SABC Board: shortlisting deferred; Films and Publications Amendment Bill: NCOP amendments; with Minister

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Communications and Digital Technologies

26 February 2019
Chairperson: Ms Dr H Mkhize (ANC)
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Meeting Summary

The Committee met to shortlist the candidates to be interviewed for the SABC Board. The agenda also included consideration of the NCOP proposed amendments on the Films and Publications Amendment Bill. The Minister was in attendance.
The DA objected to the proposed amendments due to reports that due process was not followed for the adoption of the amendments. The party argued that the NCOP meetings (where the amendments and Report were adopted) did not quorate and it would therefore be illegal for the Committee to discuss the amendments. The Parliamentary Legal Advisor clarified that due process was followed as far as the Select Committee proceedings were concerned. She could attest to this and pointed out that this was evident in the documentation.
The Committee was satisfied with the explanation and allowed the Legal Advisor to read out the NCOP amendments. The NCOP proposed changes to clauses 6, 12, 15, 17, 19 and 34. A new clause was also inserted. The Committee accepted the NCOP report (amendments) but noted that it still needed to vote on the final bill that incorporated all the changes.
Some Members felt that the shortlisting was being rushed. They pointed out that the Committee had appointed new board members several times and suggested that it would be wise to add another step by first conducting exit interviews with former and current board members to ascertain why they resigned as well as the challenges faced by the public broadcaster. They suggested that the shortlisting can be done afterwards. There was an even a suggestion that the Committee conducts an inquiry into the board. The DA argued that this was a delaying tactic because Members were already aware of the challenges of the SABC. Both the EFF and the ANC supported the proposal of conducting exit interviews. The DA argued that there were no legal grounds for an inquiry, and there was no sufficient time to conduct it.
The Minister assured Members that the SABC would be assisted, with conditions, to ensure that taxpayers’ monies were used properly.
The Committee resolved to conduct exit interviews on 5 March.

Meeting report

Opening remarks
The Chairperson welcomed everyone present. She submitted the apologies from absent Members as well as the Deputy Minister, who was attending an annual conference in Barcelona. The Minister was running late but she would attend the meeting. The Chairperson asked if the agenda could be altered to address the NCOP amendments and proceed with the shortlisting of the candidates for the SABC Board. The shortlisting of the MDDA Board would not be considered in the meeting.   
Members agreed to the proposed changes to the agenda. 
Ms P Van Damme (DA) said that she did not believe that the Committee could deliberate on the Bill due to the manner in which it was approved. The Select Committee meeting did not quorate and it was held at OR Tambo where some Members were not informed of the meeting. The Bill as it stands was not properly approved by the NCOP, and it must be sent back for proper approval before the Committee can deliberate on it. She added that public participation did not take place.
Mr B Bongo (ANC) disagreed with Ms Van Damme and said that a Report will be presented to the Committee and it could only engage on those issues after the Legal Advisor has gone through the Report. Those issues can be interrogated after the Report has been presented by the Legal Advisor.
Mr N Xaba (ANC) concurred with Mr Bongo.
The Chairperson said that any dissatisfaction or disapproval of the Bill or the proposed amendments would be addressed during the deliberations. She asked the Members to allow the Legal Advisor to take the Committee through the proposed amendments on the Films and Publications Amendment Bill.
SABC Board Shortlisting
Dr M Ndlozi (EFF) went off topic and said that it seemed as though the Committee was rushing the appointment of the SABC Board. Assertions were made previously that the Board should be constituted from scratch. In light of all the challenges of the broadcaster, Parliament even instituted an inquiry to ascertain its challenges but nothing really changed. After the interim Board was appointed, those members resigned, one by one, even after an inquiry was instituted. When board members started resigning, Parliament did not interrogate why this was happening.
He proposed that the Committee should hold exit interviews with former board members.  There were some who would be willing to come and speak to the Committee. It is normally a political move to remove people from the Board, but it would assist Parliament to understand what really is the problem at the SABC. Perhaps, before the Fifth Parliament closes, the Committee could hold those interviews. He felt that the appointment process was being rushed. It was discomforting knowing that people left the board without Parliament ascertaining the reasons why they were leaving without finishing their term. 
The Chairperson welcomed the point, and submitted to Members to engage on it.
Ms Van Damme believed the process of appointment was being deliberately delayed and the suggestion to hold exit interviews was one of the delaying tactics. She argued that Mr Ndlozi has not been attending meetings consistently, while the rest of the Members have been attending and therefore know and understand the depth of the challenges at the SABC. All compelling challenges at the SABC such as retrenchments, amongst others, need to be resolved as soon as possible but that can only be done by a quorating Board. She asserted that the appointment process was not being rushed and the Committee should proceed accordingly because Members were already aware of the challenges confronting the SABC.
Mr Bongo said he was inclined to agree with Dr Ndlozi on his suggestion regarding the exit interviews.
Mr M Kalako (ANC) wanted the Chairperson to guide the Members whether the matters raised by Dr Ndlozi and Ms Van Damme should be deliberated now or rather at the end, because the Members were now off topic in terms of the programme of the meeting.
Mr R Tseli (ANC) said that the legal team would talk about issues that were related to the amendments and it would be premature for the Members to get into the discussions before receiving the legal opinion.
The Chairperson welcomed all the points raised and asked Members to allow the Legal Advisor to take the Members through the proposed amendments on the Films and Publications Amendment Bill.
Briefing by Legal Advisor on the proposed amendments on the Films and Publication Bill
Ms Phumelele Ngema, Parliamentary Legal Advisor, said that the Bill was deliberated on, passed by the NCOP and referred back to the Committee in terms of Joint Rule 183. The rule stipulates that the Committee was to deal with the Bill and the proposed amendments. The Committee can either deliberate on the Report with the proposed amendments from the NCOP or deliberate on the Bill. 

Currently, the Committee would deliberate on the Report with the proposed amendments from the NCOP. Going forward, the Committee can either provide a Report that is prepared with the proposed amendments or the Bill that will incorporate all the amendments that have been discussed and proposed by the Council and agreed to by the Committee. Currently, there is no Bill that speaks to incorporating the amendments, it is only the Report.
Dr Ndlozi asked whether the Bill was referred to the Committee after all the due processes were followed, because there was a concern about a violation of how we function in this institution.   The NCOP sat in that meeting that was not quorating and it would make it illegal for the Committee to consider the Report coming from a meeting that was not quorating. Clearly it was a caucus. He raised this point because there was a dispute to the fact that the meeting did not reach quorum. He hoped that the Legal Advisor would start off by speaking to that issue, unless she was not aware of it. Members cannot be misled and it needs to be clarified.
Mr Kalako said that Dr Ndlozi was indeed correct; perhaps before proceeding Members should be furnished with a document from the NCOP stating that to be the case or not. Members needed to deal with things that are recorded not hear-say.
Ms Van Damme said that it was quite likely that the Legal Advisor did not know the process. Due to time constraints, perhaps this agenda item can be frozen for now and dealt with at a later stage. The Committee cannot proceed with the Report because it would be illegal to do so. Therefore, she would not participate in these proceedings unless the matter was halted until a later stage.
Mr Kalako did not agree with Ms Van Damme about hearing from the NCOP, if possible the Committee can obtain some clarity from the legal team regarding this matter.
Ms Van Damme said that she knows the full facts of what happened and there were two meetings that took place in which the amendments were adopted. Both meetings did not quorate. Members of the opposition were deliberately not informed of the meetings which took place at OR Tambo. This would be an undemocratic process and if the Committee continues to engage in this it would be doing so undemocratically and the DA would like to distance itself from such.
The Chairperson suggested that perhaps the Members needed to hear from the Legal Advisor first.
Ms Ngema said that in relation to the Select Committee meetings, she was present in all of the meetings. All processes and procedures were indeed followed and observed and she could vouch for that to the extent that she can sign an affidavit to that effect. There were a number of meetings that took place before the Select Committee, and some of them took place in the precinct. Towards the end of last year, all NCOP Members (as the whole House) had to be in Gauteng as part of the Taking Parliament to the People Programme. Chairpersons of Select Committees submitted requests to the Chairperson of the NCOP for some of the work to continue in Gauteng. As such, and upon the approval of the NCOP Chairperson, notices were published in various platforms as well as the ATC. She and her team were requested to be part of the meetings that were taking place, and in one of the meetings that took place at the Protea Hotel in Gauteng, there was a member of the public who was present to observe whether protocol was observed.
The Member (Ms Van Damme) may be correct in that she may not be privy to the circumstances that took place in the House (NCOP). However, in terms of what she had seen in papers that can be scrutinised; she did not see any reason why the work of the Committee would be halted regarding this Bill.
Mr Bongo requested that the matter be deferred. The Report must be accompanied by the Bill and Members did not have the Bill at this point. These two documents must be encompassed together to provide some certainty to the Members in light of the matters raised by Dr Ndlozi and Ms Van Damme.
Mr Tseli said that it would be improper for the Committee to engage on information that only some Members of the Committee were aware of. The Committee needed to stick to the business on the agenda for now. The Report can be postponed but for the reason pointed out by Mr Bongo.
The Chairperson said that if there was a procedural problem regarding the adoption of the Report in the NCOP, the Committee has not received any correspondence or formal objection by any of the parties on the table or from the Speaker. By virtue of the lack of such correspondence, it was difficult to entertain the assertions.
Ms Van Damme said her input and comments were a formal objection.
Dr Ndlozi said Ms Van Damme cannot formally object from the National Assembly about a Bill that was presented to the NCOP. The people that sit in that meeting should have made that case, even though Members welcomed her point. It sounded as though the dispute was now coming from her, instead of the Members of the DA that sit in those proceedings. 
The Chairperson said that it was improper that if the DA lost the battle in one place it wanted to take the battle elsewhere or to the next Committee and expect the Committee to agree without any formal correspondence backing up their assertions. In the official documents of the proceedings, it is clear that the DA was represented, and this was made clear in the declaration of vote which is in the minutes. She pleaded that Members should be given the opportunity to consider the changes that have been proposed. There was no reason to not continue with the consideration and deliberation of the amendments.
Ms Van Damme said that she received information that the due procedure was not followed. Therefore, if the Committee wishes to continue it may do so but the DA objects to the procedure and the process. Furthermore, it also objects to the deliberations that would unfold because the DA would not engage in an illegal process.
Mr Xaba said that the Chairperson made a referral to the minutes of that meeting. Therefore, it was fair to allow the Legal Advisor to continue with the amendments.
Proposed Amendments from the National Council of Provinces 
Ms Ngema proceeded with the amendments and outlined them as: 
Clause 6
The NCOP sought to strengthen the Bill in respect of the enforcement committee. It then proposed further that the Chairperson of the Enforcement Committee must be a retired Judge. Secondly, there was a concern reliant on employment problems in the country, and take off any reference to the ten year experience as a requirement.
Clause 12
The provision related to a drafting style, it was not being struck off but in order to make the corrections on the deliberations of the Select Committee had to be done in the manner prescribed in the provision.
Clause 15
Seeks to amend clause 16 of the Principal Act. The proposal came from the Members of the opposition during the deliberations that clause 15 and 17 were related and speaking to the same thing.
Clause 19
During deliberations Members had an issue with the two years regarding the request of a review or reclassification. Members proposed to change it to a lesser period, and one year was agreed to.
Clause 34
This provision was just an exit task or an editorial change that must be done by the Legal Team.
She said that these were the proposals that were referred to the Committee for deliberation, concurrence, rejection or direction. Depending on the decision of the Committee, should the Committee agree to the amendments; there is a process that needs to take place to incorporate these amendments into a Bill so that it may be read within the context of the Bill.
The Chairperson proposed that Members read through the clauses and indicate whether they agreed or not.
Mr Bongo proposed that the Members adopted the recommendations of the NCOP so that they did not lose track of what they are doing. These recommendations need to be encompassed by the Bill so that they can be considered together with the Bill, and perhaps come in the form of the Bill.
Dr Ndlozi said that he was not getting a sense that Members were still opposed to two fundamental matters; firstly, the question of pre-classification of online content. There is a Constitutional judgement on the matter and he thought that the proposed amendments would address that. Secondly, child pornography is already regulated under the Sexual Offenses Act. These were the two objections the EFF communicated in the Committee and the National Assembly. Therefore, it cannot support the Bill. How would government regulate videos uploaded on Twitter? It was still unclear how online content would be regulated.
Mr Tseli noted that the amendments were presented. One of the Members suggested that they should be adopted as they are. The Committee could take note of the objections by other Honourable Members.
The Chairperson said that once these recommendations were adopted, the Bill (not the Report) would then come back to the Committee for deliberations and consideration in the next meeting.
Members agreed to the proposal. 
Ms Van Damme pointed out that the DA objects to the process and procedures and that the party was offended.
Mr Thembinkosi Ngema, Committee Secretary, read out the Committee Report on the NCOP proposed amendments on the Films and Publications Amendment Bill.
Members then moved for the adoption of the Report, and it was adopted.
SABC and MDDA Board Shortlisting
Mr Kalako ascertained whether the Members would first consider and deliberate on the matters that were raised by Dr Ndlozi earlier regarding the shortlisting of the candidates.
Mr Bongo supported Dr Ndlozi. He noted that the SABC Board matter keeps coming back to Parliament, and this would be the fifth time. He felt that perhaps nothing was done to ascertain why board members were leaving the broadcaster shortly after they were elected or somewhere down the line. Filling in the vacancies would be a matter of compliance but it would lack a deeper scrutiny into where the challenges were stemming from. He suggested that the shortlisting should then be postponed and the Committee commences the process of conducting exit interviews as suggested.
The Committee may also need to meet with the Board to shed some light on what the problems are and where they come from – maybe conduct an inquiry. The turnaround strategy was not even presented to the Committee in a manner that would convince Treasury to grant the guarantee. As the Fifth Parliament, the Committee should not burden the Sixth Parliament with matters that the Fifth Parliament was supposed to deal with.
Dr Ndlozi stated that he was critical of and lacked the confidence in the current administration even though it was led by Mr Ramaphosa. With that said, in a space of less than two years, and in some cases months, board members left the SABC Board and the SABC found itself in a space of haemorrhage. All of this happens even though capable, fit and proper individuals were interviewed and appointed. Those that have left; their side of the story was never heard. Secondly, the Board has not been supported by the government and they did everything by the book, but did not get a guarantee from government. There are plenty of SOEs that have been granted guarantees even though they are performing poorly. The argument that it would get a guarantee if the Board is complete is a mirage. The SABC has begged for over a year for a guarantee but no assistance was granted. The Committee would be setting up anybody to lead the SABC for failure.
Dr Ndlozi said he was ready to shortlist if he lost the debate; however he was not convinced that the shortlisting and appointment would assist the SABC due to the nature of political interference. 

Ms Van Damme said she knew it would have been too good to be true for the shortlisting to take place today, and all of these comments are excuses not do the shortlisting. In order for the SABC to get the finances, Members must appoint the Board and the best people who can find solutions for the SABC. Members should stop playing games, and unequivocally state that they do not want to appoint a Board, period. On what basis should an inquiry be conducted on the remaining board members? Section 13(a) states that an inquiry can be conducted if there is misconduct or if a person is not fit for the job. An inquiry takes a very long time, it will take up the rest of the term and there is no legal basis for an inquiry. Members must simply make it clear that they do not want to appoint a Board because people at the broadcaster are living in agony everyday not knowing whether they are going to have their jobs or not.
She pointed out that she had spent so much time looking through the CVs of the candidates, but it is clear that the Committee was not interested in shortlisting. And if that is the case, Members must say so and stop fooling around with the people of South Africa. Dr Ndlozi has not been to the Committee for months and Members have done the work that needed to be done at the SABC – all he was doing was contributing to a further delay of the appointment of the Board.
The Chairperson said that there are important principles that Members need to adhere to in Committee meetings. The pointing of fingers to each other perpetuates anarchy. She welcomed the point but Members should not jump and point fingers at each other. The pointing of fingers to each other perpetuates anarchy. She welcomed the point but Members should not jump and point fingers at each other. She pleaded with the Members that whether or not they disagreed with a point, they must do so through the Chairperson.  
Mr Tseli said that he would not be tempted to comment on some of the issues raised or dignify some of the comments as they were made for campaigning purposes. Parliament has done a lot to attempt to stabilise the SABC. Looking at the summary of the CVs that have been received thus far, it is clear that people were gaining confidence to contribute in stabilising the SABC. The ANC government has done a lot of work in trying to stabilise the SABC. The Inquiry suggestion is observing the provisions of the Act, and Members can agree that the inquiry route could be the best route in resolving some of these issues. That was the only route that the ANC suggests should be taken. In the process, Parliament would be able to ascertain all that information and reasons as to why people left.
Mr Xaba said Ms Van Damme should not read the Act in isolation. It would be fair to hear from the current Board on a deeper level on some of the issues.
Dr Ndlozi said that the problems at the SABC are political and the unwillingness from the political structures to stay away from the public broadcaster. Every time there is a vacancy, the best minds were convened and appointed and the Committee came up with the best team. After the process of looking into many CVs and debating about the best candidates, they are appointed only to be politically failed. He did not mind continuing with the process of shortlisting, but the problem here is political interference. It would be failing and fooling the people of South Africa to keep on doing the same thing over and over again and expecting a different result. Members have done this so many times, and the problem is not the combination or lack of skills. If the government was fair and consistent in its treatment of SOEs and granting guarantees, the SABC would not be in this position. The politics must be fixed, because it was clear that the problem was not the board but the government for failure to grant the guarantee. There is no financially intelligent person with a high level of business acumen that could convince ABSA to grant the SABC a loan without a guarantee from the State.
Ms M Matshoba (ANC) agreed with the suggestion that the remaining board members should be called so that the Members can hear directly from them about the real challenges at the SABC. Members must know exactly what was going on at the SABC. Other Members have also gone through all the CVs of potential candidates and there are outstanding individuals but it would not assist the Corporation doing the same thing over and over.
Ms Van Damme said that she knew from day one that this would be the plan to delay the process. The Act is very clear about removal of board members but what legal grounds would be proposed for dissolution? She argued that this was the plan from the beginning. There are no grounds to dissolve the Board, and Parliament would be taken to court for this. The ANC does not want a permanent board at the SABC, and wants an interim board before the elections. The ANC wants people that can be toyed with and controlled.
The Minister addressed comments about government’s efforts to assist the SABC and the guarantee that was supposed to be granted a year ago. She was advised - when she arrived at the Department - that a guarantee application was submitted by the SABC but later withdrawn because the Board thought it would receive funding from commercial banks. That is what led to the delay and then the Board went back to Treasury to re-apply. One of the issues that were raised was the turn-around strategy and the corporate plan was said to be outdated. Management went back to re-work on that. The Department has engaged with the personnel at SABC, unions and management and nobody is panicking. Government assured the SABC that it was not in its interest to sit and watch people lose their jobs. Be as it may, protocol must still be observed and adhered to. The Minister of Finance, in his Budget Speech, indicated that the SABC would be assisted, with conditions, to ensure that taxpayers’ money was not given fruitlessly. Clear conditions would be put in place to ensure that in its turn-around strategy, those conditions would be met.
The Chairperson asked the Legal Advisor to read out the provisions in the Act for the dissolution of the Board.
Ms Ngema read out for Members section 15(A)(1)(a) of the Amendment Act in relation to an inquiry and dissolution of a Board:

15A. (1) (a) The National Assembly may, after due inquiry and by the adoption of a resolution, recommend the removal of a member from office on account of any or all of the following:

  1. Misconduct;
  2. inability to perform the duties of his or her office efficiently;
  3. absence from three consecutive meetings of the Board without the permission of the Board, except on good cause shown;
  4. failure to disclose an interest in terms of section 17 or voting or attendance at, or participation in, proceedings of the Board while having an interest contemplated in section 17; and
  5.  his or her becoming disqualified as contemplated in section 16.

(b) The National Assembly may, after due inquiry and by the adoption of a resolution, recommend the dissolution of the Board if it fails in any or all of the following:

(i) Discharging its fiduciary duties;

(ii) adhering to the Charter; and

 (iii) carrying out its duties as contemplated in section 13(11)

(2) The appointing body—

 (a) may suspend a member from office at any time after the start of the proceedings of the National Assembly for the removal of that member;

(b) must act in accordance with a recommendation contemplated in subsection (1) within 30 days;

(c) must dissolve the Board if the resolution recommends the removal of all the members of the Board.

(3) (a) Upon the dissolution of the Board contemplated in subsection (2)(c), the appointing body must appoint an interim Board consisting of the persons referred to in section 12(b) and five other persons recommended by the National Assembly.

(b) The interim Board must be appointed within 10 days of receiving such recommendations and is appointed for a period not exceeding six months.

(4) The appointing body, on the recommendation of the National Assembly, must designate one of the members of the interim Board as the chairperson and another member as the deputy chairperson, both of whom must be non-executive members of the interim Board

The Chairperson thanked the Legal Advisor and stated that it was important to exhaust the powers available to Parliament when exercising its oversight function.
Dr Ndlozi said that there are no grounds for an inquiry for existing Members. It was not proper to go that route. He noted Mr Xaba had earlier said that Members can shortlist and conduct the exit interviews at the same time so that Members are not told that they are delaying the shortlisting and appointment of candidates for the SABC. He was not aware that the SABC was offered a guarantee, and later withdrawn. Before the shortlisting takes place, Members should hear from the Members of the Board who are willing to share their experiences with the Committee. 
Mr Xaba supported the issue of the inquiry and it would not be correct for Ms Van Damme to read the Section 13 (a) in isolation, and leave out Section 15A(1)(a).
The Minister clarified that a request was submitted and later withdrawn by the SABC because the Board believed that it could go to a commercial bank to acquire funding. Following her appointment, the team furnished her with information that there was a request made by the Board. She had met with the Board where it confirmed that it had withdrawn the request. When it made a submission, that submission had a Corporate Plan which needed to be revised. She then convened a team to assist the SABC to develop the Corporate Plan.
It was also true that the Minister of Finance has made a commitment, and if all protocols are observed, the SABC would be assisted financially. Currently, the Department is in a position to put together conditions.
When talking about people’s lives Members, should not use their agony to try and score political points. It is in government’s interest to ensure that the SABC is assisted. The SABC had been granted a bailout but it still failed, so now conditions would be put in place to ensure that would not happen again.
The Chairperson said that the perception in the public is that the staff members are on their own and it is important that the public is informed that government was doing everything it can to assist the Corporation.
Ms Van Damme said that in the same way politicians cared about the SABC staff, the DA requested a skills audit to ensure that the right people were in the right positions. People have reached out to us as politicians and not everyone is happy at the SABC. The ANC has now taken a resolution that the board should be dissolved, and on what basis and legal grounds was the board going to be dissolved?
Mr Kalako said that deliberations could go on forever on this matter, but the Committee has not yet embarked on finding out why people continue leaving the SABC Board or formed factions.
He suggested that the remaining board members should also be part of the exit interviews. Furthermore, he emphasised the point in response to Ms Van Damme that there are people writing to the ANC that the DA itself also interferes in the SABC and it cannot accuse others of something it is guilty of. Those DA people work as some form of foreign agents that want information to disrupt. Even the issues occurring at the MDDA, the DA has a hand in that. The Member should not cast aspersions about things that her party is guilty of.
The Chairperson said that Parliament can summon anyone, and perhaps the current board members could be requested to come next week.
Ms Van Damme asked Mr Kalako to make public all the information about the DA interfering in the SABC because the DA is very transparent about the ANC's interference. She asked for a procedural clarity regarding the exit interviews and the shortlisting. There is no clear direction that would be taken by the Committee.
Dr Ndlozi said that the Committee would set up a time next week to conduct exit interviews. He suggested 5 March. This will assist Members to concretise the matters and enrich themselves as it would embark on the shortlisting. All previous Members can be called in and those that confirm could be heard by the Committee.
Mr Bongo said that an inquiry does not necessarily mean that there will be dissolution; it could have a recommendation to the Speaker and the President.
The Chairperson thanked the Members, and submitted that a revised programme would be sent to the Members for next week Tuesday.
The meeting was adjourned.

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