Union submissions during Gauteng oversight visit; ICASA Chairperson; MDDA Board vacancies

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Communications

29 May 2018
Chairperson: Mr H Maxegwana (ANC)
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Meeting Summary

The Committee had been granted permission to hold the meeting, despite the sitting in the House, to conclude some urgent matters. The Committee should have met the SABC Board that day, but the Board had requested time to prepare for the meeting.

Following a meeting between the unions and the Committee, the unions had been invited to make written submissions to the Committee. Amongst the issues raised was the long-standing issue of 26 freelancers at SABC who were going to be dismissed after up to 30 years’ service with the SABC without ever having been offered a permanent position. That was after 200 of its staff members had allegedly colluded with medical practitioners to defraud the broadcaster’s medical aid scheme. 123 of those employees had been dismissed. Five key issues raised by the unions in their submissions included organisational rights for minority trade unions, transparency, accountability and inclusive communication, key vacancies, understanding the mandate of the SABC, and long-term contracts.

One of the concerns of the Committee was the number of unions, i.e. four for a staff of only 4 000 employees. By way of comparison, the South African Post Office had only two unions for 23 000 employees. The SABC reflected a post-trauma scenario coming from the era of Hlaudi Motsoeneng, and the previous board, which had really worsened the situation of a problematic organisational culture, and which had created a tense relationship between workers and management. All of those who had been involved with Mr Motsoeneng should not be kept on at the SABC. Furthermore, the Corporation had only one permanent Executive member of staff which meant that acting posts should be filled without delay.

Members asked what the Labour Relations Act said about minority unions. Did the unions have a recognition agreement? Did those from minor unions not have a voice? Members were concerned that the freelancers were not recognised as employees of the SABC, so was there any point in them going to the CCMA, or the Labour Court if they were not employees? What did the Labour Relations Act say about their rights?

The Committee had previously tabled a report in the National Assembly asking for the removal of the Independent Communications Authority of South Africa Chairperson, Rubben Mohlaloga, from his position as he had been convicted of fraud. The matter had been returned to the Committee because of some technicalities, including the fact that Mr Mohlaloga had appealed his conviction and therefore could not, at that point, be dismissed on the basis that he had been convicted of fraud.

The Committee had reconsidered the recommendation and had accordingly resolved that the Minister of Communications should suspend Mr Mohlaloga as Councillor and as Chairperson of the Council in terms of Section 8(3)(b) of the ICASA Act until such time as Parliament finalised the removal process.

The Chairperson indicated that there were four vacancies on the Media Development and Diversity Board because some people who had been appointed the previous year had resigned, and in the case of others, their term of office had ended. Dr Mvaba and Ms Martina Della Togna were the only remaining councillors, which left four vacancies. The Minister of Communications had sent a letter to the Speaker’s Office stating that it was the Committee’s responsibility to take the process forward.

The Committee determined to advertise the posts and gave the Chairperson a mandate to call Committee Members back to Parliament during the recess for the interviews. The SABC advertisement had been in the Sunday newspapers a couple of weeks previously. The Committee would look at the possibility of interviewing for the two Boards on two consecutive days during the recess.

Meeting report

Opening remarks
The Chairperson opened the meeting and indicated that the Committee had been granted permission to hold the meeting despite the sitting in the House. Amongst other things to be dealt with, was the issue of the South African Broadcasting Corporation (SABC). The Committee would receive a briefing on issues that the unions had raised.

The Committee should have met the SABC Board on that day, but the Board had requested time to prepare for the meeting and the Board had met the Unions the previous day. The Committee needed a formal report from the unions.

The Chairperson mentioned that he had communicated with the General-Secretary of the Media Workers Association of South Africa (MWASA) who had wanted to speak to him on the telephone. He had informed the General Secretary that he required a short report, not a conversation on the phone.

The Chairperson urged that the Committee engage with the unions in that fashion.

The second issue to be dealt with was corruption. One issue the Hawks was dealing with related to state capture and the Guptas but what emerged in the Sunday papers was the issue of South African Express Airways which had been grounded. A person had been awarded the tender for fuel, but no delivery had taken place, so Members from small towns, like himself, had had to travel to Cape Town via Johannesburg. It was a journey that took almost six hours from East London, but he was pleased to report that the President and his entourage were on the same flight from Johannesburg. It was those issues of corruption that had to be addressed.

The Content Advisor was going to address the Committee on the submissions from the unions at the SABC. One aspect of their submissions was the 26 SABC freelancers who were going to be dismissed. That was after 200 of the SABC staff members had allegedly colluded with medical practitioners to defraud the broadcaster’s medical aid scheme. 123 of those employees had been dismissed. He was raising the matter because the Committee was involved. It did not need more people unemployed, so the Members needed to assist in dealing with the matters as they had done previously.

There was positive news in terms of the 100 days of the President. Most people were saying that the government was going in the right direction. Some people would say that nothing had been done but most of the Portfolio Committee knew that government was going in the right direction. As the Communications Portfolio Committee, it was important for Members to talk about the issues and raise the issues as people who were putting their shoulders behind the wheel to resolve matters.

The Content Advisor had summarised the many pages submitted by the unions and he had requested that the contents be packaged according to issues raised. When the Portfolio Committee dealt with the SABC management and Board the following week, the Committee should know what was happening and what to raise in the meeting. The Communications Committee had to communicate, and, at the Committee level, he wanted political parties sharing the views of their parties.

Presentation on Submissions by the Unions at SABC
The Content Advisor, Mr Mbombo Maleke, and the Committee Researcher, Mr Lethabo Dibetso, made the presentation.

Background
Mr Maleke stated that the Portfolio Committee on Communications had conducted an oversight visit to Gauteng in April 2018 to visit the Department of Communications’ entities, Media Development and Diversity Agency (MDDA) and the Film and Publications Board and to look at maladministration but, because of the correspondence from unions operating at SABC, the Committee had met with four trade unions representing employees at SABC, namely, Media Workers’ Association of South Africa (MWASA), Information Communications Technology Union (ICTU), EMFLA, Communications Workers Union (CWU) and Broadcasting, Electronic Media and Allied Workers Union (BEMAWU). The Committee had requested the unions to submit written submissions as there were time constraints in relation to the meeting. Only three unions had made submissions: MWASA, BEMAWU, EMFLA.

Context
The recent enquiry into the fitness of the Board of SABC had found financial and non-financial management challenges, including problems with the culture in SABC and a lack of oversight by Parliament.

The SABC operated in quite a technical sector with a proliferation of technology that made the environment very challenging. As a public broadcaster, SABC only received 2% of its funding from government and then had to compete in the market for broadcasting rights. The Committee was not getting involved in the management of SABC, but the Committee was working with unions in the broader context of the SABC.

Mr Dibetso presented a summary of the submissions forwarded by trade unions.
 
Five key issues were: organisational rights for minority trade unions; key vacancies; understanding the mandate of the SABC, transparency, accountability and inclusive communication, and long-term contracts.

Two trade unions contended that there had been rivalry between unions since 2011, which was aggravated by the former Chief Operating Officer, Hlaudi Motsoeneng, favouring the majority union and allegedly paying their shop stewards supervisory level salaries. MWASA was derecognised on 3 August 2011.

The Committee was concerned that Mr Dibetso was not fulfilling his mandate.

The Chairperson asked if the Content Advisor had verified the submissions.

Mr Dibetso stated that he was presenting a summary of the union submissions.

Mr R Tseli (ANC) pointed out that the Committee wanted to understand the situation and asked whether he had verified the statements made by the unions.

Mr M Kalako (ANC) noted that unions talked about their rights as minority unions. But, what did the Labour Relations Act say about minority unions? In terms of the derecognition of MWASA, what was the important thing about the derecognition of that union?

Mr Dibetso stated that his colleague would address all those issues and that his presentation was only on submissions by the unions.

Mr B Bongo (ANC) suggested that the researcher should present what he had prepared, and the Committee could interrogate his input later.

Mr Dibetso continued with the second issue which was the filling of critical vacancies. The SABC had only one substantive executive while the other executives had been appointed in acting positions by those who had corrupted the Corporation and so were compromised people.

The third issue related to MWASA’s concern about how the SABC mandate was understood and believed and that a full-scale study was required to gain insight into the public mandate and the costing thereof. Fourthly, transparency, accountability and inclusive communication were a concern and this was evidenced in the Disciplinary Procedure and Code of Conduct. The unions stated that the SABC had flouted its own code of conduct in dismissing the 123 workers following the medical aid fraud matter. Lastly, EMFLA was very concerned about the long-term contracts for freelancers who were kept on contracts for many years but never gained the benefits of becoming an employee, which was contrary to the Basic Conditions of Employment Act.

The Content Advisor presented an analysis of the issues. One of his key concerns was the number of unions, i.e. four, for a staff of only 4 000 employees. By way of comparison, the South African Post Office had only two unions for 23 000 employees. Furthermore, it was safe to say the SABC reflected a post-trauma scenario coming from the era of Hlaudi Motsoeneng, and the previous board which really worsened the situation of a problematic organisational culture which had created a tense relationship between workers and management. There was little unity amongst unions, and workers in some sections were not even unionised. As far as the freelancers were concerned, there were no labour laws protecting freelancers. Workers who came through agencies could be absorbed, but nowhere were freelancers protected. The unions were not all as innocent as they appeared, and the politicising of the unions posed a problem.

Issues for the Committee to consider
The Committee should not create the impression that it was getting involved in daily operations at the SABC.
As mentioned in the Ad Hoc Committee report, all those who were involved with the former COO should not be kept on at the SABC and they needed to provide those persons with the submissions. The freelancer issue had been a long-standing issue, but SABC was content to lose freelancers, despite their institutional memory.
Further consultation was required with the Portfolio Committee on Labour, and various other bodies that could assist with labour issues, particularly around freelancers, because the issue of labour brokers and prolonged casualisation of labour had been on South Africa’s agenda for a long time.

The Chairperson thanked the researcher and content advisor and asked that they submit the entire presentation to the Committee.

Discussion
Ms V van Dyk (DA) thanked the Committee staff for a thorough presentation. Her concern was that the freelancers were not recognised as employees of the SABC, but when they had problems, they had to go to the CCMA, or the Labour Court, but what remedies could the CCMA offer if they were not recognised as employees? Secondly the issue of SABC wanting to dismiss freelancers after they had worked for many years without a contract needed to be dealt with in terms of the Labour Relations Act. Freelancers had many years of experience, even though they had never been permanently employed. Their experience would be valuable in the light of the fact that SABC was about to digitise broadcasts. Why could SABC not recognise the freelancers? If Parliament could not assist the 26-people dismissed by the public broadcaster that fell under Parliament, how could Members help workers get jobs? In relation to CWU and its relationship with the former COO, Hlaudi Motsoeneng, what would happen in the future? How was that to be addressed?

The Chairperson responded to Ms van Dyk’s last point. Unions were competing in terms of membership and it was to each one’s benefit to accuse other unions of corruption, etc, so he did not want the Committee to get into the latter issue as the Committee would miss the point and would be taking sides. That was not the role of the Committee. Members should not escalate the point, even if it was in the submission.

Mr S Mncwabe (NFP) stated that the presentations by the unions had been well organised. The Board was meeting the unions, so it seemed as if the Committee was engaging with itself. Members should escalate the presentation for deeper analysis and further sharpen their understanding of the issues, but the issue itself was for the next meeting.

The Chairperson agreed with Mr Mncwabe that the issues were being raised in order to assist Members when they met the SABC Board

Mr L Mbinda (PAC) agreed that Mr Mncwabe was correct. The Committee staff could check if the unions had a recognition agreement? There would, of course, be threshold issues. Even in terms of the LRA, there were thresholds that would apply to the unions. The job of the Committee was just to see what the law said and what the recognition agreements said. If the SABC was in breach in terms of recognising unions, then the Committee should raise that.

Mr Tseli said that the Committee should not go deeper but wait for the next meeting with the unions. As regards unions coming to Parliament individually, the Committee needed to find a way to deal with it, as that was not the way to manage the issues of the unions. Secondly, the issue of workers who were not unionised did not come up strongly in the report, but Members had felt very strongly about it and that needed to be addressed. The Committee had to be careful not to encourage workers to join a particular union. Otherwise, the report was a true reflection of the issues raised by the unions.

The Chairperson stated that the meeting with the SABC Board should be set for the following week. It was important that the Committee got the ‘recognition of unions’ documents. Secondly, if there was an in-house arrangement because of a union not meeting a threshold, the Committee needed that document. There had to be a minimum number of members for a union to be recognised. Did those from minor unions not have a voice? Members needed the background information before meeting the Board.

Mr Mbinda agreed with the Chairperson that even minor unions had to have a voice, although only recognised unions could negotiate salaries, etc.

The Chairperson added that Members needed to have a copy of the Code of Conduct of the SABC to understand where the Corporation was flouting the Code. Vacancies were already an ongoing discussion with the SABC. In sum, more comprehensive documentation was required. The Committee would have to tread very carefully as the dismissed staff believed that the Committee would resolve their problem. If there was not a good relationship between workers and the employer, there would be no joy.

Mr Maleke asked the Committee to note that the issue around MWU was just an example. It was not the only union that had a problem. He had just been illustrating that the issue was between the unions and between employer and unions. However, the SABC was definitely pitting unions against each other.

Discussion on the Independent Communications Authority of South Africa (ICASA)
The Chairperson reminded the Committee that it had finalised the ICASA report for the House so that the matter of the ICASA Chairperson could be finalised. The report had been tabled in the National Assembly. It had asked for the removal of the ICASA Chairperson Rubben Mohlaloga, but it was referred to the Committee because of some technicalities. The matter had been referred to the Committee as there was a parallel process and there was mention of an appeal by the ICASA Chairperson in his fraud case.

The Chairperson said he had agreed with the Office of the House Chairperson on Committees that the Committee should amend the report and return it to the National Assembly. The Committee needed to reconsider the recommendation and to propose the suspension of the Chairperson by the Minister of Communications, Ms Nomvula Mokonyane. Legal services could advise. There was an appeal in the court case so there could only be a suspension by the Minister, but only after the Committee had recommended that the Minister do so.

The Chairperson wanted input from legal services on the report. He did not have the report but believed that the Legal Advisor could explain what the report meant.

Ms Fatima Ebrahim, Parliamentary Legal Advisor, advised that the report had been returned to Committee for consideration. The initial report had called for the immediate removal of the Chairperson. In terms of the ICASA Act, another option was that when Parliament started the removal process, Parliament could, in terms of Section 8(3)(b), request the Minister to suspend the Chairperson at the start of the proceedings. The proceedings would then be put on hold while the application for leave to appeal, and possibly also an appeal, was managed. No clarity had been received on whether leave for appeal had been granted or not. Sentencing had not yet taken place. If leave to appeal was granted, the Committee could wait for the judgement. If the conviction was confirmed in High Court, the Committee could proceed with the removal. If Mr Mohlaloga was found not guilty, the Committee could not proceed as there would be no basis in law. The report to the National Assembly would be identical to the original report, with the following amendment to the last paragraph: The Committee accordingly resolves that the Minister of Telecommunications must suspend Mr Mohlaloga as Councillor and as Chairperson of the Council in terms of Section 8(3)(b) of the ICASA Act until such time as Parliament finalises the removal process.

That was the decision to be taken by the Committee, i.e. if Members were in agreement.

The Chairperson agreed that that was the point to be dealt with. However, the lawyers of Mr Mohlaloga had raised an issue.

Ms Ebrahim explained that Mr Mohlaloga’s lawyer had indicated his willingness to be suspended, pending the process, provided that Parliament waited for the outcome of the appeal process. Legal services had reached an agreement with Mr Mohlaloga’s lawyers that they would give them 48 hours’ notice of the report going to Parliament. However, the situation was different as they were not requesting his removal and he had already agreed to suspension.

The Chairperson noted that the proposal was that the Minister be asked to suspend Mr Mohlaloga.

Mr Tseli concurred with the proposal as it also worked in the best interest of ICASA because there would be no challenges about decisions that the ICASA Chairperson had made while under a cloud. He seconded the proposal to take the report to the National Assembly for the suspension of Mr Mohlaloga.

The Chairperson noted that today was the last sitting before Parliament rose for the extended recess. He wondered whether the suspension would be on full pay, he thought it best that the Committee did not say anything about pay.

Ms Ebrahim stated that the Act was silent on whether suspension was with or without pay, but generally one’s salary was paid when a person was suspended unless the agreement said otherwise, but the Department could advise.

Ms Van Dyk agreed with the proposal. She would second the proposal to suspend Mr Mohlaloga but added that he was going to be suspended because he could not be in a position of trust, so she did not see why taxpayers had to pay for him. She noted that the Committee should never have appointed someone with question marks.

The Chairperson said the proposal was suspension. There had been no question of pay. Anyway, the Minister would be responsible for the suspension and would determine whether he was paid.

Mr Mcwabe seconded the proposal of suspending the ICASA Chairperson with pay. It linked to the Chairperson’s earlier comments around corruption. So, Members had to act.

Mr Mbinda also wanted to second the proposal. Regarding the issue of pay, the Committee would have to consult with the Department. Mr Mohlaloga was not providing services as he was not attending meetings or being consulted, but it was not the Committee’s decision to determine whether he was paid or not. The Committee had to follow the letter of the law. It sufficed simply to say that the Committee wanted the Minister to suspend the Chairperson.

The Chairperson noted that the councillors went to work every day and not just when there was a meeting. Members had a sense that if one did something wrong to the taxpayers, there was a problem, and he agreed. But he thought Minister would decide to suspend him with pay, although he could not be sure.

Mr Bongo agreed with not wanting to set a precedent. He was saying that if one did not attend meetings, one should not be paid, but if counsellors did not go to work, how could their pay not be suspended? However, the Committee had to be objective and not subjective. The Committee should follow the letter of the law. It sufficed for the Committee just to say ‘suspend’ even though he personally thought one should not get paid for not doing work.

Ms Ebrahim stated that the Act only spoke to suspension and nothing was said about pay, so the Act transversed Parliament and Labour Law. The only thing that the Committee could turn to, was the Labour Law. As far as that was concerned, the courts were clear that the employer should stay away from suspension as that was considered a very harsh act and not recommended. The difference was that suspension was in the ICASA Act and the current issue was a disqualifier for a position on the Council. She did not know how he was employed but it appeared to be full-time. The Ministry would be in the best position to advise what the payment arrangements were and whether an employment agreement had been entered into. The Secretary had indicated to her that he was in a full-time position, so he would be treated as an employee.

The Chairperson said that he was a Councillor, so he went to work full-time, so the Committee would take the report to House for suspension. Agreed?

The Committee agreed.

The Chairperson recorded the amended section of the report for record purposes. “The Committee accordingly resolves that the Minister of Communications must suspend Mr Mohlaloga as a Councillor and as the Council Chairperson of ICASA in terms of section 8(3)(b) of the ICASA Act until such time as the National Assembly finalises the removal process.

The motion was proposed by Mr Tseli and seconded by Mr Mncwabe. The Committee agreed.

Media Development and Diversity Agency (MDDA)
The Chairperson indicated that there were four vacancies in MDDA because some people who had been appointed the previous year had resigned, and in the case of others, their term of office had ended. Dr Mvaba and Ms Martina Della Togna were the only councillors, which left four vacancies. The Minister of Communications had sent a letter to the Speaker’s Office stating that it was the Committee’s responsibility to take the process forward, which meant advertise, come back for a day to interview and then go back to their constituencies.

The agreement that he sought was whether the Committee should go ahead with the advertisement and give the Chairperson a mandate to communicate with Members so that all Members came back to Parliament for the interviews, and then they would return to their constituencies.

Mr Bongo agreed with the proposal. It was a move that was long overdue. The Committee had to move with the speed of a mirage. Members had seen when they were on the oversight visit that part of the problems in the MDDA were a result of the vacancies. The hearing would be held during the recess period but he was happy for the Chairperson to call Members back to Parliament to attend the interviews.

The Chairperson thanked the Committee and confirmed that Members had agreed to advertise the vacancies and interview during recess.

He was sure that Members were aware that the SABC advertisement was out and had been in the Sunday newspapers a couple of weeks previously. Perhaps the Committee could deal with SABC and MDDA interviews over two days.

Minutes
The Minutes of 6 February 2018 were read and adopted.
The Minutes of 20 February 2018 were read and adopted.
The Minutes of 27 February 2018 were read and adopted.

Closing remarks
The Chairperson thanked Members, as well as the leadership of Parliament and the Chairperson of Committees for allowing the Committee to meet. Members were welcome to return to the sitting in the National Assembly.

The meeting was adjourned.

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