In the morning session, the Ad Hoc Committee continued to hear evidence from various bodies around the SABC position. Participants were asked to take the oath, were reminded of their duties and the need to speak openly and truthfully, and questions were led by Senior Parliamentary Legal Advisor Adv Vanara, followed by questions from Members. Right2Know Campaign, Media Monitoring Africa and SOS Coalition all gave presentations. However, before attending to those, the Committee expressed its universal dismay that the eight journalists (known as the SABC 8) who were fired and t the SAPS to ensure the safety of witnesses.
Right2Know explained that this campaign was launched in 2010, and Right2Know is a coalition of progressive organisations and activists across South Africa, dealing with a wide range of issues of information access, secrecy, surveillance, media and communication rights and freedom of expression. Its particular interest in public broadcasting aims to ensure that the public broadcaster complies with its duty to inform the public in a politically non-partisan manner and deliver news that is fair, accurate and captures matters that are of public interest. The Campaign had long been fighting for a more robust, better funded and more independent public broadcaster. However, the SABC had faced years of instability, The background to the ban on showing images of public violence in protests was outlined with the major concerns that this was effectively reverting to apartheid-style censorship, and suspected to shape a narrative in the weeks leading up to election. In the lead up to events leading to suspension of journalists, Right2Know held a protest gathering which sparked protests against Chief Operating Officer Hlaudi Motsoeneng. The background to the “SABC 8” was outlined, and attempts at direct engagement were outlined. Right2Know set out their requests to the Committee, which included reinstatement of the SABC8, end to censorship, withdrawal of the editorial policy, removal of Mr Motsoeneng, concerns about the State Security Agency, dissolution of the board and removal of the Minister of Communications. Disappointment was expressed in the Portfolio Committee on Communications for indecisive action, and even this Committee would not succeed unless there were attempts to address the powers of the Minister, amend the Act, reconstitute a board and ensure public participatory processes.
Media Monitoring Africa expressed its disappointment that the work done since democracy had been systematically undermined, and noted that MMA was founded specifically to monitor the SABC in the run up to the first democratic elections, to assess whether it could and would deliver free and fair content, and it had since then monitored all other elections in South Africa. It had warned of a crisis in 2008 in relation to the Broadcasting Amendment Bill and was sorry to note that this now seemed to be happening. It emphasised the lack of stability in the organisation, and outlined some facts round the media monitoring. It also spoke to gender and demographic coverage and outlined how the bias manifested itself. It also spoke to the violent protest ban. MMA also spoke to the MultiChoice deal and the reasons why MMA was opposed to it. Research demonstrated that SABC had failed to live up to its mandate. It pleaded that the independence be upheld and governance changed. It would like to see SABC be like a Chapter Nine institution.
The SOS Coalition spoke to some of the editorial policies and said that SOS represents a broad spectre of stakeholders who are interested in promoting and protecting media rights. Its core work centred on the SABC and any challenges that it faced. It was upset that the public was not invited to make comments on the policies in violation of the Broadcasting Act. SOS Coalition had been fighting strongly for local consent but it saw the editorial policies as a tipping point to a crisis identified some time ago. The position and capacity of the Board was examined, and the purging of staff was also identified, along with irregular appointments and Ministerial interference, starting with Ms Dinah Pule. It too was critical of the Portfolio Committee on Communications.
In the afternoon session, the Minister of Communications, Ms Faith Muthambi, appeared before the Committee in her capacity as representative shareholder of the SABC to account for issues that relate to the failure of the SABC to attain clean audit findings, adhere to legislative prescripts, comply with due process and act in the best interests of the Corporation and the South African public.
Committee members, ANC’s Mr Smith, Mr Chauke and Dr Khoza together with UDM’s Mr Kwankwa, DA’s Ms Van Damme and the EFF’s Mr Mokoena particularly, questioned the Minister’s fitness to hold office and her relationship with Mr Hlaudi Motsoeneng.
The Minister emphasised that she had no more than a professional relationship with Mr Motsoeneng and that allegations to the contrary were malicious and intended to attack her personally.
The Minister maintained that there was no censorship contained in the SABC’s editorial policies and that the controversial decision not to broadcast violent protest action was an editorial decision justifiable in terms of the Constitution which limits freedom of expression when it promotes violence.
The amended Memorandum of Incorporation (MOI) had been a matter of discussion, with many witnesses on the previous days calling it illegitimate. It is said to strengthen the SABC’s executive management and the minister against the board, effectively giving the chief operations officer more power.
The Minister said that the MOI was amended in accordance with the prescripts of the Broadcasting Act and claimed that too much emphasis was being placed on exaggerated witness testimonies.
The Minister also stated the the R500 million agreement between the SABC and MultiChoice was necessary to make up for the failure of National Treasury to support the SABC with R60 million. She reiterated that none of the SABC archives had been sold to MultiChoice despite allegations of this.
The Chairperson reminded the Minister that the issue before the Committee was not really one concerning the Minister’s fitness but rather whether or not the Board of the SABC is worthy of recognition. However, in coming to a finding he expressed that it was near unfathomable to comprehend how all of this had even been able to transpire under her Ministry.
The Chairperson welcomed everyone present and outlined the programme for the day. He said that the Committee will be hearing presentations from Right2Know, Media Monitoring Africa and SOS Coalition. Mr Waters (DA) was unable to attend due to other Parliamentary business. Mr N Kwankwa (UDM), Mr S Swart (ACDP), and Mr F Mokoena (EFF) have substituted the Members that are unable to be present. The Chairperson said that it was brought to his attention that at the end of each submission witnesses are free to approach the Committee until 28 February 2017, and apologised for not having done so at the previous meeting.
The other important issue was that the “SABC 8” have been receiving threats of intimidation, and it has been brought to his attention that threats are continuing to be directed at them. He said that he regards that as an assault on Parliament because when members of society are invited to come and give evidence to assist Parliament with its oversight, and there are people who are trying to destroy the democracy that Parliament is trying to build then that is unacceptable and must be condemned. He called on the intimidators to cease such behaviour and for law enforcement agencies to take action.
Mr N Kwankwa (UDM) thanked the Chairperson and agreed that the behaviour is indeed an assault on Parliament and the UDM condemns this behaviour strongly. He said that one of the journalists shared the text that was sent to them, and requested to share it with the members. The text read as “Traitors, protecting your white friends in Parliament who started this and telling lies about your comrades. You were warned; we don’t kill blacks but sit and watch the blood flow”. He said that this cannot be allowed and said that protection must be provided for the witnesses.
Dr M Khoza (ANC) said that the ANC is there to ensure that the democracy in the country is defended at all costs. Everyone who is intimidating witnesses must be dealt with accordingly. The ANC is aligned with action being taken against them.
Mr Swart (ACDP) said that the ACDP fully aligns itself with the decision to take action against those who are trying to undermine the process and the behaviour is totally outrageous. The authorities of Parliament must ensure that witnesses are not intimidated, and the witnesses must be protected.
Mr S Mahlangu (ANC) said that he aligns himself with the views expressed and that as much as the call has been made to take action, organised crime units should deal with this so that threats do not affect the progress being made during the holidays. The Committee raised the matter with the Chairperson of the Board who denied knowing about the allegations. This suggests that the SABC leadership does not care about what happens to people within the institution, and that is a serious problem.
Ms P Van Damme (DA) said that she agrees with what has been said and that the matter has reported to the SAPS and it should not be difficult to find out who is responsible. She said that SAPS should be called to account about the progress of the investigation and to state if arrests are imminent.
Ms F Loliwe (ANC) said that she would like to remind whoever is behind the threats that South Africa has a Constitution and people who are allowed to express their views. “Hands off” every person who has come to Parliament to give evidence. The Committee is there to ensure that South Africa lives up to its Constitution and justice prevails.
Mr H Chauke (ANC) said that he wants to encourage the SAPS to ensure the safety of witnesses.
Evidence presented to Committee
In respect of all witnesses, the Chairperson gave an introduction, informing the witnesses that they are by law required to answer all the questions lawfully put to them fully and satisfactorily, and in addition should produce any documents as required to produce in connection with the subject matter of the inquiry, notwithstanding the fact that answer or document could incriminate them or expose them to criminal or civil proceedings or damages. However, they would be protected in that evidence given under oath or affirmation before a House or before the Committee may not be used against them in any court or place outside Parliament except in criminal proceedings concerning a charge of perjury or charge relating to the evidence or documents required in these proceedings.
Advocate Ntuthuzelo Vanara, Senior Parliamentary Legal Advisor, administered the oath (where appropriate) to those attending to give evidence, and led the questions.
Right2Know: Micah Reddy
Mr Micah Reddy, Media Freedom Organiser, Right2Know Campaign, agreed to take the oath and did so
Advocate Vanara: Mr Reddy, I am not going to be leading you. I want you to explain to the Committee what The Right2Know represents and who the organisation is; what are the issues you took up with the SABC and where did that process end. You have less than thirty minutes.
Mr Reddy: I have a statement prepared but I will be omitting sections of it in the interest of time. On behalf of the Right2Know (also known as R2K) Campaign I would like to thank the Committee for taking interest in our work and inviting us to come and give our input. I am making the statement as a member of the Right2Know Campaign. Until November 2016 I was an employee of Right2Know working as an Organiser for Media Freedom and Diversity, where I was responsible for coordinating the media events around the SABC. The events that I describe are however the subject of a concerted effort of many people and not just me.
The Right2Know campaign was launched in 2010, and we are a coalition of progressive organisations and activists across South Africa. We deal with a wide range of issues of information access, secrecy, surveillance, media and communication rights and freedom of expression. I should emphasise that the campaign comprises a diverse range of members and stakeholders cutting across divides of geography, class, language, race, age, gender and ideological boundaries. I would like to speak briefly on Right2Know’s interest in public broadcasting. It goes without saying that the public broadcaster is distinct from a private broadcaster. The SABC is bound by law to inform the public in a politically non-partisan manner and deliver news that is fair, accurate and captures matters that are of public interest. The Committee no doubt appreciates the importance of public broadcasting in South Africa is further heightened by the vast inequality that continues to define our country. This is reproduced not only in material terms but also in terms of access to information and the media. While wealthy urban South Africans have a wide range of media available to them on a variety of traditional and high-tech platforms, people in poor and rural areas rely primarily on public broadcasting to meet their information needs. With the Right2Know both types of consumers are represented. It is in this context that R2K has been fighting for a more robust, better funded and more independent public broadcaster. A broadcaster that can put the interests of the public first, a broadcaster that can promote a plurality of views, which produces hard-hitting news and journalism that is able to expose corruption, abuses of power and wrong-doing.
The events described in this statement followed a period of years of instability and concerning developments at the SABC including top-down political interference and editorial censorship, a growing climate of fear and self-censorship within the broadcaster as well as serious financial mismanagement and compromised governance. In May 2016 the SABC issued a statement to announce a unilateral prohibition of footage and images of violence at protests on the airwaves. This is referred to as the protest ban. This sparked a public outcry and R2K was one of those first to respond issuing a statement on 28 May 2016, to condemn the decision as an unjustifiable act of self-censorship. We said that this was intended to silence stories and images those in power would find embarrassing. In our analysis the protest ban was the same policy pursued by the SABC in the face of civil unrest during the struggle against apartheid, footage of which was also banned from television and radio reports.
It seemed clear that the ban was one of a range of editorial changes being made to shape a certain narrative in the news media leading up to the municipal elections. It is worth noting that the absurdity of the protest ban became clear shortly afterwards when Tshwane erupted in waves of violent protests. It was a leading national news story yet SABC cameras looked away. It was a clear case where the SABC had disregarded basic editorial codes and was in blatant violation of its mandate as a public broadcaster to ensure a high standard of accuracy, fairness and impartiality in news and programmes that deal with matters of public interest. The crisis of the SABC was already on Right2Know’s agenda but these events precipitated a renewed focus. The issue was tabled and discussed at the June Provincial Working Group meeting of the Right2Know in Gauteng, Western Cape and Kwa-Zulu Natal.
Members of various grassroots organisations that make up the Right2Know’s provincial structures expressed serious alarm by the decision of the SABC to censor protests. These members and organisations which include the Thembalihle Crisis Committee, Gugulethu Back-yarders and many others operating in solidarity with like-minded progressive organisations and fighting for a more equal, more open and more democratic South Africa represent economically marginalised communities across the country. Members have a two-fold interest in the matter of censorship. Firstly they have an inherent interest in how protests and mass action are covered by the public broadcaster. Secondly they are by and large consumers of SABC media and of course as Right2Know we have a very strong mandate to focus on issues of media freedom and diversity and we rely on the public broadcaster for our own communication needs.
In regard to the events leading to the suspension of the journalists on 20June 2016. Right2Know held a protest gathering at the SABC’s offices in Auckland Park in response to the protest ban. It was the first of many such actions but it bears noting because it appears to have set in motion a chain of events that precipitated wide-spread protests against the SABC Chief Operations Officer (COOO Mr Hlaudi Motsoeneng, his allies on the board and his political backers. The R2K protest was a peaceful picketing outside the SABC offices, the event was properly organised in terms of the law but later events suggest it was prohibited in terms of the SABC’s arbitrary protest ban. Shortly after that the news media reported that several SABC journalists the first of those who would become known as the “SABC 8” had been suspended after they had disagreed with an instruction during a diary conference not to cover the R2K protest. Those were economics editor Thandeka Gqubula, RSG executive producer Foeta Krige, and senior journalist Suna Venter. This development escalated the public alarm and set off the events. In the coming days and weeks several other SABC journalists came to the defence of their suspended colleagues and journalists' integrity more broadly.
As the Committee will know, in total eight SABC journalists were suspended and later fired under completely unlawful circumstances. The broadcaster later reinstated seven of them with no further explanations. This led to further protest action at the SABC over the decision that our protest on the 20 June should not be covered. During this time a grouping of concerned organisations and people started to work together intensively to provide a unified response to the growing crisis at the SABC. Among those were R2K, the SOS Coalition unions such as the Broadcasting, Electronic Media and Allied Workers Union and the Media Workers Association of South Africa, Media Monitoring Africa, as well as several civil society organisations, media workers and concerned members of the public. Through public meetings in Johannesburg, Cape Town and Durban we coordinated rolling protest action in the weeks and months following the June 20 protest. According to my records, R2K organised or supported sixteen protests at SABC offices in Johannesburg, Cape Town, Kimberly, Mangaung and Durban as well as others at ICASA, Department of Communications in Pretoria and Parliament in Cape Town.
During this time numerous memoranda were handed to the SABC representatives at the various offices to raise concern about the various aspects of the SABC crisis. None of them has received a response.
I would like to just briefly elaborate on our attempts at direct engagement with the SABC. In our initial interview Advocate Vanara asked for information about interactions with the SABC management over our various concerns. In the weeks following the protest ban, the 20 June protest at the SABC and the suspension of journalists’ public pressure against the censorship and management’s heavy-handed and obstinate style mounted. The Committee will be familiar with these events but I will provide some more details. During this time I was contacted by various SABC staff members and former staff members who informed me of intimidation and harassment from management, threats and punitive actions against anyone who failed to toe “the Hlaudi line” and a pervasive climate of fear at the SABC.
On Friday 1 July R2K participated in a protest by media workers, media workers representatives and a coalition of civil society. This was a march from the SABC to the Constitutional Court and during the march two members of R2K, I and Stena Molapo, joined a meeting with the SABC delegation including with Mr Motsoeneng himself, which took place at the SABC headquarters. During this meeting we demanded the immediate reinstatement of the SABC journalists. Mr Motsoeneng attempted to distance himself from the decision saying that it was an HR decision and he was therefore powerless to meet our demands. His attempt to evade any responsibility was disingenuous as it was clear that Mr Motsoeneng exercised total control over such matters and is highly likely to have been directly involved in their suspension. Our delegation pointed out that Mr Motsoeneng could hold the compromised disciplinary process against the journalists with a mere phone call but he remained obstinate. Eventually Mr Motsoeneng agreed that he would look into the matter and report back to the same delegation the following Monday at an agreed upon time.
However, Mr Motsoeneng acted in bad faith as the delegation re-convened in Braamfontein in preparation for the meeting with SABC management as agreed. Shortly before the meeting was due to start we received a phone call from Mr Motsoeneng in which he basically said the meeting was off, he had made up his mind and there was nothing to talk about. The journalists would not be reinstated.
The Committee will know that on 26 July 2016 the Labour Court overturned the dismissal of four of the “SABC 8”, reinstating them. On 27 July, after those reinstated journalists were blocked by security from entering their place of work, R2K members protested against this abuse of work rights. However, later that day it was announced without further explanation that seven of the eight journalists had been reinstated. I am confident that the Committee has received more information about this from other sources but up to date there has not been any clear indication of whom was behind the abuse of this flagrant abuse of worker rights and under which circumstances the reversal happened. Allow me to briefly outline our key concerns and demands:
a) The immediate reinstatement of the SABC 8. It was clear from the outset that the eight journalists were simply purged for exercising their independence and speaking against the extremely authoritarian actions of management
b) An end to censorship policies. We noted that the SABC was increasingly leaning towards politically biased coverage and at times actively suppressing the views and content deemed to be critical of the ruling party. Examples include the SABC’s refusal to screen Emmy award winning documentaries of the miners who were shot down, the shelving of the SABC Commission documentary on Apartheid Corruption project , the canning of critical news shows such as The Editors and On The Record, the unilateral prohibition on SABC broadcast journalists reading newspaper headlines on air, the prohibition of broadcast footage of violent protests although ICASA had found that this policy should be withdrawn and this was disregarded as we have heard.
c) The withdrawal of the unlawfully revised editorial policy. It is a matter of record that the SABC unlawfully revised its editorial policies and failing to properly undertake the required public consultation process. It is a basic principle of good public service that management should not be allowed to interfere arbitrarily in the day to day editorial news. The new policy says that content should be referred upwards for approval, giving Mr Motsoeneng and others sweeping powers to interfere with the work of editors and journalists. We demanded that the new policy be withdrawn and re-drafted after a full and meaningful public participatory process. This matter has been taken to Independent Communications Authority of South Africa (ICASA) by the SOS Coalition and Media Monitoring Africa.
d) Our fourth key demand was the removal of Mr Motsoeneng. We have consistently said that the former SABC COO Hlaudi Motsoeneng is patently unfit for the job. Despite findings by the Public Protector and several courts that he is unqualified and was irregularly appointed as COO, Mr Motsoeneng has retained a senior executive position at the SABC. It is a matter of public record that Mr Motsoeneng has been instrumental in purging and victimising staff ,often in flagrant disregard of labour law.
We are particularly troubled by reports of the involvement of the State Security Agency in identifying whistle blowers at the SABC and clamping down on those who are disclosing details of mismanagement to the public. It is my hope that the Committee will ask us more about this and that this very serious abuse regarding the State Security Agency is not drowned out in the sea of scandals surrounding the SABC. This dictatorial management comes at considerable cost to the public. For example, Mr Motsoeneng ignored regulations by increasing his salary from R1.5 million to R2.4 million and beyond. He also hiked the salaries of other selected staff, inflating the salary bill by R29 million at the struggling broadcaster. It has been reported that the SABC has been called to the CCMA in 190 matters in the past two years.
e) The dissolution of the SABC Board. It is clear that the Board has involved itself in all manner of irregular decisions and failed to exercise its duties and provide good governance at the SABC. It is our belief that the Board was captured by “an untouchable employee” of the organisation - namely Mr Motsoeneng. It needs to be dissolved urgently and for new members to be appointed through a transparent and participatory process. The resignation of various board members has rendered the Board dysfunctional, giving rise to the urgency for a new Board to be appointed.
f) The removal of Minister of Communications Faith Muthambi. During her tenure Minister Muthambi has been directly implicated in political interference which undermined the independence of the SABC as a public broadcaster. The Memorandum of Incorporation (MOI) signed by the Minister in 2014 gave her an inappropriate level of influence over governance decisions at the broadcaster including overarching powers to influence the appointments and removals of board members and executives. No doubt, in the course of this inquiry, the Committee will learn more about the irregular interference of the Minister in SABC‘s governance. We believe her conduct has seriously damaged the public broadcaster and media freedom and she is not suitable to continue to serve as Minister of Communications.
We believe the unlawfully revised editorial policies giving Mr Motsoeneng ultimate editorial authority and the Memorandum of Incorporation concentrating power in the hands of the Minister of Communications have given two individuals extraordinary and unchecked influence over developments at the SABC. These two developments have grossly undermined the independence of the SABC as well as the power of the Board and the role of Parliament and ultimately damaged public broadcasting as a whole. We describe this as a form of state capture.
The Right2Know welcomes the steps to establish an Ad Hoc Committee to hold a formal inquiry into serious damage that has been done to the public broadcaster. R2K has been disappointed that Parliament’s Portfolio Committee on Communications did not take further action on the SABC crisis when it met in August. Subsequent events, notably in the Supreme Court of Appeal's (SCA) ruling on Motsoeneng’s appointment have made the position of Motsoeneng and remaining board members completely untenable.
R2K wishes to put it on record that we have some concerns regarding the limited scope of the inquiry. The crisis is at risk of repeating itself if the underlying structural actors that enabled this crisis in the first place are not rectified. Simply put, it will not be enough to simply shake up the current management without putting governance mechanisms to guard against political interference. This must include:
- Addressing the extraordinary powers exercised by Minister Muthambi who has systematically undermined the SABC’s independence by substituting the Companies act for the Broadcasting Act
- Parliament must reaffirm its role by taking part in the appointment and removal of board members and make it explicit that the Minister does not do this at her own discretion
- Ensuring that the board is reconstituted through a transparent and open parliamentary process
- A public participatory process to review the structures of the SABC and even its Charter
- Establishing measures to protect and promote editorial independence at the SABC
Lastly we are concerned that the Committee has not taken the opportunity to get input from affected media worker structures, in particular the Media Workers Association and union. Their members have been directly affected by the conduct of Mr Motsoeneng and his allies. We call on the Committee to consider getting testimony from these stakeholders. It is our sincerest hope that Committee will result in meaningful steps being taken to reverse the rot at the public broadcaster and hold the SABC management accountable for their trickery, lies and for flouting due process, defying Parliament, insulting the intelligence of the public and running the SABC as if it were their own chiefdom and not a crucial public institution and asset. Enormous damage has been done and it will take enormous political will to undo it, but it can be done. We remain hopeful, we remain committed to that decision, as you do, of an independent, vibrant, well-run and well-funded public broadcaster that hold power to account, meets the needs of our diverse nation and remains a public asset in the hands of the people.
Advocate Vanara asked for a signed hard copy of the document being presented, even if at a later stage.
Questions by Members
Mr Chauke (ANC): The Right2Know went straight to the point. Thank you very much and I appreciate the work that has been done by the campaign. Your commitment demonstrates shows that you are committed to democracy working properly. There are two points : in relation to the State Security Agency, how far have you picked up the involvement with regards to the intimidation or harassment of staff, because that has been one of the areas that freedom of expression seems to be suppressed now at the SABC.
Mr Reddy : May I refer you to Marie Hunter who is our expert on security and secrecy matters. Is that permissible?
Chairperson: I am reluctant to allow Ms Venter to give a response because she has not taken the affirmation, so I will ask that you Mr Reddy be the one to respond to the question personally, to the best of your ability or in so far as you have information on it. This is a serious matter.
Mr Reddy: The Committee has heard of the state security issue and I am quite sure that it has come up quite a number of times in the course of these proceedings. I would like to underscore some of the cases of state security involvement. In January 2014 (former Chairperson) Ellen Tshabalala allegedly warned staff that their communications were being monitored, unions have also reported that Durban staff were asked to clear out their offices while state security did unknown things in their offices for a few hours. The State Security Agency was brought in to stop leaks, as we believe, and the Committee also heard that Mr Calata said that an employee of the Parliamentary news team had her computer seized by so-called SABC forensics department who charged that she had leaked information to the DA.
Mr Chauke: (asked that the Committee receive the rest of the information, through the Chairperson, so that I can then move to his next question). What, in respect of the issue you raised about stakeholders, especially workers’ organisations not being afforded the opportunity, is your proposal. The Committee currently operates within a particular timeline.
Mr Reddy: It is ultimately for the Committee to decide whether it is concerned that they were not included in the programme given that they represent a large number of SABC staff. I am not sure what kind of arrangements can be made to include their participation, especially because they have had significant involvement in pushing back against SABC management.
Ms Van Damme: Perhaps part of what we are going to have to do as a Committee beyond the inquisitorial process is also a series of recommendations to the National Assembly about what needs to happen at the SABC. R2K has listed recommendations which I think we will take under consideration. But beyond that she asked for more information on the suggestions about how we fix the SABC.
Mr Reddy: The crisis that we witnessed at the SABC is plainly unprecedented, and we have said that this calls for a fitting emergency response, and that we have said should entail public participation and if needs be it should mean going back to the drawing board. The SABC was radically transformed from a mouth piece of the apartheid government to a SABC of a model transformation. It would be instrumental for the Committee to look at the BBC. It is not without its faults and struggles but every few years its Charter is up for renewal and there has been an ongoing process in the UK of renewing and restructuring the BBC. I read at the time of the SABC crisis that in the processes of the BBC, something in the region of 220 000 public submissions were handed in. I think that is something to aspire to; a truly inclusive, democratic, open process of reformulating the SABC. I mentioned in my presentation that it may be necessary to look at the very foundations of our SABC to perhaps re-visit the SABC’s Charter which may contain some slightly problematic provisions. The same applies to the Broadcasting Act; there may be provisions that need to be strengthened so that there is more to separate management from the day to day running of the news room. We should also look into the location of the Editor-in-Chief because there is litigation around this. Part of the problem with the SABC at the moment is that Mr Motsoeneng has such unrivalled control over editorial content. He is given the levers of editorial control and through him the state and the Ministry are given unacceptable levels of power over editorial control. We believe that mechanisms need to be put in place to guard against political interference, and governance structures need to be put into place to strengthen editorial independence. Journalists and editors must be given more freedom, more prerogatives to take decisions without overbearing management and without the threat of politicians harassing and purging them. I must again stress that all of this must be truly participatory. It is a public institution and we all have a huge stake in the public broadcaster.
Ms Loliwe: Within the South African context, is the SABC the best or worst broadcaster and why?
Mr Reddy: In some sense the SABC is the best broadcaster because it is the most accessed media organisation in the country. It is a media staple for millions of South Africans and is the most influential broadcaster in the country. SABC management however exhibit some of the worst, most authoritarian, anti-democratic tendencies that are increasingly posing a threat to our Constitutional democracy. So it is the best and the worst; it has some of the best journalists, we have seen the SABC 8 appear before this inquiry, we have seen them demonstrate enormous courage, enormous integrity in the face of very serious threats. Threats not only to their livelihood, but in the case of some, to their very lives. That for me is the best journalism; to be able to hold power to account like that exhibits some of the best journalism in the world. The managerial style of the SABC management is “the worst of the worst”; they have ruled the SABC like a dictatorship.
Ms Loliwe: I have looked at the presentation and the principles guiding you. Is it within your call to go a step further to say so and so should go? Is that within your scope?
Mr Reddy: I do not see why it would not be within our scope to make demands that concern members of the public who genuinely feel that certain high powered individuals have been abusing their authority.
Dr Khoza: Thank you Chair. I can assure you that we would like to strengthen our relations with civil society organisations and what you have put forward to us. I just want to understand you better, is R2K only limited to media freedom or does it also concern itself with the financial sustainability of the SABC?
Mr Reddy: The two things are inseparable to some extent. We believe in media freedom and media diversity, and in order for that to be meaningful , as I said in my statement, there is a need to address the fact that media diversity in our country is deeply unequal, not only in material terms, not only in income divides but also to access to media.
Dr Khoza: Have you seen the MultiChoice contract and what do you think of it in terms of the SABC and future revenue streams. It was made available to the Committee only yesterday. I became concerned about a number of areas in that contract and want to hear the perspective of the R2K.
Mr Reddy: For a while now the R2K has been raising the alarm about the MultiChoice contract. It reeks of something dubious and, like so many deals that we have heard about in the process of this inquiry at the SABC, has been done in a way that seems improper. R2K has reason to question many of the deals which have been cut by the SABC management. R2K maintains that this deal is not in the interests of the public broadcaster and that it would end up auctioning off the SABC’s archives and basically selling the SABC down the river. We certainly are concerned about a deal like this, with what is the most powerful media company in the country.
Dr Khoza: Going forward it will be important to know if we have the support of the civil society. Does R2K have the breakdown of the 190 cases that have been taken to the CCMA, and the levels and type of grievances that are there? Even if the information is not to hand immediately, R2K is requested to provide it for the Committee, because it will help with the analysis when winding up the process.
Mr Reddy: This was reported in City Press, allies in the unions we could probably get more on this.
Mr Swart: I just want to commend R2K for the work you have done over the years with the NGO, in particular with this issue. You touched on the relationship between the Companies Act and the Broadcasting Act and we are very clear on this; that when it comes to the appointment and removal of the board members, that is determined by the Broadcasting Act which sets out the procedure in Section 13 and 15. The steps which were taken by the Minister to remove board members would, in my view, be unlawful. What is your comment on that?
Mr Reddy: That is precisely what I meant in my statement, that Minister Muthambi’s reading of the Companies Act as trumping the Broadcasting Act is wrong and unlawful. We said this at the time - that where specific legislation is designed to govern a specific institution, as in the case of the SABC, it cannot be overruled by broader legislation such as the Companies Act.
Mr Swart: Yesterday the Company Secretary held a very strong view that the Companies Act trumps the Broadcasting Act, so it is a matter of dispute that may need to be made clearer in legislation. In our view it seems clear but the SABC seems to hold a different view.
Mr Reddy: If the Companies Act was the governing piece of legislation and the SABC was governed by it like any other state-owned corporation it would no longer be a public broadcaster.
Mr Swart: The Broadcasting Act sets out duties that are fundamental to the SABC. R2K should feel free to engage with the Committee as it continues with deliberations on the fundamental legislative and policy changes that need to happen.
Mr Mahlangu: Colleagues have already commended you on the work done. The first issue is that you had raised the issue of those in the SABC that were purged; presumably knowing that those purged were replaced. Does the R2K know who replaced those fired, and what is the standing of those replacements?
Mr Reddy: There were sweeping purges at the SABC over the last few months; are you referring to specific individuals?
Mr Mahlangu: The Committee wanted to ask this question because it clearly needs to fix this situation so that when the Committee makes a recommendation, it will know how to make an informed decision.
Mr Reddy: I think that SABC insiders would be better positioned to answer this question. There were an awful lot of purges and reshuffles and redeployments at the SABC, a lot of which was about centralising power around Mr Motsoeneng. I do not have names at hand but we could go back and do some research on who replaced who.
Mr Mahlangu: Are you aware of the court decision on Mr Motsoeneng?
Mr Reddy: Yes I am aware.
Mr Mahlangu: The other question I would like to raise, which might be slightly unfair, is whether the R2K can comment on the right to the things we should not know?
Mr Reddy: (after clarifying that this, in general terms, referred to freedom of expression and what is excluded from this) responded: I think we have been very open and transparent throughout and we generally practice what we preach. We have not withheld anything.
Mr Mahlangu: That is not the question. There are things which the broadcaster should give, so would you be in a position to help us to say whilst we are pursuing this agenda, these are the things that should not be brought to the public.
Mr Reddy: We may differ substantially on what should be kept secret and what should be made publicly available. Our position is that openness and transparency should be the rule and secrecy should be the exception. However, this would depend on what information you are speaking about specifically.
Mr Mokoena: The debacle at the SABC that is underpinned by political interference clearly interfered in governance issues, in editorial issues and quality of information that society is getting. How is it affecting society in terms of strengthening democracy, dissemination of information, and social cohesion? You also spoke of state capture which is a wide subject that affects parts of society. We have references to the CEO of Eskom going into the offices of the SABC and dictating what SABC should and should not be disseminating. The state security was also involved in the investigations. What other organs of state and parts of the executive should be investigated in this inquiry, in order for us to get a fuller picture?
Mr Reddy: I think it is fairly self-evident how a compromised public broadcaster that is as important as the SABC would negatively affect our democracy. I don’t think I can add anything more to that. The SABC is for many people the sole source of current affairs and information and if you derive or distort people’s access to this then I think it is quite obvious what the effect on democracy would be. In terms of state capture and which other organisations should be investigated,. We have mentioned state security and that is very concerning and should be given a prominent place in the deliberations of this inquiry. I was asked earlier if there are things that should be kept secret and I would say that in the interest of journalism and in order not to compromise the sources of journalists, whistleblowers need to be protected. We have seen what happened to the members of the SABC 8 who came out, and some of them have had very serious threats on their lives. To have spies snooping around the SABC is a worrying sign.
Mr Kwankwa: Firstly I was happy to hear you acknowledge that there are fundamental problems that need to be addressed at the SABC in order for us to get the SABC working again, and for the principles of good journalism to take root in the institution. A very important point is that the process of the appointment of board members should be made more transparent. What exactly would you like Parliament to improve in the process? What is your role in addressing the criticisms levelled at you about privately owned broadcasters?
Mr Reddy: Regarding your question on appointments, it is our feeling that Parliament has to some extent let the Minister exceed her duties in terms of the appointment and removal of board members. The Committee must have heard about the removal of certain board members which seems to have been done in a very improper way, with undue influence of the Minister. We have also said in the past that the Public Protector’s appointment is a good benchmark for what should happen at the public broadcaster. Any new board should follow that process. The criticism against private broadcasters is not new, and it is unjust. For a very long time we have been calling on the corporate media to increase media diversity and break media monopoly. We have worked with journalists at ENCA and ANN7 and are very critical of the mainstream media. The focus on the SABC has increased inquiry, and the institution is important for the country because it is a public broadcaster. It seems perfectly rational that this is a major focal point.
The Chairperson thanked Mr Reddy and his team for providing the Committee with the presentation and responses to questions. He invited them to feel free to engage with the Committee until the deadline.
Media Monitoring Africa: William Bird and Thandi Smith
Mr Bird: Thank you very much for the opportunity to be at this very important inquiry. We are here with extraordinary high levels of anger due to the fact that we shouldn’t be here in the first place. We should be discussing things that will take our broadcaster forward and not things that are taking us back to the era of apartheid. The work that has been done over the past 23 years has been undermined systematically “by a group of morons”. MMA was founded specifically to monitor the SABC in the run up to the first democratic elections because there was a concern at the time about whether or not the SABC would be able to deliver free and fair content. Since then we have monitored all the election coverage periods in South Africa, and my colleague Thandi will be presenting some of the critical findings of that.
We have appeared here before on a number of occasions and I need to unfortunately remind the Committee that we were here in 2008 at the NCOP to talk about the SABC, specifically the Broadcasting Amendment Bill. We warned in September 2008 that if they did not make sufficient and necessary changes to the Broadcasting Amendment Act the crisis at the SABC would continue and deepen. Here we are now facing the crisis we had warned about in 2008.
There are four parts to our presentation, the first is around the crisis and how we got there, then we are going to talk about the research that we have done and the value of this is that over 200 MMA projects were done with an independent NGO. We are funded by local and international donors and I am making this clear because sometimes allegations are made about civil society organisations. The organisations that support us are on our website. During the last meeting the SABC management assured us that there was no crisis at the SABC yet the track record says a different story with 12 CEOs since 2008 and three boards in the last ten years, excluding the interim board. This is not a stable institution.
The SABC coverage of the local government elections had a monitoring period from the 1June to the 10 August 2016, monitoring approximately 73 media, including all of the SABC platforms and its various competitors. For this purpose we want to focus on how the SABC specifically performed during the period. It is critical that the SABC adheres to the highest standards of broadcasting and this means that coverage must be diverse, equitable and fair. The political party coverage results show that the top five parties have been focused on and this indicates that the SABC treated the elections as national elections as opposed to local elections. What we would have preferred is that more coverage be given to the independent parties and the smaller political parties. The top five were the ANC, DA, EFF, IFP and NFP. On the dedicated election debates you do see a variance in the results where other parties are given a chance.
Gender is an issue that is not spoken about as much as it should be, and in our findings we take a gender-focused point of view. The SABC’s mandate shows that there is more equitable coverage and more women’s voices are heard. Having said that we do see that this hasn’t been the case during this monitoring period where you have an average breakdown of 24% female and 76% male and that is on a relatively global average of gender breakdown. The SABC’s results looking at the four major platforms is far below average with Ukhozi Fm sitting at 10% female and 90% male, Umhlobo Wenene at 14% female and these trends are very worrying and show a failure to meet its mandate by the SABC.
When looking at whether the coverage was fair is critical for the SABC because it has an impact on the overall nature of the elections. We have indicators that show a pattern over time and for the first time we have seen systematic bias of the SABC of the elections by 10%. This doesn’t sound terrible but when you focus on it you find that there is channel specific coverage bias. 84% of the bias favoured the SABC, and it was access double the times of the DA and five times more than the EFF. The bias relates to the language used, coverage of stories and the opportunity to present responses to any questions or stories raised against a political party. This has served to show that the SABC has failed in executing its mandate of public broadcasting.
The report is available to be scrutinised, and again we must stress that this is an unprecedented matter as the SABC has in the past covered elections better than any other news platform. We believe that this is linked to the mismanagement taking place within the SABC. The protest ban led to the firing of journalists, of whom much has been spoken, as they also appeared before the Committee. In addition to the rage expressed by members and the recommendations that have been made the callousness with which the SABC themselves responded to this sickens me to my stomach. The ban was also supported by the Minister who will be appearing later despite it being in clear violation of the Constitution. The case was taken to ICASA with the SOS Coalition and was won but the SABC did not comply with the order. The critical point here is that what is being shown on our screens cannot be trusted which is a violation of our democracy.
In the overwhelming majority, the SABC failed to show the violence of protests and have actively deceived and lied to us about these particular issues. The violent protests were put at the far back of the news bulletin. The deal between the SABC and MultiChoice is being opposed by MMA because it sells cheaply the SABC archives, which are of importance for the country. We know that the SABC has not been willing to hand over documents and yet MultiChoice has defended the deal. The question we ask is: that if it was an ordinary deal, then why were there concerns about the regulator, and a clause that the CEOs will meet annually to discuss the matter? Is that part of every licensing agreement?
We see that the research has demonstrated that the SABC has failed to live up to its mandate and adhere to the order by ICASA about the protest ban and the MultiChoice deal. These issues that have been discussed are very real and have a direct impact on the right to access by the public. All the people who are implicated of wrong-doing must be fired, and the law must be amended to ensure that these kinds of crisis do not come up again in the future. The independence of the SABC must be upheld and the governance changed, and we suggest that the SABC be like a Chapter Nine institution.
Advocate Vanara: Mr Bird, you previously did work for the SABC for which they paid you. I am raising this because I don’t want people to come and say you did this on your own because you did not get business from them. Please comment on that. Similarly, did you provide services to other broadcasters who work similarly to the SABC; if so, please report.
Mr Bird: Yes, we previously got paid to do commissioned work for the SABC as part of a tender process to assess how they did in the elections. I am not aware if they put out a tender for the 2016 local government elections; if they had we would have applied. We were supported in this work by two other donors so it was not a case of looking for these things. Our default bias is that the media is fair and we look for overwhelming evidence to suggest the contrary. Yes we have done reports on other broadcasters, as my colleague Thandi mentioned we monitored 73 media in the elections which includes some of the SABC’s competitors and we have an online version of that report on our website and we really do not mind making specific comparisons if the Committee so requests.
Questions from the Committee:
Mr Kwankwa: I would like to agree with you that the coverage was largely in favour of the big political parties without being overly political about it. An example of this is that in the Eastern Cape the UDM got 6.6% of the votes in the 2014 national and provincial elections, but our coverage was nowhere to be seen. We are still battling with this matter so I am agreeing with you that it is a matter that we need to address. The other one is that if you look at political parties such as the IFP and NFP. which were the third and largest parties in that area and if you look at the coverage you will see that it was the status that they were afforded. So it is a major challenge but I think that where coverage is largely fair is on radio, but it is largely contentious on television. What is your take on that ?
Mr Bird: The principle of equitable coverage is one that was engaged upon with the Independent Electoral Commission (IEC) and the SABC, and the SABC has the difficult job of ensuring this representation. The broad scope of coverage is that the top five parties will get the largest coverage on television, but this also changes with the radio environment, which depends on where the radio is located. For example the DA will get more coverage in the Western Cape because of the levels of power it has within the province. The gender issue is one that the SABC has not taken seriously.
Mr Kwankwa: Any concrete proposals on how to change that? I am asking this because you said the local government elections were covered the same way that one would cover national elections, even though the dynamics are completely different. How would you address that problem?
Mr Bird: If you look within the SABC they had a very complex formula to determine equitable coverage. If you look at the election debates you do see that formula in play, so it is not that there is something new that has to be done, but just to take what has been seen to work; to provide equitable coverage and use it.
Mr Mokoena: We made an interesting finding in a regional broadcast of the EFF and found that we were better covered but it does not mean that better coverage will mean better results. I am interested in your inputs to the NCOP on the Broadcast Amendment Bill. What were the major inputs that you thought would be impediments to the growth of the SABC?
Mr Bird: The SOS Coalition has very concrete suggestions on the Bill, so I do not want to pre-empt what they are going to say. The inputs are largely around all the issues facing the SABC today. It is patently disastrous.
Mr Mokoena: The bias in reporting is not a new thing; however the new development is that it is slowly gravitating towards specific individuals and not political parties. What is your view on that?
Mr Bird: I think it is totally unacceptable. I do not think if any of us were asked to name the COO of any media organisation we would not be able to, yet Mr Motsoeneng has taken centre stage at the SABC.
Mr Mokoena: The other unintended effect of the protest ban is that it has assisted in the failure of the broadcaster to give evidence about who is instigating violence. What is your opinion on that?
Mr Bird: In our report on the protest ban there is information on a study conducted in October, showing that there was a jazz club which protesters burned down. SABC journalists were there but there was no coverage. That increases racial stereotypes, which are perpetuated.
Mr Mahlangu: The Constitution of South Africa is the supreme law and all of us are subject to it. It is unfortunate that Mr Bennett chose to compare the South Africa of today with the South Africa of the apartheid era. I have a problem with him saying that he is angry, and starting a meeting on that note. If he is angry he should keep that to himself, and not behave like Mr Motsoeneng. The issue that I find interesting here is that the research work leaving out variables tells a specific story. You have dealt with gender and political parties. Why did you leave out race? It would be interesting to know what the racial coverage was like.
Mr Bird: That is a bit of a put down, being compared to Mr Motsoeneng. Let me clarify that I did not mean to suggest that the South Africa of today is the same as that of the past, even with the way the SABC is today. If that is how it came across I apologise without reservation. I was focusing on the lack of transparency. South Africa should be angry about the situation at the SABC because we should be dealing with issues that help us move forward. The race issue is a critical indicator for us, and I do not believe that the way in which the SABC depicted the elections shows any race implications.
Mr Mahlangu: I think the report does not show clearly the coverage, but there must be an appreciation that the matters must be dealt with within the bigger picture.
Mr Swart: I would like to discuss the matter of the MultiChoice deal, which, is in the Competition Appeal Court and the information there is staggering, where is that matter now? Professor Maguvhe (Chairperson of the SABC) who appeared before us yesterday, was very vague about the situation, and seems that he has more knowledge on it than he had let on. Do you have any other information about deals with the SABC and TNA and ANN7 Breakfast? Morning live resources are being diverted to pay for TNA which is a rival. Have you made any investigations into that?
Mr Bird: We have not done any investigations into that as we are not an investigative body but what we do is that where we have something to contribute we will participate in strategic litigation. I know that some of these matters have been reported on and the Portfolio Committee should ask the SABC those questions. The matter was in the Western Cape High Court ten days ago because the SABC had not been forthcoming with documents, and it has now turned into the investigation powers of the Commission and we are awaiting judgement.
Mr Swart: Are you aware that criminal charges have now been laid in terms of the ICASA order and any processes around that?
Mr Bird: Yes we are aware of it after it was announced and it was on the basis on non-compliance and we have agreed to work closely with the regulator.
Dr Khoza: Were you objective when putting together your data? Did you take into account the factual issues? The ANC is the ruling party in South Africa and as such the default matter is that they will receive more coverage.
Mr Bird: The short answer is: are we objective? No. Are we clear and fair in the way we do things? Yes. All of this is outlined in the manner in which the report was put together. We work within the human rights framework. The findings around the SABC are that we expect the ANC to receive more coverage.
Dr Khoza: Your findings suggest that there is something wrong with the ANC receiving more coverage.
Mr Bird: Perhaps that is a matter of context for that particular issue. If you look at the level of coverage and biased items you will see the indicators.
Dr Khoza: I must however say that your choice of words is highly emotive because you went as far as quoting Verwoerd’s Codes. You must remember that when the issue of Mr Motsoeneng came up the ANC came out to challenge what was happening. Some of the witnesses that came here said that Mr Motsoeneng is on record saying that he does not care about the ANC. I think you have over stretched the issue of Mr Motsoeneng having the ideological backing of the ANC whereas it could be that he is supported by a particular Minister.
Mr Bird: I do not think that in the report we have said that Mr Motsoeneng has the backing of the ANC. The reference to Verwoerd is to show that what is happening now can be likened to the way the Nationalist Party sought to run things at the SABC.
Ms Loliwe: With your disclaimer of anger how objective are you in the contents of this presentation?
Mr Bird: As I have said we are very clear about the assumptions we used in the research. The anger is the situation that we found ourselves in, because of the way one of our public institutions is being undermined. However, that in no way affects the findings of the report. We welcome any observations that can show that that is the case.
Ms Loliwe: In 2008 you made a presentation to the NCOP, and it seems as if you have lost hope. Do you trust this process?
Mr Bird: That is a difficult question but the establishment of this committee gives us hope that action can and will be taken. We have seen a strong response from other parties such as the independent regulator and we hope that the outcomes will be positive.
Ms Loliwe: You respond like a politician. Do you trust this process, yes or no?
Mr Bird: I have no reason to doubt it. Yes, we do trust this process.
Ms Loliwe: In your presentation you have positive aspects of findings but you have chosen to focus on the negative. Can you share with us the positive findings?
Ms Thandi Smith: To reiterate the positive findings – the political party coverage in the election debates was good and we would have liked to see more of it.
Ms Loliwe: On your slide speaking to the protest ban you have contradicting information regarding the protest ban that needs to be explained.
Mr Bird: The protest ban did not say that they were not going to cover all protests, but violent protests where public property was being destroyed. A lot of the protests covered were peaceful protests, but no actual violent footage was shown.
Ms Van Damme: I think anyone who has watched proceedings over the past week about what is happening at the SABC should be angry. If you are not angry then something is wrong, and it is not the duty of the committee to regulate the emotions of persons coming to give evidence. It is an objective fact that the ANC received more coverage during the elections. The DA monitors its coverage too and it is quite clear that the SABC gives the ANC more coverage than other political parties. One of the journalists did say that they were forced to give the ANC more coverage. When the protest ban was announced, the SABC said that it was acceptable to restrict showing these because people see what is happening on television and they go out and do the same. Is there scientific research supporting this?
Mr Bird: The answer is no, and if you look at the many reasons the SABC put forward they did not have any theorised reasons for making that decision. When they presented during the ICASA hearing they gave different reasons for their decision, which showed that there was no coherent policy behind it.
Mr Chauke: How long have you been interacting with Parliament?
Mr Bird: Personally, I think I have appeared before the inquiry into lack of transformation in the media, and from 2000 on and off, depending on the opportunities that arise.
Mr Chauke: So you have not lost hope in the Parliamentary process?
Mr Bird: Not at all, I believe that those who seek to undermine our democracy will be dealt with effectively.
Mr Chauke: Then I encourage you to continue engaging with the Portfolio Committee on Communication because many of the issues which you have raised here can be dealt with in that committee. I believe that you would agree with me that South Africa has strong pieces of legislation in comparison to other countries.
Mr Bird: Of course, and the SABC, in the context of these challenges remains a stronger institution than in many of the other Southern African countries. The legislation is good but must be amended because the Minister has been given too much power.
Mr Chauke: Would you be interested in further engagements with the committee?
Mr Bird:Yes, and let it be clear that the anger is directed at the people who are responsible for bringing us here and not at the honourable Members.
Ms Kilian: Can I just ask you about your last recommendation about the MultiChoice deal, what benefits has the SABC derived from the deal?
Mr Bird: I believe there is the original agreement and the amended agreement whose details were made public in the City Press website, but the allegations of bonuses has been omitted.
Ms Kilian: Are you saying that the deal is available to the public? The SABC suggested that it contained sensitive commercial information.
Mr Bird: The SABC has suggested a number of things that are not true. It is there and we can furnish you with a copy. The agreement was signed by Mr Motsoeneng.
Ms Kilian: Let us talk about the election coverage, is there something wrong in the way we conduct elections in South Africa? Do we limit the information about elections to the public?
Mr Bird: Yes, media houses allow their election agenda to cloud the real issues that the public must engage with during elections. This is because politicians know how to create a story about nothing. The critical issues do not feature as issues in elections coverage and a shift should take place.
The Chairperson welcomed the delegation from the SOS Coalition Mr Sekoetlani Phamodi, Programmes Manager, and Ms Duduetsang Makhuse, Coordinator.
Ms Makhuse: Duduetsang Makhuse introduced herself as Incoming Coordinator of the SOS Coalition. She would speak to the editorial policies and some of the issues around this. SOS represents a broad spectre of stakeholders who are interested in promoting and protecting media rights. At the outset in 2008 the Coalition adopted a specific focus on the SABC, so that its core work centres on the SABC and any challenges that it faces, and SOS will monitor to see how it can assist. The biggest event this year was the ICASA complaint that it launched regarding the protest ban, taking the case forward to ensure that any member of the SABC will not be able to change policies without due process. The public was not invited to make comments on the policies and this is in violation of Section 6 of the Broadcasting Act.
It is important that the SABC follow this process because it allows for a diverse range of submissions to be reflected, because the majority of the population relies solely on the SABC for all its news. It is also important that policies that affect how news are depicted, the work of journalists, how interviews are conducted and media worker rights are affected must follow due process. In the end those who should be held accountable must be held accountable. It was during that time of the protest ban when the SABC 8 invited the SOS Coalition to assist the SABC with the threats and crisis they were facing at the SABC.
1 July is referred to as “Black Friday” and in the history of the media in South Africa, this was about the 1976 ban of the apartheid government on the media. It was important for SOS Coalition to support a worker-led movement that seeks to bring to the forefront the challenges being faced within the SABC by media workers.
We found out that my colleague was declared persona non grata during this time and the events and recordings are there on tape. A broader public mandate was sought and during this time some of our pickets were disturbed by protesters who claimed to be in support of Mr Motsoeneng.
She wanted to place it on record that since 2010 we have been fighting for the increase in local content, and this was actually won as 70% of local content in the SABC. This required the SABC to source local content from under-represented communities. The events of this year in ensuring that the editorial policies are revised were the tipping point of the crisis that we had identified some time back. There is an active constituency that seeks to ensure that democracy and the Constitution is upheld which cuts across demographics and intellectual and economic factors.
Mr Phamodi wanted to start with the position and capacity of the SABC board, whether or not it has one member standing. SOS Coalition laid a complaint with ICASA regarding the editorial policies of the SABC which were in direct violation of Section 6 of the Broadcasting Act which provides that a public participatory process must be followed to engage the public. In its papers the Coalition has outlined the sequence of events that led to the SABC unlawfully changing its policies. The key issue here is that, in collusion with the Minister of Communications, the Board failed to undertake a draft comment process, and went a step into misrepresenting the fact that it had adhered to the requirements.
The purging of staff at the SABC has been seen extensively and it continues to happen in key strategic areas of the SABC. It includes the purging of finances, procurement and governance. This includes the removal of Mr Frans Matlala from his position of CEO, after only four months of office and the quantum of his golden handshake. This is a critical issue that relates to the board, and linked to this is the extent to which there has been a breakdown of proper HR policies. In addition to the brain drain that has been happening at the public broadcaster there have also been irregular appointments and promotions of unsuitable individuals who have aligned themselves with Mr Motsoeneng. The findings of the Public Protector show that there have been irregular appointments and Ms Sally Motshoene is one such example of an appointment made directly by Mr Motsoeneng.
There is further evidence of Ministerial interference, .This issue goes as far back as when Ms Dinah Pule was Minister. The former Minister’s role in the irregular appointment of a former CFO ensured that the improper conduct and financial management at the SABC continued. Ms Pule refused to adhere to the Articles of Association and recommendations of the Board on the manner in which appointments should made by the SABC. She returned the list presented by the then-board chaired by Prof Ngubane, and demanded that Ms Gugu Duda be appointed as CFO. The current Minister’s role in the irregular, irrational and patently unlawful appointment of Mr Motsoeneng has been witnessed. The Minister must be held accountable for this, together with the irregular developments of the MOI and response to the court action around the lacuna in the Act about who is the appointing authority of the three top executives of SABC. The Ministerial interference has led to the collapse of boards, and we have engaged with the Portfolio Committee on Communications countless times on this matter.
SOS Coalition expressed the view that the Portfolio Committee on Communications had failed the Coalition. It had written repeatedly and engaged with the Committee outlining its concerns and there have been no responses in this regard. The new Bill seeks to exclude the role of Parliament in the appointment process of the SABC, with the Minister seeking to gain power over the control of the SABC. She has also attempted to establish a bogus committee on the appointment process. The SABC is a critical mouthpiece for the dissemination of information to the public and its independence must be ensured. There must be an overhaul of the governing legislation to ensure that the SABC functions properly.
Mr Mokoena: The Broadcasting Act does indeed provide that amendments must include public participation. The issue of local content is an old issue, and even back in the 1990s, there was a reason to say that the 70:30 ratio must be obtained; a 90:10 ratio has the effect of shutting the country out from what is happening in the world and from an international experience. This also excludes certain radio stations. If Mr Motsoeneng had used the public participatory process, better results would have been achieved.
Mr Mahlangu: Important issues were raised but the MultiChoice deal was not spoken on, and he wished to hear more on this.
Mr Phamodi: In order to understand the MultiChoice deal we need to look at the chronology of events. In 2008 the Digital Migration Policy was developed and gazetted by the late Minister Ivy Matsepe-Cassaburi. There was, within this policy, a robust system of control within the government to stimulate the electronic communication industry in the country and within the Continent. An amendment was made in 2012 to clarify the need for encryption policies in the country. In 2013, MultiChoice began to engage with the SABC around this issue, through Mr Motsoeneng, and presumably the Board had knowledge of this. He implored the Committee to engage with Dr Ben Ngubane on this matter on how this deal was negotiated. The essence of the deal was to secure the dominance of the monopoly that MultiChoice enjoyed in the subscription broadcasting sector, because an encrypted signal is required to access the big international shows including football and drama shows. This would go into a set top box, which in this case would be DStv or the M-net decoder which would then be unscrambled and be available to be watched by the paying viewer. The deal would ensure that the SABC remains the dominant broadcaster.
Mr Swart: Please submit additional written information to set out some of the issues. Can you discuss the fiscal position of the SABC - considering that Mr Motsoeneng has given the directive that all contract workers be given five year contracts. When is the case being heard over the lacuna in the legislation?
Mr Phamodi: The lacuna in the Act is about who is the appointing authority of the executive directors of the SABC, to ensure the independence of the SABC. The process should ensure that there is a wall between the management of the SABC and the executive government. We expect the matter to be heard in the second quarter of 2017 but further information will be provided to allow Members to keep track of events. Papers are published online, at the website soscoalition.org.za, where there is also news on every court case in which it had litigated.
Dr Khoza: Is the forensic audit restricted to Mr Motsoeneng, or does it cover other parties within the SABC?
Mr Phamodi: There has been a failure by the board to ensure that there are correct supply chain policies that are complied with and the Auditor-General (AG) did point this fact out.
Dr Khoza: It is important because that is another aspect that should not slip through the cracks and the Company Secretary is important in ensuring that corporate governance is adhered to at the SABC. I will request an additional report from you on the other issues that you raised.
Ms Loliwe: I want to refer you to the revision of policies. When were your petitions made?
Mr Phamodi: I have been with the Coalition since 2012 where I initiated the engagement programme and we have made submissions through the Chair pointing out the issues that need to be attended. We had hoped to have an inquiry as far back as 2014 when the Ngubane board was dissolved.
Ms Loliwe: Considering that you have said that the life span of a policy is seven years and the revision was in 2009, can you cite a few of the handshakes and the persons to whom these handshakes were granted?
Mr Phamodi: I will start with the most recent that was brought to our attention, which is that of Mr Matlala whose quantum is still undetermined. Mr Molefe and others also received handshakes and we will provide a detailed report on this.
Ms Van Damme: I would like to extend my gratitude to yourselves and MMA and R2K for the work that you are doing to ensure accountability in this sector. Where does the Minister derive her powers in terms of the SABC? Your recommendations speak of the suspension of the Acting CEO and the CFO. Why is this so?
Mr Phamodi: The Minister derives her powers from a variety of different pieces of legislation; in terms of the SABC, it will be covered by the Electronic Communication Act read together with the Broadcasting Act which supercedes the Companies Act. The powers are to ensure full compliance with legislation and policies and do not allow her to play a direct role in the management of the SABC. She has, however, forced appointment over the terms of the boards. When Mr Maguma joined the SABC as a director prior to being CFO and thus played a role in allowing the corrosion at the SABC to continue, there has, in particular, been a complete by-passing of the commission protocol and the financial management systems. Proposals go to the 27th floor and are now called special projects.
Mr Chauke: What is your understanding of the Parliamentary process when it comes to a Bill that is before Parliament and your participation in the process? Is the court case directly linked to this process?
Mr Phamodi: We have engaged extensively through a number of the legislative processes that have been made available by Parliament, but currently, in terms of the Bill, we have not yet received a date on which the submissions must be handed in. We have engaged our constituencies on the amendments. We are very well versed on the process.
Ms Kilian: You speak of a lacuna in the Act and I am concerned about that because I was of the opinion that it is well versed to address all the issues. I thought that there was absolutely no doubt about who must appoint, and was only changed after the MOI. What is your view on the removal of board members?
Mr Phamodi: Our interpretation of the Act is the same as yours but due to the recent events there has been a need for it to be made more explicit and clear, in order to avoid the abuse of power. The Board removals, relating to the board purge, were patently irregular and show collusion between the board and the Minister. The matter will be heard in court, together with the issue of the MOI.
The morning session was adjourned.
The Chairperson opened the meeting by responding to the allegations of threat to journalists covering the SABC Inquiry. The Chairperson asked that any persons with evidence should report such to the police immediately and subsequently furnish the Committee with the police case number. The Chairperson made it known that the Committee would only be able to act on a matter that has actually been reported. The Chairperson advised those journalists who have received threats to direct concerns to Mr Leon Mbangwa, Chief of Staff of SAPS.
The Chairperson set out the procedure for the hearing, setting out time and order of proceedings.
Before handing over to the Minister, the Chairperson reiterated that the Minister is a member of Parliament and therefore all the protections enjoyed by Members of Parliament when they speak would accordingly apply to the Minister’s hearing as well. The Chairperson said that by virtue of that protection, no oath or affirmation would be read in that respect.
Ms Faith Muthambi, Minister of Communications, said she understands her responsibility is to account to Parliament and also thanked the Committee for the work that they have been doing.
The Minister wanted to the Committee to take note that some of the issues raised pre-date her taking office as Communications Minister in July 2014.
The issues raised by the minister were:
The Minister said that it is important that she begin with the historical context out of which the issues today arise. She said that she was fortunate to have been a member of the Portfolio Committee on Communications since 2010 prior to her appointment as Minister. She said that she also served on the Standing Committee of Public Accounts when she joined Parliament in 2009 where she had the opportunity of dealing with the the two annual boards of the SABC.
The Minister said that during the 2009 board administration the SABC governance and the financials were in tatters. She said that the SABC experienced corporate struggles since the late 2006 when there was alleged interference with the appointment of the Board and the executives. During these crises, especially the 2008/9 financial year, the SABC lost R910 million and was forced seek external funding so that its operational broadcasting requirements to the public could be sustained.
On 24 November 2009. Government announced the approval of a guarantee of R1.73 billion of which R1 billion was transferred and released for the SABC. This has subsequently been repaid and all the other tight conditions imposed have been met.
SABC governance and audit findings had to deal with historical or legacy issues including the reality that SABC had not had an unqualified audit since then. The Minister said that up to date, out of 90% of the issues raised by the AGSA there is only one finding of irregular expenditure.
The Minister mentioned that she would like to comment on the proposal to have an SABC Ombudsman. She said that it is common knowledge the the Communications sector needs to adhere to rules which apply universally across the sector. The Minister said these these rules are precisely to safeguard the Constitutional provisions of fairness and therefore she was surprised that the SABC’s eight witnesses omitted to tell the Committee about the existence of checks and balances and that the witness proposed an internal ombudsman.
Section 16(1)(2) of the Films and Publications Act (65 of 1995 hereinafter referred to as the FPA) notes that newspapers published by a member of a body recognised by the Press Ombudsman are exempted from prescribed classification by the classification board. Also, if one looks at the FPA, it is consistent with the Electronic Communications Act (the ECA) as amended, insofar as this requirement affects the advertising industry, mainstream media and the broadcasting sector. Section 54 (2) of the ECA on the code of conduct of broadcasting it reads as follows:
“all broadcasting service licensees must adhere to the code of conduct for broadcasting service licensees as prescribed.”
This prohibition does not apply to broadcasting licenses for members of a body recognised by the Ombudsman. In the case if the SABC, it is known that the SABC is member of the National Association of Broadcasters (NAB) which has proved through certification of the Independent Communications Authority of South Africa (ICASA) that its members have subscribed and adhered to the code of conduct as enforced by the NAB. The SABC is further obliged to comply with the rules governing broadcasting services which is monitored by an independent body, the Broadcasting Complaints Commission of South Africa (BCCSA). The SABC always encourages its viewers to challenge any content which is aired on any platform and to report any irregularities to the BCCSA. So, when people talk of an internal ombudsman, what they do not see is that there is already an establishment of a structure without the SABC would not have been eligible for recognition by NAB and ICASA.
The implication is therefore that such an internal ombudsman would have to have its own code of conduct and invest in resources by employing competent staff outside if the SABC and that the SABC would have to cease its membership with the BCCSA which would in turn cause public outcry and negative association with the SABC leaving an established mechanism to form its own internal mechanism.
Furthermore, the SABC is not alone. There are also other broadcasters such as the advertising sector. Section 55 (1) of the ECA states that:
“All broadcasting service licensees must adhere to the Code of Advertising Practice (in this section referred to as the Code) as from time to time determined and administered by the Advertising Standards Authority of South Africa and to any advertising regulations prescribed by the Authority in respect of scheduling of adverts, infomercials and programme sponsorships.”
The Minister added that when the Democratic Alliance (DA) submitted a Memorandum of Demands, it only supported mainly white journalists and one Indian journalist. In the memorandum, the names of the journalists were Jacques Steenkamp, Foeta Krige, Suna Venter and Krivani Pillay only.
The names of Thandeka Gqubule-Mbeki, Mr Lukhanyo Calata, Ms Mthimkhuku, Mr Vuyo Mvoko and others were never mentioned. The Minister said that she will provide the Committee with the Memorandum of Demands as evidence to this effect.
The Minister said that it can be reported that the suspension of the “SABC 8” was settled before the Labour Court. Seven of the eight employees had returned to work. The exception was the case which involves Mr Vuyo Mvoko, Contributing Editor, in which case it is necessary to acknowledge that the circumstance leading up to this suspension were rather unfortunate and should not recur. The Court on this matter has ruled against Mr Vuyo Mvoko and he is perhaps using this Committee as forum shopping exercise.
The Minister admitted that holding a public office comes with major public scrutiny but that she has found the personal attacks by the SABC 8 disheartening. She added that in her maiden Budget Vote Speech around July 2014, and in various other platforms, she indicated that South Africa was not doing enough to meet the International Telecommunication Union (ITU) deadline of migrating from analogue to digital broadcasting by June 2015. The Minister was therefore of the expectation that SABC journalists would know about the missed deadline as the Corporation is a significant player in the market as well as the fact that South Africa continued to roll-out Digital Terrestrial Television (DTT) Imbizo throughout all the entities that report to this Department which includes the SABC.
The Minister said that she has never interfered with the Editorial decisions of the SABC and reiterated that she does not run the SABC. She may perhaps have offered advice during the Imbizo Outreach Programme, that there are areas of focus that she felt that needed public scrutiny. The allegations by Ms Thandile are thus based on hearsay.
The Minister said she would then deal with allegations made by witnesses about the process that was not followed leading up to the Editorial Policy:
SABC News Editorial Policy 2013
The Minister said that the process to review the Editorial Policy of the SABC had not been complied with, and the Committee at the time were concerned that the provisions of periodic updating of the policy had not happened regularly at the SABC.
The process of review was started by her predecessors but implemented during her tenure. In this regard, therefore, the affairs of the SABC are governed by the Broadcasting Act No of 1999 ( the BA), particularly section 6, which provides for the Charter of the Corporation that the Corporation must comply with.
The SABC is required in terms of the BA to develop the news and editorial policies. It also makes provision for the SABC to ensure that there is public participation in the development of such a policy by inviting and considering public comments on such draft policies.
Stakeholders, including political parties, groups such as SOS and others were all afforded the opportunity to comment on the proposed amendments to the editorial policy.
This provision as required by section 6(5)(a) of the BA was complied with by the SABC to ensure compliance with the SABC’s license conditions, in relation the News Editorial Policy.
To this end, a process of public consultation was undertaken as part of the initial review process in 2013 and early 2014. In the preparation of the policy, the Board ensured that there was sufficient public participation and public input in development of the policy in line with section 6 and 7 of the BA as part of SABC’s continued role of upholding the latter of the law.
Stakeholder engagements were held with more than 30 organisations and interest groups from across the country. This was followed by 17 public hearings, with each province hosting at least one. Almost 2 000 people attended these hearings. Public consultations were advertised on SABC platforms and in selected print media. The SABC received 216 written submissions from individuals and organisations.
In addition, the proposed amendments to the editorial policy were translated into all eleven official languages and placed on the website of the SABC.
The policy was approved by the Board of Directors of the SABC for implementation by management, as required by section 5(b) of the BA, and ICASA was duly notified in writing on the amended policy as per the requirements.
What was witnessed pre-election was an undue pressure on the part of certain sections of the society to force changes to the already approved policy and we believed that if allowed, it was going to erode and influence the editorial independence of the SABC. Furthermore, in the Minutes of the SABC Board dated 25 February 2016 on PBS/PSC and the Board resolution, Mr Mavuso praised the SABC Management for producing the Editorial Policy that can stand the test of time.
Censorship Policy v Editorial Policy
The Minister said that if one was to ask anyone, whether a journalist or NGO, to give a relevant clause of censorship in the new policy, none will show.
This is because there is no clause like a ‘so-called censorship’ which exists in the SABC’s policy. The Minister said that the facts need to be dealt with, this is why even in the case involving the SABC against Media Monitoring Africa (MMA), the subsequent judgment by ICASA ruled against the SABC’s media statement on its editorial decision and not the policy.
The point that the Minister said she was making here is that in implementing the new Editorial Policy, SABC took an editorial decision, which in its view is consistent with section 16 of the Constitution on the limitations to Freedom of Expression. Section 16 (2)(a), (b) and (c) stipulate that freedom of expression does not extend to propaganda of war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
In the same vein, section 2(a) of the BA compels the SABC to establish and develop a broadcasting policy which contributes to democracy, the development of society, gender equality, nation building, provision of education and strengthening of the spiritual and moral fibre of society. In addition, section 2(r) requires that the SABC develops local programming content, 90% of should resonate locally. Comparatively speaking, European Union (EU) members have 70% EU content on their policy as per the 2007 EU Directives.
The Minister said that some Members of Parliament and the witnesses have indicated that she did not subject this policy to Parliament. She said that the Act is clear, it only requires that such information be lodged by the Board to ICASA and not to the the Minister or Parliament. The shareholder had never received any request from Parliament requiring that it appears before the Committee to brief it on the Editorial Policy.
The Minister said that out of her own initiative, she personally sent the copy of the Editorial Policy to Ms P Van Damme (DA) to show that there was nothing untoward, to which a number of questions were posed regarding it.
The Minister said that therefore she cannot be unfairly and wrongly accused of the breach of legislative prescripts which are not in existence.
Former Board Members
The Minister said that she was particularly disappointed when former board member Mr Ronnie Lubisi said he did not know what the legislated board quorum requirements were. Section 12 of the BA requires that the board is composed of twelve non-executive directors and three executive directors, namely the group chief executive officer (GCEO), the chief operations officer (COO) and chief financial officer (CFO), to make a total number of fifteen board members.
Section 13(10) of the BA stipulates that nine members of the board, which must include the Chairperson or deputy, will constitute a quorum at any meeting of the board. It is a false assertion that the board was inquorate since the departure of the board members like Ronnie Lubisi and Professor Bongani Khumalo. The truth is that after this period, the SABC had six non-executive and three executive directors, until recently when Mr Krish Naidoo and Mr Mavuso publicly resigned on 05 October 2016.
The Minister said that she was also not really surprised because Mr Naidoo and Mr Mavuso once confessed at the SABC bilateral meeting held in Irene, Pretoria on 15 April 2016 that they had never looked at the BA when she asked them questions about it. It now seemed that overnight they have become experts.
The Minister said that the questions she asked related to the separation of board committees on public service and commercial services including the requirement to have two separate Annual Reports, one for the public service broadcasting and the other for the commercial service.
The Minister said that the point is here is that witnesses are disputing the sensitivity or the existence of commercial interests of the SABC when in fact it has SABC 3, Metro FM and various platforms which are commercial entities under the SABC. This not surprise her at all. She said that she must hasten to say that the Skills Audit document is not part of the commercially sensitive document. The document was withdrawn in Parliament by the Board after SABC staff complained that they were never interviewed and those interviewed were asked irrelevant questions out of their area of expertise.
Advisor Calling Meetings with the Board.
The Minister said that the alleged involvement of the advisor meeting with the Board cannot possibly implicate her. Since taking office, she has implemented a number of legitimate and proper steps , such as quarterly bilateral meetings with all boards and councils of various entities.
She said that as a Minister, she participates in many board forums, forums of the Chairperson of audit committees and CEO and CFO forums. All these serve as platforms within which board and executive policy and regulatory issues are dealt with by her and her advisors.
The Minister said that she has not once heard complaints about the meeting held with her advisors and that the complaint is new to her.
From Articles of Association to Memorandum of Incorporation (MOI)
The Minister said that so much has been questioned around the MOI and sometimes people exaggerated or over-estimated their testimony. Witnesses have all questioned her powers without reading the laws which governed the SABC.
She said that it is important to note that the MOI is an issue which is legislated in the BA since the conversion of the old state broadcaster to the public broadcasting we have today.
The requirements for the MOI is consistent with the Companies Act. She said that what she has done as a Minister is in line with section 8A(3) which stipulates that the Minister determines the Memorandum and Articles of Association of the Corporation and must submit these to the Registrar at least one week prior to the date of the notice as contemplated in section (1).
Section 8A(3) says that ‘the Registrar’ must, on the date of the notice contemplated in sub-section (1), register the memorandum and articles of the Corporation in terms of section 63(1) of the Companies Act and issue a certificate of incorporation and certificate to commence business to the Corporation, but no fees are payable in respect of such registration or use.
Following the amendment to the Companies Act in 2008, the law now requires the memorandum of incorporation and the process to initiate and file this document still rest with the Minister. These are the requirements of the law, namely the the BA and the Companies Act and not the Minister’s interferences as it has been suggested by the witnesses.
The Minister said that she wanted to echo what Mr Krish Naidoo said, that whilst there was no requirement in the legislation for the MOI to be done together with or by the SABC board, the Ministry had extended a courtesy and made the process so transparent including having ensured that the document was made available to the SABC Board for their comments and inputs before the final document was signed-off and lodged with CIPRO. This can be seen on the Minutes of 4 September 2015 of the SABC AGM and meeting of 29 June 2016 where the Board went through the MOI and there was a Board resolution approving the MOI.
Portfolio Committee on Communications Meeting with the Minister
The Minister said that the lies or the untruthful statement that were presented to the Committee was of concern. This is because the MOI was never a secret document; on the contrary, on 23 June 2015, the Ministry appeared before the Portfolio Committee on Communications. The subject of the meeting was the Briefing by the Minister of Communications on the Memorandum of Incorporation of the SABC; the Broadcasting Charter; as well as Legislation and governance instruments for various entities under the Ministry. After the lengthy debate the matter of the MOI was subsequently closed. There were a lot of errors with the MOI, including confusing the SABC with the South African Post Office (SAPO) in the same document.
The Minister said that in the normal quarterly bilateral meetings with the SABC Board, including in the Annual General Meetings which she chairs as per the relevant legislative prescripts, not a single Board member highlighted any sense of discomfort about the MOI. She said that she would expect that the Board, as people who are involved in the governance of the SABC, would be able to advise her but that this never happened.
She said that it must be remembered that section 14 of the BA, provides that the Board as the accounting authority of the Corporation manages the affairs of the Board. The Board is supported by the three executive directors, and no more than eleven members. Therefore, the executive committee of the Corporation manages the day to day operations of the SABC, not the Minister.
The Minister said that she was surprised when Mr Masinga failed to tell this Committee about the Western Cape Judgment (case no 1072/15) in which he sought to invalidate the amendments of the MOI. The Court dismissed his case and the judgment confirmed that the Minister was legitimately within her right to amend the MOI.
She said that is is also perhaps necessary to add, that contrary to the change in MOI as it has been put to the Committee, the MOI that was signed did not start with herself, but former Minister Pule started the process and Minister Carrim inherited the process. The Minister simply gave the Board an opportunity to comment on the MOI.
Context on the ‘Purging’ of Board Members
The current non-executive members of the SABC Board were appointed by Acting President Kgalema Motlanthe on 25 September 2013.
In November 2013, President Jacob Zuma accepted the resignation of Ms Noluthando Gosa as a non-executive member of the SABC Board. In July 2014 Thembinkosi Bonakele resigned from the Board to take up a position of Commissioner at the Competition Commission.
In 2014, allegations surrounding the Board’s Chairperson Ms Ellen Tshabalala in regard to her academic qualifications emerged. These allegations were the subject of an inquiry by Parliament and Court processes. This led to her resigning from the SABC Board in December 2014.
In January 2015, Professor Bongani Khumalo tendered his resignation from the Board, which was duly accepted by President Jacob Zuma.
In March 2015, President Zuma requested the National Assembly to initiate a process to fill the vacant positions that came as a result of the resignations of the non-executive members of the Board. This process is yet to be concluded by the National Assembly as no new non-executive members of the Board have been appointed.
During March 2015 the SABC Board took a resolution to remove the three non-executive board members (Ms Hope Zinde, Mr Ronnie Lubisi and Ms Rachel Kalidass) as non-executive members of the SABC Board in terms of section 71(3) of the Companies Act. This was done following an investigation on the conduct of the said non-executive board members and the passing of a resolution of votes of no confidence in the board members indicated.
Section 71(5) of the Companies Act stipulates that the Board members must, within twenty business days, apply to a court to review the determination of the Board. The removed board members did not exercise this option that paved the way for Parliament to accept and initiate a process to fill the vacancies.
The removal of the board members has been a subject of discussion by the Committee to a point where the Committee had to seek legal opinion on the lawfulness of the procedure followed in the removal of the three board members.
It is important to note that section 8A of the Companies Act provides that the SABC is deemed a public company incorporated in terms of the Companies Act, the SABC is therefore subject to the provisions of the Act.
Subsequent to this legal opinion, the Minister was requested to respond to the Parliamentary legal opinion. As a result, on 23 June 2015 the Portfolio Committee on Communications endorsed the removal of the three board members from the SABC Board.
Public Protector Report
The Minister said that in regard to the Public Protector’s report, both the preliminary and final reports were submitted to the SABC before her tenure in 2013 and 2014. She said that she waned to put it on record that in the introductory meeting with the Board (see Minutes of 02 July 2014) she emphasized the importance of the adhering to the Public Protector report and that it required urgent action and further legal opinion.
Appointment of the COO
The Minister said when that met the Board for the first time shortly after her appointment on 02 July 2016, she was fortunate that she had been aware of the weaknesses of the SABC, since she had served on the Portfolio Committee on Communications in Parliament.
One of the various recommendations which she had participated in during her time in Parliament is the constant advice to the SABC to ensure stability both in the old Ministry of Communications and all its entities, and the effect of such recommendation to be followed up by the Fifth Parliament. Parliament’s
Budget Review and Recommendations Reports (BRRR), oversight visits, and Committee meetings, their view would serve as reference to the strategic plan of the entities.
One of those critical issues was the filling of the vacant position at the SABC, which she mentioned when she met with the Board. The Minister said that sadly only Prof Khumalo remembers that she had discussed the filling of positions at the SABC.
The Minister said added that nobody has yet mentioned here that in a recent meeting with the Portfolio Committee on Communications in October 2016, she refused to appoint Mr Motsoeneng as the Acting COO after the Board had recommended that he assume an acting position again even though the Supreme Court of Appeal had ruled against his appeal.
She reiterated that not a single witness told her about the Public Protector’s report and what steps had been taken to effect it. The Board and witnesses should have informed her what they did between 2013 and 2014 before her time.
To account for her responsibility, she said that on a number of occasions she had appeared before the Committee to appraise Parliament. For instance, on 05 October 2015, the Committee called a meeting to discuss the following items: SABC Board on Public Protector Report; SCA ruling; appointment of former COO and implications of court and ICASA rulings and Broadcasting Act compliance.
The SABC Board indicated it complied with the recommendation to have the former COO suspended and that a disciplinary hearing which was broadcast live on SABC television had cleared him.
The Board also indicated that it was taking the report for judicial review as some of the witnesses alleged to have been interviewed by the Public Protector’s Office had declared under oath that they were never interviewed and some who were interviewed were never asked the questions whose answer is given in their names.
MultiChoice and SABC Deal
The Minister said that, again, this matter of the contract was signed before her time in 2013. It is necessary to understand that around 2005 ICASA approved licensing of the SABC’s two channels, SABC 4 and 5.
Since then Parliament and National Treasury failed to secure the funding of R60 million necessary for the SABC to implement the vision in line with the preparations of the DTT. The deal between the SABC and MultiChoice has culminated into SABC getting R500 million which it has utilized to run the 24 Hour News channel in preparation for the DTT.
She emphasized that the matter was cleared by ICASA which exonerated the SABC and MultiChoice because no national archives were sold to MultiChoice.
Despite this, on 21 April 2015, the Ministry appeared before Parliament to discuss issues related to SABC and MultiChoice deal.
The Minister and the ICASA CEO explained that the complaint lodged with the Competition Commission against SABC in connection with the selling of SABC archives had been withdrawn because it was maliciously based on misleading information.
The complaint alleged the handing over of the SABC archive to MultiChoice, the ceding of SABC’s power to determine its policy on set-top box (STB) control to a commercial competitor and the permission for MultiChoice to require best local programming from the SABC to be aired exclusively on DSTv first.
The Minister said that surprisingly, the MultiChoice/SABC deal has again found its way here into the inquiry. It is important to note the deal was not even negotiated by the previous Board, it happened during the interim Board of Mr Ronnie Lubisi, Mr Mr Vusimuzi Mavuso, Ellen Tshabalala.
Access System/ Encryption
In dealing with DTT, the Minister said that in 2008 Cabinet approved a Digital Migration Policy (BDM).
The above-mention standard was based on the UK model and furthermore dictated that STBs shall be enabled to receive services from different platforms and operators.
South African STBs have a standardised operating system prioritizing security features, interoperability and interconnectivity. For this reason, the policy provided for STBs to have a control system to prevent STBs from being used outside the borders of South Africa and to disable the usage of stolen STBs.
Context of the Revised BDM Policy
In December 2012, the policy was revised and adopted by Cabinet. The reason for this revision was to avoid challenges in implementing the digital migration programme caused mainly by differences between broadcasters and manufacturers relating to the use of a control system. The Department opted to remove the mandatory Access Control on STBs except for those subsidised by government as means to protect government investment.
What is factually correct, which the witnesses have unfortunately erred on, is that in November/December 2013 Cabinet approved that the BDM policy be subjected to further public consultation.
This meant that it was only in 2015 that the BDM was approved by Cabinet. This has been implemented in the Northern Cape and other provinces ever since. The witnesses mentioned that Cabinet approved the non-encryption. The policy was only approved in 2015.
The Chairperson asked for clarification as to whether he was understanding the Minister correctly in saying that the skills audit report had nothing to do with commercial interests.
The Chairperson asked whether the Minister had seen his letter dated 6 November 2016 addressed to Ms Theresa Geldenhuys requesting documents in which the Minister was also copied. On page 2 of the letter are the documents listed that are relevant to the inquiry. Item J calls for the SABC skills audit report conducted by PriceWaterhouseCoopers. The Chairperson said that this was given to the Committee twenty days later. He says that between 6 November and 2 December, Parliament was forced to issue summons for documents. That summons was received by the SABC.
On 6 December 2016, a letter from Lucky Tsekiso Attorneys addressed to the Chairperson titled ‘re: Summons Served on 24 November to Deliver Documents’. The letter said:
“We have considered your summons and the letter this response is directed and advise as follows:
We have received instructions to make an application on the judgement. . .
We have, however, advised that some of the documents listed under the summons may be provided to you on the basis that they are already in public domain and we have advised Ms Theresa Geldenhuys to send those documents (para 2.2).
The following documents are not to be provided on the basis of privilege and its disclosure may negatively impact the commercial interests of the SABC (para 2.4).”
This is a letter from the lawyers of the SABC sent to the Parliament on behalf of the Board, denying Parliament access to documents under the pretext that it has commercial interest. The Chairperson said that the Minister had just said to him that she had seen these documents. Assuming that Mr James Aguma is the acting CEO, he would have been part of issuing those instructions. So the question to the Minister is whether the board of the SABC which defies not only the Minister but also Parliament, breaks the law and is a legal person complicit in doing all these things together with their legal advisors, as a collective worthy and fit of being a board?
The Chairperson said that it has taken Parliament three weeks, more than R500 000 of tax payers money. He added that an organisation and LuckyTsekiso firm that had caused this to the South African Parliament and to the shareholders owe Parliament immensely.
The Chairperson asked the Minister how she sees this behaviour against Parliament and herself.
The Minister responded that the shareholder compact is primarily a relationship between herself as a shareholder and the SABC. It is very clear that the Minister is accountable to Parliament for the exercise of the powers, functions and performance of functions. The Minister’s responsibility is also one of oversight over the performance of the Board.
The Minister added that the point she wanted to make was that the Board controls the internal affairs of the SABC and is accountable to Parliament for compliance with the BA, the PFMA, the Companies Act, the Protocol on Corporate Governance and any other related points. The Minister said that she has appeared before Parliament, the Board and especially on matters which were her responsibility.
The Chairperson clarified that what he was saying is that the Board acts disrespectfully towards the Minister. He was not enquiring into the Minister’s fitness but rather the Board’s fitness. He just wanted to illustrate that the Board disregards Parliament and the Minister. He said that he just wanted the Minister to understand the real danger of a Board that does not even respect Parliament. At the end of the day the ultimate question is whether that collective is fit. He said that all this process is one of collecting evidence to substantiate which ever outcome is reached.
The Minister, on a point of clarity, said that she was not aware that the requested documents were withheld from submission. She accepted that she should have checked that those documents were submitted.
Mr Chauke noted that currently the accounting authority of the Corporation has collapsed. He asked what the Minister’s view was on this?
The Minister responded that it was thought that Parliament would expedite this process because at the end of the day the law provides that there must be an interim board appointed. She said that she recommends to Parliament that it finalises the deal. She said the situation right now is that the mandate of the existing executives expires at the end of the month and there is concern as to what would happen in the absence of a board. The Company Secretary, in terms of the MOI, would have to recommend an extension to the Minister. The Minister therefore pleads with Parliament to expedite this process.
Mr Chauke wanted to know whether with that problem, the Minister has started the re-engagement as the representative of the executive.
The Minister said that as far she knows, the contract of the Company Secretary is ending sometime in 2017. It transpired that she was given another contract which will have to be looked at.
Mr Chauke said that the Minister spoke of the title of her successor who will take responsibility. He asked whether she has done a review of all the agreements spoken of today, such as the MultiChoice deal, the MOI and actually applied her mind rather than just stepping away from the problems which seems to be what has caused the crisis today.
The Minister responded that the MultiChoice matter is not at the Competition Tribunal. She added that she had reported this matter earlier before the Parliamentary inquiry. She said that she would also need to point out that board members are appointed by Parliament. When Parliament appoints these members, it is presumed that the persons possess the requisite skills. So, responsibility is shared with the directors.
Ms Kilian remembers serving together with the Minister on the Portfolio Committee on Communications and during that period all MPs were all already aware of the challenges at the SABC because it was brought to their attention by the Auditor-General. She added that far back there was an intervention, an interim board that had to take over. Basically nothing has changed; if one looks at the number of special meetings called by the SABC, there is no governance and this is not even counting the number of times the board was not quorate. She said that the SABC is at serious risk. She added that the interpretation from the Minister’s legal team of the BA differs significantly from what has been presented as Parliament to the Portfolio Committee. She said the critical clause in the BA is the conversion clause, section 8(a)(5), which says that:
“With effect from the date of conversion, the Companies Act applies to the corporation as if it had been incorporated in terms of the Companies Act on that date save to the extent stipulated in this Act.”
Ms Kilian said that any person with a solid legal background will say that if one has to work and manage the SABC on any other basis but on this basis then you are at risk because this BA trumps the Companies Act which merely fills in the details where the BA does not provide.
She said that if one looks at the appointment clause, section 13, it is very clear as to what goes through in Parliament and ultimately the President. The same section says nine members of the board (non-executive), which must include the chairperson or deputy chairperson, will constitute a quorum of any meeting of the board. She says it is clear that this does not include the executive directors. Since the illegal removal of members, which was on 25 March 2015, the SABC Board has been inquorate and all resolutions adopted by that inquorate board can be challenged because they would be illegitimate. Going further to look at clause 14, executive committees, it is very clear that the affairs of the Corporation are administered by the executive committee consisting of the GCEO, the COO, the CFO and no more than eleven members. It then says the executive committee is accountable to the Board so how can any member who is an executive member then participate in the election of Board? The BA explicitly differentiates between the executive and non-executive members.
Furthermore, the shareholder compact says that the Board controls the affairs of the SABC and is accountable to Parliament for the compliance by the SABC with the BA and to the Minister as the executive authority. It also says that the Board shall include the function of appointment and oversight of a group executive committee accountable to the board and responsible for implementation of the strategies.
Ms Kilian then asked how it was possible that the Minister had accepted any legal advice which told the Minister to purge the board of members who were critical about process and legislative provisions and raised concerns?
The Minister referred to section 12(a) of the BA which states that:
“Composition of Board.
The Board consists of
(a) twelve non-executive members;
(b) the Group Chief Executive Officer; and
(c) the Chief Operations Officer and the Chief Financial Officer or their equivalents, who will be executive members of the board”
The Minister then referred to the case of SABC v Mpofu and Another (2009 (4) All SA 169) which she asked that Ms Kilian should go and read. In that matter the Court ruled that both non-executive and executive members are equal members of the board. On the issue of the removal of the Board members, the Minister said that she already had indicated that she obtained legal advice from both Senior and Junior Counsel who agreed with the removal process in terms of section 71(3) of the Companies Act. The Minister said that Ms Kilian should also go read the case of Sinokuhle and Masinga v The Minister of Communications, particularly paragraph 18 of the judgement.
Ms Loliwe recalled that Professor Khumalo said that he wanted to resign but was persuaded not to do so by the Minister. Shortly thereafter, however, the Minister wrote to him requesting reasons as to why he should not be removed from the Board. Professor Maguvhe, in his testimony, said that he would “chase everyone and start from scratch”. She thus wanted to know why Professor Maghuve had not been asked to appeal to his conscience and make the honourable decision to resign as the others had been asked.
The Minister said that with regard to the the issues referred to by Ms Loliwe, there was a report submitted to her, the Minister, through the Board Chairperson as the point of contact which is part of the shareholder compact which deals with the evaluation of board members.
The Minister said that the reason for the decision on Professor Maguhve was because the matter was already before Parliament and she would not want to be interfering with the process.
Furthermore, she said that to allege that she “did not persuade him” is an incorrect statement because what she did on receipt of the report was seek advice of her Director General and support staff so that each and everyone was given an opportunity to state their cases after which recommendations could be made to the relevant persons.
Ms Loliwe said that Professor Maguvhe is the remaining non-executive board member currently. However, when he was asked at his hearing the previous day, he did not know who who the shareholder was, despite his position as the Chairperson of the Board. Ms Loliwe asked whether the Board was ever subjected to any capacity building.
The Minister said she would not be able to comment on this matter. She did say, however, that she has indicated to the Board that members need to be inducted but that ultimately this was the up to the Company Secretary.
Ms Loliwe said that almost all of the witness who have appeared have described Mr Motsoeneng as somebody who is law unto himself. She asked whether this has been brought to the attention of the Minister and what the Minister has done to assist in this regard.
The Minister responded that this had never been brought to her attention. She said that every time he was acting as COO this matter should have been brought to her attention because at that time she had authority over him.
Ms Loliwe said that when Professor Maguvhe was asked about the SABC 8 before the Committee on the preceding day he said that he knows nothing about it and only heard about it over the radio. She asked whether it is possible for a Chairperson of a Board to know nothing about the institution and whether it is appropriate for someone so uninformed to remain the Chairperson of the Board.
The Minister said that this was an issue for the Committee to decide.
The Chairperson asked what the Minister’s view is on finding out that the link (Professor Mugavhe) between the shareholder and the institution displays such ignorance of current affairs.
The Minister responded that it would depend on the context. She said that he needs to answer for himself because the report signed off by the Board and presented by Professor Mugavhe himself on 5 October 2016 was about the SABC 8.
The Chairperson said that as the shareholder, the buck has to stop with the Minister. He said that leadership needs to be given to these matters. He questioned whether someone who has been shown to be unfit can really be put in an position of running an institution which affects all South Africans.
The Minister said that the Chairperson is putting her in a very difficult position. She highlighted that the process of selecting Board members starts with Parliament.
Ms Van Damme said that the Minister is persisting with the fib that the DA was only protecting the white journalists in the SABC 8. She firmly emphasised that the Minister knows very well that the Minster has given her the memorandum before the other four were dismissed.
She asked the Minister whether or not the Minister was on the Portfolio Committee on Communications that selected and interviewed the current SABC Board.
The Minster said that she was.
Ms Van Damme asked whether the Minister was presented with the list of the names of the ANC’s preferred Board candidates.
The Minister said that she was.
Ms Van Damme asked whether it was the exact same members who served on the SABC Board who were on the list. She said that she also consulted with a colleague, Marian Shinn, who served on that Portfolio Committee and was told that the Minister refused to hear opposition members who wanted to select other Board members and that the Minister persisted in pushing for those on the list. She put it to the Minister that some of the people on the Board felt beholden to the Minister and that it is the reason why the Minister thought it was suitable to walk into the SABC Board and demand that Mr Motsoeneng be appointed permanently upon her appointment as Minister.
The Minister said that at the end of the day, whether or not she was a member of the Portfolio Committee is not material, all that matters is that it was the decision of the Portfolio Committee at the time. She added that is no Whip that appoints the Board but that it is the decision of Parliament.
Ms Van Damme said that since some of the Board members felt beholden to the her, they turned a blind eye on certain things such as the amendment of the MOI taking powers away from the Board and giving some to herself and Mr Motsoeneng, the amendment of the Delegation of Authority framework (DOA) which gave Mr Motsoeneng powers to approve without having to go to tender. She said that, however, the biggest indictment is how the Minister turned a blind eye when the SABC 8 were dismissed, when there were death threats and people were shot at and when people’s houses were broken into. She said that the Minister also turned a blind eye when people who reported to the Minister had their lives endangered, when SABC money was misused to profit the Guptas through ANN7, when the State Security Agency infringed on the right of privacy of journalists. She said in all these respects, the Minister seriously failed.
Ms Van Damme asked whether the Minister was the constituency head of Vuwani.
The Minister confirmed that she was.
Ms Van Damme asked whether she was correct in recalling that between June and May 2016 there were heavy service delivery protests in that area in which public property was being burnt.
The Minister said this was correct.
Ms Van Damme said that around the time that this mass destruction of public property was happening in the Minister’s constituency it was a very wild coincidence that the SABC suddenly put forward an editorial decision that the SABC would no longer show images that public property was being destroyed. She questioned whether this was just a coincidence.
The Minister said that editorial decision was taken long after the Vuwani incident. She added that she does not work at the SABC and therefore does not have a voice on the editorial committee of the SABC.
Ms Van Damme said that this is not true.
The Minister said that Ms Van Damme was making malicious allegations.
Ms Van Damme asked for the Minister’s views on Western Cape High Court’s judgement on Mr Motsoeneng and whether she was of the opinion that it should be appealed.
The Minister responded that she had not yet accessed the judgement.
Ms Van Damme asked whether the Minister approved millions in public money that was spent by the SABC in defending Mr Motsoeneng in court.
The Minister said that there is an accounting authority at the SABC and that she does not approve the spending of money.
Mr J Mahlangu (ANC) asked whether one can say there is a Board at the SABC.
The Minister responded by saying that there is no Board.
Mr Mahlangu asked what the Minister’s objective was when she amended the MOI.
The Minister responded that MOI that she had inherited had a lot of mistakes so this was to deal with the typographical and grammatical errors, and in a meeting with the Board, it was to bring the MOI in line with Companies Act and also to confer power upon the Board to exercise their fiduciary duty which includes the issue of disciplining staff and day to day running of the organisation.
Mr Mahlangu asked whether the board is allowed, in terms of law, to pass votes of no confidence on each other?
The Minister said yes. She again referred to the judgements mentioned in response to Ms Kilian and said that this is provided in section 71(3) of the Companies Act.
Mr Mahlangu asked whether there was justification for the SABC to appoint Mr Motsoeneng to the position that he holds?
The Minister said that there was justification at the time but his matter was taken to court by the DA in which the appointment was set aside. When he was appointed to the next position the Minister said that she was express in saying that this would be in contradiction of the judgement.
Mr Mahlangu asked about the R1.3 million increase in Mr Motsoeneng’s salary over the period of the past five years.
The Minister said that such a decision is within the authority of the Board and that salary hikes are also prescribed by National Treasury. She finished by saying that she does not have the requisite power to affect Board decisions in this respect.
Mr Mahlangu asked whether the Minister was aware of the deal between SABC and MultiChoice and asked for an explanation to clear up whether the archives had in fact been sold.
The Minister repeated her stance on the MultiChoice deal that due to Parliament and the National Treasury’s failure to support the organisation with an additional R60 million, alternative income generation had to be sought which culminated in this deal. However, no archives were sold off. The record of the meeting of 21 April 2016 can also be checked in this regard.
The Chairperson said that the point being made is that if South Africans are denied the crown jewels because of this transaction under her watch, she will be obliged to come to Parliament and account for it. The Chairperson warned that if this matter is found to be irregular by the Auditor – General in the next financial year, the Minister will be held personally accountable because the PFMA says that the Minister must prevent irregularities rather than relying on the Auditor General detecting them.
Mr Swart said that evidence was led by Mr Magoda Shushu, the former Group Executive of Procurement, in which he expressed some severe concerns of the side-lining of the procurement processes. This was one of the issues raised in the AG’s report. Mr Swart asked for comment on the particular assertion in which Mr Shushu said that “prior to my suspension I realised that there was a flood of transactions in an estimated total of R100 million” in which the procurement process was seemingly put in the hands of the COO and CFO.
The Minister said that Mr Swart is quite correct and that this was an area that concerned her too. She said that the Prevention and Combating of Corrupt Activities Act (12 of 2004),section 34, states that any person who holds a position of authority and who knows or ought reasonably to have known or suspected that any other person has committed corrupt activity has a duty to report such activity to the Police. She said that now there is a situation where Mr Shushu is an accomplice in the committing of this crime because he failed to do a report.
Mr Swart said it is the same obligation on those officials that is also on the Minister. He asked what has been done from her perspective to address the issue besides saying that Mr Shushu should have reported it. He said that it is again related to Mr Motsoeneng’s involvement.
The Minister said that she can assure that Committee that she will make sure that whoever is responsible will be brought to book and it will be reported back to the Committee.
Mr Swart asked whether the Minister was aware of the issue relating to the Rugby World Cup Studio in which a tender amounting to R43 million was not passed by regular processes.
The Minister said that she heard him talk about this matter. She said that before this she had not heard of this information.
Mr Swart said that he was concerned about how the meeting held on 7 July 2016 relating to the appointment of Mr Motsoeneng was called. He said that Mr Khumalo, head of HR, had expressed great concerns about this meeting as well because it was called by urgent SMS, confirming the Minister’s possible attendance and sent just the day before. There was no documentation furnished which states that the discussion would be about the appoint of Mr Motsoeneng as the COO. There was also the Public Protector’s report in which there were serious finding against Mr Motsoeneng and at the same time the Company Secretary in yesterday’s hearing said that there were irregular proceedings in that process. He asked whether the Minister agreed that this was not a wise appointment.
The Minister said that she was invited to the meeting but upon seeing the matters on the agenda she refused to go because she is not a Board member and the matters in question were Board matters. She said that what needed to be done was that it needed to be reported to her in writing as per the shareholder compact.
The Minster added that the court has said that one cannot completely ignore the recommendations of the Public Protector. It came to her attention that they have to be implemented and are binding and final. She said that on the issue of the Public Protector, there was a meeting on 20 August 2014 in which they discussed the issue of remedial actions as per the report.
Mr Swart asked whether the Minister was aware of Mr Motsoeneng’s bonus following the MultiChoice deal.
The Minister said that she wrote to the Company Secretary requesting that she be provided with formal communication with regard to the bonus.
Mr Swart asked whether anything further has been heard.
The Minister said that the Company Secretary had promised to furnish the Minister with the minutes of board meetings relating to approval of the bonus.
Dr Khoza said that there is a public outcry about how state owned enterprises, including the SABC, are run. She said that there has also been an outcry that ANC leadership have become so arrogant. This was subsequently admitted by the Secretary General of the organisation that this is not a figment of the public imagination. She said that all the witnesses who have come before the Committee have put the SABC governance failure on the Minister and wanted to hear the Minister’s comment in this regard.
The Minister responded that governance failure should not be put on a shareholder but it should rather be a collective failure.
Dr Khoza asked whether the Minister was exonerating the shareholder.
The Minister reiterated that it should be a collective failure and that the issues she has been faced with were largely inherited. She added that despite everything that has gone wrong she has witnessed some growth at the SABC, namely that the current board has dealt with 90% of the AG’s criticisms.
The Minister furthermore called on Parliament to assist the Board with the exercise of its fiduciary duties.
Dr Khoza added that it is necessary to share that the AG said that even the information that the findings were based on are a liability and cannot be adequately verified. She said that in 2013/14 the findings of irregular expenditure improved but that in 2015/16 it went up again to R763 million. She said that this coincidently coincided with the time in which skilled executives left the SABC. Dr Khoza wanted to know what this regression is attributed to in the Minister’s view.
The Minister said the SABC has a public service mandate that it needs to comply with and that broadcasting national interest events such as state funerals are not able to be budgeted for because no one knows who will die and how many broadcasts would have to take place. Similarly the issue of national teams, as no ones who will win. There was also the issue of the local government election where the SABC incurred expenditure. These are the issues that contribute to fruitless and wasteful expenditure.
Mr Kwankwa asked the Minster whether her input at the introductory meeting where she expressed her views on the Public Protector’s report created some of the confusion surrounding the implementation of the recommendations of the Public Protector since she told them to heed the report but at the same time still gave them the go ahead to proceed as they were.
The Minister said that it must be remembered that the meeting was her introduction and not a Board meeting. She said it was explained to her that the SABC was busy implementing the Public Protector’s report and this was done by commissioning a legal firm to implement the report. She said she did not create any confusion because she expressly mentioned in that meeting that the report had to be implemented.
The Chairperson asked how the process concerning the editorial policy was conducted and if there was a draft version which was made available to the public to comment on. He asked whether the Minister saw evidence of public participation.
The Minister said that she knows the draft policy was available on the SABC website prior to its approval, which in her view amounted to access.
The Chairperson said that the Minister had mentioned in a response earlier that she had never received any complaints about Mr Motsoeneng and was not aware of the discontent regarding his behaviour. He then wanted confirmation as to whether the late Ms Hope Zinde had not addressed a letter to the Minister expressing her concerns regarding Mr Motsoeneng. On the previous day, in Mr Khumalo’s testimony, he cited the same saying that he had numerous conversations with the Minister discussing the behaviour and unbecoming conduct of Mr Motsoeneng.
The Minister said that there would be record and minutes to that effect and as it stands she does not recall any complaints regarding Mr Motsoeneneg. What Ms Zinde raised was that she was not seeing eye to eye with Mr Motsoeneng but nothing dealing with his behaviour.
Mr F Mokoena (EFF) asked the Minister what her relationship with Mr Motsoeneng was.
The Minister said she only has a professional relationship with Mr Motsoeneng.
Mr Mokoena asked if this was to the extent in which she said “uBaba loves you” to Mr Motsoeneng.
The Minister denied this.
Mr Mokoena asked whether this professional relationship extended to the appointment of Mr Motsoeneng despite the Minister herself admitting that due process nor the Public Protector’s report was not followed.
The Minister said that at the time there was not a legal decision on Mr Motsoeneng’s appoint or the Public Protector’s powers. This issue was only later brought to her attention and clarified.
Mr Mokoena said that he does not accept this response. He said that she is saying that just because the President did not understand the implications of the Public Protector’s report, the Minister was relying on the same excuse as a basis for her alleged confusion regarding whether or not the Public Protector’s report is binding.
He then asked about the Minister’s relationship with the Guptas.
The Minister said she has no relationship with the Guptas.
Mr Mokoena asked whether the Minister was aware of the New Age deal.
The Minister said the New Age deal was prior to her appointment as Minister.
Mr Mokoena said that the Board said in a public press release that they were not going to appear in Parliament despite having been called to appear before the Committee. He wanted to know what the Minister did about this and what her view was.
The Minister said that SABC is best placed to respond to that.
Mr Mokoena asked what the Minister’s responsibility to the SABC is.
The Minister said that when the Board members resigned she asked Parliament to fill the vacancies to show that it was her concern. She said that she was not even in the country when the announcement by the chairperson of the Board was made. She said that when she has an opportunity to reprimand them, she will.
Mr Mokoena asked the Minster if it is her recommendation that they should be held liable for R43 million unexplained sales of a studio.
The Minister said that she will not express an opinion without an investigation.
Mr Mokoena asked whether the Minister thinks she is fit to be a shareholder of the SABC.
The Minister said that she is fit and proper to be the shareholder representative.
Mr Kwankwa asked whether the Minister thinks she has enough experience to be a shareholder.
The Minister said that she thinks has been able to account to the Portfolio Committee and has been appearing and giving the necessary responses.
Ms Khoza asked whether the Minister was concerned about the fiscal position of the SABC.
Mr Swart asked whether the Minister would agree that she has failed in her responsibility of oversight?
The Minister said that on evidence provided to her, she felt she has managed to exercise her oversight responsibility.
Mr Mahlangu remarked that the SABC is a national key point and that the current board situation is tantamount to a heist.
The Minister responded that if people feel that this is a heist situation then they have a duty to report it.
Ms Kilian said that when the initiator was appointed Mr Motsoeneng was also involved. She questioned whether this was a conflict of interest.
The Minster again suggested that Ms Kilian refer to the court judgment in which there was no finding against her as a Minister.
Ms Van Damme asked why the Minister was relying on the men around her to answer her questions. She also asked why Mr Frans Matlala was suspended and what his payout was. She also asked whether Mr Motsoeneneg has bought the Minister a house.
The Minister said that Mr Frans Matlala was suspended because of his failure to disclose his relationship with the past chairperson of the Board when he was appointed. She said that another issue at the SABC is that people do as they wish.
The Minister said that the house comment is a serious malicious allegation because the house she is staying in is the same house she had been living in before she became a minister.
Mr Chauke said that the Minister has expressed the strategic processes well but wanted to know what the Minister was going to do to implement it.
The Minister said that the MultiChoice deal, for example, is a board matter, but she will implement oversight mechanisms.
The Chairperson questioned whether editorial decisions override SABC policy.
The Minister responded saying that the situation of the censorship or editorial policy was cleared in a report from ICASA in which the SABC was shown to have complied with regulations.
The Minister thanked the Members for the opportunity to explain herself and for the robust interaction.
Other Committee Business
The Chairperson said that he sees non hostile members of the SABC present at the meeting and wanted to know whether they would be taking up the offer to appear before the Committee.
Mr James Aguma, Acting GCEO of the SABC, said that his delegation would be willing to come before the Committee to provide clarity.
After receiving input from Members, the Chairperson and the Committee came to the decision that the SABC delegation come before the scrutiny of the Committee and the country.
The Chairperson said that a report will be received by the SABC delegation towards the end of January about the findings of the Committee over the past two weeks and that they will be afforded an opportunity to speak to that draft report.
The Chairperson adjourned the meeting.