SABC Board Inquiry Final Report: deliberations and adoption
Ad Hoc Committee on SABC Board Inquiry
24 February 2017
Chairperson: Mr V Smith (ANC)
The Committee considered the SABC Board Inquiry Final Report and ensured that all the amendments were correctly captured in the revised report. The Committee formally adopted the SABC Board Inquiry Final Report. The Democratic Alliance (DA) and United Democratic Movement (UDM) reserved their rights until the Report was presented to their party caucuses
The Committee approved 18 sets of minutes as amended. The minutes of the current meeting would be circulated for comment and would be signed off by the Chairperson as this was the final meeting of the Ad Hoc Committee.
Members were given an opportunity to comment on their experiences in the Committee.
The Chairperson said that the Committee had agreed to capture as accurately as possible the extensive discussions and debates on the SABC Board Inquiry Report. He proposed that the Committee go page by page, to get a sense of the final document and adopt the report after looking at the changes.
Dr M Khoza (ANC) agreed and said the Committee should be limited only to the deliberations of the day.
Mr S Swart (ACDP) stated that the Committee should stick to the amendments decided the previous day and check whether the amendments had been captured correctly, then check page by page and approve the report.
The Chairperson agreed with the suggestion that each amendment be checked for correctness first:
2.5.3 ‘electronic document was substituted for ‘emails’ on line nine.
The heading ‘suspicious’ was changed to ‘questionable’ in section 8.
Dr Khoza suggested that the Committee should stick to the phrase ‘being party’ to ensure that the essence of the sentence was captured in section 16.4.1. This was agreed to.
In section 22.2.7, Mr Swart mentioned that ‘being party to’ should be changed to ‘tolerated’. This was agreed to.
Mr L Mokoena (EFF) suggested that the ‘three’ should be changed to ‘two’ since the Board had only two executive Members not three. He asked for clarification if the SABC Board had a COO.
Members stated that there were three because the SABC Board had an Acting COO.
Mr N Singh (IFP) stated that poor and deteriorating could not be used in the same sentence.
Dr Khoza suggested and the Committee to change it to, ‘The Committee notes with concern the evidence about the SABC’s deteriorating financial management which has impacted negatively on its sustainability’.
Ms Loliwe suggested that there was no evidence to include the portion after the phrase ‘in acting capacities’ because it was the Committee’s observation. This was agreed to.
Ms Kilian suggested that ‘executive management’ would carry more clout than ‘SABC’ in section 22.3.1.
Dr Khoza suggested that the Committee should use ‘senior’.
The Chairperson stated that they could defend the statement ‘some of the executive management of the SABC’.
Ms Kilian suggested that the Committee rather use ‘executive management and Prof Maguvhe’.
The Chairperson accepted the suggestion.
Mr Swart asked that the Report specify the Minister referred i.e. Minister Muthambi in section 23.1.3.
Ms Kilian suggested that the phrase ‘executive’ should read ‘executive management’ in section 23.1.3
Ms Loliwe stated that section 23.1.3 should read it ‘gives’ (not gave) undue access. The Committee agreed.
Mr N Khubisa (NFP) suggested that in section 23.1.3 ‘It further concentrates certain Board powers in the hands of the executive management’ should be deleted. The Committee disagreed.
Mr M Waters (DA) said ‘stated’ in section 23.1.4 should be ‘asserted’ as the Minister was under oath.
The Chairperson replied that ‘stated’ should remain because the Committee had resolved the issue earlier.
Mr Waters agreed but said there were inconsistencies in the Minister’s statements and these should be captured in the Report. For instance, the Minister claimed that she had submitted the Memorandum of Incorporation (MOI) to the board and there were no objections but the Board minutes showed that there were objections when the Minister submitted the MOI to the Board.
The Chairperson supported the submission but invited other Members to contribute before making a resolution.
Mr Singh observed that according to the Minutes some of the Board members objected to the Minister’s MOI.
The Chairperson agreed that the Minutes showed that two Board members objected therefore the Committee needed to craft this carefully so as to capture this correctly.
Mr Mokoena stated that the point should not be captured in section 23.1.4 but in the next section.
Mr Waters replied that it could be under Inconsistent Evidence so far as it was captured in the document.
The Chairperson replied that it could be captured in both sections.
Mr Waters said according to the working document the Minister had signed the MOI but the Minister claimed she did not sign the MOI.
The Chairperson remarked that the Committee had to be sure of the particular MOI because there were three MOIs: the one signed by Minister Muthambi and Prof Maguvhe, one unsigned and one signed by Minister Muthambi.
Mr J Mahlangu (ANC) observed that when the Committee had dealt with the MOIs in an earlier meeting, it had resolved that Members would examine the transcript of Minister Muthambi’s evidence.
Mr Mokoena observed that Mr Waters had been talking about the MOI signed by both Minister Muthambi and Prof Maguvhe.
Ms Kilian stated that Members should examine the transcript.
The Chairperson remarked that there was a submission to CIPC and the submission could not have been made without a signature.
Mr Waters observed that there were so many inconsistencies with the Minister’s testimony therefore it was not to be relied upon.
The Chairperson, on examining the transcript, stated that the Minister signed off the MOI and lodged it but there was no evidence of the registration of the MOI with the CIPC.
Mr Waters agreed that the Committee should work with the transcript.
Mr Swart agreed but stated that the Committee needed to state why the Ministers’ testimony was in doubt.
The Chairperson remarked that Members agreed that the document sent to the Committee was not authentic because there was no letterhead and it was not registered.
Mr Swart observed that because the MOI was not registered it renders the MOI invalid in the opinion of the Committee.
Mr Waters remarked that the fact was that the MOI was not registered, therefore the MOI was invalid.
Mr Swart suggested that the Committee could ask for the legal advisor’s opinion or stick to its own opinion.
The Chairperson suggested that the Members should dialogue on the matter once and for all and he invited Members to make contributions.
Mr Waters stated that the MOI was invalid based on the Committee’s opinion.
Mr Mokoena observed that the MOI was invalid based on the Companies Act because the Act states that it becomes invalid once it is not registered.
Mr Khubisa stated that the Committee should clarify the particular MOI being referenced by stating that it was the MOI of October 2014 and leave the statement the way it was.
Dr Khoza stated that it was in order to state that it was the Committee’s opinion but include that there was a claim that the MOI was lodged but the Committee could not verify that the document came from the CIPC.
Mr Swart stated that the whole report comprised of the Committee’s opinion.
Mr Mahlangu supported the opinion of Members but advised that the Committee should not make statements that could not be proved but only make claims that have evidence.
Ms Loliwe stated that in the absence of evidence, the Committee should state its opinion.
Ms Kilian suggested that the Committee should not add their opinion but should ask for the parliamentary law advisor’s opinion. The Companies Act can be referenced as a motivation in section 23.1.4.
Mr H Chauke (ANC) supported Ms Kilian that the legal opinion would finalise the matter.
The Chairperson agreed and asked for the law advisor’s opinion on section 23.1.4.
The Parliamentary Law Advisor reported that section 16(7) of the Companies Act stated that any amendment to the company incorporation must be filed and the MOI takes effect once filing had occurred. Section 17 stated that any minor amendment or alteration must be filed. The word ‘invalid’ in section 23.1.4 of the Report is a strong word. The non registration of the MOI only meant that the MOI did not take effect in law. The Committee’s observation about the October 2014 email not being a true reflection that the MOI was lodged at CIPC was correct. Therefore, the Committee could state that the authenticity of the document was in question for the purpose of verifying registration of the MOI at CIPC and the Committee was in doubt of it.
The Chairperson instructed the secretary to remove ‘invalid’ but state that the MOI was not in effect based on the Committee’s opinion.
Mr Waters remarked that it was not the Committee’s opinion but a legal opinion.
The Parliamentary Law Advisor added that section 16(9) gave several scenarios but what was missing from the Minister’s submission was the filing sheet because it was not registered.
The Chairperson asked the secretary to reword section 23.1.4 to read ‘means that it had not taken effect in law appropriately’ and delete ‘the Committee’s opinion’. He invited Members to continue with their contribution on the document.
Mr Singh noted the acronym DAF should state Delegation of Authority Framework in section 23.1.6.
Mr Waters asked the Committee to capture in section 25.1.2 that the Minister had not felt that she should advertise the post despite been advised.
Ms Kilian said that Mr Waters should craft a one line statement to address this and communicate it to the secretary.
Mr Swart and Ms Kilian clarified ‘internal changes’ and said the sentence should read ‘The Committee notes with concern that some internal changes were effected to senior management positions and that the appointment of the current Company Secretary may have been irregular’.
In section 25.1.5 Mr Swart said that the phrase ‘they had been paid large sums’ should read ‘they were in most cases paid large settlement amounts’. The Committee accepted his suggestion.
Mr Singh observed that section 25.2.1 said that executive directors and Board members were not vetted.
The Chairperson remarked that it was only true that ‘most of the’ executive directors and Board members were not vetted.
Ms Kilian supported the Chairperson’s suggestion because evidence before the Committee suggested a vast majority were not vetted.
The Chairperson asked the secretary in section 25.2 to replace ‘lack of empathy’ with ‘lack of seriousness.
Mr Swart said that ‘the evidence’ should be replaced by ‘apparent from the evidence’ in section 26.1.1. He suggested that the phrase ‘the Board had failed to fully implement’ should be reworded in section 26.1.2.
The Committee resolved to reword section 27.1.1 on the ways attempted to delay the inquiry.
Mr Khubisa suggested that ‘viewer’ should be changed to ‘viewership and listenership’
The Chairperson said that Broadcasting Act should come before Companies Act in section 126.96.36.199
The Committee discussed the statement ‘The Interim Board should institute an independent forensic investigation...’ in section 33.1.1 but did not make any changes.
In section 33.1.5 Mr Singh suggested that the Committee needed to capture the phrase as ‘The findings, recommendations and remedial action of already-concluded investigations…’ and not just ‘the findings and recommendations’ because the institution listed was the Public Protector.
The Chairperson remarked in section 33.1.6 that the Committee state that the Interim SABC Board should ensure that a comprehensive progress report on all pending investigations should be done.
Ms Kilian suggested that the comprehensive progress report be submitted to Parliament because of Parliament’s oversight role. The Chairperson agreed.
Mr Mahlangu suggested adding in section 33.2.4: ‘He or she should be a person who understands the public broadcaster’s responsibility to account to Parliament and who meets all criteria set out in the Broadcasting Act, the Companies Act and the King Code of Good Governance’. The Committee agreed.
Mr Swart said that section 34.2.1 should not read ‘the possible amendment of the Broadcasting and Companies Acts.
Dr Khoza clarified that what Mr Swart meant was, ‘Parliament should ensure that amendments to the Broadcasting Act and possibly the Companies Act’.
Mr Swart asked if it was correct to state that the SABC did not comply with an order of court as in section 36.1.1 because it is a serious allegation.
The Chairperson remarked that he was not convinced that the SABC gave all the documents to the Committee that the court ordered; therefore the SABC has largely failed to comply with the orders of the court.
Mr Waters said that he did not see any reason to add the ‘largely’ although due to the fact that the SABC did not present all the documents the Committee asked for, they had failed to comply.
Mr Swart accepted this but said that the Committee could not say that SABC did not comply with the court order.
Ms Kilian said that the Committee could not say ‘largely’ but if the SABC did not comply with the order of court then they did not comply.
Dr Khoza said that the Committee was contradicting itself as it had made statements that the SABC had complied with some orders therefore the word ‘largely’ should be inserted.
The Chairperson remarked that he would not get into a debate on the matter.
Ms Kilian said that the sentence had been qualified with the phrase ‘in a number of instances’.
Mr Mokoena suggested that the Committee cut out the rest of the amendment in section 39.1.1 and leave it as, ‘The Committee found that the Minister displayed incompetence in carrying out her responsibilities as Shareholder Representative’
Mr Waters suggested that section 39.1.1 should read ‘and or the Presidency’ and not ‘to the Presidency…..’
Members said that the suggestion had been previously proposed but was not supported by Members.
Mr Mahlangu said that this statement could mean that the Committee should allow the process to unfold and address what happens because the Committee would be dictating what it prefers by this statement.
Mr Mokoena said that the Committee’s attitude was already identified in the statement. However, perhaps Mr Mahlangu wanted the Committee to recommend that the President should reconsider on the issue although the opinion of majority Members had been captured in the statement.
Mr Khubisa observed that he remembered that the statement was sponsored by Mr Singh and it was accepted by the Committee.
Ms Kilian said that she had earlier made a passionate plea that the Committee should consider what the Constitution said and refrain from telling the Head of the Executive what to do. Her proposal was that in view of the evidence presented on the deficient role of the Shareholder Representative/Minister, the President should exercise his constitutional prerogative in Section 85 and 91(2) and implement appropriate action. Consequently, the Committee would be sticking to the Constitution.
Mr Swart said that he supported Ms Khoza and other Member’s submissions on the wording of the President. He added that the phrase ‘if found guilty, charges should be instituted’ should be changed to ‘if there is sufficient proof—ordering appropriate corrective action which could include but is not limited to the institution of charges’.
Mr Chauke agreed with the suggestions by Ms Khoza and other Members.
Mr Singh said that the statement should be left as is because that was how it was sponsored and agreed to by Members.
The Chairperson resolved that section 39.2.1 would be captured as ‘and or the Presidency’ and the statement ‘if there is sufficient proof—ordering appropriate corrective action which could include but is not limited to the institution of charges’ would be added to complete the section.
Mr Singh suggested that ‘seek to’ should be added to section 40.2.1.
Mr Waters suggested that the ‘any’ should be added to the statement: ‘Should there be further death threats…’ in section 40.3.2.
Mr Swart suggested that the police should be invited even if the threats were internal.
The Chairperson said that the management should be the first line of action to protect staff after which the police could be invited and the statement in section 40.3.2 captured the essence of what the Committee decided.
In section 40.4.1 Mr Mokoena suggested that ‘electoral regulations’ should be deleted.
Mr Waters said that the statement did not read well and proposed that the word ‘regulations’ be inserted after ICASA in section 40.4.1.
Ms Kilian asked why the Committee was using the word ‘executives’ in section 40.4.1. She suggested that the statement should read: ‘The Electoral Commission Act and the SABC Board’.
Mr Swart said that section 41 should start with ‘any witness who gave contradictory or misleading evidence must be investigated by Parliament for possible breaches of the Privileges Act’ before stating in the next section ‘Parliament’s Legal Services Unit….’ He said that a further section that stated: ‘anybody who gave honest information would be protected from criminal investigation in terms of the Privileges Act’.
Dr Khoza supported the submission of Mr Swart.
The Chairperson resolved not to add a further section to clause 41.
Mr Mokoena said that section 42.1.3 was a new addition he had suggested yesterday. It should read, ‘The new Board in conjunction with the Minister should implement necessary disciplinary action against the acting GCEO for having defied Parliament’.
Mr Swart suggested rewording section 42.1.2 to read: ‘similarly, the cost for the recent appeal of the high court judgment should be borne by the acting SABC Board chairperson in his personal capacity’.
The Chairperson said that the Committee was not convinced about the appeal court ruling because there was no evidence.
Mr Swart said that the statement could be deleted.
Mr Singh said that the Committee could reword the statement as, ‘the cost should be borne by the person addressed in the appeal court judgment’.
Ms Kilian observed that the Western Cape court judgement specified that Mr Motsoeneng and Mr Aguma should pay the cost of litigation in their personal capacity but she did not have information on the appeal court judgement.
The Chairperson remarked that if the Committee was not sure the statement should be deleted from its report.
Mr Singh suggested that the Committee could delete the statement but said that the SABC Interim Board should not pay the cost as it had been alleged SABC Board funds might be used to service the costs of litigation.
Mr Swart said that he had the appeal court judgment and it stated that the costs of litigation should be borne by Mr Motsoeneng and Mr Aguma in their own personal capacity not the SABC Board’s funds.
Ms Loliwe observed that the appeal court judgment was not the only litigation of the SABC Board. Therefore to avoid any query, she said that the statement should be deleted from the Report.
The Chairperson resolved that since the appeal court judgment was not part of the Report’s mandate, it should be deleted.
The Chairperson asked the secretary if she considered the proposed amendments to the Report as significant.
The secretary replied that the amendments were not significant and could be effected quickly.
Adoption of the Final Report on the SABC Board Inquiry
The Chairperson invited Members to adopt the Report since the secretary had assured him that the amendments in the Report were not significant could be finalised by the end of the day.
The Committee approved the Report.
Mr Waters reserved his party’s right to adopt the Report because he had to present the Report to the Democratic Alliance caucus for approval.
Mr Singh said that the United Democratic Movement (UDM) candidate Mr Kwankwa had informed him that the UDM reserved its right too.
The Chairperson stated that the SABC Board Inquiry Final Report had been adopted with the majority present at the meeting but asked the secretary to note that the DA and UDM had reserved their rights and would first present the Report to their caucus.
Dr Khoza observed that Mr Kwankwa was an Alternate Member of the Committee; the Committee has the two Members that represent the parties that are reserving their rights, in attendance. However, if the Members were saying that the Report could not be finalised during the meeting because the reports had to be shown to the DA and UDM caucus first, then all the political parties could as well reserve their rights and show it to each of their caucus before the Report could be adopted.
Mr Singh said that the Committee should not deliberate the issue because there had been debates about whether the representatives of the smaller parties represented the views of other parties. He reported that this was not so because the Committee had not contacted the smaller parties but only the UDM had sent a message to the Committee.
The Chairperson resolved that since the Committee had agreed that the SABC Board Inquiry Final Report had been adopted then it was formally adopted by the Committee. Consequently the Chairperson, the secretary and the support staff would do the necessary to reflect the amendments and send the amended Report to Members for viewing by Monday before it was sent to the National Assembly for further parliamentary processes.
The Chairperson invited the Members to consider the Minutes of Meetings before them because the Ad Hoc Committee was supposed to be terminated after this meeting.
Minutes of 15 and 29 November 2016 and of 7, 8, 9, 12, 13, 15 December 2016 were considered and adopted by the Committee with amendments. The Chairperson remarked that the minutes reflected the attendance and the transcripts.
Minutes of 13, 19, 20, 24, 26, 27 January and 14, 17, 21, 22, 23 February 2017 were considered and adopted with amendments.
The Chairperson noted that the minutes of today would be distributed to Members for comments and he would sign the minutes in the absence of any corrections by Monday because this was the last meeting.
The Chairperson invited Members to give one minute comments on their experiences in the Committee.
Mr Chauke congratulated the Chairperson for the manner he steered the ship of the Committee, the support staff and the Members for working together
Ms Kilian thanked the Chairperson and the Members for their commitment to get the SABC to the right level.
Ms Loliwe observed that the ANC had shown other political parties that it was not a crime to always attend all committee meetings and hoped other political parties would follow in their steps.
Mr Mahlangu appreciated the support staff especially the secretary, and the media. He appreciated that Members even across political parties had been able to address what the people of South Africa wanted.
Mr Swart thanked the Chairperson, Members, the secretary and Legal Advisor. He hoped the SABC would right its course soon.
Dr Khoza thanked the Chairperson, Members, support staff, and especially the secretary for the work done.
Mr Singh echoed the sentiments of his colleagues, saying that although the Committee might not have been perfect in what they had done, they had put in their best efforts and he hoped that the future leadership of SABC would take to heart what the Committee had recommended, put into practice the good governance and accountability recommendations to ensure that the public can be proud of the SABC. He appreciated the viewers who took interest in the Committee’s deliberations.
Mr Khubisa thanked the Chairperson, the Members and the support staff who worked together to achieve the mandates of the Committee.
Mr Mokoena echoed the sentiments of his colleagues and added that the ANC was moving in the right direction.
Mr Khubisa thanked the Chairperson, the Members and the support staff who worked together to achieve the mandate of the Committee.
Mr Waters expressed appreciation to the Chairperson for his patience and for steering the Committee, to all the people that came to make submissions despite threats, the media and the public of South Africa for taking interest in the proceedings and he congratulated ANC for giving one minute speeches.
The Chairperson thanked the support staff for their assistance and appreciated the efforts of Ms Van Damme and wished her well in her preparations for her wedding. He said that the Ad-Hoc Committee work was done.
Smith, Mr VG
Chauke, Mr HP
Khoza, Dr MB
Khubisa, Mr NM
Kilian, Ms JD
Loliwe, Ms FS
Mahlangu, Mr JL
Mokoena, Mr L
Singh, Mr N
Swart, Mr SN
Waters, Mr M
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