SABC Board Inquiry: deliberations on Committee Report

Ad Hoc Committee on SABC Board Inquiry

23 February 2017
Chairperson: Mr V Smith (ANC)
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Meeting Summary

In a meeting that last over 13 hours from 2pm until 3am, the Committee deliberated on the working draft of its Committee Report paragraph by paragraph. Members were requested to assess if each paragraph was a true reflection of the Committee’s findings on the basis of testimonies and official reports. Members were free to suggest amendments to capture the views of the Committee.

The Committee worked under the conviction that the Broadcasting Act trumped the Companies Act and that the Broadcasting Act should be given priority in all matters concerning SABC. The Committee was of the view that the Companies Act was given priority over the Broadcasting Act and subverted the purpose of the Broadcasting Act  so the Ministry could politically interfere in SABC business. The Committee stated that the Memorandum of Understanding (MOU) signed by the incumbent Minister of Communications was problematic. It was not registered with the CIPC. Notwithstanding its non-registered status, it was used by the Minister as Shareholder Representative to remove directors in line with the Companies Act. It gave the Minister undue access to the SABC‘s administration thereby compromising the SABC‘s independence. On top of this, it transferred certain Board powers into the hands of the executive management. In light of these findings, the paragraphs were revised.

Meeting report

The Chairperson noted that the Committee would resume its deliberations and that that, in their previous meeting, Members had agreed that all of them would be present and thus no apologies would be accepted in spite of the fact that Mr N Kwankwa (UDM), Ms P van Damme (DA), and Mr M Ndlozi (EFF) were absent. There had been consensus that no apology should be entertained until deliberations were finalised.

He noted that there was a letter from Majabu which was responded in accordance with Members’ resolution and referred to the letter from Public Protector which urged the Committee to give adequate consideration of her recommendations or to include her recommendations in the Committee Report.

He cautioned that Members should not engage in dialogue, but they should provide concrete contributions for improvement of the content of the Report. Under discussion were the Findings and Recommendations. On the Memorandum of Incorporation (MOI) signed by former Communications Minister Yunus Carrim, the Committee had written to the SABC to provide information if this was the only valid MOI, which would take the Committee in the right direction. The Chairperson was waiting for feedback before 16h00 that day.

Mr N Singh (IFP) asked if they were going to discuss the four-page additional document containing certain recommendations and the three lines which were referred to as acknowledgments. There was nothing confirming the authenticity of the MOI since there was nothing from the Companies and Intellectual Property Commission (CIPC) confirming that.

The Chairperson responded that Members were free to discuss the MOI and that the discussion of Committee Report working draft would start on page 67.

Ms J Kilian (ANC) remarked that the authenticity of the MOI that was handed by the Minister in was questionable. She agreed with Mr Singh that the MOI did not give the responses needed, rather it created more questions. The MOI did not correspond with the Communication Minister’s statement on the date of the MOI and there was no link between the statement and the MOI. Only the CIPC could affirm the authenticity of this MOI document.

Mr M Waters (DA) agreed. It could not be accepted that this MOI was submitted to the CIPC. There were inconsistencies in what Minister said and what the SABC said. This was a serious matter. If it was found to be a false document submitted to Parliament, it would be a serious misconduct.

Mr L Mokoena (EFF) said that the MOI was the document under the jurisdiction of the shareholder. The shareholder representative came to parliament and said that the document was registered. He hoped that the document would reach the Parliament before 16h00 for perusal. It was the responsibility of the Minister to ensure that the MOI was registered rather than the SABC. 

Mr H Chauke (ANC) said that the discussion around the MOI surrounded the question of who was responsible to ensure the MOI was registered. It transpired that the responsibility fell on the Minister. Members should not waste its time dealing with matters which did not have accounting authority. The only person that could account to Parliament was the Minister and thus she should give Members proper information. Members could make a formal request to the Minister to provide the Committee with the information it wanted. The powers lie in the office of the Minister and she had a good relationship with the Committee. There was a deadline to submit certain information which elapsed the previous day and was not complied with. Why should the Committee continue to stress itself by trying to reach people who would never respond to it? The Committee was dealing with the SABC because of its non-accountable members. Drawing on the work done by the Committee researchers, Members knew that there was only one MOI (which was signed by former Minister Yunus Carrim). Considerations of other MOIs were a waste of time.

Ms F Loliwe (ANC) agreed and remarked that the Committee should focus on its mandate and it should know that the shareholder issue arose from the findings of the Committee and would deviate the Committee from its focus. The issue of the MOI could not delay the work of the Committee. The Committee could not continue to postpone its deadline due to trivial matters arising from its findings. 

The Committee agreed that the working draft of the Committee Report should be considered paragraph per paragraph. Members would indicate whether they agree or disagree. If they disagree, they should propose how the paragraph should be amended.

Mr Singh suggested that the working draft  of the Committee Report should be considered first.

Broadcasting Act
Mr S Swart (ACDP) asked why the findings indicated that it was difficult to dissolve the Board when there was a provision stipulating how this should be done.

Mr Mokoena remarked that the finding was not the view of the Committee.

The Chairperson stated that if the paragraph did not reflect the findings of the Committee, the paragraph should be deleted.

Mr Mokoena said that it was found that the Broadcasting Act superseded all other legislation.

Mr Khubisa agreed. However, he remarked that it was not clear whether the Broadcasting Act trumped on all other legislation.

Mr Mahlangu agreed. He noted that the Companies Act referred to certain aspects that made difficult to come to the conclusion drawn by Mr Mokoena’s view. It should be made clear which sections of the Companies Act could be trumped on by the Broadcasting Act.

Mr Singh said that the Report should express Members’ view on the basis of what the Committee received from various interviewees. Drawing on these interviews, the Committee should make its observations, findings and recommendations.

Ms Kilian remarked that the SABC was regulated by specific legislation, i.e. the Broadcasting Act. The Act regulated operations of the SABC and indicated how senior managers should be relieved from their jobs.

The Chairperson reminded Members that they should not engage in deep discussion because they had a lot of work ahead.

Mr Waters remarked that the question was whether the Companies Act superseded the Broadcasting Act.

Mr Chauke said that his understanding was that they were not discussing Acts but whether this paragraph should be moved to another subheading. He asked if the paragraph could fit under Observations.

Ms Loliwe commented that the SABC was operating under the impression that the Companies Act trumped the Broadcasting Act. The Committee’s finding was that the Broadcasting Act was a specific law for the SABC that superseded the Companies Act.

Dr M Khoza (ANC) remarked that the Companies Act was used to subvert the Broadcasting Act. The paragraph should be moved to Observations. The Committee was not the right authority to rule that the Broadcasting Act trumped the Companies Act.

The Chairperson remarked that there was a need for certainty with a view to the operation of the Broadcasting Act and Companies Act: the former should be aligned with the latter.

Mr Mokoena said that the Broadcasting Act trumped all legislation in matters relating to SABC. He agreed with Dr Khoza that the Companies Act was used to undermine the Broadcasting Act.

The Chairperson agreed.

Mr Khubisa stated that the more they engaged with these Acts, the more they confused themselves.

Mr Mokoena disagreed. He said that the Committee was given a legal opinion holding that the Broadcasting Act superseded the Companies Act and that legal opinion was justified and welcomed.

Dr Khoza said that the paragraph should be revised to read that after receiving a legal opinion, the Committee had the strong view that the Broadcasting Act should be given priority in all matters concerning the SABC. However, further investigation should be done to address legal conflict between these two pieces of legislation.

Paragraph 22.2.1
The Chairperson sought clarity on whether the paragraph could be revised, deleted or moved to other section.

Ms Kilian suggested the revision of the paragraph.

Paragraph 22.2.2
Mr Swart said that the paragraph was correct. He noted that there was a problem with transferring powers to the SABC Board.

Paragraph 22.2.4
Ms Kilian queried the effectiveness of the Committee finding and whether it was related to chain supply management or MultiChoice. Evidence suggested that there was no engagement with the key shareholders and that there was no compliance with the regulatory framework.

Mr Waters said that the MultiChoice agreement with the SABC was shrouded in secrecy and was questionable in many aspects and the agreement did not comply with core rules.

Ms Loliwe said that evidence showed that there were irregularities and that Parliament was also misled.

Ms Kilian said that there was no due diligence when the contract was concluded.

The Chairperson remarked that a distinction should be made between contractual and policy matters.

Dr Khoza said that the Committee should also consider the financial implications of implementing the agreement.

Mr Mahlangu remarked that the agreement was a suspicious transaction and this should be reflected in the Report.

Ms Kilian noted that they should include a paragraph about the recommendation made by the Office of Public Protector.

Paragraph 22.2.5
Dr Khosa suggested that ‘board members’ should be deleted.

Board of directors
Mr Mokoena said that there was a difference made between board of directors and directors.

The Chairperson remarked that according to his understanding, there were 12 members comprising the Board of Directors and who were not executive directors of the SABC. There were not registered as directors. There should be a person or persons who was/were the accounting authority.

Paragraph 22.2.7
Ms Kilian sought clarity on whether the delegation was part of the authority framework.

Mr Mokoena said that the lack of authority of the SABC Board resulted in compromising the integrity of the SABC.

Paragraph 22.3.1: Financial crisis
Dr Khoza said that there should be a paragraph reflecting that the Board was not accountable to Parliament. There was a kind of ignorance on the side of the SABC Board.

The Chairperson said that 'ignorance' could not be used; rather 'lack of understanding' should be used.

Paragraph 22.3.2
Mr Waters said the paragraph failed to mention that the findings were the Auditor-General’s and not from the Committee.

Dr Khoza noted that there was a contradiction between the versions given by the SABC and the Auditor-General and this should be reflected in the Findings. The version of the Auditor-General ought to be accepted because the Auditor-General was the supreme auditor.

Ms Loliwe noted that Members supported the findings of the Auditor-General.

The Chairperson agreed that the Committee should associate with the findings of the Auditor-General.

Ms Kilian suggested the manner in which these views could be incorporated in the paragraph.

Mr Swart corrected the version provided by Ms Kilian.

Mr Mokoena said that the Swart’s version should start as follows: “after conducting inquiries, the Committee found that the SABC failed….”. It should be noted that there was a fruitless expenditure.

Paragraph 22.3.3
Ms Loliwe suggested that certain words be deleted and suggested an amendment.

Paragraph 22.3.4
Ms Kilian suggested an amendment. She noted that there was a looming financial crisis which could led to the Corporation being insolvent. The Committee should express its concern about the SABC’s financial sustainability. The SABC finances were poor and deteriorating.

Mr Waters supported the paragraph as it stood.

Dr Khosa remarked that she was not necessarily opposing the proposed amendment, but she felt that what constituted financial crisis should be captured in the context of the SABC. Did the Committee have enough evidence to come to the conclusion taken in the paragraph? Did the Committee check the SABC books?

Mr Chauke remarked that the Committee should confine its work to its Findings and Observations instead of digging up the causes of the financial crisis.

The Chairperson agreed that the financial management was in crisis and this should be reflected in the findings.

Para 23.1.1 – 23.1.7: Memorandum of Incorporation (MOI)
Mr Mokoena stated that the conclusion in paragraph 23.1.1 would depend on the MOI under discussion. He said that the Minister had to hand in a proper and official MOI document. He was talking about the reputation of the SABC. The Committee should discuss the failure to register the MOI and the failure to operate under the registered MOI.

The Chairperson noted that appointment and removal of staff was discussed in paragraph 23.1.2.

Dr Khoza recommended that the Committee knew that there was only one MOI that was found to be factual and effective.

Ms Loliwe said that 23.1.4 signalled the irregularity of the MOI. Added to this, there was an irregular amendment of the MOI.

Mr Chauke said that if it were possible, one needed to align the amended MOI and initial MOI in a way to find a balance between the two.

Mr Waters supported the paragraph but had a problem with the amendment effected on the MOI.

Ms Kilian said that there was an issue of quorum which was stipulated in the MOI. The amended MOI was serious because it removed the power of the Board to appoint staff and gave more power to the Minister to intervene in SABC matters.

Mr Singh said that the paragraphs when referring to the CIPC non-registered MOI , should place “MOI” in inverted commas because it was not a MOI per se. They should also speak to the consequences of the MOI.

Mr Mahlangu said the Committee should recognise that there was only one MOI.

Mr Mokoena stated that it should be shown how the operation of the SABC deteriorated due to the MOI. He said that this should be under a subheading called the administration of the SABC in the Findings. He had drafted three paragraphs. The first point talked about the Minister’s failure to register the founding document, the second point was that the Minister failed to register the amendment to the MOI despite the Minister saying the amendment was registered. The MOI that was registered was former Minister Carrim’s. That made Minister Muthambi’s MOI unenforceable. The third point was that the Minister allowed the delegation of authority framework to be the regulatory framework. This rendered the overall operations of the SABC legally questionable. He felt that the Committee should highlight what the Committee picked up about the MOI. The Committee should look at all the founding documents. The entire administration of the SABC was a problem.

Ms Loliwe sought clarity on the new heading introduced by Mr Mokoena and on whether it should be subject to discussion.

Mr Chauke remarked that there had been no further amendment and that the administration document had never been approved. The subheading was the MOI and should not be changed. The current Minister implemented matters arising from the MOI signed by former Minister Carrim.

Mr Waters felt that it did matter if the document was given consideration.

Dr Khoza objected to the document handed in. The Committee should focus on those issues that were so significant they could not be left out. She did not understanding why Mr Mokoena’s proposal was needed.

The Chairperson said that Members should state clearly their position on the document. They should tell what they think they were comfortable with and provide suggestions. Only three minutes per member was allocated. Those who were not objecting or providing suggestions should make the procedure simple by stating that they were covered.

Paragraphs 24.1.1 to 24.1.6: MultiChoice
After a lengthy discussion, Members noted certain elements in the paragraphs that needed to be revised and paraphrased. Words like ‘suspicious’ were changed to ‘questionable’. There were uncertainties that needed clarification in accordance with the Committee findings and observations.

Mr Singh was of the view that there should be no further investigation.

Dr Khoza agreed. However there were still uncertainties with regard to MultiChoice. The Committee was suspicious of its transactions. Did the asset remain public?

The Chairperson noted that the issue at dispute was uncertainty and was not about guilt and innocence.

Paragraph 24.4.1: Foxton Communicating
Mr Swart suggested an amendment with regard to the release of Committee’s Interim Report.

Ms Kilian said that the paragraph should refer to Ms Dlamini’s evidence.

Mr Mahlangu asked if ‘clarified’ or ‘disputed’ should be used to capture the essence of the Committee’s view on matter.

Ms Loliwe seconded the word ‘clarified’.

Paragraph 25.1 and 25.2: Irregular appointments and dismissals and vetting
Ms Kilian, referring to appointment of secretary, stated that it was a matter that needed further investigation. There needed to be clarity. How did the Board appoint the Secretary and Deputy Secretary? Appointments seemed to be irregular. There was no evidence showing that appointments were made in terms of the MOI.

Mr Singh sought clarity on Mr Kilian’s contention. Did she draw her conclusion from the Committee’s Observations or from another document?

Mr Waters agreed with Ms Kilian.

Mr Mahlangu objected to zooming in the positions of the SABC and agreed that the suggested investigation was crucial in order to get to the bottom of all irregular appointments.

The Chairperson sought clarity on whether these views were being drawn from the Committee’s findings.

Ms Kilian agreed. She said that if the paragraph failed to refer to the Secretary, it should refer to concerned names in top or senior positions. There was a correspondence from the Secretary which was followed by an appointment of a new secretary. There was abundant evidence to the effect that senior management were changing staff in certain position in accordance with their wishes.

The Chairperson agreed that an investigation in irregular appointment and dismissal should be recommended.

Mr Mahlangu said that the Committee found that the Secretary was appointed in terms of the Companies Act.

Mr Singh said that the position of secretary was very important and the evidence provided was misleading. The secretary was appointed by Mr Motsoeneng and this appointment was irregular.

Ms Loliwe said that if names were going to be mentioned, there should be consistency. She noted that irregularities in appointment of staff was not limited to secretary and thus suggested an amendment of paragraph. It was not only COO who was appointed outside of the relevant employment processes.

Mr Singh said that there was no need to mention names of other people. Mr Motsoeneng was mentioned because there was an adverse finding made against him by the court as well as the Public Protector.

The Chairperson noted an amendment made by Ms Loliwe.

Paragraphs 26.1-26.1 Response to the Public Protector Report and ICASA rulings
Mr Swart noted these paragraphs were confusing and proceeded to suggest a revision.

The revision was discussed so as to find a more appropriate version.

Paragraphs 27.1.1-27.1.6: SABC response to the inquiry
Mr Mahlangu noted that these paragraphs did not refer to core challenges and to certain attempts to undermine the Broadcasting Act.

Ms Kilian said these paragraphs should contain a statement that the SABC tried to stop the Committee from conducting an inquiry into SABC operations and the appointment of Motsoeneng should be elaborated on.

Paragraphs 28.1: Compliance with the Broadcasting Charter
Ms Kilian suggested an amendment of the paragraph.

Ms Loliwe sought clarity on whether there was enough evidence to support how the SABC revenue was generated or how the SABC lost its revenue. Was a loss of revenue a mere allegation?

Paragraphs 30.1.1 – 30.1.2: Appointment and Induction of new Board of Directors
The Chairperson asked if all shortlisted candidates were subjected to security vetting.

Mr Singh said that security vetting could take six months.

Ms Loliwe suggested that the paragraph 30.1.1 be revised.

Ms Swart referred to the letter of the Public Protector which should be given consideration.

Mr Mokoena noted that he was concerned that the Broadcasting Act was in the process of being amended and the Bill was sitting with the Portfolio Committee on Communications. He worried that it could be too late to propose further amendment.

The Chairperson responded that it was not too late.

Risk-mitigation measures: Regularising previous decisions and sub-committee
Mr Mokoena stressed that it should be emphasised that the Broadcasting Act was supreme and thus superseded the Companies Act. Steps to be taken should be made in consideration of the Broadcasting Act, which should be given precedence. The Companies Act and other legislation should supplement the Broadcasting Act. It was suggested that the paragraphs be revised to reflect this view.

Dr Khoza agreed.

[The PMG monitor left the meeting at 2:20am. The meeting continued until 3am].


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