Broadcasting Amendment Bill: legal opinions on subjudice rule & constitutionality

Meeting report

The Acting Chairperson called on Parliament’s Constitutional and Legal Services Office and the DOC to present legal opinions on the constitutionality of the Broadcasting Amendment Bill.

Ms Shinn (DA) raised objection to the presentation of the independent legal opinion because the independent lawyer who drafted the legal opinion is neither identified nor present at the meeting. She wished to interrogate the author of the legal opinion. She asked why the identity of this individual was hidden, and why the original writing was replaced with a summary by the DOC instead of the original advice submitted. She stated that this is inappropriate; as a result, the presentation cannot proceed.

The Chairperson asked the DOC whether there is an explanation for the absence of the lawyer who wrote the opinion.

The DOC disclosed that the author of the legal opinion is Adv Kennedy Tsatsawane. He is absent because he is appearing in court until Friday.

Ms van Dyk expressed dissatisfaction at this explanation. She wanted to ask the writer to justify some of the opinions he expressed and reiterated that the Committee cannot proceed in his absence. She called for a re-scheduling of the meeting.

Mr R Tseli (ANC) expressed surprise at the DA’s objection to the presentation, given that the legal opinion was requested by them. Since the document is before the Committee, it is immaterial whether the author of the opinion is physically present or not

Mr M Kekana (ANC) allied himself with Mr Tseli’s stance. He stated that the DA and EFF demanded the legal opinion, but are now playing a delaying game. He asked the Chair to continue with the meeting because it is irrelevant whether the writer is present.

Ms van Dyk acknowledged that the DA requested the legal opinion. She stated that the Committee has not received an independent legal view because what has been tabled is a summary by the DOC, and the DOC cannot be regarded as an impartial body. She re-affirmed that in the absence of the maker of the document, it is best to postpone the meeting.

Ms O Matshoba (ANC) requested that the Chairperson ignore any delaying tactics and proceed with the meeting.

Mr Kekana moved a motion for the meeting to proceed.

Mr Tseli seconded the motion and stated that the DA members are free to leave if they are unhappy.

The Chairperson ruled that the meeting should proceed.

Parliament’s Constitutional and Legal Services Office
Ms Phumelele Ngema, Parliamentary Legal Adviser, explained that the Broadcasting Amendment Bill seeks to amend portions of the Broadcasting Act. She identified two ongoing judicial cases relevant to the Bill. These are Mashangu Ronny Lubisi v SABC, SABC Board, Minister of Communications and others, and SOS Support Broadcasting Coalition and others v SABC, Minister of Communications, SABC Board and others. While the Lubisi case seeks to overturn the decision of the SABC Board to remove Mr Lubisi as a non-executive member on the ground that the removal contravenes the Act, the other case challenges the removal of members of the SABC Board under the Companies Act of 2008 without compliance with the relevant provisions of the Broadcasting Act. She identified problematic aspects of the Act as sections 13(1), (2) and 15. She explained that the courts have given guidance on the application of the common law principle of sub-judice in the Constitution. In the Midi Television (Pty) Ltd judgement, the Court stated that a publication will be unlawful if the prejudice to the administration of justice is substantial and demonstrable, and carries an actual risk for the parties before the court. In terms of section 44, the National Assembly is empowered to pass legislation. Thus, the Committee is acting pursuant to its powers, and the Bill complies with every legal requirement. The specific amendment deals with the members of the SABC Board and their mode of appointment. The Bill provides that the President only appoints on the recommendation of a nominating committee. The DOC had ascertained that public participation in the appointment of the Board requires transparency. The DOC is satisfied that the Bill is not unconstitutional.

Legal Services in the Department of Communications legal opinion
The Director of Legal Services, Tshegofatso Kgarabjang, in the DOC reiterated the purpose of the Bill. He explained the rationale of the sub-judice rule as the protection of parties in a legal proceeding from improper communications or publications. He explained that when this rule is breached, it results in contempt of court, which may be in or outside the court. He explained its interpretation and application by the courts. He concluded that although there is uncertainty over the ambit of this rule, the Lubisi and SOS Support cases do not affect the Bill because no publication is involved.

The Chairperson called on the DOC to present the independent legal opinion.

Ms van Dyk pointed out that the process surrounding the presentation is deeply flawed. She complained that the legal opinion was distributed only a few minutes ago and Members could not be expected to make informed contributions at such short notice.

The Chairperson ruled that the presentation on the independent legal opinion should be halted until Members have had time to peruse it. She called on the Office of the Chief State Law Adviser (OCSLA) to present its legal opinion on the Bill.

Office of the Chief State Law Adviser (OCSLA) legal opinion
Mr Theodore Hercules, Principal State Law Adviser, OCSLA, said his Office had scrutinised the Bill to discover whether it is in conformity with the Constitution. To do this, it examined several judicial decisions. After these examinations, it found that the proposed amendments seek to address change in the process for appointment and removal of Board members. It found that these changes, especially the substitution of the role of the National Assembly with the Minister of Communications, are not in conflict with the Constitution. The Office of the Chief State Law Adviser concluded that the amendment does not rob the National Assembly of its oversight role over the exercise of national executive authority. It can still hold the executive accountable over the exercise of its power.

OCSLA suggested that in terms of section 13 of the Act, the appointment of non-executive members should be amended to ensure that these members will no longer be appointed by the President on advice of the National Assembly, but rather on the recommendation of the Minister. However, non-executive members should be appointed in a transparent manner in line with section 13(2) of the Act. Accordingly, it proposed amendments to sections 13(2), 13(10), and 15 of the Act (see attachment).

Legal Opinion from independent legal adviser
Mr Ndivhuho Munzhelele, DOC Acting Director General, summarised the opinion of the independent legal adviser. He explained that this opinion tallies with the opinion of OCSLA. The opinion noted that the intention of the Bill is to reduce the long parliamentary appointment process, which can only be followed when the National Assembly is in session. The mode of appointing and removing executive members of the SABC Board in the current procedure is cumbersome and time consuming. The legal opinion advised that the requirement of ‘transparency and openness’ contemplated in section 13(2) of the Act be explained in the Bill to encourage public awareness and participation. It supports the removal of non-executive members of the SABC Board by the President after due enquiry without the involvement of the National Assembly as long as fair hearing provisions are provided in the Bill. It further advised that the grounds of removal in section 15 of the Act, namely, misconduct and inability to perform duties efficiently, be clarified in the Bill to ensure fair hearing and reduce the risk of manipulation. The opinion concluded that the proposed amendments do not contravene the Constitution.

Discussion
The Acting Chairperson called for reactions to the presentations.

Ms Shinn (DA) queried the Minister’s decision to set up another sub-committee outside the parliamentary committee process, and the secretiveness of the independent legal opinion on the Bill.

Ms van Dyk remarked that the Bill is the most pernicious piece of legislation she has ever seen. It emasculates Parliament’s oversight function over the Minister, gives the Minister the power to appoint cronies without parliamentary scrutiny, as well as excessive powers of hiring and firing capable of shackling the SABC and preventing it from performing its mandate to the public. She expressed reservations about the opinions expressed by the OSCLA and criticised the secretive independent opinion. She stated that there is nothing wrong with the existing mode of appointing the SABC Board in the Act. The problem with the current mode of appointment is merely undue political interference. The previous two SABC Boards were hampered by excessive political interference to satisfy political cronies. For example, the names of nominees were rammed down the throat of the selection committee with no resistance from the current Minister. In sum, the Act should be retained. What is needed is for the ruling party to be kept out of interfering in the functioning of the SABC, and the Committee must do its screening functions promptly and efficiently.

The Acting Chairperson objected to aspersions being cast on political parties.

Mr Kekana stated that Ms van Dyk should not lie to the public, as she was not present at the selection meetings of this Committee. The DA was merely represented by its shadow minister.

The Acting Chairperson asked Mr Kekana to reframe his statement to ‘misleading,’ not ‘lie.’

Ms van Dyk demanded an apology from Mr Kekana. She pointed out that she had sat on the selection committees of two SABC Boards and demanded an apology from Mr Kekana for stating that she lied.

Mr Kekana reiterated that Ms van Dyk lied.

The Acting Chairperson re-stated that Mr Kekana’s language is un-parliamentary.

Mr Kekana toned down his assertion to ‘misled the public,’ but insisted that his opinion remains that Ms van Dyk lied.

Ms van Dyk insisted on setting aside the Bill and an apology because she sat on selection committees in the previous Parliament.

The Acting Chairperson called for order and demanded that the proceedings continue without demands for apology from members.

Mr R Tseli (ANC) noted that the proposed amendments empower public participation. However, he wished to know at what stage an objection by a member of the public could be raised. He sought clarification over the Minister’s role, since the Minister could be accused of interference when the Minister is merely performing her oversight function. He stated that the Committee must not replace the role played by public hearings.

Mr Kekana expressed satisfaction with the legal opinion. He stated that the legal opinions spoke to the concerns raised by Members. He remarked that SABC is unique and requires different treatment from other public entities. As a national body, there is nothing wrong with the Minister having oversight of the appointment of the SABC Board.

The Acting Chairperson called on the delegation to respond to Members’ concerns.

Mr Tshegofatso Kgarabjang, DOC Director of Legal Services, explained that the proposed amendments seek to reduce the cumbersome parliamentary process of appointing and removing members of the SABC Board. The problem statement behind the proposals reveals this cumbersomeness. On the concern raised about excessive political interference, the oversight powers of the National Assembly are not removed by the proposed amendments. Nothing stops the Committee from curbing political interference.

Mr Hercules, Principal State Law Adviser, OCSLA, explained that the new procedure for appointing non-executive members of the Board will still be subject to section 13(2) of the Act, which provides for transparency and openness.

Ms Ngema, Parliamentary Legal Adviser, affirmed that the Lubisi and SOS cases do not have much relevance to the Bill.

Ms van Dyk expressed concern about the nature of the problems that necessitated the decision to amend the Act. She remarked that the Committee is still performing its oversight role. She requested the Committee to stick to its agenda of considering the opinions sought by the Committee, for which the relevant authors need to be present.

Mr Tseli stated that the Committee had agreed to public hearings on the Bill. Accordingly, some of the issues being raised here are premature. The crux of the matter now is the constitutionality of the Bill. Thereafter, public hearings can commence. There might also be need for provincial engagement on this very important Bill, which is of national interest. The public must be allowed to participate. Members should not pre-empt the concerns of members of the public.

The Acting Chairperson noted that the Bill does not rob Parliament of its oversight function. The opinions requested by the Committee merely sought to enlighten Members on the constitutionality of the Bill. She explained the difference between political interference and political intervention in the functioning of the SABC Board. She stated that the ANC does not abuse its majority in Parliament, but gives a listening ear to reasonable suggestions from other parties. She promised there would be transparency in the public hearings.

As a closing remark, the DOC Director noted that the broadcasting environment has become very competitive. The market value of the SABC has declined. Therefore, the stability of the Board and its ability to perform its duties is very important. Thus, the SABC needs to make decisions more quickly.

The Acting Chairperson thanked the delegation for its presentations and excused everyone except Committee members.