ICASA Chairperson conviction: legal opinion; MDDA Board impact study findings

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Communications and Digital Technologies

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

The Portfolio Committee on Communications met to hear the legal opinion relating to the conviction of the chairperson of the Independent Communications Authority of South Africa (ICASA). Members also received a presentation from the Media Development and Diversity Agency (MDDA) on a recently completed impact study, where the brief had been to reflect and evaluate the extent to which the MDDA was responding to its mandate of community media development, and to describe the impact of MDDA-funded projects on making a difference in the communities they served.

The legal advice relating to the conviction of the ICASA chairperson – who had since appealed against the verdict -- suggested that, based on the wording of the ICASA Act, it would suffice to trigger the removal process because indeed as it stood, the chairperson had been convicted. Section 8.2 of the ICASA Act stated that a councillor may be removed from office only on a finding to that effect by the National Assembly, and the adoption by the National Assembly of a resolution calling for that councillor's removal from office.

Members deliberated on whether to suspend the chairperson in the interim, or not. The legal adviser highlighted that the ICASA Act did indeed allow for two situations. The Committee could decide to remove the chairperson and continue with the removal process, and build in the audi alteram partem to allow him the opportunity to be heard. Alternatively, it could start the removal process at the same time and also request, by resolution of the House, that the Minister suspend the chairperson pending the conclusion of the Committee process. Members unanimously agreed that they would begin the process of removing the ICASA chairperson. The Committee would inform him about this decision, and give him five working days to explain why he should not be removed from ICASA.

Members were briefed about the MDDA impact study, which had concluded that the MDDA had been able to carry out different aspects of its mandate to a greater or lesser degree, and that political parties, government and stakeholder groups saw the need to build a thriving community and small commercial media sector. Through its grant funding, the Agency had channelled resources to the sector and in this way, had contributed towards the expansion of ownership and control, as well as access to media by historically disadvantaged communities. The study further noted that, as much as there had been progress, limitations – both in terms of the broader media landscape and the Agency itself - had impacted the sector negatively. Challenges included a restrictive MDDA budget, and laws and regulations inhibiting sufficient allocation of MDDA funds to training and capacity building, which was identified as a core need. Issues with project sustainability centred on funding criteria and the impasse with government and the commercial sector in efforts to secure advertising support for projects.

Members expressed concern regarding the senior management posts which were still vacant at the MDDA. Questions were asked relating to MDDA’s engagement with ICASA with respect to the licensing of projects, the lack of pre-existing baselines for comparison, and the contributions the MDDA had made to transform the media.

On the MDDA’s contribution to media diversity, it reported that through its funding in the community media, all indigenous languages were represented in broadcast and print media. Furthermore, it indicated there were plans to increase ownership in community media to counter-balance the ownership in commercial media.

Meeting report

Chairperson’s opening remarks

The Chairperson indicated the changes that had been made to the Committee. Mr Mondli Gungubele had been appointed as Deputy Minister of Finance, and Ms Nokuzola Tolashe had been re-deployed. This meant that the Committee had lost two Members. There had been no changes from the side of the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF).

There were changes to the executive. The new Minister of Communications was Ms Nomvula Mokonyane, and Ms Pinky Kekana had been appointed Deputy Minister. The previous Minister had been re-deployed to Science and Technology.

The Committee would get a briefing from the Constitutional and Legal Services Office (CLSO) on the issue of the ICASA Chairperson. After that, the Committee would be receiving a presentation from the Media Development and Diversity Agency (MDDA) on the findings of the impact study.

The Chairperson also urged the Committee to discuss what they would do about replacing those who had resigned from the MDDA, as there were now four vacancies. The reason why he brought the matter up was because the Committee had advertised and interviewed candidates and there were many people who had applied. The Committee needed to agree on the replacements, or alternatively take the expensive route which was to advertise the positions. He he would like to discuss the vacancies towards the end of the meeting.

The Chairperson indicated that Advocate Fatima Ibrahim would take the Committee through the legal opinion regarding the ICASA issue, and close the gaps in terms of anticipated questions. Her legal opinion would take approximately 15 to 20 minutes and then the Members could engage with the opinion presented.


CLSO legal opinion on conviction of ICASA chairperson

Ms Fatima Ibrahim, Parliamentary Legal Adviser: Constitutional and Legal Services Office (CLSO), said that her team had been requested to provide a legal opinion on the fraud conviction of the current chairperson of the Independent Communications Authority of South Africa (ICASA). As the Committee would know, the chairperson had been appointed in December 2017 and the conviction had taken place in January 2018 for fraud and other charges. She would deal only with the fraud charge. It was her understanding from the media that the Chairperson was due to be sentenced in April 2018, but for now it was a guilty verdict, without a sentence being passed. His lawyers had indicated to her offices that it was his intention to appeal the conviction.

The appointment and removal of ICASA councillors was regulated by the ICASA Act. Section 5 of the ICASA Act stipulated that the Minister of Communications was the appointing body, and did so on the approval of the National Assembly. In terms of Section 6, a councillor may not be appointed if he or she had at any time been convicted, whether in the Republic of elsewhere, of fraud or had been declared by a court to be mentally ill or disordered. However, once a councillor was appointed, there were certain grounds on which that councillor could be removed from their term of office. These grounds were found in Section 8 of the ICASA Act, and they included misconduct or an inability to perform the duties of his or her office efficiently.

It was important to note that the Act states that one may remove a person who has met the criteria for appointment. That meant the Act had a built in discretion for the removal of a person who had met one of those criteria. The legal question was whether the appeal process had the effect of staining the guilty verdict, which would render the National Assembly incompetent to resolve to remove the Chairperson until that appeal process had been finalised. The section did not speak to the issue of an appeal -- it simply said if the person had been convicted of fraud.

The right to appeal was an integral part of the right to a fair trial and in section 35 of the Constitution, an appeal against a conviction was regulated by the Criminal Procedure Act. The ICASA chairperson could, in fact, following his sentencing process, apply for an appeal against the conviction and the sentence.

Ms Ibrahim said it was important to highlight the distinction between criminal law matters and civil law matters. In civil law, it was an accepted common law rule that once an appeal was lodged, that would generally suspend the execution of a judgment. She used the example of an eviction process by which, if she managed to get a court order to evict a tenant and then the tenant lodged an appeal, she would not be able to evict her tenant pending the outcome of that appeal process. However, the Superior Court Act did provide a mechanism to order the execution of a judgment, notwithstanding the appeal. A good example of that was the former head of the Hawks, General Berning Ntlemeza, who had approached the Supreme Court of Appeal against a decision of the High Court. He had argued that he should be allowed to return to office pending that appeal, and the court had disagreed. The basis of the court’s decision was that it had to look at what was in the public’s interest, and also the fact that the General would earn an income while he was suspended, so in that case, the court did agree that notwithstanding the appeal process, the finding could be implemented.

There was, however, no similar principle in criminal law that said that an appeal saved a conviction. What the criminal law did allow for was the execution of the sentence, and the sentence must be differentiated from conviction. Conviction was whether you were guilty or not, and the sentence was what the penalty was in relation to the verdict. What the law allowed was that if somebody was found guilty, that sanction could be suspended until such time as the appeal was concluded. It was a case by case basis -- some people were granted bail, and some were not. This view was consistent with the presumption of innocence in section 35 of the Constitution, but it did not apply after the conviction. The section guaranteed the right of an accused person, rather than a convicted person. In her opinion, a person who had been convicted was no longer accused. This was supported by the fact that bail automatically lapsed upon a conviction.

In her view, based on the wording of the ICASA Act, it would suffice to trigger the removal process because as it stood today, the Chairperson had indeed been convicted. Section 8.2 of the ICASA Act stated that a councillor may be removed from office only on:

  • a finding to that effect by the National Assembly; and

  • the adoption by the National Assembly of a resolution calling for that councillor's removal from office.

The use of the word “may” means that there was a discretion involved. In her view, the chairperson of ICASA should be given an audi alteram partem (an opportunity to be heard) as to why he should not be removed. There could be an attempt to interdict the National Assembly from resolving to remove the person, pending the outcome of the appeal. If the interdict was unsuccessful and the person was indeed removed, nothing would stop the person if, in the event the appeal was successful, from lodging a claim against the Minister for loss of income and damages in that period. She said that was something the Committee would need to consider the “pros and cons” of.

The other matter the Committee needed to consider was whether to suspend the person in the interim or not. The ICASA Act allowed for two situations. In the first, the Committee could decide to remove the person and continue with the removal process, building in the audi alteram partem and giving the person the opportunity to be heard. Alternatively, it could start the process at the same time and also request by resolution in the House that the Minister suspend the person, pending the conclusion of the Committee process. However, it was also possible to ask for suspension and then the Committee could start the removal process, but the removal process was then linked in time for the appeal to be heard. With the last option, there would be some practical difficulties in that it would mean that the person was suspended, and that suspension would not create a vacancy to be filled because technically the person was still employed, and merely suspended from the post. With that scenario, the board would have one fewer person, and that person would continue to have full pay. Lastly, the appeal process could take many months or even years, and the chairperson could even end up completing the term.

Her view was that the Committee had grounds to trigger a removal process, provided it gave the person the opportunity to be heard, and provided the decision was rational, based on what the person argued when he did come forward. The Committee’s decision would be moved to the House and the Minister would do the actual act of removal. The Committee had the liberty to choose whichever decision it believed to be best. In all of the options -- whether the Committee chooses to do something or not -- there would be legal implications, and implications for ICASA. All of the options carried a risk.


The Chairperson said there were two approaches that the Committee had had identified by the legal adviser. There was the route of Parliament, with a recommendation by the Committee to suspend the chairperson by resolution of Parliament for the Minister to suspend. However, there was also a route that could be taken as a Committee to write to the ICASA chairperson and to allow him to explain as to why he could not be removed because the conviction had come after the appointment. The chairperson had been appointed last year and it was a five-year contract. He invited Members to reflect on the legal opinion.

Mr W Madisha (COPE) said that there was the precedent of Mr Berning Ntlemeza, which the Committee should take into consideration. The case under discussion was a criminal action, and the courts had issued a guilty verdict. It was not a civil matter. That meant that ICASA had a chairperson who was a criminal. He felt that they could not waste the resources of the people of South Africa and even Parliament itself. Beyond that, work had to happen at ICASA, and they were in a position where a person would not be there to follow through.

The legal adviser had pointed out that the person involved could go on appealing and appealing. The appeal process may take even beyond five years, and one needed to consider how much money would be taken and used. He proposed that instead of requesting the chairperson to plead with the Committee as to why he should not be removed, the Committee should tell him that he was no longer the chairperson, and request a new chairperson.

Mr M Kalako (ANC) said he was tempted to pursue both approaches -- that the Committee should write to him and ask him to give the reasons why he should not be removed. The fact that the chairperson of ICASA had appealed or was waiting to sentenced did not stop the Committee from instituting processes. He suggested that the Committee quickly got into a process of removal as based on the ICASA Act. If he was sentenced, the Committee could quickly dispense with him.

The fact that he remained the head of ICASA was a bad reflection on ICASA and the Department, because he was already convicted as a criminal based on fraud issues. What was worse was that the crime he committed had been a crime against the state, because Nedbank got its money from the state. He did not want to take the route of relying on the Minister to suspend him, because it might take time and the Minister was new. He reiterated that he wanted to kick-start the process of removal.

Ms V van Dyk (DA) said she could not agree more with both her colleagues. On Mr Kalako’s point, it was not only a bad reflection on ICASA, but also on the Committee, because it had been known that there was a cloud hanging over the person in question when he was appointed. She fully agreed with Mr Madisha -- the person had been found guilty and had committed a criminal offence. He could not receive financial benefit. The appeal could take years, which would be a waste of taxpayers’ money.

With regards to the audi alteram partem rule, she said that section 8 did not create an obligation on Parliament to entertain or depend on the ICASA chairperson’s opinion. She requested Ms Ibrahim’s advice on that. She further requested clarity, because usually “may” indicated a discretion, yet she wanted to know whether the intention of the legislators was not to create a discretion for the removal, but rather to allow for the person to be removed if any of the grounds were satisfied. Was it discretionary in nature, or compulsory?

The Chairperson stated that Ms Van Dyk’s question needed to be answered before the matter was concluded. The chairperson of ICASA had been chairperson since December 2017, and obviously he had chaired meetings where decisions had been taken. Seeing that he had presided over meetings since December, he asked what it meant for the standing of those decisions that he had presided over. That part was not that clear in the ICASA Act. He requested Adv Ibrahim’s opinion on that matter. All of the Members had stated that the Committee must start the process of removing the man, and that the process should be performed clinically so that there were no issues.

Ms Ibrahim responded that the incumbent lawfully occupies the post until such time as the incumbent was lawfully removed. That meant that any decision made before his/her lawful removal was valid.

On the statement by Mr Madisha on whether the audi alteram partem should be granted, the principles of natural justice demanded that one was given the right to Audi alteram partem. It was indeed correct that the wordmay was sometimes interpreted to be “must”. Her legal team had considered and grappled with it, but the section that dealt with appointments did say “must” rather than “may,” so there was a difference in the wording of the Act and they needed to question why the legislator had done that. For example, it could be that a person met one of the disqualifications in the criteria, but the Committee had been of the view that it was not that serious. Even fraud was not necessarily financial in nature -- fraud could even be applying to enrol a child at a specific school and lying about the area that one lived in. In a case like that, a Committee may feel that the transgression was not that serious in relation to the work that the person had to do.

The reason why she was of the view that audi alteram partem had to be allowed was to protect the Committee from the possibility of any interdicts or court processes against the decision that had been followed. The court looked only at procedure – it did not consider substance or content as to whether the person was guilty or not. The court was going to look at whether the procedure had been followed. The court may be in agreement that if the Committee did not allow audi alteram partem, it was fair because the “may” could be interrupted as “must”. However, there was equally a chance that the court could say “may” means “may,” and the Committee had not given the person an opportunity to be heard, which delayed the process further. The audi alteram partem process need not take long. The chairperson’s lawyers had indicated to Ms Ibrahim that they wanted to make a presentation, and it appeared that they were ready to make their presentation. She did not foresee it being a long, open-ended thing. She suggested that the Committee givethe ICASA chairperson a reasonable amount of time, possibly a week, for him to make a presentation.

Lastly, in terms of process, and based on what she sensed were the feelings of the Members, she suggested that the Committee resolve to commence the removal proceedings so that they could proceed formally. The next decision to take was whether, at the same time, the Committee wanted the Minister to suspend the chairperson, or if they were of the view that they wanted to wrap up the removal process very quickly, they did not have to do the former. A week was sufficient to allow the audi alteram partem process, and then the Committee could make its decision and send that to National Assembly for adoption.

Mr Madisha said what the chairperson had done was terrible. He agreed with the legal advice -- to give him a week to explain. He suggested that the Committee should advise him that unless he did that within seven days, the Committee should say: “You are gone.” He could not be given more than a week. Should he respond, the Committee could take an action, but if he did not, he was gone.

Ms Van Dyk said she had faith in the courts, so a week was not unreasonable for him to make a submission. However, the Committee must push that he was removed.

The Chairperson said he did not believe that any of the Members disagreed with starting the process to remove the ICASA chairperson. It was clear that the Committee must start the process The first thing that needed to be done was to write to the chairperson and give him five days to respond as to why he should not be removed. There must be a procedure leading to his removal, which was the bottom line. From that day, the Committee would be kick-starting the process and giving the ICASA chairperson five working days to respond. Informed by his response, only then could the Committee start other processes with Parliament. Parliament must have the final say, so whatever the Members did, Parliament had to endorse it.

Mr Thabiso Thiti, Acting Director-General (DG): Department of Communications (DoC), said that after the conclusion that had been made, it brought into effect section 8(3)(a), where the Minister may suspend. He asked for clarity as to whether that was where the Committee was at that point.

The Chairperson said that the Committee was very clear on that. That was why the conclusion was that the whole process was a Parliamentary one. He invite Ms Ibrahim to conclude the discussion.

Ms Ibrahim said that there were two means of suspension. One was where the Committee, via the House, requested the Minister to suspend. The other means was that the Minister, upon learning that the Committee was following a removal process, would make a decision to remove. There was no dependence on the Committee by the Minister -- that was the distinction. Whether the Committee did it or not, the Minister retained that discretion.

The Chairperson asked whether this was without the Parliamentary process.

Ms Ibrahim responded that the Minister could suspend only if the Committee had resolved to start the removal.

The Chairperson said he believed that was what the Committee should do. He asked what would happen after the sentence in April and the appeal.

Ms Ibrahim responded that if the suspension was effected by the Minister in the next few days, then the Committee should start its removal process. The moment the house removed the ICASA chairperson, the suspension would fall away and the removal would kick in. It was just a procedural step that the Minister did the actual removal, but indeed the power resided with Parliament. The suspension was just until the House resolved to remove.

The Chairperson said that out of respect for the rule of natural justice, the Committee would inform the ICASA chairperson about the decision and give him five working days to explain why he should not be removed from ICASA.

MDDA Presentation

Mr Musa Sishange, Acting Chairperson: Media Development and Diversity Agency (MDDA), said Media Monitoring Africa (MMA) had been commissioned to carry out an impact study into the MDDA with a twofold brief. Firstly, it had to reflect and evaluate the extent to which the MDDA was responding to its mandate of community media development. Secondly, it had to describe the impact of MDDA-funded projects in terms of how they had made a difference in the communities they served.

The research methodology was a combination of qualitative and quantitative research methods. This included :

  • Desktop research, surveys, focus groups and face-to-face in-depth interviews.

  • Interviews with 46 projects, seven experts and MDDA internal staff and management.

The study’s scope covered:

  • The impact of the Agency’s financial and non-financial support.

  • Challenges faced by MDDA in meeting its mandate.

  • Adequacy of funding models.

  • Adequacy of internal processes and procedures in terms of resources – both human and financial – and internal processes.

  • Whether community media projects contributed to media development and diversity, and socio–economic development at the local level.

  • Impediments affecting MDDA-supported projects.

The impact study provided independent verification of anecdotal evidence collected by MDDA and stakeholders:

  • The MDDA had made a significant impact on transforming the media landscape through the number of community and small commercial media projects funded, the majority of which were still in existence.

  • The MDDA’s internal challenges, such as instability of leadership and capacity issues, detracted from its ability to deliver on its mandate.

  • Greater focus was required by the MDDA on partnerships and collaboration with sister entities and sector bodies, which was crucial to strengthen the sector.

  • The MDDA needed to review its approaches to both raising funds and disbursing funds.

  • External challenges hindered sustainability and further growth of the sector.

  • Technological changes were wreaking havoc in the industry, meaning that the MDDA’s funding regulations were outdated.

The limitations of the impact study were identified as a result of:

  • Methodology weaknesses, which included interviews being focused on existing current projects of the MDDA, some representatives of projects being unwilling to be interviewed, and findings could not be triangulated within each of the communities.

  • No pre-existing baseline for comparative purposes.

However, the impact study provided a baseline study for further research and a strategic direction for additional critical areas of research which the MDDA would embark on, such as

  • A detailed analysis of the impact of media projects on communities.

  • An analysis of relevance and extent of local content.

  • Community media ownership patterns.

  • Environmental readiness for community media and digitisation.

Regarding the key findings of the impact study, the MDDA had been able to carry out different aspects of its mandate to a greater or lesser degree. Through grant funding, it had channelled resources to communities and the small commercial media sector, contributing to the expansion of ownership and control, as well as access to media by historically disadvantaged communities. This was evidenced in the burgeoning of community and small commercial media, with radio audiences reaching 25% of South African listeners, print media being read by over seven million people weekly, and community TV, which had not had same success, but attracted 9.5% of South African adults. Furthermore, media was being published or broadcast in all indigenous languages, reflecting the country’s diverse demographics. Training and capacity building interventions had been rolled out to support projects that had experienced gaps.

Despite the progress, limitations -- both external and within the MDDA -- had impacted the sector negatively and a number of projects folded annually. The MDDA’s internal limitations included:

  • The budget was restrictive, being just under half amount required to service all proposals.

  • Laws and regulations determined how funding had to be allocated; training and capacity building, identified as a core need, received a fraction of the amount needed.

  • Funding criteria were vague, and media projects were not required to demonstrate how they would become self-sufficient by the end of funding.

  • The impasse with the government and the commercial sector to secure advertising support for projects had not been resolved.

  • Internally, the MDDA had been weakened with staff capacity to respond to challenges, and many senior manager posts remained vacant.

  • Board members changed frequently, contributing to organisational instability.

  • Systems, such as pre-assessment, monitoring and evaluation, required revision to serve as early warning mechanisms when projects failed to implement theircontract obligations.

The limitations in the media landscape included:

  • Media concentration was an increasing threat, because South Africa was in a recession and there were ongoing retrenchments within the commercial media industry. Technology had further disrupted the media industry, with broadcasters moving to digital platforms and print media losing audiences to online media.

  • The advertising industry had been exceptionally slow to transform.

Despite the challenges, political parties, government and stakeholder groups still saw a need to build a thriving community and small commercial sector. Media projects also presented successes and opportunities, against all odds. There was a long list of awards to community media projects. There was content used in schools and universities, and even for matric exams. There had been success in training staff and volunteers and creating job opportunities, and a number of projects had become sustainable over time.

Key recommendations

The key recommendations identified were:

Funding models

  • The MDDA needs to adopt different approaches to support its fundraising efforts and for grant dispersal activities.

  • Government should increase its allocation to the community media sector.

  • Print media should be legally compelled to support the MDDA in cash or kind.

  • New media should contribute to a development fund.

  • Lobbying and advocacy initiatives needed to be strengthened.

Laws and regulations

  • MDDA regulations determining the percentage of different funding allocations must be reviewed.

  • There had to be closer collaboration between ICASA and the MDDA to ensure media development and diversity targets were set and reached.

Community Media and Digital Environment

  • The MDDA should adopt a ‘Digital First’ strategy.

  • It needed to research / engage with the community sector around the impact of technological change, highlighting key success models and failures.

Government / stakeholder collaboration and partnerships

  • Greater collaboration between Government and stakeholders.

  • Independence of community media was crucial.

  • MDDA and Universal Service and Access Agency of South Africa (USAASA) partnership to discuss roles and responsibilities within the changing technological environment.

Training and Capacity Building Initiatives

  • Need for better, and better matched, training and capacity building.

  • Ring-fencing of budget allocations must be removed.

  • Training needs assessments were needed for currently funded and potential future projects.

MDDA governance and capacity issues

  • Governance instability must be eliminated, as senior manager posts were vacant and MDDA board members changed frequently.

  • The MDDA Act should be reviewed to re-look at the powers, roles and responsibilities of the board relation to those of the MDDA management.

Ultimately the success or failure of projects came down to people within the community projects that received support. Those who were successful demonstrated common traits These were strong relationships with audiences/communities, proactive management that was constantly finding new ways to ensure sustainability of projects beyond government funds, a station manager (or owner/editor of print media) who was skilled and had a vision, and a socio-economic environment conducive to opportunities for sustainability. The long-term success of the sector required that changes were made to strengthen the MDDA so that it was able to play a role in bringing together project partners, allocating funds appropriately, and training and developing capacity for long-term sustainability of the sector.

The findings of the impact study would be used as input to debate and define the strategic direction of MDDA, review and propose amendments to the MDDA Act, and develop further research initiatives by the MDDA to position it as a thought leader in the sector.


The Chairperson welcomed the MDDA board members, and asked if there was anything they wished to add. He commented that he wished they could have a chairperson of the MDDA, and not this “acting” all the time.

Ms Martina Della-Togna, an executive member of the MDDA board, said the Committee should understand that as a new board, they had received the report late last year. They had found the findings and the challenges very useful, because it had helped them to prioritise the work they had been doing. It was not a definitive study, but they recognised that it pointed to a lot of things. She believed the report needed more quantitative information around the real impact.

Dr Nombeko Mbava, an MDDA board member, said that the report itself was a landscape analysis for the board to understand the current operating environment in which the MDDA found itself. The report also helped them to engage further in future research to establish what the real impact of the project was. It was good research for now, but she believed that they needed to conduct deeper research and have more analysis.

Ms Van Dyk agreed with the Chairperson that the MDDA needed a permanent chairperson. She asked what procedure the Committee was going to take with the previous chairperson. There had been definite accusations of fraud and criminal behaviour.

The Chairperson reminded Ms Van Dyk that the Committee had decided to investigate not only the chairperson of the MDDA, but also what had happened at the MDDA.

Ms Van Dyk asked whether there was no other investigation, besides the one by the Committee.

The Chairperson said that once the Committee started the investigation, it would lay bare other issues. From there, Members could engage people who had the capacity to deal with those issues.

Ms Van Dyk said she was comfortable with the Chairperson’s response. With respect to the presentation, she asked for the timeframe over which the study had been done. The presentation had stated that there were 46 projects, but if there was no baseline, how would they compare what they were doing to what they wanted to do in the future? She expressed concern about the unwillingness of people to be interviewed. Her problem was that if these people were being funded by the MDDA, why did they have a problem with being interviewed? She was also concerned that there was no pre-existing baseline for comparative purposes. The entities had started in 2002, so how was it possible that no research had been done to see what the problems were? Why were the findings not triangulated within each of the communities?

The MDDA had stated that “funding criteria were vague and media projects were not required to demonstrate how they would become self-sufficient by the end of funding,” “board members changed frequently, contributing to organisational instability,” and “print media should be legally compelled to support MDDA in cash or kind”. With that information, did the MDDA really think that somebody would invest in an entity at the MDDA? It was an insecure environment to invest in. She asked for the number and list of projects that had become sustainable. She also requested the list of projects that had been strengthened -- what were those projects? What had their start-up funding been? How sustainable were these projects now? She asked what the board was proposing with its statement that “the MDDA Act should be reviewed to re-look at powers, roles and responsibilities of the board vis a vis MDDA management.”

The Chairperson said that the impact study would assist in understanding how the MDDA assisted community media. The study report would also assist the Members when they did the investigation into the MDDA, because it exposed how they worked. One of their responsibilities was to ensure that there was media diversity. He reminded Members that the impact assessment was different from the day-to-day work that the MDDA did, so the line of questioning should take that into consideration.

Mr Madisha said that he had a number of points that he had prepared beforehand to raise with the MDDA board members, but most had been responded to in the presentation. The problem lay with the Portfolio Committee, not with the MDDA itself. Problems had been identified by the MDDA and the Committee needed to ensure that there was implementation -- for example, the finalisation of the appointment of a senior manager. Once that was done, the Committee needed to establish by when that should be done.

Under the introductory comments, the presentation had stated that “some projects were unwilling to be interviewed,” and under the key findings section it had stated that “through grant funding, MDDA had channelled resources to community and the small commercial media sector, contributing to expansion of ownership and control as well as access to media by historically disadvantaged communities”. He asked whether there were any conditions at all that had been set, so that those particular structures knew that that was what they had to do even before they received that kind of funding. Did the MDDA have any power at all, in line with the contractual plans that were there?

Ms Matshoba said that in a period of ten months, three Ministers had been changed in the Department of Communications. She urged the Department not to be affected by the changes, and the work should not be affected either. In the key findings, a challenge had been that senior management posts remained vacant. She asked why those posts were not advertised. How did the MDDA engage with the community radio stations? Did they have the lists of communities that were in the pipeline to get licences? Was ICASA aware of those applications? What was the MDDA’s engagement with ICASA with respect to that?

The Chairperson invited the delegation from MDDA to respond.

MDDA’s response

Mr Sishange said the manner in which the MDDA worked meant that it did not give funding to projects that did not have licences to broadcast. It was not privy to information about the backlogs with regard to ICASA. Once a project got a licence from ICASA, they came to the MDDA for funding.

With regard to the comment in the research report, that the press and those in the commercial industry should be compelled to fund the MDDA, he said that this mirrored what the Act indicated with regard to the broadcasters. The Act indicated that with commercial broadcasters, there was a certain percentage of the profits that had to be dispersed. There were two ways in which they could comply, They could comply by sending the funds to ICASA and write letters in compliance, or they could send those funds to the MDDA. The previous challenge had been that broadcasters had very little faith in the MDDA, and had therefore paid to ICASA and written letters in compliance. As a board, they had re-routed those funds from ICASA to the MDDA, and there had been an upsurge of funds because of the broadcasters’ faith in the MDDA. Therefore the comment there was to get the print media to mirror what was being done with broadcasting.

On senior posts not being filled, the MDDA had reported to the Committee beforehand when the CEO had been interviewed and chosen for the MDDA, and had later left to take up another position. The whole process had been restarted, and there had been full interviews for the position of CEO, with the assistance of members of the board. A list of all the names of the people that had been interviewed had been compiled and shortlist made. They would engage with the Department with the prerogative to appoint. The process on the appointment of board members had been speeded up, so it was hoped that with the appointment of the CEO, they would be able to fast-track the appointments of other positions such as the chief financial officer (CFO).

The current acting CEO, Mr William Baloyi, was working very hard with human resources (HR) to fill the junior vacancies, because they had to do the actual delivery.

On project representatives refusing to be interviewed, the MDDA did have contracts with projects whenever they received funding, specifying the obligations they had to meet. However, those obligations had largely to do with reporting, monitoring and assessment. In that regard, they had depended on goodwill. An example was that when one dealt with community media, one did not deal with only one voice. For example, if the MDDA asked the community media to cover the State of the Nation Address (SONA) and what happened in Parliament, some would want to be paid because they were not interested -- their programmes ran differently. They were quite independent in that regard.

The Chairperson interjected, and said that ‘Media Development and Diversity Agency’ talked to the broad transformation of the media environment. He asked Mr Sishange to talk about what contributions the MDDA had made to transforming the media.

Mr Sishange said he would answer the Chairperson’s question at the end.

On the question relating to the baseline, the only real research done by the MDDA previously had been on ownership in the media space, and that was many years ago. The MDDA also wanted to shy away from comparing initial research and community research, because the landscape would distort the findings. They had had to start somewhere in the absence of baselines, and this impact study was the beginning. The findings from the study had pointed the MDDA towards further research, so it created an opportunity for the MDDA to do the research.

On the timeframe of the study, it had been between 2015 and 2017. The media landscape was always changing, so what had happened in the previous years might not be valid now. Technology changed, so research had to be done constantly to keep up with the changes.

Regarding the Chairperson’s question on the MDDA’s contribution to media diversity, he said that based on the research findings, through the MDDA’s funding in the community media, all indigenous languages were represented in broadcast and in print. Secondly, in respect of the ownership, the MDDA was not in a position to change ownership in terms of the commercial landscape, but what they could do was increase ownership with regard to community media, to counterbalance what was happening in the commercial space.

On why the study was not triangulated within the community, the MDDA had engaged Media Monitoring Africa (MMA) in terms of the methodology and had found that they could not get that component. The MMA felt that the impact report was strong in terms of the impact of the MDDA in assisting community media, as opposed to the impact of community media in communities, which was something the MDDA needed to do.

Ms Della-Togna referred to how the new board had proceeded, and said this report had been one of the newest presentations given as part of their induction process in November by the service provider. They had asked very hard questions, and had continued to ask hard questions, such as about statistical information. She was for qualitative research, but she also needed figures, numbers and statistics. Understanding what would go into a baseline was also important -- for example, audience reach and impact. At the beginning of the year, the board had had useful strategic planning which involved stakeholder engagement, which had included the South African Broadcasting Corporation (SABC), ICASA and the Competition Commission. So they had had that conversation around stakeholders, and where legislative issues coincided or overlapped.

The board members had looked at how the board sub-committees were working with regard to governance issues and the tightening up of corporate services. Very importantly, it was considering the funding model, the funding cycle and the quality of the funding. The board had identified a sister organisation that worked in Arts and Culture, which was also a funding body. There was also the National Film and Video Foundation, which experienced very similar challenges to the MDDA in that their budget was limited, and their systems were not entirely transparent. The board was working on having good governance and policies in place.

Ms Matshoba said that in 2006, the MDDA had started an engagement with the Gugulethu community and this engagement had been stopped last in April. She asked what the reason behind stopping that engagement was.

Mr Sishange responded that as someone who had dealt with the social integration project with regard to Gugulethu and Khayelitsha, they were going to re-start all social integration projects. They were dealing with social integration projects in Mamelodi, and would also deal with Gugulethu and Khayelitsha as well. These were communities that needed community media, and the MDDA would not shy away from whatever challenges there were on the ground.

The meeting was adjourned.

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