The Committee met to deliberate on the second version of its draft report into the SABC Inquiry. Members were asked to give their final inputs in written form to be assimilated into the report which would be sent to relevant parties for comment. Some changes made related to the introduction which outlined the establishment of the Ad Hoc Committee. Members wanted to add in applicable legislation to clauses where there was clear contravention of certain Acts pertaining to the SABC, in order to strengthen the report. In addition to the correction of spelling and grammatical errors, new sentences were added to clauses in order to elaborate on certain observations made by the Board. The role of the Minister in the dysfunction of the Board was elevated pointing to testimony given by witnesses under oath that the Minister was more involved than it appeared. Members were concerned about the financial sustainability of the SABC and wanted it noted in the report. The issue of the New Age Media and Vision View arrangements were added as suspicious transactions which had to be investigated further. Members wanted certain transcripts to be made available to support their observations and give evidence relating to certain clauses.
On conclusion of the observations of the report, a member of the ANC suggested that the Committee leave out the recommendations and submit the report for comment first before finalising the recommendations. Members from opposition parties strongly opposed this suggestion and felt that the report could not be submitted without recommendations as this was not the norm. The Chairperson asked the parliamentary legal advisors to investigate whether such a process was possible and adjourned the meeting until the following day to allow for time for this option to be explored.
The Chairperson noted that there was a lot of work put into the draft report. The administration team attempted to take inputs from members, clean it up and highlight it. It needed discussion and verification so the Committee would go through and expand on it. He wanted to have the draft report adopted the following day. He suggested that as opposed to clause by clause, he wanted the Committee to go through the document page by page. It was a 52 page document and on the adoption the following day the Committee would decide how and who would get a copy of the report. This report would still be part of the deliberations until the final report was adopted on 21 or 22 February 2017. Only then would it be a report of Parliament.
Mr M Waters (DA) noted that on the recommendations there would be different views. Who decided which view stayed in the report?
Dr M Khoza (ANC) said that it was extremely difficult to accommodate everyone’s view. This was not a brainstorming document; it had to be a report. Some things would stay and some would go. She noted there was a significant improvement in grammar and spelling.
Mr N Singh (IFP) said that he was not present at the previous meeting and asked whether someone would indicate to him what was added and deleted.
Prof N Khubisa (NFP) agreed that he wanted to see what was put in and taken out. Issues such as the problem statement and methodology were not explained at the beginning of the report.
The Chairperson said that members could take the first version of the report and compare it to the current version to see which changes have taken place if it was not indicated in this version of the report.
Deliberations on Draft Report
Ms F Loliwe (ANC) felt that the introduction looked like a conclusion. She suggested that the last paragraph on clause 1.1 on page 2 be moved to the start of the introduction on page 1 which would read “The National Assembly (NA) established the Ad Hoc Committee on the SABC Board Inquiry to inquire inter alia into the fitness of the SABC Board to discharge its duties.”
Mr S Swart (ACDP) agreed with Ms Loliwe. He wanted to add on the reference to other applicable legislation such as the Public Finance Management Act (PFMA) and Companies Act.
Mr J Mahlangu (ANC) said that the team was very good. He wanted to add on Ad Hoc Committee in brackets so the reader would understand reference to the Ad Hoc Committee when the words “the Committee” were used.
Mr Singh agreed with Ms Loliwe. He had concern about the first three lines on page 1. Was it the Committee’s primary mandate as it was making a specific statement?
The Chairperson noted that clauses 2.1.1 and 2.1.2 were the same as in the previous version of the document.
Ms Khoza said there would be a deviation if the introduction was called “problem statement” as the wording might become academic. She suggested keeping the word “introduction”.
Prof Khubisa agreed with Ms Khoza.
Mr Singh wanted to know whether the word “non-sustainable” or “unsustainable” was correct.
The Chairperson said the word “unsustainable” would be used.
Ms P Van Damme (DA) urged the Committee not to dwell on spelling and grammar and rather to deal with the substance of the report.
Ms J Kilian (ANC) asked that an asterisk be added to the names of alternate members of the Committee and that on page 4 all three institutions be referred to as Chapter 9 institutions.
Mr F Mokoena (EFF) noted the misspelling of Mr Vuyo Mvoko’s name under clause 2.4.5.
Ms Kilian recommended that last sentence in clause 2.5.4 be moved to clause 2.5.3 as it was referring to documents and saying that the SABC responded saying some documents were commercially sensitive. Then the last sentence in clause 2.5.5 was saying documents were not commercially sensitive so it would make sense to link it to 2.5.4 then it received the adequate attention.
Mr Waters asked that wherever reference was made to the Broadcasting Act and Companies Act in one sentence, that the Broadcasting Act be put first as it was the supreme Act.
Ms Kilian agreed with Mr Waters.
Mr Mokoena wanted that a preamble be added to explain that the Broadcasting Act Amendment Bill was tabled in Parliament.
Dr Khoza said that the legal team had to ascertain where the Bill was currently.
Ms Loliwe said that clause 4.3.10 should be moved to the last sentence under clause 4.3.9 on page 17 thereby replacing clause 4.3.10.
Mr Swart asked that the Latin wording in clause 4.3.5 be removed.
Ms Van Damme said that on page 16 under clause 4.3.3 section 49 of the PFMA be added as it related to the Accounting Authority and explained that every Public Entity must have a Board.
Ms Kilian said that on clause 4.3.13 references be made to “appointments and removals” and not “hiring and firing”.
Mr Swart noted that on clause 4.3.13 the Committee was referring to the Board that was dissolved. Reference should therefore be made to “some former Board members”.
Mr Singh asked that reference to the Auditor General’s (AG’s) management report be included.
The Chairperson replied that it was included on page 23.
Mr Waters said that clause 4.3.13 should state “most former Board members” and not “some former Board members”.
Ms Van Damme said that on page 25 the different sections of the PFMA which the Board infringed upon was analysed but it did not indicate the consequences of such infringements, which would then be sections 83, 84 and 86 of the PFMA.
Mr Swart noted that the Board failed to ensure that the SABC was financially sustainable and the report had to cover that point. There were challenges with finances and it should be stated.
Ms Kilian said that the Committee could express a concern but could not definitively conclude on something before it was investigated.
The Chairperson said that Mr Swart’s point would be covered in the observations.
Mr Waters said that on page 26 references should be made to the Board and the Minister being involved in Supply Chain Management (SCM) issues.
Mr Chauke said that at no point was the Minister mentioned in SCM issues as there was no evidence. She was only implicated in appointments.
Mr Swart wanted the acronym DAF (Delegation of Authority Framework) explained.
Ms Van Damme said that she could not recall if there was evidence that the Minister signed the DAF. If the Minister signed it she did interfere in SCM.
Ms Kilian clarified that the Minister signed the Memorandum of Incorporation (MoI) and DAF flowed from it.
Mr Mokoena said that the Minister did interfere by altering the MoI because it gave power to people who should not have it.
The Chairperson agreed with Mr Mokoena.
Ms Loliwe said that on page 31 it read “Dr Ngubane” and somewhere else in the document he was referred to as “Mr Ngubane”. It should be consistent as Dr Ngubane.
Ms Van Damme said that the issue of the New Age must be added and what Mr Mvoko said about Morning Live. This should be added to clause 7.2.2 and the transcripts used for accuracy.
Mr Waters said that on clause 7.2.3 Dr Ngubane “refuted” had to be changed to “contradicted”.
Dr Khoza said that under clauses 7.2.2 and 7.2.3 she was not sure whether this reflected that Dr Ngubane insisted that there was no cost to the SABC, yet other witnesses testified that there were costs to the SABC. It was an important point to capture.
Ms Singh agreed with Dr Khoza. Dr Ngubane talked about 16 shows and that it made business sense for the SABC. This information would form part of the investigation going forward.
Mr Mokoena said that he wanted clause 7.3.1 focus on Vision View and it was clear that Mr Shushu said that procurement was never consulted. It was purely Mr Motsoeneng’s office that made the decision and then the decision was ratified in a “round robin” meeting.
The Chairperson said that if reference was made it would be covered in an investigation. It was safer to say that the transcripts would be made available to those who wanted to take the matter further.
Mr Singh said that under clause 8.1.1 it should state “SOS Support Public Broadcasting Coalition”.
Ms Kilian said the word “refuted” should be removed and replaced with “contradicted” under clause 7.2.3. She also wanted to add that Dr Ngubane insisted that the New Age arrangement made business sense to the SABC at no cost involved.
Ms Van Damme said that 8.1.2 referred to the Portfolio Committee on Communications and instead of referring to the whole Committee it should state that the majority of members did not raise any objections, as she regularly objected but was ignored around issues of the MoI.
The Chairperson disagreed with Ms Van Damme. If the whole Portfolio Committee made a decision it reflected the collective.
Mr Waters supported Ms Van Damme and said that it gave the impression that the entire Portfolio Committee went along with what the Minister presented. The clause had to reflect that the majority of members went with it but some objected.
The Chairperson said that only if it was a voting process there could be an indication of who objected.
Mr Waters said voting would happen only if there was a Bill. The minutes of the meeting held in the Portfolio Committee would reflect objections made. He did not want to see names of members, only that the majority of members did not raise any objections.
Ms Loliwe said that this was the Ad Hoc Committee and not the Portfolio Committee. This Committee did not call the Portfolio Committee on Communications to testify. The draft report was based on evidence and this Committee was not aware of what happened at that meeting.
The Chairperson said that this section was the Minister’s evidence and according to her. It was not according to the Board or the Portfolio Committee.
Dr Khoza asked who the SOS Coalition was referring to when it said the SABC’s top executives can not be appointed by political authority. Where they referring to the Minister or to the Board? That statement was very ambiguous. She did not remember that the executives were appointed by the Minister.
Ms Kilian said that the SOS Coalition expressed its opinion that there was interference in the appointment of the executive but the Act was silent on that. It was stated in section 14 that there must be an Executive Committee and her suggestion was to refer to it as follows “It is in the firm view however that in light of the SABC’s mandate as an independent public broadcaster, the Executive Committee of the SABC should not be appointed by any political authority”.
Mr Mokoena said that on clause 8.2.3 it says little evidence was presented but there was no evidence. The Minister then approved the appointment of Mr Motsoeneng the following day.
The Chairperson said the report would emphasise the urgent meeting and appointment the following day. He asked Mr Mokoena to write down a suggestion.
Ms Van Damme said that clause 8.2.4 referred to more than one candidate for the appointment of the COO position yet there was only one candidate and that was Mr Motsoeneng.
Ms Khoza asked if this was not only referring to what former Board Chairperson Mrs Tshabalala said.
The Chairperson agreed that this was trying to capture what Mrs Tshabalala said so it was according to her.
Ms Van Damme said that a sentence be added to clause 9.1.4 to indicate that during this time an editorial decision was taken to ban the airing of violent protests which went against the Broadcasting Act.
Mr Singh said the editorial policy of minimum 90% local music and 80% local television content should be included to have a context upfront.
Dr Khoza wanted clarity on clause 9.1.4 and asked whose narrative it was. Was it part of testimony or someone’s interpretation? The statement had somebody’s voice and if it was the Committees opinion it should be noted.
Ms Kilian said the wording should include it was according to evidence led by the SABC 8.
Mr Mokoena suggested that a new point be added under clause 9.1.4 that the SABC 8 made mention of specific political parties being excluded in coverage on the news during the elections.
Prof Khubisa asked whether political parties would be included in the report.
The Chairperson said that they would have to look at the transcripts.
Mr Mokoena said that it should state specifically that the EFF was excluded. There was an incident where Mr Malema was going to be interviewed then he was replaced by someone else.
Ms Loliwe said it was best to go and check the transcripts.
Ms Van Damme said that the SOS Coalition presented that “it was widely known that the SABC’s editorial policies were last revised and adopted in 2004 following wide and robust participation by the public at large. Revisions to and adoptions of these policies were required to have been made in or by 2009. By simple calculation it was clear that the SABC Board failed to comply with its own policies read together with the Act to revise its policies by no less than seven years. Some months after learning that the policies were revised and adopted in January 2016, SOS Coalition made attempts to engage the SABC management responsible for the process”.
The Chairperson said that there was an on-going investigation into the editorial processes of the SABC which would cover all aspects.
Mr Singh agreed that ICASA had to provide a report on the outcomes of the investigation to Parliament in the recommendations.
Ms Van Damme said that it came across as if the Minister’s position was the final position but evidence given by the SOS Coalition that there was not enough public consultation done.
The Chairperson said one line could be included.
Mr Mokoena asked that a new sentence be added under clause 8.2.3 which would read “Evidence was presented that against recruitment policies and procedures, and despite the Public Protectors findings that Mr Motsoeneng was not qualified for that position, the Minister had nonetheless endorsed irregular decision by the Boards to appoint him, within hours of having received the recommendation”.
Prof Khubisa said that clause 12.1.1 should state how many former Board members resigned and how many executive members remained.
Ms Van Damme said that the Committee agreed to say that the Board was non-existent. She wanted to add reference to the PFMA which spoke of the Boards fiduciary duties.
The Chairperson said that at that time there were no non-executive members left at the Board but there were still executive members. Dissolution of the Board had to happen through a process. It would be safer to say the Board was dysfunctional as it was technically correct to do so.
Ms Van Damme said that during the time of the inquiry the Board was dysfunctional but at the adoption of the report there would be no Board.
Mr Waters said that clause 12.1.3 did not talk about the person who wrote and signed the MoI.
Mr Mokoena said that it had to be included that the duties of the Board were curtailed by the involvement of the Minister.
Ms Kilian said that former Board member Ms Kalidass testified that the MoI was not presented to the Board. When Ms Kalidass asked about it she was informed that DAF was amended as a result of the amendment of the MoI. Therefore a list of resolutions at the Board was needed. She would be cautious to say that the Board did not know. Rather, the question was whether the Board had a chance to deliberate on it.
Mr Mahlangu noted that the Board was inducted so irrespective of whether they were “bullied” or not, they had a mandate to fulfil.
Mr Chauke said that the issue of the Minister did not belong here as this section was dealing with the Board which dismally failed.
Mr Mokoena said that the Board was not able to do its duty because of the amendments to the MoI and the DAF.
Ms Loliwe said that the purpose of the section was to ask the question whether the Board did its work and the answer was no. The question was not why.
Mr Chauke asked if the MoI was ever presented to the Board and if it was then the Board signed away its own power.
The Chairperson said that the Board was governed by other legislation as well so this matter would be put under the heading “Other matters”.
Ms Kilian asked why the amendment was irregular and who was responsible for the amendment. She had not heard evidence that the matter was discussed at Board level. It appeared as if the former Board members did not discuss it.
The Chairperson said that whether the MoI was there or not, it did not change the fact that the Board did not do its duties.
Mr Mahlangu referred to clause 12.1.8 where evidence suggested that the Company Secretary was well experienced and served for a long time but the SMS notifications 24 hours before a meeting was irregular.
Dr Khoza said that on clause 12.1.6 the word “ignored” should be changed to “tolerated”. On clause 12.1.8 the Committee noted that the Company Secretary was well qualified and experienced but how did one measure being organised and efficient? The Company Secretary knew she was doing wrong.
Mr Mokoena said that the Board failed to ratify decisions made. On clause 12.1.7 he felt it was directly because of the DAF. On clause 12.1.8 the Committee was no longer discussing evidence but it was an observation that was made.
The Chairperson said that the reason why the Board did not implement the Public Protector’s report was not because of the DAF. It was not fair to factor one person’s failure onto someone else.
Mr Waters suggested adding the word “despite” before former Company Secretary under clause 12.1.8.
Mr Swart said that on clause 12.2.3 there was a reference to insolvency but it should be worded as “The Committee noted with concern evidence of the SABCs’ financial management and sustainability. There appears to be a looming financial crisis. In addition, there is reference in the management letters that point to material uncertainty on the going concern assumptions. In this regard the funding model is of concern, particularly in light of the SABC’s mandate as a public entity and commercial enterprise”.
Ms Kilian said that on clause 12.2.1 it should be stated that regardless of funding the SABC was accountable to Parliament.
Prof Khubisa said that on clause 12.2.1 the wording should be specific and state former Board Chairperson Mr Maguvhe.
The Chairperson wanted the word “testimony” changed to “evidence” under clause 13.1.3.
Mr Mokoena noted that Multichoice was mentioned under clause 13 but he wanted to include other issues such as Vision View as a lot of money was involved in these deals.
Dr Khoza cautioned Mr Mokoena as the clause was dealing specifically with Multichoice. She suggested a new paragraph be included.
Mr Chauke noted that the Multichoice matter was not finalised.
Mr Waters said that under clause 14.2.2 the State Security Agency (SSA) grossly violated people’s rights. Interception of communications was a very serious matter. Under clause 14.1.1 it should be added that Mr Motsoeneng did not meet the basic qualification.
Mr Singh said that the court and Public Protector’s pronouncement on Mr Motsoeneng’s appointment had to be included.
Mr Waters suggested that clause 16.1.1 be split up into two sections. The first section could state that the Board avoided implementing the Public Protector’s report and ICASA’s ruling and the second part could state that they now decided to take it upon review.
Ms Kilian said that it was important to explain that this was in contravention of which sections of which Acts.
Mr Singh said that the observation drawn from the minutes must be listed.
Mr Waters noted the sections it contravened were the Constitution section 96(b) and (c), the Executive Ethics Code section 2.1(b) and (d) and the Powers and Privileges Act section 17(e).
Dr Khoza said she agreed with Mr Waters and the wording had to be changed to the Board “may have been” to the Board “was covertly and overtly pressurised”.
Ms Van Damme agreed with Dr Khoza. All throughout the report legislation also had to be mentioned.
Ms Kilian agreed with Dr Khoza. She wanted members to be mindful of making comments on the Shareholders role versus the functioning of the Board. It should state “appears to” as no full investigation had been done yet.
Dr Khoza wanted to appeal to members to be objective in crafting observations. This process was not a disciplinary hearing. Choice of words was important such as the Minister may have contravened certain sections of legislation but members could not be definite about it. The report would be tabled to Parliament and Parliament would channel it to the relevant authorities to investigate. She wanted members to stick to the terms of reference and be objective.
Ms Kilian said that she did not want the report to be specific about the sections of legislation as the Minister was protected since she gave evidence before the Committee.
Mr Swarts said that evidence given before the Committee was only related to that one meeting. Mr Krish Naidoo gave evidence that the Minister aided and abetted the dysfunction of the Board.
Ms Van Damme noted that clause 19 was not the whole view of Parliament. Members of the DA raised objections numerous times therefore it should state the majority of members in the Portfolio Committee on Communications.
Dr Khoza said that the report was not saying that the facts were under dispute. However, the report was written as the Ad Hoc Committee and members here were not sitting in the Portfolio Committee on Communications. When the report was debated in Parliament, Ms Van Damme could debate it in her Committee.
Ms Kilian suggested that the report be submitted without recommendations and that the recommendations be finalised once all respondents had submitted their responses.
Ms Van Damme said that she wanted the Committee to continue with recommendations and finalise the recommendations once the final feedback was submitted. She did not understand the sudden turnaround at the 11th hour and why some members were getting “cold feet”.
Mr Waters supported the idea to finish the recommendations. The draft report needed to have recommendations to be finalised. People could say that the Committee did not follow due process.
Mr Swarts agreed that the recommendations had to be finished today because in the process of formulating the draft report it was largely discussed. He wanted the full document to be sent out and a note included which stated that the report was not final.
Mr Singh felt that the debate was about timing and how much time to allocate to the recommendations. He felt that it was important to get recommendations that were aligned to the observations.
Prof Khubisa said that every part of the document was important. The recommendations formed the crux of the document and therefore it should be included in the draft report. He suggested that the Committee meet the following morning at 8 am and continue with the recommendations.
Dr Khoza warned members of developing an inferiority and superiority complex as it would be self-defeating. The notion of “cold feet” was a way of grandstanding. She supported Ms Kilian and felt that the Ad Hoc Committee should not be compared to the Portfolio Committee on Communications.
Mr Mokoena believed that the Committee stood to self-sabotage if it stopped such a “glorious” process. It was an open system of working taken out to the public and the recommendations were already out there. He suggested the Committee continue its work on the recommendations and not jeopardise the process by changing direction. People responding to the report would say they were not privy to information.
Ms Kilian noted that her recommendation was not canvassed and urged members not to be superstitious. There was no such thing as “cold feet”, she merely felt that the recommendations in the report had to make logical sense.
Ms Loliwe said that the report was in two parts. The first part up until the observations was for people who would comment and the second part which was the recommendations would be for Parliament. If the full report was sent for comment it had to be final. Therefore the recommendations would not be complete until comment was received. She supported Ms Kilian’s suggestion.
Mr Mahlangu reiterated that there were no “cold feet” or “falling at the last hurdle”. For example, the AG’s management report had no recommendations it only had findings. The whole process was transparent until the end and it would only be fair for the report to be accurate when it was concluded.
Mr Chauke felt that a lot still had to be done around the recommendations as it was not accurate yet.
Ms Van Damme said her reason for saying members were getting cold feet was because it did not make sense to her to submit a report without recommendations. She wanted the legal advisors to give an example of an Ad Hoc Committee ever giving a report without recommendations.
The Chairperson said that the terms of reference for the Committee were to report to Parliament by 28 February 2017. The Ad Hoc Committee was sent to do a job and it was not for the Committee to decide on how to take the report forward. Recommendations were subjective and might need input from those commenting. Ms Van Damme could not compare the Ad Hoc Committee to the Portfolio Committee. He asked the legal advisors to go back and check if it was possible to submit the draft report without recommendations and the Committee would reconvene the following morning at 8 am.
The meeting was adjourned.
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