CEO removal at ICASA & Film and Publication Board; ICASA Chairperson conviction

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Communications and Digital Technologies

06 February 2018
Chairperson: Mr H Maxegwana (ANC)
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Meeting Summary

ICASA was requested to focus its presentation strictly on the settlement agreed for payment to suspended CEO Pakamile Pongwana who resigned in August 2017.

ICASA explained that last year the Council received several complaints on the misconduct of the previous CEO which included sexual charges and gross insubordination or insolence. On 11 May 2017, Council instituted an investigation into the alleged conduct of the CEO and sought legal advice. Mr Pongwana was afforded an opportunity to make written representation why he should not be placed on precautionary suspension until the investigation was finalised. On 8 June 2017, Mr Pongwana made written representations to Council. Upon consideration of the representation, Council resolved to place the CEO on precautionary suspension. The investigation findings were not conclusive. However, witness statements revealed that the CEO did make sexual utterances. These warranted a disciplinary process be conducted. On 27 June 2017, the CEO was presented with a charge sheet, and those charges included misconduct and insolence. The disciplinary hearing was set down for 28 July 2017. On the 21 July 2017, the CEO proposed through his legal team to resign subject to being paid the remaining 14 months of his contract and confidentiality on the matter. The Council made a counter proposal of one month salary, and the CEO requested postponement of the hearing to consider the counter proposal – the matter was postponed to 18 August 2017. Now during this process the CEO had already received two months' salary while on suspension. On the 7 August 2017, Mr Pongwana proposed resignation with a reduced payment of ten months salary. After due consideration and with the intention to put the matter to rest and to stabilize the organisation, Council resolved to offer five months’ salary. Mr Pongwana accepted the offer and resigned. However, he had already received three months' salary while on suspension.

Members asked ICASA about the intricate issues around the victims and how it dealt with this in light of the agreement to the demands of the former CEO; the role played by the Board in the suspension of the shop steward; the organisation’s policy on the victimisation of employees; if ICASA proved that the CEO actually did what was alleged; why Council settled if misconduct and insolence were legitimate, adequate grounds for dismissal; why the Board pursued negotiations and settled if the allegations were legitimate; if the Minister was kept in the loop on this matter; if the shop steward was reinstated; consequences in terms of punishment if the disciplinary case was carried through all the way; the role and the views of the victim in the process; if she received psychological support and decisive steps were taken to ensure support was provided; what type of sexual harassment was it; why the Board did not conclude the disciplinary case; if the Board engaged the complainant about the settlement and she agreed to drop the disciplinary hearing.

The Film and Publication Board reported on the suspension and removal of its CEO, Mr Themba Wakashe. On 5 May 2016, Council received a whistle-blower complaint against the former CEO through an email from John Doe, addressed to all Council members and the former Minister. The allegations in brief included:
• Travel irregularities (using FPB resources for private travel);
• Absenteeism;
• Use of alcohol during working hours;
• Working irregular hours (coming in late and leaving early);
• Running a private art dealership; and
• Lack of proper leadership.

Initial steps taken by the Council were:
• On 23 May 2016, the Chairpersons Committee discussed the matter and resolved that the CEO be given an opportunity to respond to the allegations.
• The CEO agreed to respond by 2 June 2016, but he did not do so.
• On 10 June 2016, a Council meeting was convened to discuss the CEO's response made that day and he made an oral presentation at the meeting. He vehemently denied all the allegations.  

Subsequent to this the Council undertook to:
• Establish a Task Team of three members to conduct a preliminary enquiry.
• Staff were encouraged to make  disclosures to the Task Team however no written disclosures were made.
• The a Task Team presented its Report findings to Council who adopted it on 23 September 2016.
• The Report painted a picture of general fear amongst staff, as well as the mistrust of Council by staff, who felt that Council was protective of Executives.
• The Report confirmed the allegations and a further allegation of sexual harassment and purchasing alcohol using organisation funds which was against policy.

The final investigation report was adopted on 22 February 2017. Acting on legal advice, disciplinary action against the CEO was taken. The CEO was requested to submit written representation in response to the allegations and show why he should not be suspended pending disciplinary action. He did not respond to the allegations or the suspension.

As for the disciplinary action, this happened:
• On 16 March 2017, Council resolved that the CEO be placed on precautionary pending the outcome of the disciplinary process. He was suspended the next day. A charge sheet was issued on 26 March 2017.
• Council proposed pre-dismissal arbitration proceedings be used and the CEO consented in writing.
• However, the consent was not on the prescribed CCMA Section 188A form, which was sent to the CEO.
Attempts to obtain the relevant form were in vain.
• Council was briefed on the proposed settlement negotiations on 14 June 2017, and a resolution on financial parameters for a settlement was adopted. The parties reached agreement on 15 August 2017. On 21 August 2017, the parties signed the settlement agreement, and the CEO resigned with immediate effect. A Report of the outcome was given to the Minister and Portfolio Committee Chairperson.

Members asked why public money was paid to Mr Wakashe and how much it was; the reason for not being able to continue to work with him; why other Board members did not agree to the actions; the supervision role of the Board over the CEO as prescribed in the Act and whether the Council or Board had any supervision over the CEO; how much the Board spend on investigations; how the Board was going to correct the perception that it was trapped between the former Minister and the former CEO; if the Board dealt with the matter properly; how it intended to respond to the possibility of the former CEO coming back; the specific circumstances of the settlement; why the Council/Board settled on this matter; how the CEO conducted his job; how the settlement was agreed upon; the procedures followed by the Board after the anonymous complaint; how much was spent on Sekela Xabiso Forensics investigation; what the dissenting Board Members said about the matter; and if there were any complaints that the CEO did not attend work.

ICASA chairperson, Rubben Mohlaloga, who had been called to the meeting following his conviction on charges of fraud and money laundering in January, tendered his apologies due to illness. The Chairperson said that the Mohlaloga matter had been dealt with. The Committee must write to the Speaker about the Committee’s decisions about Mr Mohlaloga which would need to be perused by legal expects before the Committee acts on them.

Meeting report

Opening remarks
The Chairperson remarked that this is the week of the State of the Nation Address (SONA); therefore members should relax and prepare accordingly for the SONA. There were outstanding matters which included reflecting on the matter written to the Committee by the Deputy Speaker on the State Capture allegations which allegedly involved the Former Minister of Communications, Ms Faith Muthambi. Processes were being taken for the committee to deliberate on how it was going to deal with the matter. Issues of this nature either result in an inquiry or an investigation by the Committee or by an ad hoc committee. The directive will be presented to the Members in the next meeting so that Members can engage on it. The Committee will also have to deal with the MultiChoice and ANN7 issue – most importantly ascertain its responsibility in this matter. These matters must be dealt with swiftly, and a clear way forward needs to be determined. The appointment of the SABC Chief Operating Officer has been concluded; thus, the Committee should look into releasing a statement only when it is confident about the facts it has.

Mr M Kalako (ANC) said that the Committee must consider legal advice on the letter from the Deputy Speaker and factor that into the programme. The Committee should prioritise the MultiChoice and ANN7 matter as the country eagerly awaits what might happen; therefore the companies should be called to Parliament as soon as possible. He raised the SABC Inquiry Ad Hoc Committee recommendations - the Committee needs to conclude what it should do about them as a matter of priority.

The Chairperson said that perhaps the Members can reflect on the recommendations at the next meeting to ascertain what has not yet been implemented; however, there are recommendations that have been implemented by the Committee.

Ms P Van Damme (DA) said, in response to the Chairperson’s remarks about Members relaxing to prepare for the SONA, that Members can only relax and prepare for the SONA once the ruling party has decided which president was going to address the country. She agreed with Mr Kalako on the urgency of dealing with the SABC Inquiry recommendations as well as the MultiChoice and ANN7 matter.

The Chairperson said that it would be important to find space to visit MDDA and deal with the investigation. At the moment MDDA does not have a Board Chairperson but the investigation will continue as planned.

Mr W Madisha (COPE) said that he had the letter from the Speaker and it stated that leaders of political parties are requested to meet at 2pm to deliberate on this matter of SONA. He agreed that the MultiChoice and ANN7 matter needs to be dealt with expeditiously.

The Chairperson said that the Committee Secretary received a Whatsapp message from ICASA Chairperson, Mr Rubben Mohlaloga, stating that he was on sick leave since yesterday as well as today as a form of apology for his absence at the meeting. He asked Members to reflect on this matter first.

Ms N Tolashe (ANC) said that she had difficulty accepting the “text message” apology sent through to the Secretary by Mr Mohlaloga this morning. However, given the court outcome regarding Mr Mohlaloga, the presence of the Department Acting Director General would suffice because she would have suggested that Mr Mohlaloga be excused if he was present as the Members would deliberate on the court judgement against him – this would be best done in his absence.

Ms Van Damme agreed that the Committee needs to deal with the Mr Mohlaloga matter decisively, as well as that of the MDDA Board chairperson. He can no longer serve as the chairperson as per the MDDA Act.

The Chairperson said that the Mohlaloga matter was dealt with; therefore, the Committee first needs to write to the Speaker of Parliament to outline these matters so that they can be dealt with. Implications of the Committee’s decisions regarding Mr Mohlaloga would need to be perused by legal expects before the Committee acts on them to avoid potential legal implications.

Suspension & removal of Independent Communications Authority of South Africa ICASA (CEO)
Mr Keabetswe Modimoeng, Councillor: ICASA, said a report detailing the events that led to the previous CEO’s resignation following the allegations of misconduct was shared with the Committee on 18 October 2017. Last year the Council received a couple of misconduct complaints about the previous CEO which included sexual charges and gross insubordination or insolence. With regards to the allegations, on the 21 April 2017, a trade union shop steward reported that the CEO sexually harassed a female colleague during a meeting held in Durban. Subsequently, on the 29 April 2017, the shop steward was placed on precautionary suspension by the CEO for making “false” allegations. In response, on the 11 May 2017, Council instituted an investigation into the alleged conduct of the CEO and sought legal advice.

In light of the precautionary suspension of CEO Pakamile Pongwana on 30 May 2017, Mr Pongwana was afforded an opportunity to make written representation as to why he should not be placed on suspension until the investigation was finalised. On 8 June 2017, the CEO made written representations to Council and upon consideration of the representation, Council resolved to place the CEO on precautionary suspension.

As for the investigation and charges, the investigation findings were not conclusive. However, it revealed from the witness statements that the CEO did make sexual utterances. These warranted that a disciplinary process be conducted. On the 27 June 2017, the CEO was presented with a charge sheet which included misconduct and insolence. The disciplinary hearing was set down for 28 July 2017. Prior to this (on the 21 July 2017) the CEO proposed through his legal team to resign subject to being paid for the remaining 14 months of his contract and confidentiality on the matter – these were later withdrawn. The Council made a counter proposal for one month salary, and the CEO requested postponement of the hearing to consider the counter proposal – the matter was postponed to 18 August 2017. During this process the CEO was already on suspension, and had already received two months' salary whilst on suspension. On 7 August 2017, Mr Pongwana proposed resignation with a reduced payment of ten months salary. After due consideration and with the intention to put the matter to rest and to stabilize the organisation, Council resolved to offer payment of five months’ salary instead of the proposed ten months salary. Mr Pongwana accepted the offer and resigned; however, he had already received three months' salary whilst on suspension.

Discussion
The Chairperson asked Council to cover specific and intricate issues around the victims and how the organisation dealt with these in light of the agreement to the demands of the former CEO.

Mr Tolashe asked the Council to speak about the role the Board played when the shop steward was suspended. She believed that the Board had a responsibility to guard against this. Secondly, what is the organisation’s policy on victimisation of employees because surely they were women?

Mr Madisha said that the organisation should not generally negotiate with a culprit as the investigation suggested. He asked if the organisation proved that the CEO actually did what was alleged.

Ms V van Dyk (DA) asked if the misconduct and insolence were not adequate grounds for dismissal. Secondly, why did the Council settle if the charges were considered grounds for dismissal. Why was he given an opportunity to negotiate?

Ms Van Damme said that if the Board felt it had a strong case of sexual harassment, why did it not pursue the matter instead of pursuing negotiations and throw money to this person?

Mr Modimoeng replied about the role of the Board when the shop steward was suspended, saying the delegation of duties dictate that those responsibilities rest within the ambit of the Chief Executive and the Board was aware of this but it could not deal with it because it was an operational matter. Thus, it would have been unprocedural for the Board to deal with this directly. The Board was mindful of this but it could not get involved in the suspension of employees at that level and in that manner.

The ICASA Human Resources policy is that sexual harassment is a dismissal offense. The complainant was present at the meetings, but she was not comfortable. In addition, she had to travel far to get to where the hearings were held. This took so much from her and given history on such cases, she would rather not partake in the process. Now where the main complainant of such a sensitive matter doubts her own courage to carry the matter through - this confronted the Council with a gargantuan challenge. The fact that the shop steward was suspended exacerbated the issue.

In terms of the settlement package, the Council was trying to be responsible in ensuring that ICASA does not end up in a situation where it was obligated to pay for the remainder of the CEO’s contract. In terms of contract law, it appeared that would end up being the case. The allegations could have been conclusively proven after the hearing but postponements started happening. If the hearing was not concluded, the Council would have had to risk paying the CEO the 14 months’ salary he initially proposed.

As for the legitimacy of the witnesses, they were employees and corroborated that such behaviour was witnessed but they refused to partake in the proceedings due to fear of victimisation. Council was very clear that the complainant should receive psychological support. When the complainant saw the former CEO for the first time in a meeting she broke down and cried because she was extremely shaken. Now the Board had to make a decision on this to make the process more comfortable for her whilst ensuring that the hearings were not further delayed or compromised.

The Chairperson asked if the Minister was kept in the loop about this matter.

Mr Modimoeng responded that the shareholder representative was indeed informed and updated and she was presented hard copies of everything that was documented.

Ms W Newhoudt-Druchen (ANC) asked about if the shop steward was eventually reinstated. It seems that the shop steward was the victim’s support system as the initial person she reported the incident to but that was taken away from the victim. When the victim came forward to speak in the presence of the CEO she was bound to break down because the one person who had been supportive to her was on suspension. This probably left her feeling paralysed and helpless. She asked why the Council allowed her to speak without the support of the shop steward.

Ms Van Dyk asked what would have been the consequent punishment if this process had been carried out all the way.

Ms Van Damme asked about the role of the victim in the process; her views about what had happened; if she received any psychological assessment and support; and if decisive steps were taken to ensure that support was sufficiently provided.

Ms Tolashe lamented that she did not grasp any sensitivity from the Council or Board regarding the gender based violence that was at the centre of this matter. The Board continued to view her as a victim and it does not appear to be as sensitive as it was supposed to be. If someone that harassed you was brought before you and that person possesses influence and power to suspend the shop steward, obviously the victim would be terrified. She felt the Board allowed itself to be manipulated by the CEO because it was avoiding spending. She suggested that the Board should state if it was satisfied with how it dealt with the matter.

The Chairperson said that this was an exercise for the Committee to understand where the Board was coming from in terms of the decision that it took on the departure of Mr Pongwana as well as the handling of the victims. The Committee would then take a decision on how the Board dealt with this matter.

Mr M Gungubele (ANC) said that it appears that the Board was uncertain on where its area of focus was in this entire matter – whether the focus was on granting the CEO an amicable departure or the sexual harassment he allegedly committed.

Dr M Ndlozi (EFF) said that the presentation was quite bad. What was the CEO was charged for; if it was utterances, physical harassment, or did he attempt to exchange favours for intercourse. He asked about the outcome of the hearing and if he resigned before the hearing was concluded or if he was dismissed.

The Chairperson responded that there was a settlement agreement.

Mr Modimoeng responded to Dr Ndlozi saying that the charge for sexual harassment was separate from the misconduct and insolence charges. However, insubordination/misconduct and insolence was attached to sexual utterances. The complainant told the investigators that the former CEO allegedly touched her bum in full view of other employees although she had made him aware that she was uncomfortable with what he had done. The other sexual harassment charge related to the utterances – it was alleged that the CEO had told the victim when she enquired about a prospective position and raise that women should be slept with in order to get into higher positions.

On Mr Madisha’s question, he said there is a trade union representing the employees. The CEO was represented through his lawyers. The shop steward was also placed on suspension concurrently with the CEO, and the Board could not revoke the former’s suspension because it was an operational matter. On the 31 May 2017 the meeting could not continue because the union refused to discuss anything with the Board until the suspension was revoked. The union argued that it could not proceed with the hearing whilst the shop steward was suspended. However, the Council could not get involved in operational matters of employee suspensions but the union eventually understood the Council’s stance. The shop steward was subsequently reinstated.

The deliberations of the Board were always centred on the victim, but it had to emphasize the financial implications that would result if a settlement was not reached. The Board believed that it did its utmost best given the circumstances and the facts.

Mr Paris Mashile, Councillor: ICASA added that the Board applied its mind as a collective and thought the matter through before any decisions were taken. It had to also ensure that there was procedural fairness - going through the process this was indeed necessary. This was a once in a lifetime scenario and it was a once-off but the Board did the best it could. The Board would have violated its mandate if it had stepped into operational matters such as the suspension of the employees but it did not do so because it had to ensure that procedural fairness was at the centre of dealing with the matter.

Ms Van Damme said that her questions about the victim were not answered.

Dr Ndlozi said that Mr Mashile was wrong in saying that dropping the case was in favour of procedural fairness. Perhaps the Board was collaborating to protect the CEO, if justice was at the core of the matter, the Board could have taken the matter further and fought through. There was no justice at all in this matter. With exasperation, he lamented that companies are incapable of justice when it comes to dealing with matters of gender based violence in the workplace. The Board was definitely wrong in the manner in which it dealt with this matter. The Board is not speaking clearly; it is speaking in many tongues. Why did it not continue with the DC (disciplinary case) through to the end and make a pronouncement. Perhaps it is because the delegation is only men and there is generally a lack of sensitivity on this matter? He said angrily that the settlement was a gentlemen’s agreement.

Dr Ndlozi said the matter has been going on since the beginning of 2017 but it was concluded sometime in August of last year. This was not a complex case and it reveals the incompetence of the Board. He suggested that perhaps the Committee should get an opportunity to engage with ICASA on its policy in dealing with matters of laying complaints because it seems to be very poor.

Ms Van Damme asked if the witnesses were interviewed and took part in the process.

Mr Gungubele said that listening to Mr Mashile say that the Board did not want to mess up procedure was not pleasing to hear. It sends a message that the Board was more concerned about handling the matter with care instead of focusing on supporting the victims and ensuring they get justice. It was rather interesting to hear the delegation go on about how the Board was concerned about procedure because in his understanding of these matters, the procedure should not be a concern if the Board aimed at achieving justice for the victims. Procedure should never have to be of concern unless it is in question. The decision taken by the Board could easily be viewed as a cover up, because in its concern about procedure, it ended without a conclusion on the allegations.

Dr Ndlozi suggested that the Board needs to go back and make a finding on this matter. The Committee should resolve to order the Board to reach a conclusion on the disciplinary hearing and there must be a report. The former CEO was released freely, and he can easily repeat the same behaviour in another institution.

The Chairperson said that the Committee will find time to reflect on the matter, because there were so many holes in the manner that the Board dealt with this. The Committee would take a decision.

Mr Modimoeng replied that the complainant was engaged prior to the hearing to ascertain if she was in a position to engage during the hearings or not, in fact even prior to the settlement agreement. Secondly, she did receive counselling through the ICASA I-CARE programme which consists of psychologists that can see the employees whenever they need psychological support. The findings of the investigation are contained in the investigation report, and this can be furnished to the Committee.

Ms Van Damme asked specifically if the Board spoke to the complainant regarding the settlement; if she was engaged thoroughly on this matter; and if she agreed to drop the disciplinary charges.

Mr Modimoeng replied that the Board had engaged with the victim through the lawyers, and the lawyers came before the Board and explained the condition of the complainant and the Board took that into cognisance. The method of engagement was oral discussions throughout the hearing with the lawyers and the complainant, and the feedback received through the lawyers was that the complainant was comfortable with the settlement.

Mr Kalako said that being accused of sexual harassment is a serious matter. Once the Board presents something of this nature without a conclusion it sends a very wrong message to the public. He suggested that the department takes note of this. Therefore, it is extremely important that the Board treads carefully when presenting information of this nature. He supported the suggestion that a conclusion on this matter was imperative; thus the Board must go back and finalise it.

The Chairperson thanked ICASA for its presence, and informed Members that this matter will be considered by the Committee to ascertain whether the manner in which the Board dealt with this issue was appropriate and handled with due diligence. He agreed with Mr Kalako on his point, and hopes the Board took note of it.

Film and Publication Board CEO suspension and removal
Ms Thoko Mpumlwana, FPB Council Chairperson, said that the suspension and removal of the CEO was a very painful process and it was indeed unfortunate that the FPB had to come before Parliament to present on this. Members of the Board were not always unanimous on some of the decisions. She provided backround saying that on the 5 May 2016, Council received a whistleblower complaint against the former CEO through an email from ‘John Doe’, addressed to all Council members and the former Minister. The allegations in brief included:
• Travel irregularities (using FPB resources for private travel);
• Absenteeism;
• Use of alcohol during working hours;
• Working irregular hours (coming in late and leaving early);
• Running a private art dealership; and
• Lack of proper leadership.

Initial steps taken by the Council were:
• On 23 May 2016, the Chairpersons Committee discussed the matter and resolved that the CEO be given an opportunity to respond to the allegations.
• The CEO agreed to respond by 2 June 2016, but he did not do so.
• On 10 June 2016, a Council meeting was convened to discuss the CEO's response made that day and he made an oral presentation at the meeting. He vehemently denied all the allegations.  

Subsequent to this the Council undertook to:
• Establish a Task Team of three members to conduct a preliminary enquiry: Council Deputy Chairperson, Ms S Mangena, Council Members Adv L Nevondwe and Dr N Skeepers.
• Staff were encouraged to make disclosures to the Task Team however no written disclosures were made.
• The a Task Team presented its Report findings to Council who adopted it on 23 September 2016.
• The Report painted a picture of general fear amongst staff, as well as the mistrust of Council by staff, who felt that Council was protective of Executives.
• The Report confirmed the allegations and a further allegation of sexual harassment and purchasing alcohol using organisation funds which was against policy.

The external investigation, following a closed bidding process, where quotations were sourced from the National Treasury Central Supplier Database, 5 quotations were received. SekelaXabiso (SkX) Forensics was appointed as the preferred service provider, and it commenced the investigation in December 2016 and concluded the process in the third week of January 2017. The final investigation report was presented to Council on 31 January 2017, and adopted on 22 February 2017. Acting on legal advice, disciplinary action against the CEO was taken. The CEO was requested to submit written representation in response to the allegations and show why he should not be suspended pending disciplinary action. He did not respond to the allegations or the suspension.

As for the disciplinary action, this happened:
• On 16 March 2017, Council resolved that the CEO be placed on precautionary pending the outcome of the disciplinary process. He was suspended the next day. A charge sheet was issued on 26 March 2017.
• Council proposed pre-dismissal arbitration proceedings be used and the CEO consented in writing.
• However, the consent was not on the prescribed CCMA Section 188A form, which was sent to the CEO.
Attempts to obtain the relevant form were in vain.
• Council was briefed on the proposed settlement negotiations on 14 June 2017, and a resolution on financial parameters for a settlement was adopted. The parties reached agreement on 15 August 2017. On 21 August 2017, the parties signed the settlement agreement, and the CEO resigned with immediate effect. A Report of the outcome was given to the Minister and Portfolio Committee Chairperson.

With regards to the sexual harassment allegations, one of the allegations against the CEO, contained in the SkX report was that he had used his work-issued tablet to download pornography. This allegation was made by an employee, who claimed that the CEO had made unwanted sexual advances to him physically and through text mesages. He had also alleged that the CEO had, on a number of occasions, asked him to delete downloaded pornography from his tablet. Accoding to the report, the employee had given oral evidence to the SkX investigators, and said that he had deleted all the text messages. According to the investigators, the employee had offered to depose an affidavit supporting his allegation, in the absence of the evidence. He had also given SkX the go ahead to try and source the relevant evidence from the relevant mobile network provider. SkX investigators later reported that they could not access any information as the network provider said they did not keep text records on their servers. SkX informed Council that the CEO’s tablet, which they had seized as part of the investigation, had been ‘’cleaned’’ and therefore had no data.

On 1 April 2017, the FPB received a notice of motion in respect of an urgent court application by the CEO. He sought to challenge the validity of his suspension, as well as interdict Council from pursuing further disciplinary action against him. The interdict aplication was heard on 6 April and the CEO’s application was dismissed, with the FPB awarded partial costs. Engagements with the CEO continued, as Council tried to finalise the pre-dismissal arbitration process. However, this was delayed as the CEO was not cooperating in signing the prescribed CCMA form. In the meantime, it emerged that the sexual harassment complainant was no longer willing to proceed with the affidavit, or to testify in the disciplinary hearing. With this realisation Council, in consultation with the Initiator and FPB Legal Manager, decided that it would be futile to proceed with the sexual harassment charge, as there was no complainant on record (witness). It was therefore resolved that the sexual harassment charge be withdrawn, and only the charge of excessive absenteeism would be pursued. At a Special Council meeting held on 17 May 2017, Council resolved that FPB Legal Unit and Initiator be given permission to enter into settlement negotiations should the matter come up. On 8 June, 2017, the FPB Legal Manager met with the CEO and his legal team, whereupon they briefed them about the amended charge sheet. At this meeting, the CEO’s team proposed discussions on mutual termination, citing loss of trust, and the fact that the CEO felt that even if he was cleared of wrongdoing, he would not be comfortable continuing to work in a tainted environment.

In terms of the settlement negotiations, Council was briefed about the proposed settlement negotiations on 14 June 2017, and a resolution on financial parameters for a settlement was adopted. The parties reached agreement on 15 August 2017, and on 21 August 2017, the parties signed the settlement agreement, and the CEO resigned with immediate effect. A full Report on the outcome of the process was written to both the Minister and the Chairperson of the Portfolio Committee.

In conclusion, Council acknowledges that the past period has been the most difficult in the history of the entity. Council has worked hard to ensure the work of the organisation continues to be done without any compromise. FPB is now fully focused on ensuring that all Executive positions are filled and the organsiation is able to function optimally.

Discussion
Ms Van Damme asked the reason for public money being paid to the former CEO and how much was it. Secondly, what was the reason for not being able to continue to work with him? Why did the other Board members not agree to the actions?

Ms Tolashe said that the Board claimed that it heard from the whistleblower about the performance of the CEO. She asked what the role of the Board was when it came to supervision of the CEO as prescribed in the Act. How much did the Board spend on the investigations, and how is the Board going to correct the perception that it was trapped between the former Minister and the former CEO? Does the Board believe that it dealt with this matter properly? It seems there was no case against Mr Wakashe – so how was the Board going to respond to the possibility of the former CEO’s return to the organisation. She was very disappointed in how the Council conducted the investigation.

Ms Van Dyk asked about the specific circumstances around the settlement. On the charge sheet, there were five charges against the CEO – so why did the Council settle? The allegations were adequate for prosecution. She asked how the CEO conducted his job and if the Council or Board had any supervision over the CEO. Lastly, she asked how the settlement was agreed upon. If a person does not show up for work, can the Board tell the Members how many days did he not show up for work. Were there no complaints given to HR because this has been going on for a long time. She asked for the minutes to be made available.

Dr Ndlozi asked about the procedures that were followed by the Board when it received an anonymous complaint within the organisation. If the Board fails to provide some form of protection for the complainants, then it makes it very difficult for witnesses or victims to follow through with the case because oftentimes victims or complainants need some form of protection. The incompetence of the Board here makes it very difficult to understand how the Board handled the matter. There was no thought put into authenticating and concretizing the complaints lodged by the anonymous individual, so what did the Board do with this and how it did it handle the matter in trying to find justice for that person. The country is seized with abusive men in workplaces, so he was uncertain if there was any real thought put into handling the matter – he was not convinced.

The Chairperson said that the sexual harassment stigma is problematic because it sticks as soon as a person is charged with such. In this case it was subsequently dropped and the stigma still stuck. This was a serious problem.

Mr Madisha asked the Board to comment on its performance assessment of the CEO in order to be convinced that he was fit to carry out his duties.

Responses
Ms Mpumlwana replied that the organisation is not homophobic and it was uncalled for to be told that the FPB was prejudiced in the matter due to the former CEO’s sexual orientation. It is alleged in the public domain that the FPB dealt with the CEO in a homophobic manner and the charges were due to his sexual orientation. The Board made it clear to Sekela Xabisa that whatever investigation was to be conducted by Sekela Xabisa, it must not have anything to do with his sexual orientation. She lamented that the public perception was not fair, and it needed to be corrected.

The CEO was not confronted solely on the sexual harassment charges. The person concerned (victim) threatened to lay a charge against the organisation because as far as they were concerned the Board received the information through a third party and now their name was implicated, which defeated the anonymous complaint. Secondly, Members needed to note that people refused to come forward and corroborate, particularly those who had made the allegations. The rest of the Board Members were not present because they made it clear that they were busy, and the secretary wrote to the rest of the Members of the Board but none of them responded.

On the evaluation and assessment performance of the CEO, the Board does not as a collective conduct performance evaluations of the CEO. This can only be done by the Chairperson and the Deputy of the Board, and Human Resources head, as per the Act. These assessments were indeed performed by the relevant persons.

As for how much was spent on the investigation, FPB put this information out and perhaps Members can look this up. She also informed Members that she was not aware of the differences between the CEO and the former Minister, so she could not comment or respond to that question. The absenteeism allegation was not conclusive because it was a matter of hearsay because the attendance biometric system was occasionally faulty, so this could not be proven. Hence, it was eventually dropped.

The matter could have been handled better by the Board, and the Board unashamedly admits to this. However, Members need to note that the Board did the best it could in ensuring that the matter was handled appropriately. As for the CEO’s pay-out – the figure was not disclosed, because the delegation was not prepared for this. The organisation settled due to a trust deficit and it was the sensible thing to do at the time as he did not want to be with the organisation anymore. The Board could not have provided any supervision over the CEO because it is not a full time Board – sometimes the CEO would come in and then go out for meetings out of office.

As for the charges lodged by John Doe, the financial statements have been audited and subsequently all the financial corruption charges on alcohol purchases were dropped because supporting documentation suggesting otherwise were provided and audited.

Ms Modjadji Mangena, FPB Deputy Chairperson, added that the delegation was present because it was able to come for this meeting. It was not because it was in support of the Chairperson and the rest of the Board who were absent were not. Those Members could not make it to this meeting. She suggested that perhaps the Committee should make some time to visit the FPB so that it can meet the rest of the Board Members. In addition, it is costly to travel to Cape Town so the Board felt that if fewer board members travelled it would be cost effective.

Ms Tolashe lamented about the hiring of Mr Sekala Xabisa to investigate the allegations against the CEO – the Board might as well hand its job over to him. As for the psychologists, are they in-house? People were depressed when the Committee conducted its oversight visit to the organisation, so what were the financial implications of having these psychologists on board. She asked if they were budgeted for. She asked if it was fair for the Committee to listen to the responses given by the Board Chairperson because they lacked substance. She wondered if the Board Council should even exist because it has proven to be frivolous.

She asked the Department Acting Director General to comment on the matter and why it took so long to handle this. She asked the Department’s plans on how this can be avoided to ensure that there is no re-occurrence.

The Chairperson asked about how much was spent on Sekela Xabiso.

Ms Van Damme asked what the rest of the Board members thought on the matter and why they were not present. She said that the Board did not have a case because Sekela Xabisa told the Board that it did not have a case, and Bowman Gilfillan. She asked what the dissenting Board Members said – the Committee wanted to hear from all the Board Members not simply those who agreed with the Board Chairperson.

Ms Van Dyk said that perhaps it was best that the Committee received a set of minutes of the meetings and the proceedings that took place because the Committee has heard only the side of the Chairperson. There were a lot of things that were not provided to the Committee such as what was on the charge sheet. She believed that the CEO was given a golden handshake, and this information was supposed to be furnished to the Committee as well. There was no reason to make payment if the trust between the Board and the CEO had depleted. She asked if there were any complaints that the CEO did not attend work. It would be interesting to hear if the CEO was performing given that he was allegedly hardly ever at work, does the Board care to comment on this.

Mr Madisha suggested perhaps the Committee should adjourn because it seems there was no scientific information that would be provided by the FPB at this point. Further, the Department itself has not done its work in providing oversight over these entities, particularly on matters of this nature. Therefore, the Committee should consider looking into this matter on its own and ask the Department and the FPB to collate all the necessary documentation so that the Committee can do its own assessment, and arrive at its own conclusion.

Ms Van Dyk said that a full assessment and the expenditure on the lawyers and the investigators need to be furnished to the Committee.

Ms Mpumlwana responded that there are minutes of every meeting and the Board meetings that decided on the settlement as well as the recommendation of the task team that made the recommendation to start on the discussions and how much was to be paid. She said the file was available and the Board was more than happy to leave it with the Committee.

The biometric system was faulty, she reiterated. The psychologists are in-house to support the staff in all its psychological support and staff members that have internal issues – they are not resident, they are external and the full costs are on the supporting documentation which can be provided today.

Mr Wakashe explicitly said when asked if he wanted to stay or leave that he wanted to leave. Sekela Xabisa did not tell the Board that it did not have a case but that the Board can take on certain allegations, such as the absenteeism. Other allegations could not stick, so they fell off. The issue that was brought by John Doe was the purchasing of alcohol which was later resolved by furnishing documentation that the alcohol was not purchased with the organisation’s money.

Mr Tlale Mokutu, FPB Council Secretary, responded that FPB spent R350 000 on the initial legal advice from Bowman Gilfillan which included supporting counsel for the hearings and the proceedings, and ensuring that legal advice was provided and proper processes were followed. Before Bowman was engaged there was an investigation by Sekela Xabisa which amounted to R499 000. The CEO settlement amount was R2.1 million which included 11 months’ salary and leave period that was not taken by the CEO, it also related to the allegations of absenteeism. Of the Council Members that were not present – when the FPB was invited in November it was instructed that the whole Council is available which FPB managed to secure, unfortunately the meeting was postponed. He then wrote to the Committee Secretary asking if the Board was required to bring the entire Council, but in the absence of a response the Secretary, it still invited the entire Council but unfortunately the majority indicated that they had prior engagements and could not make it.

The Chairperson said that the matter was now to be laid to rest until all the documentation was provided to the Committee for it to peruse the matter. There was a lot of information that still needed to be gathered and looked into.

The Committee will deal with the committee programme and it has already started a process of factoring in some of the organisations when the Committee is in Johannesburg for oversight.

The Department of Communications Acting DDG said that there are commonalities in the presentations made today. What he knows as an instruction which came from the Committee was that the Department develops an entity oversight strategy that will look into improving accountability instruments and governance. The Department is looking into that, and it will come before the Committee to present a turn-around strategy. However, he suggested that he could go back to the Department to look into what short-term intervention measures can be provided in the interim subject to the approval of the Chairperson to ensure that some of these issues are mitigated.

Mr Gungubele said that Members raised an oversight strategy a long time ago. The question that one must ask is how is that unit operating right now and how is the accountability of these agencies now if this is the long term issue. Also, how must Members believe the Department that it can assist the Committee now.

The Chairperson said the Department pays the person who is dealing with entity oversight, and that person is currently occupying the Chief Director position and it is his responsibility to ensure the strategy the Acting DG is talking about is implemented. His role is to oversee these entities and there are only five entities.

First Term Committee Programme
The Chairperson took the Members through the programme.

Ms Van Damme asked when the Committee will see MultiChoice and ANN7.

The Chairperson said that perhaps next Tuesday they can be slotted into the meeting.

Ms Van Damme suggested that perhaps MultiChoice and ANN7 should be dealt with the following Tuesday because next week there will be a rush, Members might be busy with the post-SONA debates.

The Chairperson agreed, and the programme was adopted with the proposed amendments.

The Committee adopted meeting minutes of 24, 28 November 2017 and 23 January 2018.

Discussion on the Committee strategic plan was again postponed for the next meeting. The Mr Rubben Mohlaloga issue had been discussed and resolved.

Ms Tolashe suggested that the Chairperson’s office should look into the previous year’s strategic plan and peruse on what was achieved, outstanding and inconclusive so that the Committee can work from that.

The Chairperson agreed, and this would be taken in consideration along with the SABC Inquiry Ad Hoc Committee’s recommendations.

The meeting was adjourned.
 

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