Board controlled the affairs of the corporation. Another example was section 13(5)2 of the MOI which empowered the Minister to waive the requirement for the Board to advertise and shortlist candidates who applied for the position of CEO, COO and CFO – in other words, the Minister got to decide whether these positions were advertised when he was appointed. Everybody knew that Hlaudi Motsoeneng position was not advertised so this might be an opportunity to post-rationalise that unlawful appointment. Another example was section 13(5)7 which gave the Minister absolute authority to decide whether the CEO, COO and CFO should be reappointed and the terms and conditions of that reappointment. This was a departure from section 19(1)(1) of the previous articles that gave the Board control over the reappointment process so again the Minister was taking control over the affairs of the SABC and not the Board as set out in the Broadcasting Act. Section 13(6)(3) stated that the Board could discipline or suspend CEO, COO and CFO only with the approval of the Minister – this gave the Minister the power to block any moves by the Board to discipline Mr Motsoeneng, for example as directed to do by the Public Protector, and this was not previously the case – it was the prerogative of the Board but now the Minister trumped the Board and this was unlawful. The final example was previously, in section 19(2) of the articles of association, the Board was empowered to appoint an acting CEO, COO and CFO but this power had now been removed. It was evident that the MOI was fundamentally unlawful because it ignored sections 13(11) of the Broadcasting Act which stated the Board controlled the affairs of the Corporation. Under the current MOI, the Board could not do that because the Minister was effectively doing that. This was why he argued that the MOI would turn the SABC from a public broadcaster run by a board, to a state broadcaster run by the Minister.

The Acting Chairperson interjected to say that Mr Davis had exhausted his five questions. She did not want speeches but for Members to ask their questions because this was not the only round to pose questions. It was important to give other Members a chance.

Mr Davis noted he had two more points to raise and asked that the Chairperson allow him to deal with. Parliament’s legal opinion on the removal of the Board members was very clear that the only means to remove a Board member was for the appointing body – which was the President acting on the advice of the National Assembly – to remove Board members and it had to be done through the process set out in section 15 of the Broadcasting Act. He wanted to hear the Minister’s response to each of the following paragraphs in the legal opinion because she promised a substantial rebuttal:
“notably, the above mentioned sections providing for the removal of a Board Member, are the only stated powers and procedure in terms of which a Board Member of the SABC may be removed”
“the SABC board has no legal competency to arbitrarily remove a Member of the Board”
“the SABC Board does not in itself, have the legal competency to conduct such an inquiry into an SABC Board Member’s fitness to hold office, find such a Board Member guilty and remove him/her from office”
“it is imperative to note that, the Broadcasting Act is specifically applicable to the appointing and removal of the SABC Board Members. The Companies Act 71 of 2008 on the other hand, whilst it is applicable to the Board, where it is in conflict and cannot be reconciled with the Broadcasting Act, the latter act would find precedence over the Companies Act”
“principle 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 of the principle that special law (Broadcasting Act) has priority over general law (Companies Act) as it relates to the SABC Board is justified by the fact that such special law, is more concrete, often takes better account of the particular features of the context in which it is to be applied than any applicable general law. Its application may also often create a more equitable result”
“it is our view in this instance the Broadcasting Act is applicable to the removal of a Board Member and that any conflicting provision of the Companies Act would be preceded by the relevant provisions of the Broadcasting Act”
“any removal of a SABC Board Member that is not effected in line with the provisions of the Broadcasting Act as stated above is invalid and therefore unlawful”

The Minister had not yet provided a detailed rebuttal of this legal opinion or dealt with the principle in common law that said that the specific overrides the general. He wanted to know specifically what legal opinion the Minister had in her possession that said that the general law could override the specific law because this was in essence what she was arguing. Which Companies Act was the Minister using?

The Acting Chairperson felt the Member was making a speech and not being fair to other Members.

Mr W Madisha (COPE) noted that Mr Davis asked some of the questions he wanted to ask so the Chairperson could allocate his time to Mr Davis.

The Acting Chairperson asked Members not to play games – everyone was a politician and knew the strategies. Those present needed to be respected as they made the time to appear and the Members were public representatives and the public sought answers to their questions as well.
 
Mr Ndlozi thought it was very disappointing to hear the Minister's response. There was an attitude problem with the Minister and the entire Department which was why it should be shut down. The Minister felt that she did not have to be having this conversation with the Committee but she could come and lecture Members with a tutorial because in her head, it was not the place of the Committee to contest the laws it made. There was a fundamental confusion about the separation of powers. The Minister needed to respond to the idea that her attitude was that this conversation was misplaced. This was why the Minister did not want to engage on the substantive interpretation of the law. He anticipated the opinion and attitude of the Minister. This was a political issue to sort out because the Minister did not think it the “duty” of the Committee to interpret laws and that it was the place of the judiciary so she could only take instructions on the illegality of her actions from a judge. The Minister should admit this so that the debate could be closed. The attitude of the Minister was most worrying and left him wondering why he should waste his breath when the attitude of the Minister was that she came to educate the Committee and it was not the Committee’s “duty” to hold her interpretation accountable. The Minister should be asked to leave and the Committee could remain behind to reach a decision for implementation.

Minister Muthambi responded that the work of Parliament was to make laws and oversee the work of the Executive to hold them accountable and she was mindful of this as it was the reason the Members were present. She was concerned that sometimes, especially the DA, deemed it fit to go around shopping for gossip. Section 8A of the Broadcasting Act was amended to empower her predecessor, Dina Pule, to register the MOI of the SABC in terms of the requirements of the Companies Act, No 71 of 2008. The SABC MOI was registered by the Companies and Intellectual Property Commission (CIPC) on 14 May 2014. If the MOI was not in line with the law, the CIPC would have rejected it.

Minister Muthambi said that in response to Parliament’s legal opinion, the SABC Board did not arbitrarily removed the three former directors – the former directors were given a hearing, in terms of section 71(3) of the Companies Act, so the removal was done in terms of the law. The three former directors were given an opportunity to be heard. In terms of section 15(1)(a), the SABC Board was entitled to conduct an inquiry and recommend removal. Section 8A of the Broadcasting Act indicated clearly which sections of the Companies Act did not apply to the SABC and section 71 was not listed as a section which did not apply – Members should read this section in its entirety. The Minister believed the author of the parliamentary legal opinion made a wrong assumption of the law by concluding that the provisions of Companies Act were in conflict with the Broadcasting Act – this conflict was unfounded in law. She told Mr Davis that it was wrong in law to suggest that whenever one or more pieces of legislation deal with the same subject matter, priority should be given to the legislation that was more specific to the subject matter. The entire reasoning of the author of Parliament’s legal opinion was based on an incorrect assumption of the law that the said provisions of the Broadcasting Act and the Companies Act were in conflict because the two Acts were not in conflict.

Mr Mantsha, the Department legal adviser said, listening to the Minister, he was reminded of standing before a judge making legal submissions and he wondered if this was the right forum to make legal submissions. The Constitution was clear in that anyone who had a dispute which could be solved through the application of the law must approach the court – the Constitution did not make Parliament this forum. It was clear that the function of interpreting the law resided with the judiciary and conflict of the law was the function of the judiciary. The Minister advised the House that, in terms of good governance and the protocol of the House and Constitution, if Members of the House deemed it fit, if some of the laws it made conflicted, the court could be approached to make a declaration. It was wrong for the Minister to pronounce to the Committee on conflict of laws and which laws should apply and which should not as Members expected the Minister, as a member of the Executive, to interpret all laws. The statement that the removal of the three former directors was unlawful, was not based in law. If one believed genuinely that the SABC Board should control operations of the Corporation, one would argue at the same time that the SABC Board must be entitled to exercise the provision of any law that gave authority for it to act in any instance as section 71 of the Companies Act did so. There was argument about how the SABC Board should be given space to control the affairs of the Corporation but when the Board did so and removed directors, people cried. This was why he thought there was no genuineness on that complaint. Members knew very well that only the judiciary could pronounce on the lawfulness of the Act and Members should know very well that they were not part of the judiciary but part of the legislature. Thus, it was not upon Members to pronounce which sections or provisions applied and which did not – Members had no basis in law to even suggest this. Both the Companies Act and Broadcasting Act were valid laws from this House and the Executive applying these laws could not be branded as unlawful.

He said that the Minister made it clear which provisions of the MOI were amended. Members failed to appreciate that the MOI, in terms of the law, was a document of the shareholder and the constitution of the company. SABC Board was entitled by law to propose amendments to the MOI and the Minister was entitled by way of special resolution to amend the MOI. The amendments made were not rejected but were valid amendments. The SABC was a state owned company where the Minster was the representative of a shareholder and the shareholder was entitled to direct on how certain affairs of the companies must be dealt with. Day to day affairs of the Corporation included dismissal and employment. There was no dilution of the powers of the Board to control and run the affairs of the Corporation because all provisions of the MOI required concurrence unless it was presumed the intentions of the Minister were evil or if there was no trust in the executive and the Minister – there was no basis not to trust the Minister who led a national department and was entrusted by the laws of the House to execute the letter and spirit of the law which was exactly what she had tried to do.

Mr Mantsha said that the question was: what was the next step if the Committee disagreed with the Minister on the provisions and application of the law – who had the last word? This debate should not take place in the House because none of the parties present could make the last call – only the judiciary could do so. The Minister was not rubbishing the legal opinion of Parliament – she had considered the legal opinion and gave the Committee the reason that she disagreed with the opinion. She said that fundamentally, the legal opinion recognised a conflict which did not exist. The principle that the Broadcasting Act should apply if there was conflict, was wrong. The Companies Act was an overarching piece of legislation as far as company matters were concerned. When dealing with a company, which the SABC was, the overarching law was the Companies Act. The Broadcasting Act did not offend the Companies Act. Powers and privileges of directors of companies were regulated by the Companies Act. The very same Act gave the three former directors rights that if decisions were taken against them and they were removed by a resolution of the Board after an inquiry by the Board, within 20 days, they were entitled to approach the court or relevant authority to reverse the decision. The three former directors never went to any court nor was there a formal complaint to the House and it was said that silence meant consent. These former directors knew what their rights were and did not exercise these rights in terms of the law. It was not correct for the legislature to go out of its bounds to collect issues and bring them to the House for debate. There were no complaints from the three former non-executive directors and the Minister was never served with any court documents from the three to challenge the decision. Members from the House were now challenging the dismissal of the three non-executive directors but the question was on which basis?       

Mr Ndlozi thought the legal adviser should be humble in knowing which things to say to Members and which things should not be said – he was asked not provide a legal opinion and should be limited to that and not to questioning the intentions of Members. This was out of line. The legal adviser was not the equal of Members in this meeting. He asked the Chairperson to guide this because such input would degenerate the engagement.

The Acting Chairperson noted this. She allowed the lengthy response because she wanted the many questions of Mr Davis to be satisfied. She asked for Members to pose their last questions because the Committee could not keep on questioning. There was also a sitting of the House in the afternoon.  

Mr Tseli agreed that the Committee could not sit all day speaking on the same issue. Only clarity-seeking questions should be posed to the Ministry. From there, a way forward should be reached by the Committee to prevent the opening of further debate on the same issues.

The Acting Chairperson asked that Members pose follow-up questions.

Mr Kekana agreed that there was no dispute and no one had complained to the Committee. There was a presumption that the Minister was voting with the Board and that she was the one would made the removals. He asked if the Minister was part of the voting. It would be a problem if Members now became sniffer dogs when there was no complaint. The Committee could not take on media issues and all different matters.

Mr Davis sensed the Committee would reach an impasse in this discussion. He still did not have a sufficient answer as to why the MOI could simply trump provisions of the Broadcasting Act. He was very interested to know which Companies Act the Minister referred to – as far as he could see, the Broadcasting Act, when talking to the Companies Act, spoke to the Act 61 of 1973. This was material because the Minister’s entire argument hinged on clauses in the Companies Act 71 of 2008. On the dispute, it may be so that the Board members did not lodge a dispute, and it was their prerogative whether they did so or not, but the Committee was charged with having a part to play in the removal of Board members and the Committee lodged a dispute - the Committee did not require a Board member to lodge a dispute. Two weeks ago, the Committee agreed with the legal opinion of Parliament that the removals were unlawful and the point of the exercise was to avoid ending up in court and appeal to reason. 

The Acting Chairperson interjected to note that the Committee was not in agreement about the legal opinion of Parliament – the agreement was that the Minister be invited to present her side to the Committee. It was important not to misinterpret the decisions taken.

Mr Davis said this was not entirely true – he had a letter from the Chairperson of the Committee, who was unwell, where she noted that the Committee did endorse the legal opinion of Parliament. Members had been at that meeting and were at one with the legal opinion. He hoped that the Committee was not backtracking on this agreement.

The Acting Chairperson said it was agreed that the Minister would be given a chance to respond to the legal opinion because it would be unfair not to hear what she had to say.

Mr Davis thought there were two legal opinions – one which the Committee endorsed but the ANC Members were now backtracking on and the Minister’s opinions. There was now an impasse and the Committee needed to decide what to do to move forward. Frankly, the presence of the Minister was not needed because she should have nothing to do with the removal of Board members.  

Mr Madisha thought a number of things needed to be clarified and the Committee needed to reach a decision to ensure the truth prevailed and resolutions could be developed to take SA forward as one. He was very disappointed in the legal advisers as they were, in his opinion, terrible and contradicted their own positions. This was a very serious problem which could not be allowed. The Committee needed to come up with a proper empirical understanding to take the country forward.

The Acting Chairperson agreed that the Committee needed to stay behind to finalise outstanding issues.  

Mr Ndlozi felt the public needed to be saved by the misrepresentation of the duties of Parliament as presented by the legal adviser present. It was the duty of Members of Parliament to constantly battle the proper implementation and interpretation of its own laws to find each other and prevent ending up in court. He did not take it kindly that the legal adviser extending beyond offering his legal opinion and this should be dismissed with contempt. The Committee did not need to wait on a formal complaint to do what was right – if there was a dead body and nobody reported the case, this did not mean the death should not be investigated. He advised that the legal adviser keep his opinions to himself or at least until the ANC placed him on a party list so that he could make his opinions known. There seemed to be a problem in the philosophical understanding of what the public broadcaster was. If there was an understanding of what a public broadcaster was, there would be understanding of its relationship to the Companies Act. In as much as the Companies Act applied to the functioning of the SABC, it must never compromise the fact that it was a public broadcaster. The Ministry came with intellectual pride to defend the apartheid Companies Act of 1973. The Committee was fighting to keep the SABC a public broadcaster where the Minister had no role in the removal of Board members. He asked that Members of the ANC not act in cowardice in retracting their stance.

Mr Kekana interjected and asked Mr Ndlozi not to be selective in his advancement and to respect the House.

Mr Ndlozi pleaded for the Chairperson to be stern and firm – he did not say anything wrong and should be protected otherwise he would be forced to protect himself. He was trying to persuade Members of the ANC that they should not retract their agreement with the parliamentary legal opinion the Committee received as it was correct. The Broadcasting Act reigned supreme and not the Companies Act. The way the Minister removed members of the SABC Board would remain illegal. In terms of the way forward, if the ANC had already accepted a position in agreement with the Minister, it should be said to avoid wasting time.   

The Acting Chairperson said the Committee would stay behind to find a way forward. The Minister had been invited so Members could hear her input as part of a democratic country and to be fair. Mr Ndlozi should not pre-empt the outcome.

Mr Madisha agreed that the Committee should remain behind.

Minister Muthambi urged Members to read the Companies Act 71 of 2008 which repealed the Companies Act 61 of 1973 and so she was referring to the Companies Act of 2008. All laws were equal and should be applied until declared unconstitutional. It was not the function of the Committee or Parliament to tell the executive which laws to apply in any particular circumstance over other legislation. Furthermore, it was not the function of Parliament or the Committee to declare either the Companies Act or the Broadcasting Act to be in conflict with one another. The legal opinion offended the doctrine of separation of powers. She did not interfere in the affairs of the SABC Board and she knew the Board controlled the affairs of the SABC.   

A member of the SABC Board thanked Members for the healthy debate and noted that the Board followed due process in exercising its fiduciary duty and the legislation applicable was legal and done according to the law. She assured the Committee there was nothing untoward and the removals were done in terms of the law. The SABC Board was the accounting authority in the operation and was in control of affairs – there was nothing in the MOI which took away the powers of the Board. The role of the Minister was to provide concurrence for decisions taken by the Board and to provide advice.   

Mr Hlaudi Motsoeneng, SABC COO, urged Members to deal with the facts. The issue of directors of the SABC was there for a long time because one could not be a referee and a player at the same time. There was approval and the labour laws provided guidance. What the Minister was doing was not new and was done by previous Ministers – it was misleading to say the Minister came with a new MOI.  

Mr Davis asked if the deliberations of the Committee now would be closed to the public.

Mr Tseli did not see any reason why it should be closed. The aim was to come to the end of the engagement and develop a way forward.

The Acting Chairperson suggested Members take a break as emotions ran very high.  

The way forward
Mr Tseli appreciated the cooperation received from the Ministry and the Board in taking this issue forward in the public interest. He was satisfied with the explanation received from the Ministry and the Board in that proper procedure was followed in the removal of the three Board members and that there no illegality. He therefore aligned himself with the view or explanation of the Ministry and the Board in this removal from the Board. He pledged his support for the Ministry and the Minister in particular. It was very clear that the Minister remained the shareholder so she should not feel apologetic in interfering where there was a need to ensure the SABC delivered on its mandate. It was never the view of the Committee that it was adopting the view of the parliamentary legal opinion but there was an undertaking to allow the Minister to present her view, as was done, and he was satisfied with and aligned himself with the explanation

Mr Kekana supported Mr Tseli in appreciating what was heard from all sides but since there was no dispute or complainant on the issue it meant even the removed Board members were happy where they were. If someone was not happy, he/she could raise objections. He supported the Minister in ensuring the SABC was smoothly run. He was happy to hear from the Board member present that all procedures were followed.    

Mr Davis was absolutely flabbergasted by the ANC u-turn which was very disappointing especially following the good work on the Ellen Tshabalala issue. The good work the Committee did was now being undermined and he was very disappointed that it came to this point. He proceeded to read out the letter from the Chairperson of the Committee, who was unwell today, who stated that the Committee endorsed the legal opinion received – in his mind this was the same as adoption of the opinion. Why was ANC backtracking now on the legal opinion when it was endorsed three weeks ago? He found the Minister’s legal arguments flimsy and held no substance or locus standi. The fact of the matter was that the Minister had nothing to do with the removal of Board members – only the Committee dealt with the removal of Board members.

Mr Ndlozi said that once more the ANC turned its back on the rule of law. The ANC was supporting the transformation of the SABC into a state broadcaster. The EFF supported the parliamentary legal opinion and did not think the Minister should have anything to do with the removal of SABC Board members. The duty of the Committee at all times should be to defend the SABC as the public broadcaster. He did not think the Minister was safeguarding the interests of the SABC as the public broadcaster as envisioned by the Broadcasting Act and not the Companies Act – the former was the only Act which defined the character and nature of the SABC. It was sad today that the caucus position of the ANC was not to go to a court of law to test these matters in front of a judge.

Mr Madisha thought there was a resolution in the letter of the Chairperson of the Committee read out by Mr Davis. This letter was the evidence on the table.

Mr Tseli noted the Committee heard what the parliamentary legal opinion said, which was the only information available at the time, and what the Minister said in response and there was alignment with what was heard from the Minister today – there was no contradiction. Members should not divide the ANC on the basis of what the Chairperson said. 

Mr Kekana was surprised to see a letter written to Mr Davis and not copied to the other Members of the Committee. His position was to support the decision taken by the Board because it was clear.  

Mr Davis hoped the Committee could deliberate and that the Chairperson not shut down debate as it seemed she was doing. Previously the decision of the Committee was not whether it would act on the parliamentary legal opinion but rather how it could act. He proposed the Committee should reaffirm its endorsement of the legal opinion, write to the chairperson of the Board notifying him that the removal of these Board members were illegal and they must be immediately reinstated and that the failure to reinstate these members would result in court action to have their removal declared unlawful and to enforce their reinstatement. This was what the law said the Committee should do. Unfortunately his colleagues in the ANC reneged on their obligations to the law and duty to the people of this country.

The Acting Chairperson noted that she opened the meeting but saying a decision could not be taken by only hearing one opinion but rather that everyone involved should be given the space to present their case in terms of democratic rights, before the Committee decided on the way forward. This did happen today and she was not shutting down opinions previously heard. She asked that Members pretend as if the letter from the Chairperson did not exist. 

Mr Ndlozi wanted to register his disagreement with the interpretation of the Chairperson of the resolution of the Committee which were very incorrect. It was not a problem to say that minds have changed since the last resolution was taken but it was incorrect to say the Committee never took a decision. He also registered his objection to the majority view that Members blew kisses and affirmed the legal opinion of the Department. 

The Acting Chairperson thought all Members had the right to exercise their rights and different opinions. All deliberations of the Committee were recorded at all times. The Minister was invited for the Committee to take a decision after hearing all parties concerned. Members had the right to take the matter further if it was not happy. It might be a matter of semantics whereby Members understood “endorsed” differently but the dissent of Members was noted.  

Mr Ndlozi asked that the Chairperson be asked to communicate with the Committee and provide copies of the letter written to Mr Davis because the letter meant the ANC was divided on the matter.

The Acting Chairperson noted that it was part of the democratic process for all to move in whatever direction they felt or were comfortable with but the Committee had made its decision.

The meeting was adjourned. 

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