Witnesses and their intimidation; Election of Chairperson; Programme

Meeting report

The Committee Secretary moved for the nomination of the Committee Chairperson. The Committee Secretary indicated that the Committee attendance satisfied the requirements for quorum and that members could proceed with the nomination and election of the Committee Chair.

Mr P Chauke (ANC) moved for the nomination of “capable” Mr Vincent Smith (ANC) as Committee Chairperson. The nomination was seconded by Ms M Khoza (ANC). Mr Smith was elected as the Chairperson of the Committee.

The Chair explained that Adv Ntuthuzelo Vanara, ‎Senior Legal Adviser at Parliament, was the evidence leader for the Portfolio Committee, interacting with the list of witnesses provided to the Committee. The Chair proposed that Adv Vanara be installed as the evidence leader for the Ad Hoc Committee.

The proposal for the installation of Adv Vanara as the Evidence Leader for the Ad Hoc Committee was adopted.

Ms J Kilian (ANC) recommended that the Committee has further legal advice owing to the detailed nature of the process. Ms Kilian recommended that the Committee appoints a dedicated legal adviser to handle legal resources.

Consideration of Programme
The Chair indicated that the Committee will send a notice of hearing to the witnesses agreed upon by the Committee to allow them sufficient time to plan. A letter will be sent to the public secretary of the SABC to request documentation which should be received by the Committee by 16:00 on 28 November.

The Chair explained that the Committee will begin formal business on 29 November 2016 and conduct the hearings until 9 December 2016 from 9:00-18:00 each day. The Committee would deliberate on the hearings from 10 December 2016 until 13 December 2016. The programme will be sent to the relevant individuals to make comments and submit them to the Committee.  The Chair indicated that final documents will be required to reach the Committee on 9 February 2017 and adopted and presented by the Committee on 15 February 2016. The Chair indicated that the Committee has exclusive use of E249 for transcripts. The Chair explained that the Committee has received approval for transcribing.

The Chair indicated that the Committee intends to conclude business by 15 February 2017.

Discussion
Ms P Van Damme (DA) expressed her appreciation that deliberations are beginning on 29 November before Parliament rises. She expressed concern that deliberations will only commence on 10 January 2017. She recommended that deliberations take place before January as the Board currently only has one member and the media has reported that journalists have been receiving death threats. She is prepared to meet earlier to conclude before Parliament commences.

Mr Chauke (ANC) indicated that the Committee needs to revisit the parliamentary mandate and determine the priorities of the Committee.  He noted two additional members of the Board have resigned and he was uncertain if one member constitutes a Board. He agreed with Ms Van Damme that the Committee should revisit the programme, even if it requires the Committee to work over the weekend as the threats and harassment are concerning. There is a need to package the programme to prepare for the relevant matters related to the mandate provided by Parliament. The arranged hearings were effectively comparable to public hearings.

Ms Kilian recommended that the Chair requests permission for priority to continue with the Committee’s work. She recommended that the Committee considers committing Thursdays to continuing the work on this matter. She noted that colleagues from the DA and the ANC have noted concern for the safety of the witnesses.

Ms Khoza recommended the inclusion of an item on the possible intimidation of witnesses and their safety. She emphasised the need to elevate the priority of the matter.

Mr N Khubisa (NFP) agreed with the view that there are pertinent matters which need to be addressed.

The Chair indicated that the Committee will prepare the witnesses and package the programme in a meaningful way. The Chair indicated that the programme will be received by the Committee between 25 and 28 November 2016.

Evidence leader briefing
Adv Ntuthuzelo Vanara explained that on 5 October 2016 the Portfolio Committee on Communications decided to hold an inquiry in terms of Section 15 of the Broadcasting Act. He explained that the inquiry is an administrative action and noted that the process must be conducted in a fair manner.

He indicated that notices were duly served on the SABC Board. The notice indicated that the hearing itself would be an inquisitorial undertaking thereby relying on the examination of the relevant evidence. Legal representation could be provided at the Board’s expense, however that the right to legal representation did not absolve the Board of accountability.

The Committee received a letter from the Board objecting to the Portfolio Committee hearing. The House therefore passed a resolution to establish the Ad Hoc Committee. Numerous witnesses have been consulted and have raised numerous challenging issues within the SABC. He explained that the evidence will be led to illustrate this.

He indicated that the recordings of discussions with the witnesses will be reduced to statements and sent to the witnesses to confirm accuracy before the statements are made public and shared with the Board.

He indicated that the requested documents are central to the vindication of terms of the notice of hearing. However, The Committee does not have these documents in its possession as these documents reside with the Board.

The Chair indicated that the documents will be requested. He recommended that the hearing dates are consistently staggered with the witness programme. He emphasised the importance of cause in the rules of natural justice.

Adv Vanara indicated that the Committee furnished the Board with the Committee Report containing its recommendations  and awaited a response from the SABC on the Committee Report.

The Chair indicated that the Committee will request the following documentation from the SABC Company Secretary:
- The delegations of authority
- The minutes and transcripts of subcommittee and Board meetings
- The consideration and approval of presentation documents to the relevant board committees
- The Multichoice Deal minutes
- The consideration and approval of the SABC implementing plan responding to the Public Protector’s report
- 90/10% local content for radio and 80/20% content for television
- Approval of removal of Board members
- Recommendations for the permanent appointment of previous Chief Financial Officer
- Appointment of current Group Executive: Corporate Affairs,
- Bonuses and salaries Mr Hlaudi Motsoeneng and former SABC Chief Financial Officer
- Amended editorial policy of 2016
- Articles of Association prior to 2014
- The Governance Review Report
- Documents relating to the SABC recruitment policy
- Management reports in response to Auditor-General findings
- Chief audit reports submitted to the Auditor-General and the Committee.
 
Discussion
Ms Khoza noted her appreciation regarding the requested documents. However, it is critical to request the management accounts as well as the internal auditor reports especially in respect of the first quarter. document.

Mr Chauke explained that requesting information relates to accountability. He explained that the line of accountability lies with the Board, therefore the secretary cannot be held liable when the Board is in fact accountable. He requested clarification about the current status of the Board. He asked “what is a Board?” He explained that it is important to establish whether the Board remains in existence as the Committee cannot justify the status of the Board if it only consists of one member. He asked about the status of members of the Board who have resigned.

The Chair indicated that the Committee would clarify the issue.

Ms J Kilian (ANC) recommended that the Committee receives the minutes from the Risk Committee, unless the Audit Committee handles risk. She requested clarification on the composition of the Board and requested that the Committee receives formal confirmation of the current position of the SABC Board in light of the media speculation. She requested that Adv Vanara attain the relevant information.

In response to Ms Khoza and Ms Kilian, the Chair asked if the management report, risk report and internal audit report were contained in the 2015/16 Annual Report and whether the reports for the last financial year were sufficient.

Ms Khoza indicated that it would be useful to have the last three financial years as the hearing will be of an inquisitorial nature.

Ms Kilian agreed with the request for the Annual Reports from the last three financial years.

The Chair indicated that he was hesitant for Adv Vanara to make a pronouncement regarding the existence of the Board and the fitness of the Board as a collective. This determination can only be made once the Committee has completed its inquisition. The Chair indicated that he was unsure if it is wise to make a premature assessment on the fitness of the Board as a collective.

The Chair indicated that formal resignations must be received by the Committee. In response to Ms Kilian the Chair explained that that in order to avoid speculation based on the media that the Committee should assume that there are currently three individuals on the Board until told otherwise. The Chair indicated that formal resignations must be received by the Committee.

The Chair welcomed Mr Ndlozi (EFF).

Mr J Mahlangu (ANC) requested that the Memorandum of Incorporation is also requested by the Committee as it is a crucial document. Mr Mahlangu explained that this document was requested by the previous Committee.

The Chair indicated that the Memorandum of Incorporation was in the possession of the Committee.

Ms Van Damme asked about possible recourse in the event that the SABC refuses to provide the documents to the Committee, which is likely to occur and will delay the process.

The Chair explained that the Committee will address the issue when it arises, and the Committee legal team will report on the status of the request. The Chair referred to the legal processes of the Committee as the “backroom work” which the Committee will not engage in during the present meeting. The Chair explained that the current Committee emphasis is the programme. The Chair explained that the Committee will do everything in its power to meet the deadline.

The Chair welcomed Mr M Waters (DA) and Ms van der Merwe (IFP) who arrived late.

Draft Witness List
The Chair indicated that the witness list was a draft. The witness list was drawn up by the previous Committee, the Portfolio Committee on Communications, and requested that Members consider the relevance of the list and make recommendations for adjustments and additions.

The Chair noted his concern that the company secretary was omitted from the witness list. The Chair noted that this was a “glaring omission”.

Ms Van Damme agreed that the Company Secretary, Ms Teresa Geldenhuys, should be added to the witness list. She said that "the Portfolio Committee on Communications had agreed previously that the Public Protector who had written the report must be included in the list of witnesses”.

Ms Van Damme requested that Minister of Communications, Faith Muthambi, be added to the witness list is as she is mentioned in the Public Protector report and has been intricately involved with the issues pertaining to the SABC. She said it was agreed in the Communications Portfolio Committee that the Minister be added to the list of witnesses and she was not sure why the Minister was not included in the draft witness list.

She asked who the two advocates representing the Office of the Public Protector were and why they were included in the witness list instead of the former Public Protector. The Committee requires “information from primary sources” and “cannot rely on someone else to provide hearsay information."

Ms Van Damme indicated that the Presidency has issued a notice that the resignation of SABC Board Members, Nomvuyo Mhlakaza and Aaron Tshidzumba, had been received and were approved. She requested that the resigned Board members are included on the witness list.

Mr Chauke recommended that the Office of the Public Protector has the opportunity to present itself.

Mr M Ndlozi (EFF) proposed that Sophie Mokoena be added to the witness list.

The Chair indicated the proposals made as additions to the witness list include the Company
Secretary, the shareholder, the Office of The Public Protector, the two members of the Board who have resigned and Sophie Mokoena.

Ms Khoza asked why Ms Mokoena is a critical inclusion on the witness list as there are other potential witnesses which could be added to the witness list.

Mr Ndlozi declined the request to respond.

Mr Chauke proposed that the Auditor-General and the Public Protector are added to the witness list instead of their representatives owing to the high level nature of the matter at hand.

Ms Khoza appealed to Mr Chauke, and recommended that the Committee agree to request the identified representatives from the Office of the Public Protector rather than the Public Protector.

Mr Ndlozi requested clarity on the interview process for individuals on the draft witness list which have been interview by the previous Committee. He asked if the witnesses already interviewed, may be interviewed again by the Ad Hoc Committee.

The Chair explained that the names highlighted in the witness list had been interviewed by the evidence leader in the process leading up to the inquiry. The Chair explained that all of the individuals referred to in the draft witness list will be interviewed by the Ad hoc Committee.

The Chair proposed that the Committee draft a letter to the head of the institutions to delegate an individual to bear witness in the hearings. The Chair explained that the accountability of the institutions will be dependent on the representation they elect.

Mr M Waters (DA) emphasised the necessity of inviting the previous Public Protector as a witness as she is the author of the report, “When Governance and Ethics Fail”.

Mr Ndlozi said that “Tshidi Madonsela must come”. The Committee should not be afraid to invite experts to the discussion in order to contribute information to the inquiry process. The institution of Parliament must be able to appreciate the contribution made by Adv Tshidi Madonsela. He indicated that "Sophie Mokoena is probably the most senior journalist at the SABC”. The journalists listed in the draft witness list have probably been led by her and that the Committee should “hear what she has to say”.

Mr Khubisa emphasised the need for the Public Protector to be invited as a witness. He agreed with the Chair and suggested that the Committee submit a letter to the relevant offices to ask to elect representation.

Mr Chauke asked about the legalities of Madonsela appearing now that her term as Public Protector has ended. The Committee should be wary of having a "parallel process" whereby the former Public Protector could potentially act on behalf of her successor Busisiwe Mkhwebane thereby undermining the process of inquiry. He recommended that the matter be deferred to assess the legalities of the matter.

Ms Khoza said that it is absolutely important that the Committee adheres to the process outlined by Mr Chauke to avoid challenges. However, she agreed that it is crucial to receive the information from primary sources.

Mr Waters reiterated the need for the former Public Protector to be called and recommended that the Committee makes a decision on the matter. He did not understand why the recommendation to request the former Public Protector was being contested and that the Committee was “making a mountain out of a molehill”.

Mr Ndlozi said that Mr Chauke has not sufficiently substantiated his recommendation to defer the matter relating to the former Public Protector. Mr Chauke has indicated that there will be tensions however he had not indicated between which parties, which forces the Committee to speculate. 

Mr Ndlozi indicated that the Committee recommends the former Public Protector as a witness as she is the author of the report. Members of the Committee should speak clearly and state their reasons for objections to recommendations. He indicated that Ms Mokoena has the right to decline the invitation to bear witness. He reiterated that Ms Mokoena is the most senior journalist and the Political Editor at the SABC at the moment. He requested that Mr Chauke provided facts if he disagrees with the recommendations put forward.

The Chair appealed to Members to work as a team as the main objective of the Committee is to re-exert the authority of Parliament.

Ms Kilian recommended Adv Thuli Madonsela as a witness in her capacity as the former Public Protector and the author of the report. In addition, she recommended representatives from the Office of the Public Protector.

Mr Chauke agreed to the recommendation of the former Public Protector and the Office of the Public Protector being invited as witnesses.

Ms Khoza reiterated that all members should remember that the process of inquiry is with the aim of restoring public faith, especially in state owned entities (SOEs) and companies such as the SABC.

The Chair announced that the draft witness list has been accepted with the additions to the list.

The Chair referred to the terms of reference and explained that the Committee will submit a letter to the Office of the Public Protector. He emphasised that the inquiry is a process of evidence gathering, and the number of witnesses has a direct impact on the completion of the inquiry report. The witness list will include the company secretary, the Minister of Communications Ms Mokoena and Adv Thuli Madonsela. The Chair explained that the witnesses will be invited and that they are entitled to decline the invitation.

Intimidation of Witnesses
Ms Van Damme explained that there are reports that the eight journalists have had their homes broken into and have been intimidated. She said that the Committee is “dealing with people with mafia tendencies” and it must ensure that witnesses are protected.

The Chair requested that Ms Van Damme and other Committee Members must explain how they recommend the protection of witnesses be effected.

Mr Chauke indicated that Parliament should engage with the South African Police Service as soon as possible, as the eight journalists being harassed are all proposed witnesses in the inquiry. It was in the interest of the Committee to ensure the safety of the witnesses, especially from the threats and intimidation outside of the Committee process. He recommended that witnesses be afforded the opportunity to have interviews without their identity being disclosed.

Ms Ndlozi joked that the Committee had almost “found the perfect job for those bouncers in Parliament”.

Mr Ndlozi agreed with Mr Chauke that SAPS provide witness protection upon request from the Committee, in order to increase public confidence. He agreed that witnesses should be allowed confidential interviews and submission of evidence.

Ms Van Damme indicated that she has already requested protection from SAPS for the “SABC Eight” in her capacity as a member of the Communications Portfolio Committee and received notice this morning that the matter is under consideration. She recommended that Mr Smith writes an additional letter in his capacity as Chairperson to speed up the matter.

Ms F Loliwe (ANC) appealed to Ms Van Damme to discontinue reference to her "Committee" as Committee members are operating under the terms of the Ad Hoc Committee and not the terms of the Communications Committee. She indicated that the Committee does not want to lose credibility.

Mr Chauke said that the Committee should make it public that the Committee condemns the harassment.

The Chair said he did not want to respond with knee-jerk reactions.

Ms Kilian agreed that the Committee could also meet with the Portfolio Committee on Police. She recommended that the journalists who have been harassed or intimidated should open cases with the SAPS o ensure that a formal record of the harassment is made.

She recommended that witnesses be informed that if they are uncomfortable with being interviewed in public, that the Committee would consider holding the interview in camera, to ensure that all members of the public with information are able to present to the Committee without fear for their lives or their livelihoods.

The Chair indicated that the Committee, in principle, agrees and will look into the modalities of the process.
He noted that the list contains thirty names. He indicated that the Committee would deliberate on the process of in camera interviews.

The Chair said that witnesses are entitled to legal representatives, however that legal representation will not be at the expense of Parliament.

Witnesses in person must provide the information in the hearing and not have their legal representation present evidence on their behalf. The witnesses will be permitted to confer with their legal representation. The Committee would draft a letter containing these requests made during the Committee meeting. He reiterated that the decisions of the legal team will be shared with the Committee for engagement. Members will receive the relevant documentation by 29 November 2016.

Ms Van Damme suggested that the Committee meets on 27 November instead of 29 November, and continue the inquiry during Caucus on Thursday as well as Saturday and Sunday until the work is completed.

The Chair explained that the matter is dependent on the availability of witnesses, and reiterated that the sentiment is to conclude the inquiry in the time permitted. The Committee will begin writing letters as soon as 16 November.

The Chair said that once interviews have been conducted by the Adv Vanara, the witnesses will be organised according to the matter on which they will be presenting evidence. He reiterated that the Committee has agreed to have a programme organised in this manner.

Ms Van Damme requested that the Chair does not use the term “compress” to describe the programme as it creates the impression that the Committee intends to “squeeze a lot of work into a short space of time” and rush the process. She stated that the Committee wants additional time to conduct a thorough inquiry before Parliament rises.

The Chair said that the Committee will endeavour to reach a conclusion “as soon as is humanly possible” but without compromising fairness and thoroughness.

The Chair during his remark, dismissed Ms Van Damme in her attempt to speak without being recognised as a speaker.

The Chair said that Parliament rises on 9 December, however the Committee does not wish to create a false impression that it will have concluded its work by then as the Committee is engaging a number of people within the period of six days.

Mr Ndlozi requested that the Chairperson reconsider the way he is handling Ms Van Damme. Mr Ndlozi said that it is dismissive and does not produce a favourable image for young black women who watch Parliament.

The Chair said that in his capacity as Chair, he expects members of the Committee to speak once he has recognised them. However continual disruptions were being made whilst he was making his points. He would take the constructive criticism, however. He extended his apologies to Ms Van Damme, however, saying that mutual respect is required between the Committee members. The Chair said that he did not intend to be dismissive and extended his apologies to “every young South African who might be offended”.

Mr Chauke reiterated the need for the Committee members to have engagement, understand one another and provide support to each other.

The Chair said that it is imperative that the credibility of Parliament is restored, and we will work as a team with the same objectives and ideals to do so.

The Chair wished all individuals involved in the inquiry process “good luck”.

The meeting was adjourned.