Broadcasting Amendment Bill [B39-2015]: Department of Communications briefing

Meeting report

Mr M Ndlozi (EFF) said before proceeding, it was important to note there was a legal matter concerning this  Bill in the courts. He asked for a legal opinion on whether proceeding to introduce the Bill would not violate the principle of sub judice.

The Chairperson did not think so as the officials were here merely to introduce the Bill

Mr Ndlozi said the ministry officials were not Members of Parliament and the rule does not bind them. It was important to get a legal opinion first.

Mr R Tseli (ANC) said the Department was introducing the Bill and it would be up to the Committee to proceed with the process and ask clarity seeking questions.

Ms R van Schalkwyk (ANC) said the Department would only introduce the Bill and no decision would be taken.

Mr M Kekana (ANC) said the Department will introduce the Bill and whoever wants to contest the Bill can do so at the right time and not today.

Ms P van Damme (DA) said the Committee can hear the legal opinion from Parliament on this issue.

Mr Ndlozi said he was not trying to frustrate the process. The sub judice rule says it cannot discuss the Bill as the Bill seeks to amend the matter that is before the courts.

Mr Nathi Mjenxane, Parliament Legal Advisor, said the Supreme Court ruling on the sub judice rule says there must be a demonstrable prejudice that might arise from the Committee receiving the Bill. In his own opinion, he does not think it will be prejudicial for the Committee to receive a briefing on the Bill.

Ms van Damme said the Department must brief the Committee on the Bill but no decision will be made by the Committee on the Bill.

Mr Kekana said it was unnecessary to hear a legal opinion as it was a waste of state resources. He disagreed with Ms van Damme to only receive the Bill as she meant after receiving the Bill, the Committee must leave the meeting.

Ms O Matshoba (ANC) appealed to the Chairperson to control the meeting rather than allowing it to be derailed into a circus before getting down to the business of the day.

Mr Ndlozi said it was unfair to say he was delaying the meeting. The legal opinion was wrong as it was a personal opinion.

The Chairperson said she was going to suppress everyone and let the Department brief the Committee on the Bill.

Mr Ndlozi noted the objection of the EFF to receiving the Bill briefing while these same amendments were before the court. This was wrong and must be noted.

Broadcasting Amendment Bill: briefing by Department of Communications
Mr Norman Munzhelele, Acting Director General, Department of Communications, said the main objective of the Bill is to amend the principal Act so as to—
- delete the definition of ‘‘appointing authority’’;
- amend the procedure for the appointment and removal of non-executive members of the Board;
- reduce the number of non-executive directors in the Board;
- provide for the appointment of a nomination committee to make recommendations to the Minister of Communications for the appointment of non-executive members of the Board;
- reconstitute the executive committee of the SABC;
- amend the procedure regarding the removal and resignation of nonexecutive members of the Board; and
- amend the procedure for the dissolution of the Board, and for the appointment of an interim Board.

These amendments will lead to a reduction in the number of non-executive directors in the Board, from twelve to nine, in order to strengthen the Board and also to streamline its operation. These changes are consistent with the recommendations of the Presidential Review Committee on State-Owned Entities.

Clause 1
This amends section 1 of the principal Act by deleting the definition of ‘‘appointing body’’.

Clause 2
This amends section 12 of the Act by reducing the number of the non-executive members of the Board from twelve to nine.

Clause 3
This amends section 13 by introducing a new procedure for the appointment of Board members, as follows:
- the role of the National Assembly with regard to the appointment of non-executive members of the Board is replaced by the Minister;
- New subsection (2A): provides for the appointment of a nomination committee to make recommendations to the Minister for the appointment of non-executive members of the Board. In appointing the members of the committee, the Minister must ensure that the committee is broadly represented and has the necessary skills, knowledge, qualifications and experience to serve on the committee;
- New subsection (5A): provides for the re-appointment of non-executive members of the Board to maintain institutional stability and continuity. Non-executive members will be eligible for re-appointment to the Board for a further period not exceeding three years; and
- Subsection (10): provides for a new quorum for decision-making purposes and for voting of the chairperson. This is necessary because of changes to the composition of the Board as proposed in clauses 2 and 3.

Clause 4
This amends section 14 of the Act so as to reconstitute the executive committee of the SABC. This clause provides for the removal of other executive members of the SABC, as part of the executive committee, save for the Group Chief Executive Officer, the Chief Operations Officer and the Chief Financial Officer.

Clause 5
This amends section 15 so as to amend the procedure for the removal and resignation of non-executive Board members.

The President may, after due enquiry and on the recommendation by a panel, remove a member on account of the grounds listed in section 15(1)(a) to (f). However, with regard to the removal of a member on account of misconduct or inability to perform his or her duties efficiently, the decision for such removal must be based on the findings and recommendation by a panel appointed by the President.

- Section 15(3): provides for the appointment and composition of a panel as well as the determination of remuneration and allowances payable to members of such panel. The panel will be appointed by the President, in consultation with the Minister, and shall consist of at least three suitably qualified persons, and the chairperson shall be qualified in law.
- Section 15(4): provides for the panel to investigate the grounds for removal of a member, compile a report and make recommendations to the President on its findings.
- Section 15(5): provides that the President may suspend a member of the board while awaiting the findings of the panel concerning that member.
- Section 15(6): deals with the resignation of non-executive member of the Board.

Clause 6
Clause 6 seeks to amend the Act by substituting section 15A in order to provide a new procedure for the dissolution of the Board and appointment of an interim Board.

- Section 15A(1): provides that the President may, after due enquiry and on the recommendation of the panel contemplated in section 15(3), dissolve the Board if it fails to discharge its fiduciary duties, fails to adhere to the Charter referred to in section 6 or fails to carry out its duties contemplated in section 13(11).
- Section 15A(2): provides for the panel to investigate the grounds for the dissolution of the Board, compile a report of its findings and make recommendations to the President.
- Section 15A(3): requires that upon dissolution of the Board, the President must appoint an interim Board, consisting of persons referred to in section 12(b) of the Act and five other persons, to manage the affairs of the Corporation for a period not exceeding six (6) months.
- Section 15A (4): provides that the President must designate one of the members of the interim Board as the chairperson and the other as the deputy chairperson, both of whom must be non-executive members of the interim Board.
- Section 15A (5): A quorum for any meeting of the interim Board is seven members.

Clause 7
This provides for transitional provisions. On commencement of this Broadcasting Amendment Act the existing Board shall be deemed to have been appointed in terms of sections 12 and 13 of the Act, as sought to be amended, for the remainder of its members’ original term of office.

Clause 8
This provides for the short title and commencement of the Broadcasting Amendment Act which will come into operation on a date determined by the President by proclamation in the Gazette.

Discussion
Ms van Damme said the way forward was that the public participation process must be done. She would like to hear a detailed legal opinion on this Bill from the parliament legal advisors, the state law advisors and another independent legal opinion that the presenter referred to in his presentation. The Bill was against the spirit of freedom of expression as it was removing Parliament as the appointing authority and the reduction of board members reduces dissension of opinion which was against the spirit of an independent broadcaster.

Mr Kekana said Mr Ndlozi must not speak because he dissented from proceeding to be briefed on the Bill and his raised hand must not be recognised.

The Chairperson said that was correct and her understanding was that he had become an observer in the meeting.

Mr Ndlozi said the Chairperson was making decisions based on majority decision and not based on the rules which demands her to make rulings on certain issues. In the House, people object to motions but participate in a discussion if the decision to proceed with the motion had been made.

Ms van Damme said the Chairperson was very wrong as there was no rule that states if a person objects, the person cannot participate in the discussion.

Ms Matshoba said the Chairperson was giving too much attention to Mr Ndlozi.

Mr Ndlozi said the act of bring the Bill on issues before the courts was wrong. The role of Parliament in appointing board members was in the spirit of separation of powers. It was surprising that the Department of Communications (DoC) was asking Parliament to approve deleting Parliament's participation and expected it to agree to that. The Bill was problematic as the Minister and the President were members of the executive and the minister serves at the pleasure of the President. Parliament serves independently of the executive and the judiciary which had made the SABC a public broadcaster. The Bill also has an 'expertise' fallacy by putting in an appointing panel with expertise. This suggests that parliamentarians do not have the expertise to appoint qualified people to the board. By saying the panel must have expertise also implies that the President and Minister are uneducated. Perhaps the Minister is serving an uneducated President. Members of Parliament were voted for by the public and the Bill must not imply that MPs do not have the expertise to screen CVs.

The Chairperson said Mr Ndlozi must be straightforward, rather than speaking in riddles that this implies this and that. Mr Ndlozi must withdraw his comment that the President was uneducated. He must respect others.

Mr Ndlozi said Mr Zuma himself said he was uneducated.

Mr Tseli said the Committee should not have discussed the Bill but only asked clarity seeking questions.

Mr Kekana said the Chairperson must stop Mr Ndlozi as the Committee had had enough of his insights and comments.

The Chairperson said Mr Ndlozi must be straightforward when talking.

Ms van Damme did not agree with what was happening as it seemed that members of the opposition were being suppressed and censured on what they were saying.

Mr Ndlozi said he disagreed with Parliament being replaced by an expert body to appoint SABC board members. It means Parliament did not have the competency to appoint. It seemed DoC did not believe in the competency of the MPs. What characterised the SABC as a public broadcaster was who appointed whom to the board. By removing Parliament's role, SABC will become a state broadcaster.

Mr Tseli wanted elaboration on the reappointment of board members. It pointed out that it was the ANC that started the process of making the SABC a public broadcaster, and it would not in any way make it a state broadcaster.

Ms V van Dyk (DA) asked how the appointment of board members by the Minister affect the independence of the SABC.

Mr Munzhelele replied that Clause 3, amending Section 13, puts in a process that is transparent and the public can participate in the appointment of board members. The concept of an expertise panel was not new as this format also governs the appointment of board members to the Post Office. It was not intended to look down upon Members. SABC will continue to carry on its independence to the public and the Minister does not even have power to interfere with the editorial policy of the SABC which was at the heart of the independence of the SABC. Where there has been instability on the board, fingers were always pointed at the DoC. Board members, who wish to be reappointed, can reapply and the Minister will make a determination. The legal opinion from the state law advisor and the independent one will be made available to the Committee.

Planning for public participation on Broadcasting Amendment Bill
Mr Tseli asked about progress in advertising the public participation process.

The Committee Secretary replied that he had received a quotation from the City Press and Rapport to the tune of R238 000. He will also request adverts in two community newspapers per province in line with the Committee saying it must make use of small, community media. The Public Education Office will distribute pamphlets which members will take to their constituencies. Parliament's communication radio unit will flight the advert on SABC radio stations and community radio stations. The only delay was there was no fund for advertisements in the consolidated revenue fund. The Finance office has told the Committee to write to the Secretary to Parliament to shift funds.

Mr Kekana said Rapport and City Press were expensive and they must be suspended and support emerging media houses and community print.

Mr Ndlozi said it was wrong for Members to decide on where to flight adverts and we must leave it to Parliament.

The Chairperson said that Mr Kekana was speaking on the basis of transformation by supporting emerging media.

Ms van Damme said the Committee was supposed to have had a meeting last week on filling SABC vacancies which had been vacant for a year. The meeting had been postponed and she asked what unforeseen circumstances caused the meeting to be suspended.

The Chairperson replied that she had needed to verify that some of the shortlisted candidates had withdrawn.

Ms van Damme said this was "simple" as the Committee needed to look the CVs. It has to avoid more delays.

Ms Kekana said in the subcommittee meeting, Ms van Damme suggested that the interviews should be cancelled because many people did not have experience in broadcasting. She must not come here and play with our minds as this was not a crèche.

Mr Tseli said the Chairperson and secretary must make a determination on what is best.

The Chairperson requested to be given space and then make a determination.

The meeting was adjourned.