The Committee held its last day of hearings for 2016 as part of the inquiry into the SABC Board. Ms Rachel Kalidass appeared before the Committee. Ms Kalidass was part of the Board from 2013 to 2015 as a non-executive member until she was unlawfully removed from the SABC Board. She testified that she was not happy with the way the Board dealt with the Public Protector's report from the start and she voiced her opinion on the matter. Her opinion was that the Board did not have a mandate in terms of legislation to review the Public Protector's report for validity. The Public Protector's report had to be accepted in its entirety or if the Board members felt that they would want to refute any of the allegations or recommendations, the process to follow would have been to take it upon review. Mchunu Attorneys was then mandated by the then Chairperson of the Board, Mrs Ellen Tshabalala, to review the Public Protectors report and provide a legal opinion which then became the standing opinion of the Board illegally.
Ms Kalidass said that the Minister did not follow due process in the appointment of the then Acting COO Mr Hlaudi Motsoeneng to the position of permanent COO but felt that the Minister was incorrectly trying to implement the Public Protector's recommendation of appointing a permanent COO within 90 days. However, the Minister later stated that the Board had to take action according to the Mchunu report as she had received it as a legal opinion. Ms Kalidass felt that the Minister and the Chairperson of the Board placed undue pressure on the Board to make the appointment of the then COO Mr Motsoeneng permanent. She felt that legislation was problematic for the Board as the Broadcasting Act should have been followed but yet the Companies Act was chosen to purge Board members who had a dissenting view. The allegation of fraud against her was demeaning and currently there was a case going through court regarding the unlawful removal of her as well as other Board members during that time. She also felt that the Multichoice contract was not beneficial to South Africans and was illegal as outlined by her then colleague Mr Krish Naidoo at a Board meeting.
Members were interested to know the about power dynamics at the Board. They questioned the Ministers role in the demise of the Board and whether the Minister was aware of the power struggle taking place within the Board. It seemed as if the Minister knew more than what she testified to the Committee the previous day. They felt that there was more work to be done and hoped that two further witnesses would testify in early 2017 namely former Chairpersons of the SABC Board Ms Ellen Tshabalala and Mr Ben Ngubane. Members agreed that the Portfolio Committee on Communications at that time had to do more to protect Board members who were being purged merely because these Board members did not agree with the view of the Chairperson and the majority of the Board. The minutes Ms Kalidass read out to the Committee and minutes the Committee received seemed to be different versions and the Committee requested that Ms Kalidass submit her copies to the Committee for further scrutiny. If it was found that witnessed lied while testifying under oath, the Committee committed to follow due process in making sure they were held accountable. Members thanked the Chairperson and each other for working together irrespective of political party membership. The committee vowed to continue its work in the first term of 2017 to reach its deadline by 28 February 2017. They discussed the way forward and hoped to have a draft Committee report ready by 10 January 2017.
The Chairperson welcomed all present and said the Committee would hear testimony from Ms Rachel Kalidass, a former SABC Board member and thereafter briefly decide on a way forward for the Committee.
The Chairperson informed Ms Kalidass that she was required by law to answer all the questions lawfully put to her fully and satisfactorily. Additionally, that she was to produce any documents that she was required to produce in connection with the subject matter of the inquiry, notwithstanding the fact that the answer or document could incriminate her or expose her to criminal or civil proceedings or damages. However, she was protected in that evidence given under oath or affirmation before a House or before the committee may not be used against her 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.
Ms Kalidass agreed to take the oath and did so accordingly.
The Chairperson handed over to Advocate Ntuthuzelo Vanara, legal advisor to the Committee.
Adv. Vanara: Ms Kalidass, for the record, please state your full particulars and give the Committee a glimpse of your academic qualifications and background.
Ms Kalidass: My name is Rachel Kalidass. I was appointed as a non-executive Director to the SABC Board on the 25th of September 2013 until my unlawful removal on the 12th of March 2015. I am a Chartered Accountant by profession registered with SAICA as well as IRBA. I manage my own practice which focuses on public sector governance, advisory services of internal audit risk management. I chair a number of audit committees, boards, across provincial and national government.
Adv. Vanara: You have given this Committee a statement, which is a 19 paged statement. Is that correct?
Ms Kalidass: Yes, that is correct Advocate.
Adv. Vanara: And you are comfortable that that statement be shared with members of the Committee?
Ms Kalidass: Yes I do.
Adv. Vanara: And that that statement be part and parcel of the proceedings of this Committee?
Ms Kalidass: I confirm so.
Adv. Vanara: Let us just give the Committee an account of what happened and how the Board dealt with the Public Protector's report.
Ms Kalidass: Thank you Advocate if you could allow me to read from my statement. Despite being a Board member in office at the end of September 2013, I only had sight of the Public Protector's report on the 18th of February 2014 when it was publicly released and made accessible on the website of the Public Protector. I also took the liberty of circulating the report to other Board members, as well as the Company Secretary, since we had not been furnished with this report prior to its public release. As alluded to by the Public Protector on the extent of her report, When Governance and Ethics Fails, the SABC Board's response to the provisional report was prepared by the Board Chairperson, Mrs Ellen Tshabalala and her lawyers to the exclusion of Board members. This was unfortunately not an isolated incident and contributed to the dysfunctionality of the Board. On the 24th of February 2014, the Board met and deliberated on the report. The following is an extract from the Board resolutions of that discussion and I quote: “Ms R Kalidass dissent with regard to the manner and process followed in respect of the manner proposed to deal with the Public Protector's report and is hereby noted. The chairs of the audit, governance and nominations, human resources and remuneration and social and ethics committee and are hereby tasked to analyse the details included in the report of the Public Protector. A consolidated report on the outcome of the analysis of the details included in the report of the Public Protector, together with a recommendation on the actions to be taken must be submitted to the Board within two weeks. A special Board meeting must be convened to allow the Board to deliberate the submissions prior to submitting its proposal to the Minister.” At a Board meeting held on the 31st of July 2014, the following resolution was taken regarding the consolidation on the response to the Public Protector's report: “The recommendation of the committee of chairs, in respect of the provisional response to the Public Protectors report and is hereby noted. Mrs KT Bonakele, K Naidoo and Ms R Kalidass dissent on the decision to conclude SABC’s response to the Public Protector's report are hereby noted. Ms TB Geldenhuys, in her capacity as company secretary, is hereby mandated to effect the changes proposed by members to the draft response to the Public Protectors report and to circulate the updated document to members prior to it being submitted to the Public Protector and the Minister.” Despite this Board approved process, a legal advisory report, prepared by Mchunu attorneys, dated 5th June 2014, was distributed during and following committee board meeting of the 9th June 2014. I later learnt that the Mchunu report was later submitted to the office of the Public Protector, as well as to the Honourable Minister Muthambi, purportedly on behalf of the Board, clearing Mr Motsoeneng of any wrongdoing. This made the Board approved process obsolete.
Adv. Vanara: Let’s just zoom into the Mchunu report that you are referring to. Did the Board take a decision mandating any official - be it the Chairperson or the executives to engage the services of Mchunu attorneys?
Ms Kalidass: No Honourable Advocate, there was no Board resolution or mandate from the Board in its collective to appoint Mchunu Attorneys. Our understanding was that the Chairperson had appointed them and they were presented to the Board at one point in time as being advisors to the office of the Chair and then the Board, but it was not a Board mandated process.
Adv. Vanara: Now you say this report gets to be circulated at a meeting on the 9th of June. Is that correct?
Ms Kalidass: That’s correct.
Adv. Vanara: Why is it circulated at the meeting?
Ms Kalidass: The manner in which it was introduced to the Board was that these attorneys were engaging to provide a legal opinion to the Board, and that report was supposed to have been a supplementary document to assist the Board as well as the committees that were tasked, to prepare their report. So our understanding was initially it was supposed to be a resource to the Board but ultimately the Board would take accountability in the compilation of the Public Protector's report. Unfortunately with the sequence of events that later transpired it was not so.
Adv. Vanara: This report gets to be circulated at the meeting. What is its status; is it for noting or are you expected to discuss this report?
Ms Kalidass: It was presented to the Board as a flyer so members would not have had a chance to engage with the report prior to the meeting. As it was introduced as a legal opinion, to assist the Board, so it was essentially for noting but also as an advisory document that the Board can take into account like it takes into account various other documents when formulating a response.
Adv. Vanara: You say there was a resolution by the Board on how to deal with the Public Protector's report and you mention that you are reading from an extract from the minutes, where you, Mr Mavuso and Mr Naidoo are noting your objections to it. What is it that you are objecting to?
Ms Kalidass: I dissented twice. The first time I dissented was in regard to the process that was followed. My personal opinion was that the Board did not have a mandate in terms of legislation to review the Public Protector's report for validity. The Public Protector's report in my opinion had to be accepted in its entirety or if the Board members felt that they would want to refute any of the allegations or recommendations, the process to follow would have been to take it upon review. The way the Board approached it was that they, especially being guided by the Chairperson, did not agree with the contents of the Public Protector in terms of the observations and recommendations made. The process of appointing each of the committees, to look at the report, was in essence a manner of trying to invalidate the observations that the Public Protector made. So I think it’s completely beyond the scope of the Board to re-audit the Public Protector's report, so to speak.
Adv. Vanara: The Minister was here yesterday testifying and one of the issues she testified upon was the Public Protector's report. Her testimony was to the effect that she had told the Board to implement the Public Protector's report. What is your response to that?
Ms Kalidass: I think in the broad sense of it, there was a pronouncement that the Board needed to act on the Public Protector's report, but I think the manner in which that was done was incorrect. For example, at a meeting held on the 12th of July, whereby the Minister met with the Board for the first time, there were comments made to the effect that she had already received the Mchunu report and despite it not having been sanctioned by the Board, there was a comment made that the Mchunu report should be implemented. There was also a comment made at the Board meeting of the 7th of July that one of the recommendations made by the Public Protector was that a permanent COO should be appointed within 90 days. I think if anyone was to read that it would mean that a permanent COO should be appointed following due process as well as ensuring that there is an appointment process whereby it takes into account the observations made by the Public Protector, but that was quoted out of context to say that the COO must be appointed because the PP report says that the COO must be appointed within 90 days which resulted in a sense of urgency in the appointment.
Adv. Vanara: Before we get to the appointment of the COO, we are still on the Public Protector's report. Your shareholder, with whom the Board has a shareholder compact, gives an instruction to the Board to implement the Public Protector's report. What you are telling us is, that report we all know was not implemented. What the objective facts point out to is there was a Mchunu report and you say this Mchunu’s report which was sourced without the Board's knowledge and approval which flew into one of your meetings for noting was presented to the Minister. Is that correct?
Ms Kalidass: That’s correct. If I can quote from an extract of the meeting held on the 2nd of July at the Mount Grace Hotel in Magaliesberg, between the Board and the Honourable Minister. In addressing the Board as is reflected in the minutes of that meeting’s proceedings, “the Honourable Minister stated that she had considered the legal report of Mchunu Attorneys Incorporated and had subjected it to a further legal opinion. Consequently she recommended that the Board must take action on the basis of the legal report she had received.”
Adv. Vanara: The Minister first gives instruction to the Board to implement the Public Protector's report and there is then this document that has no status that gets to be sent to the Minister. Why was it firstly sent to the Minister and secondly in your view was there any basis for the Minister to entertain this Mchunu report?
Ms Kalidass: In my personal opinion the process of the Minister receiving the Mchunu report was invalid as it had not been presented at the Board. There was no Board resolution to the effect that the Board had sanctioned this report to the Minister so it was an undue process that was followed in her receiving the Mchunu report firstly and I think secondly the Mchunu report tried to in essence refute the claims made by the Public Protector which I deem to be unlawful given the status of the legislation in this regard.
Adv. Vanara: When this Mchunu report is sent to the Minister, one would expect it would not have flown solo to the Ministers office, that it would have been accompanied by minutes of the meeting at which this document found itself. In this case, what is it that was submitted to the Minister together with this Mchunu report?
Ms Kalidass: Personally I did not have sight of the documents the Minister would have in her possession. Based on the comments that she made she indicated that she received the legal opinion from the attorneys. Under normal circumstances from my other experiences one would expect that to be accompanied by a covering letter from the SABC Board Chairperson and an extract from the Board resolution. As I had not had sight of that one would expect the company secretary and one would have reasonably expected the Chairperson to have fulfilled that compliance process in respect of the submission to the Honourable Minister.
Adv. Vanara: So what you are telling the Committee is that initially the Minister gave a clear instruction to the Board to implement the Public Protector's report?
Ms Kalidass: Yes
Adv. Vanara: She was furnished with a document, we are not clear around the circumstances, and that she obtained a legal opinion and she changed her attitude towards her initial stance. Is that what you are telling the Committee?
Ms Kalidass: Yes Chair and the Minister also says that she subjected it to a further legal opinion before she pronounced that she recommended to the Board that action must be taken on the basis of the legal report that she had received. So one had the sense that she had confidence in the Mchunu report and it was the way to go.
Adv. Vanara: You are reading from an extract from the minutes of the meeting. Is that correct?
Ms Kalidass: Yes this is an extract of the resolution of the Board meeting held with the Minister on the 2nd of July 2014 and these minutes were subsequently confirmed by the Board as being a true reflection of those proceedings.
Adv. Vanara: My understanding is that this issue of the Public Protector divided members of the Board. Is that correct?
Ms Kalidass: That is absolutely correct.
Adv. Vanara: Those that were for the implementation of the report must have been excited when even the Minister was giving instructions for its implementation. Is that correct?
Ms Kalidass: Yes definitely.
Adv. Vanara: Now you are in a meeting where the Minister is changing her stance. Those who were for the implementation of this resolution ordinarily would be disappointed with her stance. Correct?
Ms Kalidass: Absolutely.
Adv. Vanara: Do you then raise this issue with the Minister at that meeting where you just extracted the minutes of it?
Ms Kalidass: I was not specifically present at that meeting of the 2nd of July so I am recounting now the resolutions of the minutes of that day’s proceedings. There was a subsequent meeting with the Minister on the 7th of July the day upon which the Board decided to appoint Mr Motsoeneng when the Minister joined us at the conclusion of the Board meeting, which was around 11pm, and the Chairperson at that time Mrs Ellen Tshabalala advised the Minister of the resolution of the Board and she also advised the Minister that there were members who were not comfortable and they do not approve of the appointment.
Adv. Vanara: At Magaliesberg, your first meeting with the Minister, there is evidence that is before the Committee that the Minister asked Board members to fill the vacancy of COO. Is that correct?
Ms Kalidass: That is correct. If I could just prompt the extract of the minutes of the 2nd of July: “The Honourable Minister pointed out that if a person had been acting for such a long period without any problems and without any action being taken by the corporation, in law, a legitimate expectation has been created that the individual would be appointed in the position and this left the Board in an untenable situation.”
Adv. Vanara: The minutes quote the Minister to be referring to someone who has been acting for long in this position, there having been created a legitimate expectation. To whom was the Minister referring to?
Ms Kalidass: It was the then Acting CEO Mr Hlaudi Motsoeneng.
Adv. Vanara: Was he an Acting CEO or Acting COO?
Ms Kalidass: Acting COO.
Adv. Vanara: There was a meeting that was convened, a special Board meeting, on an urgent basis. Did you get an invite for that meeting?
Ms Kalidass: The invite was circulated per SMS at 6:42pm on the 6th of July by the company secretary Ms Theresa Geldenhuys which I quote says: “Dear all, an urgent Board meeting is requested for 19h00 on 7th July 2014 to be held in the 28th floor Boardroom to discuss the Public Protector's report and the COO. It is expected that the Minister will be in attendance. Kindly confirm your availability. Agenda will be submitted under a separate cover. Regards Theresa.” At about 4pm the following day, we received an agenda which stated that there were two items for discussion namely the Public Protector's report and it just said COO matter.
Adv. Vanara: So from the time that you received the email until you got the second communication, my understanding is that you received two communications inviting you to a meeting.
Ms Kalidass: The day prior at about 6:42pm on the 6th we received an SMS text message and I still have that on my phone if members would like to have a look at that, and then on the following day the day of the meeting at about 4pm we received an email with an agenda attached as well as notice of the meeting. There were no supporting documents in relation to these two items for discussion that was at about 4pm and at 6pm the meeting officially commenced.
Adv. Vanara: I don’t know who or when conceived the idea of this meeting, it is still a mystery to this Committee. We know Ms Tshabalala called this meeting but the circumstances around her calling the special meeting is still a mystery. We hope she will clarify it to the Committee. There is almost 24 hour turnaround from the time that you get the SMS to the time you receive an email and there are only two matters on the agenda. Why was it difficult to have proper documentation prepared for this meeting?
Ms Kalidass: It is very unfortunate. I hope the company secretary will be able to provide that information. I think that good governance dictates that when a meeting is called there should be adequate supporting documentation to enable Board members to prepare sufficiently and to make informed decisions. It is very unfortunate that we had a situation whereby the company secretary as well as the Board Chairperson did not fulfil those governance responsibilities to the Board.
Adv. Vanara: When you received the notice, could you comprehend what you were called to attend to at that meeting?
Ms Kalidass: Not at all. Because the PP report was under discussion at that point in time, we assumed that there would just be a discussion about processes underway. We were quite surprised when it said the Minister will be in attendance because the Minister had met the Board a week prior on the 2nd of July. So we thought perhaps it could be something urgent given the respect that we have for the office of the Minister we made ourselves available in a very short period of time, but when it said COO matter under no circumstances did we anticipate that we would be arriving to make an appointment on that day.
Adv. Vanara: You get to this special Board meeting, you together with your colleagues are non-executives?
Ms Kalidass: That’s correct.
Adv. Vanara: You surely have other businesses to earn a living. Is that correct?
Ms Kalidass: Absolutely.
Adv. Vanara: You get to a meeting; does anybody explain the urgency of this meeting?
Ms Kalidass: Upon opening the meeting the Chairperson Mrs Ellen Tshabalala indicated that the urgency around this meeting was that she received a lawyers letter from the attorneys of the Acting COO Mr Motsoeneng which basically motivated that he was acting for a very long period of time but also what preceded this was there was also a clearing of the issue of the previous COO Mr Mvuzo Mbebe whereby there was legal action instituted against the SABC by the former COO and that had now been subsequently resolved by the Honourable Minister.
Adv. Vanara: I get there was correspondence. Why couldn’t that correspondence have been dealt with at a scheduled subsequent Board meeting?
Ms Kalidass: We would also like to know that. In my opinion, in hindsight I don’t think there was urgency for that meeting and there definitely wasn’t urgency for the appointment to be made that night.
Adv. Vanara: Did you raise that concern with the Board?
Ms Kalidass: Yes. It was a very fiercely contested meeting whereby we had two groups at the end of the day which tried to advance their motivations, arguments and opinions in this regard especially having the Public Protector's report before us which had not been adequately responded to. We felt that it was the inappropriate time. There were also Board members who wanted a legal opinion because they felt that this decision that was being advanced by the Board was unlawful.
Adv. Vanara: You said there was an invite extended to the Minister and the Minister is on record confirming the acknowledgement of receipt thereof. Was the Minister at the meeting or in the venue of the meeting?
Ms Kalidass: When the meeting commenced at around 7pm, shortly afterwards, the Chairperson excused herself saying that she had to go and welcome the Minister. When she returned to the Board, she indicated that the Minister was sitting in her office so our understanding was that the Minister was present while the Board was proceeding with its discussions. When the Board had concluded the voting process and a decision was made, the Honourable Minister was invited into the Boardroom whereby this decision was announced and communicated to her. So she was present in the building at that time.
Adv. Vanara: This decision which is a recommendation to the Minister has to be communicated. What is the Minister’s response to the Board members?
Ms Kalidass: The Minister responded that she was there to share in the outcome of the decision and that she would apply her mind to the decision. The next day we received a written letter from the Minister which stated that she had received a letter from the Board making a recommendation for the appointment and she was confirming the appointment of Mr Motsoeneng as the COO.
Adv. Vanara: Was the Minister furnished with the minutes of that meeting. Would you know?
Ms Kalidass: I would not know. I actually specifically asked the company secretary the day after. I wanted to ensure that the letter to the Minister specifically articulated my dissent. The company secretary responded to me in an email saying that she is not sure; she was not involved in the process of compiling the letter to the Minister. The process was handled outside of the office of the company secretary.
Adv. Vanara: Did you not find it odd that the circumstances around the convening of this meeting, its urgency, you are not happy with. The Minister in her busy schedule and tending to quite a number of entities in her portfolio, that she would come and babysit the Board that evening and once the Board had finished its business to come and speak to members of the Board. I just want you to repeat what she said about this particular issue.
Ms Kalidass: To quote from the minutes of the 7th of July item number 2.4 Feedback to the Honourable Minister: “The Chairperson pointed out that a period of acting had not been the only issue considered in arriving at decision of confirming the Acting COO but mainly on its merits and new developments on the issue of Mr Mvuzo Mbebe as confirmed by the DoC and the Minister's requirement to adhere to the recommendations of the Public Protectors report. The Honourable Minister pointed out that in her understanding she had been invited to the meeting to be advised of the resolutions of the Board with regard to the matters on the agenda. The Minister informed members that Mr T Bonakele had tended his resignation and then later on the Minister requested that Board to communicate in writing its resolution on the matter of the COO in order for her to apply her mind in this regard. She undertook to make the matter a priority as her 90 days to implement the recommendation of the Public Protector had passed and she would not want to appear as being defiant of the Public Protector. The resolution in this regard was that the Board communicate in writing to the Minister of the Department of Communications its resolution to recommend confirming Mr GH Motsoeneng as the Chief Operations Officer of the SABC.
Adv. Vanara: I am a bit confused. I am confused because the Minister's initial stance was for the Board to implement the Public Protector's report. Subsequent to that the Minister had changed her stance in respect of the implementation of that report because she had sourced and obtained legal advice on what the Mchunu’s report was saying. Is that correct?
Ms Kalidass: That’s correct.
Adv. Vanara: Now if the Minister says to a meeting that you are implementing the Public Protector's report, which part of that report were you implementing?
Ms Kalidass: My understanding was that there was a specific reference made to the recommendation of the Public Protector that a permanent COO should be appointed within 90 days. It seems like that was extracted above all the other recommendations as having a sense of urgency.
Adv. Vanara: As an approval authority, the Minister in this regard, my understanding is that at that meeting there was no compliance with HR recruitment policies. Is that correct?
Ms Kalidass: That is correct.
Adv. Vanara: We now know that even your company secretary who wanted to raise that point at the meeting was shut down, “don’t tell us what the policies say”, that was her testimony before this Committee. She might not have said it at the meeting because she was shut down.
Ms Kalidass: I would beg to differ. I think that at the meeting despite it being a very heated debate and discussion as is normally any meeting, a Board member or official that would like to speak has opportunity to raise their hand, to gesture as such to the Chairperson of the meeting and then members would be allowed to make input. I find it concerning if I look at the minutes as well, we all had a chance to voice our opinion so based on my recollection of the day and the minutes I don’t think that was the case.
Adv. Vanara: But she didn’t even have to tell you as the Board because as Board members you would have approved those policies? Is that correct?
Ms Kalidass: Absolutely.
Adv. Vanara: You knew that those policies were not being complied with.
Ms Kalidass: Yes the Board in its entirety would have known because prior to that we were furnished with the policies, the Memorandum of Incorporation (MoI) which was in effect at that point in time also stipulated what the process would have been to appoint your executive directors. There is also reference to that comment which was highlighted to the Board as its collective by various members who opposed the decision that there would be a normal process. The HR committee Chairperson at that time, Prof Khumalo, specifically advanced that argument. He was supported by a number of us but it was unfortunately not accepted by the majority of Board members.
Adv. Vanara: The Minister seems to have had a particular interest on this particular process. Would you say that she would have known that no processes as outlined in your recruitment policies were complied with?
Ms Kalidass: I would think so given that the Public Protector's report was still in front of all of us in that point in time, as well as when she joined the meeting, there was a summary provided to the Minister of the process that was followed by the Board earlier on. So I would definitely say that the Minister would be aware that there was no compliance to those processes. I also specifically requested the company secretary to ensure that it is documented in the letter which was sent to the Minister. Unfortunately that did not happen but the Minister, when the resolution was read to her, it was brought to her attention that there were a number of Board members who did not accept and support this decision.
Adv. Vanara: Mr Madoda Shushu testified before this Committee around irregularities around the procurement processes at the SABC. The Minister was before the Committee yesterday and indicated that Mr Shushu should have reported this matter to the police as it was a crime and that by his failure to report such he became an accomplice to the commission of the crime. Consider this statement coming from the Minister, in light of the high rate of criminal activity within society in general but within government department and the state institutions in general. Considering that Mr Shushu did not report these irregularities to the Auditor General or Treasury, would the Minister's statement be a responsible statement under those circumstances?
Ms Kalidass: My personal and professional opinion I would not agree. The Auditor general especially if this matter was brought to them, they would ensure that it is followed through in terms of their auditing processes but if one looks at the processes that the AG follows, they on a regular basis would also meet with the executive authority of the relevant departments as well as the entities under which whose fall. The AG does have an opportunity at the highest level to engage with the Honourable Minister and be able to bring such matters to her attention. I think this is a normal process that the AG follows.
Adv. Vanara: What can you tell me about your unlawful removal? Unfortunately we will not deal with that. There was a recommendation from the Board to the Minister to remove you from office. Is that correct?
Ms Kalidass: That is correct.
Adv. Vanara: The Minister claims to have acted according to the Companies Law. Whether that was right or wrong is neither here nor there for the purpose of this exercise. Don’t you find it odd that the same Minister who is still in this portfolio and there has been a number of resignations at this particular Board, that she does not find the authority in the Companies Act to appoint other directors to fill the vacancies?
Ms Kalidass: Absolutely. I think the manner in which one is appointed must have a similar manner followed in terms of the removals and resignations. If there was justification in the Companies Act to remove there should have been a justification in the Companies Act to appoint. The fact that we are sitting now with only one non-executive Board member, and those vacancies have not been filled, bears testament to the fact that it is only though the process of the Broadcasting Act that members can be appointed and removed.
Adv. Vanara: The Minister was here yesterday indicating that none of you, members of the Board, raised what your colleagues have raised before this Committee as a divided Board, bullying of the Board by Mr Motsoeneng. Have you ever in any meeting with the Minister raised your concerns that you had around the governance of the Board?
Ms Kalidass: The Honourable Minister did at one point in time call for one on one meetings with all the non-executive Board members. Unfortunately my meeting was cancelled at very short notice. When it was subsequently scheduled I received from her office at about 9:15 notice requesting me to present myself at 14:00. Being a non-executive member and having various business interests I was unable to be there at such short notice and accordingly I did not have my one on one with the Minister. I would think that even the extensive media coverage subsequent to the COO appointment process, there was an indication in the media that there was a division in the Board, there was also an indication of the Board voting, so one would think that even though I did not have an opportunity personally to raise that with the Minister, that there was sufficient public information available that there was a breakdown in the Board in terms of this decision. Further to that my colleagues had an opportunity to meet with the Minister and I was told that this was raised through their various engagements with the Minister.
Adv. Vanara: You might not be aware, but the Minister was here yesterday and she testified that the process of removing Board members of this Board is cumbersome and that there has to be something done about that. It does not end there, the Minister had introduced a Bill in the Assembly, the Broadcasting Amendment Bill, and one of the purposes of the Bill is to take away the role and the powers of the Assembly of Parliament to play a role in the recruitment and the appointment of Board members. Given your personal experience, if Parliament were to approve that recommendation, what would it practically mean for Board members and the SABC?
Ms Kalidass: In my personal that could result in a huge amount of manipulation whereby if going forward if the shareholder does not agree with the perspective of Board member then they can be very easily removed to be out of the way. I hope that Bill does not result in legislation being passed given the fact that SABC is a public broadcaster. By design the current Broadcasting Act processes are deliberately cumbersome because it ensures protection of the public as well. So if that is removed one then wonders if it is the best interest of being a public broadcaster.
Adv. Vanara: The last question from myself, if you can just introduce it I am sure members would like you to talk about the Multichoice contract.
Ms Kalidass: The Multichoice contract as had been indicated earlier was implemented at the time of the interim Board. Upon our appointment we were aware of that and the extent of media coverage on that matter. At a Board meeting held on the 15th of October which was shortly after out appointment, we were presented with numerous documents for the Board's information which included amongst others the commercial and master channel distribution agreement between the SABC and Multichoice as well as the Board minutes of the 12th of June where this proposal was conditionally approved by the then interim Board. At a subsequent Board meeting of the 29th of October 2013 my fellow Board member Krish Naidoo raised his concerns around the legal aspects of the contract between the SABC and Multichoice. He referred the Board members to section 8 read with section 2 of the Broadcasting Act 4 of 1999 which related to the powers, objectives and parameters within which the SABC could operate. Based on these sections Mr Naidoo was of the opinion that Multichoice contract was in contravention of the Broadcasting Act and was illegal. He detailed various concerns which amongst others was that it was anti-competitive and in contravention of section 2 of the Broadcasting Act.
Adv. Vanara: No further questions Chairperson.
The Chairperson asked if Ms Kalidass chaired any Board sub-committees.
Ms Kalidass replied that she did not chair any of the sub-committees.
The Chairperson asked which sub-committees was Ms Kalidass a member of.
Ms Kalidass replied that she was a member of the audit committee, the human resources and remuneration committee as well as the acquisitions and disposals committee.
The Chairperson asked Ms Kalidass to briefly describe the process with regards to the committees and the Board.
Ms Kalidass replied that under normal circumstances matters that were in the jurisdiction of each committee would first serve at the Board sub-committee and the sub-committee would then make a recommendation to the Board on that relevant documentation or information.
The Chairperson asked if Ms Kalidass could remember any issue or topic that subsequently went to the Board that was of such a sensitive nature that the SABC had refused to give those documents to Parliament because it would impact the SABC’s commercial standing.
Ms Kalidass replied that there were no such documents. It was important to note that the SABC was audited under the Public Finance Management Act and as such all information would be of public interest. The SABC also accounted to the Portfolio Committee.
Ms J Kilian (ANC) referred to the minutes when the appointment of the COO happened. It was concerning to her that the Committee was issued with all the minutes of the meeting of the 7th of July but the extract that Ms Kalidass had provided on page 6 of her statement did not appear in the Committee documents received by the company secretary. She felt the Committee had to compare documents with Ms Kalidass. She looked at the chronological order of events which started with the first meeting which Ms Kalidass did not attend in Magaliesberg, then the urgent meeting called on the 6th and that meeting resolved that it was a very important matter according to Ms Kalidass minutes that the Board had to take a resolution on the Public Protectors report in two weeks. Did the meeting occur?
Ms Kalidass replied that with regards to the minutes, they were copies made out of the bundles that were provided to Board members. Those bundles were still intact and she was happy to share it with the Committee. The two week timeframe was not adhered to due to the sequence of events. There was special meetings called in various points in time but there was not a specific meeting held within two weeks to conclude the PP process.
Ms Kilian asked if the Minister exerted undue pressure on the Board to make the appointment of Mr Motsoeneng. Which company presented Mr Motsoeneng and provided the legal opinion for his appointment?
Ms Kalidass replied that will all respect the Board was misguided. There was undue pressure placed upon the Board at the meeting of the 7th July as the Chairperson said the meeting would not end until a decision was made.
Ms Kilian asked if the Board ever discussed or adopted the MoI and its changes.
Ms Kalidass replied that the Board did not engage on the MoI. Board members were only notified that it was amended.
Mr H Chauke (ANC) asked when Mchunu Attorneys was introduced, what was the response of the Board?
Ms Kalidass replied that the Board did not take a resolution to appoint Mchunu Attorneys and it came as a surprise that the Chairperson made the decision to appoint them.
Mr Chauke asked if there was a discussion in the Board with regards to the formation of the sub-committees.
Ms Kalidass replied that during the first meeting where the Public Protector's report was tabled was merely around the process and for that specific reason she dissented because she felt that the recommendation of the Public Protector was of such a substantial nature that they would have warranted a discussion at the Board. The Board merely received the report and agreed on a process whereby it would allocate tasks to various sub-committees.
Mr Chauke said that in the meeting that dealt with the Public Protectors report, the Company Secretary told the Committee that she advised the Board accordingly on the process that must be followed on the appointment of the COO. Was this recorded in the minutes?
Ms Kalidass replied that it was not recorded at all.
Mr Chauke asked if Ms Kalidass has ever had a high level discussion with the office of the Auditor General on audit issues.
Ms Kalidass replied that the main concern of the audit committee at that time was to ensure accountability and that people were held responsible in relation to fruitless and wasteful as well as irregular expenditure.
Mr Chauke asked how many Board members had a dissenting view and who were they.
Ms Kalidass replied that herself, Mr Lubisi and Mr Naidoo were of a dissenting view and Prof Khumalo and Mr Mavuso abstained from the voting process.
Ms P Van Damme (DA) asked if Ms Kalidass thought that the Minister unduly interfered in the SABC and failed to discharge in her duties of oversight.
Ms Kalidass replied that unfortunately the Board was unduly influenced and interfered with.
Ms Van Damme asked if Ms Kalidass ever felt that Mr Motsoeneng had political protection.
Ms Kalidass replied that she felt Mr Motsoeneng had protection from the Board but not political protection.
Ms Van Damme asked if the Minister had any role in widening the divisions within the Board.
Ms Kalidass replied that giving one faction of the Board more support with regards to its recommendations; it gave that certain faction authority to continue behaving in a certain manner.
Ms F Loliwe (ANC) asked Ms Kalidass to elaborate on the in-fighting taking place at the Board at that time.
Ms Kalidass replied that the fighting was on the basis of different values and principles. The one group wanted governance to be followed and take very cautious decisions and the other group which wants things done in an abrupt manner.
Ms Loliwe asked Ms Kalidass to respond to the allegations of fraud made against her.
Ms Kalidass replied that in order to motivate for her unlawful removal there were frivolous allegations made against her. At a Board meeting the Chairperson at the time Prof Maguvhe indicated that the meeting would end at 13:00 and she then made arrangements to leave the meeting at 13:30, and that was then taken that she left the meeting early. She was a non-executive director and was only prepared to be there for the time allocated to her.
Ms Loliwe asked if it was true that most times Board meetings and its decisions taken did not quorate but was then later endorsed in subsequent meetings. What happened to decisions that had to be taken in Board meetings that did not quorate?
Ms Kalidass replied that the reason why Board meetings failed to quorate was because of the haphazard way it was called at very short notice. When there was a failure to quorate Board meetings did actually not have a legal standing but the way the SABC operated was to proceed and that was completely poor governance.
Ms Loliwe asked who sought the legal opinion from Parliament on the unlawful removal of Board members.
Ms Kalidass replied that the legal opinion was sought from the then Portfolio Committee on Communications because there were public comments made and the Portfolio Committee was open to public comments. Her understanding was that because the Board members were appointed though a public process that was vested with the Portfolio Committee on Communications. When the unlawful removals were initiated her first reaction was to bring it to the attention of the then Chairperson of the Portfolio Committee and she expected that the Committee would have taken that matter to heart to ensure that due process was followed. Given that there was a legal opinion from Parliament to say it was unlawful they were quite disappointed that it fell of the radar of the Portfolio Committee on Communications and they basically ignored that opinion.
Dr M Khoza (ANC) commented that she felt the Minister misled the Committee and misrepresented a lot of facts and the Committee had to take action when the time came. She asked Ms Kalidass to confirm if the Minister exerted influence or alternatively steered the Board to take a particular decision consistent with her predetermined outcomes.
Ms Kalidass replied that the extracts from the minutes spoke for itself in terms of what the Minister pronounced of her expectation to have the COO appointment made.
Dr Khoza asked Ms Kalidass to forward the bundle of minutes she had. She felt that the Minister, Mr Motsoeneng, the Company Secretary and Ms Ellen Tshabalala appeared to be colluding because documents the Committee was provided with were not the same as Ms Kalidass. She wanted to know if Ms Kalidass thought that there was a relationship between those four individuals.
Ms Kalidass replied that she would provide the Committee with all the documents it needed. The manner in which the four behaved indicated that they were definitely of the same mind.
Dr Khoza noted that the Minister said the Multichoice contract predated her tenure. The Minister came into the SABC around same time as Ms Kalidass. There was even a document prepared by Krish Naidoo yet the Minister said she did not know anything about the legal aspects of the Multichoice contract. Was this possible?
Ms Kalidass replied that there was extensive media coverage around the concerns Board members had with the contract. Anyone who had an interest in the SABC would know these things. Mr Krish Naidoo had a one on one session with the Minister and would have raised his concerns.
Mr S Swarts (ACDP) said that he shared the concerns other Committee members had regarding the Minister's testimony the previous day. Perhaps the Minister played a greater role in the appointment of the COO. He found it interesting that in the same year the Minister was appointed, by the end of that year most Board members who were in the camp that voted against the permanent appointment of the COO had either resigned or there were frivolous charges against them. He was very impressed by Ms Kalidass qualifications as a Chartered Accountant and to have charges against her of fraud was totally unacceptable.
Ms Kalidass replied that at the meeting of the 2nd July 2014 the Minister announced that she felt the Board was too big. Later on, after the COO appointment process, those who did not support the COO received letters requesting them to resign as Board members and that process started in September.
Ms Swarts said it was important for the Committee to look at the timeline of these incidents. The MoI was also changed in order to allow things to happen according to how the Board wanted it. He also wanted to know about the application by the SOS and what the process entailed.
Ms Kalidass replied that following the unlawful removals of Board members there was an outcry by social and civil organisations and an application was brought by the SOS, Support Public Broadcasting Coalition, the Freedom of Expression Institute and the trustees of the Media Monitoring Project Benefit Trust. The case was currently before the court.
Mr Swarts asked if Ms Kalidass agreed that there was a total collapse of governance at the SABC.
Ms Kalidass replied that she agreed.
Mr Swarts asked if Ms Kalidass felt that the Portfolio Committee on Communications could have done more.
Ms Kalidass replied that she believed that if the Portfolio Committee had made a pronouncement on the legality around the removal of Board members there would not have been a situation now whereby the Board had collapsed.
Mr Swarts asked if Ms Kalidass believed that it should be Parliament who appointed Board member and it should be Parliament who removed Board members.
Ms Kalidass replied that she believed so.
Mr J Mahlangu (ANC) asked if Ms Kalidass served on any private JSE listed entities in an auditing position.
Ms Kalidass replied no her focus was on the public sector.
Mr Mahlangu said that from records it indicated that the CEO would only serve for six months. Was it correct?
Ms Kalidass replied that was correct.
Mr Mahlangu asked if the HR processed any advertisement for the position of the permanent COO.
Ms Kalidass replied that this appointment did not go through the normal recruitment processes.
Ms Mahlangu asked if other executives also came through without the proper process.
Ms Kalidass replied that the CFO and CEO went through the recruitment process.
Mr Mahlangu said he felt that the archives were removed from public access through the Multichoice deal. What was Ms Kalidass view on this deal?
Ms Kalidass replied that there was undue benefit towards Multichoice and the sale of the archives was not a good thing.
Mr Mahlangu asked if the fee being paid to Mr Motsoeneng for doing the deal with Multichoice was agreed upon during Mr Kalidass time at the Board.
Ms Kalidass replied no. She only read about it in the media so it probably happened in the past few months.
Mr F Mokoena (EFF) asked if Mr Motsoeneng was present in the meeting where he was appointed permanent COO.
Ms Kalidass replied that he was there at the beginning of the meeting and at a certain point he left the meeting when the discussion of his appointment took place.
Mr Mokoena asked how many people were then in the meeting to vote.
Ms Kalidass replied that at the point of voting there were 11 non-executive members present. The executive directors were asked to leave the meeting and later joined again but they did vote subsequently. So in total 13 people voted.
Mr Mokoena asked if Ms Kalidass was aware of any other Board members who communicated to the Minister the chaos that Mr Motsoeneng was creating at the SABC.
Ms Kalidass replied that the Board members who had their one on one meeting with the Minister did indicate to her that they brought up the issue with the Minister.
Ms Mokoena asked at the meeting when Mr Motsoeneng was appointed, according to the minutes it was communicated to the Minister as to the illegality of the appointment. Was it done at the meeting itself?
Ms Kalidass replied that at the meeting, when the Minister joined the Board, the Chairperson summarized the proceedings and she summarized that there were a number of Board members who did not support the motion of the appointment.
Mr N Kwankwa (UDM) said that he felt as if the overall strategy was to get rid of the Public Protector's report by using a report from lawyers, and then the appointment of the COO happened. In the process of that they had to purge the dissenting voices in the Board who had a different view. Later on the MoI was amended to give powers to the executive so that they could in turn return the favour and purge dissenting voices in the executives of the SABC who wanted to adhere to principles of corporate governance. Shortly after all this happened irregular expenditure shot up to R673 million and when you look at the comments of the Auditor General it stated there were no supporting contracts and no procurement processes followed. It was a clear strategy to loot the state resources at the SABC. Would Ms Kalidass agree with that?
Ms Kalidass replied that she agreed.
Mr Kwankwa asked if Ms Kalidass agreed that the Minister was also contributing to the mayhem at the SABC.
Ms Kalidass replied that she agreed and as Mr Krish Naidoo said “she came too close to the action”.
Mr Kwankwa said he heard Prof Khumalo say when he spoke about the behavioural tendencies of Mr Motsoeneng that he was very combative with the previous Minister during Board meetings but he became more embolden and less combative in the current term. Would that indicate that Mr Motsoeneng was deriving political power and was getting support from the shareholder and other people in government?
Ms Kalidass replied that there was a change his behaviour as well as that of Board members from the time of the former Minister Carrim to the current Minister.
The Chairperson thanked Ms Kalidass and indicated that the Committee's process would end on the 28th February 2017 and if there was anything she would like to bring to the attention of the Committee she was welcome to do so. He wished her a happy holidays and a prosperous new year on behalf of the Committee.
Closing remarks and way forward
The Chairperson recalled the meeting of the 15thNovember when the Committee was first put together and noted that this process was a marathon. There was no doubt that this process would push some members to their physical boundaries but members would run the good race. Members have now reached the first third of the race. The next step would be to start the draft report on the basis of the hearings to date and have that report available before the 10th January 2017 before the Committee was scheduled to sit again. The Committee received around 400 documents in response to its summons to the SABC to provide documentation and it had been physically impossible to take those documents and tick them off the summons. By the time the Committee reconvened in January 2017 those documents received would have been checked. If the summons was not complied with and there were outstanding documents the Committee would take it to the next level legally.
The Chairperson noted that the Committee wanted former Board Chairpersons Ms Ellen Tshabalala and Mr Ben Ngubane to appear and give their side of the story; contact was made with Ben Ngubane and he indicated that he was available around the time the Committee would reconvene. However, there was a struggle to get hold of the contact details for Ellen Tshabalala and it was a work in progress as well. Around the 15th January the draft committee report would be sent to all affected stakeholders and afford them two weeks to make comments and return those comments to the Committee by the end of January 2017. Once all comments have been received the Committee would reconvene and start crafting its final report which will then be adopted and presented to Parliament. That was the way forward. The Chairperson thanked the backroom parliamentary staff for their hard work and wished them well for the rest of 2016 and the New Year. He thanked members for their cooperation as well.
Mr Kwankwa thanked the Chairperson for his work and felt members did very well in working together. He felt the Committee did South Africans proud. Everyone worked together irrespective of political party membership. Everything was done in the interest of South Africa and making sure it contributed to creating better lives for South Africans. He wished members a splendid festive season and a prosperous new year.
Mr Mokoena thanked the Chairperson for being a sterling leader and thanked all the political parties for all the cooperation as well as the legal team and sent out a message out to the public that the Committee would get to the bottom to the chaos that is now the SABC and to those who contributed to making the SABC the mess that it now was; the Committee was coming for them.
Mr Mahlangu agreed with the Chairperson on the recommendations as to the way forward. He felt that the parliamentary lawyers had to look at the differences in the minutes and advise the Committee appropriately as to what action had to be taken against those who have lied under oath. It was a serious matter. He wanted to extend thanks to the rest of the staff in Parliament outside of the Committee who worked hard in taking care of members’ well-being.
Mr Swarts thanked the Chairperson and all the staff members for the manner in which everyone had worked together. As a long standing Member of Parliament it was an honour to work with senior members. He was very disturbed and revelations were startling with regards to the treatment of the SABC 8. The death threats and purge of Board members was startling as the qualities and skills of senior executives and Board members that were removed in a short period of them starting was shocking. There were many questions still unanswered and the Committee also needed to answer to those questions but it was a huge encouragement to South Africans to watch members of Parliament across political lines work together and it bode well for the future of the nation. He wished everyone a blessed Christmas and a prosperous new year and hope that justice would prevail so that the looters would be looted.
Dr Khoza thanked the Chairperson for his captainship. She felt the Committee needed to restore good governance at the SABC. She thanked South Africans for giving the Committee support to prevent South Africa from becoming a mafia republic. She said it would be good to receive the draft report before the 10th January to be able to be prepared before the Committee reconvened.
Ms Loliwe thanked the Chairperson for his guidance. She wanted to send a stern warning to those who were against transformation at the Board. She felt that there was light at the end of the tunnel and members had to come back ready to do their work.
Ms Van Damme thanked the Chairperson, committee staff and Parliament. She thanked the members of the Committee and felt that they put aside their political differences and focused on the task at hand. She was disappointed that the SABC executives did not take the opportunity to come to the Committee and share their side of the story.
Mr Chauke felt there was a lot to be done. The Committee needed each document that was requested to be tabled in the Committee. The Committee also had to deal with the issue of the Multichoice contract again and identify which witnesses had to be called back to account. Certified copies of the minutes as issued by the SABC had to be submitted because it was clear that the Committee was dealing with different sets of minutes.
Ms Killian thanked staff and fellow members of the Committee. She was concerned about the state of affairs at the public broadcaster. Through the process trust had to be restored in Parliament in terms of the constitution. She agreed with the documentation and dig deeper into the MoI. She wished everyone well for the festive season.
The meeting was adjourned.
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