Establishment of National Orchestra: DSAC & NAC briefing

Meeting report

The Chairperson raised concern about unknown people accessing the Committee meeting platform. She ordered them to leave and cautioned Members not to distribute login details outside the normal protocol processes that attendees need to follow.

Briefing on the Mzansi National Philharmonic Orchestra by the Department of Sports, Arts and Culture (DSAC)
The Director-General of the DSAC informed the Committee that his delegation consisted of Dr Cynthia  Khumalo: Deputy Director-General: Arts and Culture Promotion and Development, Mr JP Lowe: Chief of Staff, Mr Mthobi Tyamzashe: Advisor to the Minister, Mr Ludwig, and Mr Isreal Mohammed: Chief Financial Officer, and Mr Charles Mabaso.

Dr Khumalo stated that history revealed a variety of historical phenomena ranging from colonisation, unjust legal systems, and other discriminatory practices. This bred a society of extreme imbalances and socio-economic inequalities in many areas of our society. The new dispensation ushered a complete restructuring of the policy on Art and Culture. Among others, a White Paper of 1996 pronounced the establishment of Playhouses, which impacted the former Performing Arts Councils (PACs).

She said there were subsequently dissenting voices owing to the limited growth this decision has had on the orchestra’s music subsector. This resulted in a special concession for a ring-fencing of orchestra funding for the KwaZulu-Natal Philharmonic Orchestra, Cape Philharmonic Orchestra, Cape Town Jazz Orchestra and the Johannesburg Philharmonic Orchestra. The direct funding to the orchestra was documented in the 2003 Estimates of National Expenditure published by National Treasury and approved by Parliament with three Orchestras being funded through the Department’s entity, the National Arts Council. The funding in the National Arts Council is provided annually based on a detailed budget proposal that provides programming activities and support for administrative overheads. Per the arrangements and contractual obligations, funding for the orchestras was allocated in two areas: 85% of the grant allocated to the orchestra for programming and 15% for overheads.

Dr Khumalo said that part of advancing the view contained in the 2018 Revised White Paper on Arts, Culture and Heritage is that National Companies must be developed so that their artistic reputations for excellence contribute to the advancement of cultural tourism. The National Orchestra is an element of a dynamic, vibrant, transformed South African arts, culture and heritage sector that will contribute to nation-building, social cohesion, and socio-economic inclusion. The established entity was named the Mzansi NPO. Mzansi NPO seeks to create an impact through music as a medium facilitator for building inclusivity, social cohesion, and social dialogue.

Dr Khumalo concluded by saying that following the development of a concept document, a Board which consists of highly reputable South Africans was appointed to lead this formation. The board members are Justice Leona Theron (Chairperson), Ms Wendy Luhabe, Professor Muxe Nkondo and Mr Bongani Tembe. Mr Bongani Tembe was also tasked with project management based on his extensive background in the orchestral community.

See presentation for further details

Briefing by the National Arts Council (NAC)
The Chairperson of NAC, Ms Celenhle Dlamini, introduced her delegation as Ms Julia Diphora: Acting Chief Executive Officer and Mr Vincent Mtshali (sp): Company Secretary. She then extended an apology on behalf of her board members who she said had day jobs and found it challenging to attend some meetings due to commitment to their own businesses. She added that every time they have to call board members to such meetings, it costs the NAC hundreds and thousands of Rands. Therefore, the Chairperson and the CEO are chosen to attend on behalf of board members to save costs.

Ms Julie Diphofa, Acting Chief Executive Officer, NAC, stated that prior to 1994; major orchestra companies were attached to the former Performing Arts Councils in the four provinces Artscape, Playhouse, PACOFS and the State Theatre. The orchestras were directly supported through these Performing Arts Councils. They presented various concerts and rendered musical support to the opera, ballet, and other performances.

Political pressure and the outcry from the orchestra sector encouraged the Department of Sports, Arts & Culture to concede to the continued funding of orchestras in the interest of the country’s legacy, reconciliation and nation building. The DSAC responded by allocating “ring-fenced” funding for the existing orchestras to the NAC each year. Orchestra companies supported over the years included the KwaZulu-Natal Philharmonic Orchestra, the Cape Philharmonic Orchestra, the Cape Town Jazz Orchestra and the Johannesburg Philharmonic Orchestra. The NAC does not have jurisdiction and/or influence in selecting the beneficiaries of “Ring Fenced” funding as that is determined by the funder. Its main role is to distribute funding to the already identified beneficiaries, due to its mandate as per the NAC Act.

Ms Diphora said that in 2019 a sum of R1 000 000 was transferred into the KZNPO’s account to establish the Mzansi NPO as requested by the Department of Sport,s Arts & Culture. These included administration and operational costs for Company Secretarial Services, legal fees, Travel, Task Team staffing costs and Accommodation amongst others. To date, this initial funding has been used for its intended purpose.

See presentation for further details

Briefing by the Mzansi National Philharmonic Orchestra
During 2021/22, the Mzansi National Philharmonic Orchestra (Mzansi NPO) was properly constituted as a non-profit company (Section 30) and a board of directors. After many months of preparation, the
securing of national and international partners, and the establishment of the necessary business
plans and protocols, South Africa’s first national orchestra in the democratic era was officially launched in July 2022. The Mzansi NPO is managed by Bongani Tembe, a Juilliard School graduate who returned to South Africa in 1994 at the dawn of South Africa’s democracy. Mr Tembe is also the Chief Executive and Artistic Director of the KwaZulu-Natal and Johannesburg Philharmonic Orchestras.

The Mzansi National Philharmonic Orchestra was launched as part of the University of the Witwatersrand’s centenary celebrations in July 2022. Mzansi NPO constituted musicians from seven of South Africa’s nine provinces and from other parts of the world who came to perform in this inaugural concert, underscoring one of Mzansi NPO’s ideals of inclusivity.
In line with the Mzansi NPO’s mission to bring the music of the orchestra to communities throughout South Africa, the orchestra was thrilled to host a concert for the Albertina Sisulu Special School at the Albertina Sisulu Centre in Soweto in July 2022. (Mzansi NPO) was proud to partner with the Turquoise Harmony Institute (THI) at a recent performance in Johannesburg aimed at highlighting the plight of asylum seekers and refugees, who are among the world’s most disenfranchised people.

Representing South Africa on the global stage, members of the Mzansi National Philharmonic Orchestra will join musicians from other G20 countries to perform at the G20 Cultural Ministers Summit in Indonesia in September 2022. Led by its Principal Conductor, Marin Alsop, the Mzansi National Philharmonic Orchestra will embark on its first national tour commencing 16 December 2022, and taking the orchestra to several communities in South Africa, in performance of Beethoven’s Symphony No 9, with local choirs.

The orchestra has an annual budget of about R32 million, funded by the Department of Sport, Arts and Culture as well as the private sector and box office income. Mzansi NPO is also in the process of establishing an endowment fund.

See presentation for further details

Discussion
Mr T Mhlongo (DA) expressed that it was unacceptable for board members not to attend the meeting and rejected their apology. He said the chairperson and the CEO did not run the NAC and therefore they cannot represent board members. There is a legislative allowance that board members get for attending meetings if they are working. He requested that it be noted that he does not accept the apology from the NAC board members.

Ms D Sibiya (ANC) said that it seems as though these respective board members are not prioritising the Committee meetings.

Ms V Van Dyk (DA) agreed with her colleagues that they do not accept the apology of the NAC board members. The fact that the meetings are through the Zoom platform should allow members to attend with ease as there is no travel time needed and it is simply a matter of logging in and out of the platform.

The Chairperson of the Committee told the chairperson of the NAC that she had been cautioned about her fellow board members being absent. She said that the Committee does not accept their apology and they need to prioritise attending deliberations with the Portfolio Committee.

Mr Mhlongo said in the previous meeting, Members were requested to send questions in writing and the presented organisations only responded last night with vague answers that had no evidence. He said the NAC and the Mznatsi NPO were not being transparent with the Committee despite numerous requests for critical information.

He also raised concern that the NAC and the Mzansi NPO failed to come to the meeting with their leaders.

He asked why there were no legislative frameworks governing the Mzansi NPO. He said a response from the DSAC that processes were outlined in a White Paper would not suffice.

He asked for clarity on whether the Mzansi NPO was a non-profit or not-for-profit company, if it had shareholders, and who those were. He asked why the DSAC and the Mzansi NPO only entered into a Memorandum of Understanding in 2021/22 when the DSAC had already transferred its budget allocation on 2019/20. He said this was concerning for the DSAC to allocate money in advance to the NAC and also wanted to know when the Mzansi NPO was registered.

He said that the Mznatsi NPO was allocated some funds and a sum of it, around R41 million was transferred to it. He asked into which bank account those funds were transferred, by whom and to whom it was made.

Mr Mhlongo asked how many names Mr Tembe was operating under, how many positions he occupied in the public service and how many salaries he received. He said according to the research he had done, Mr Tembe is also a Council member of the NAC. He asked Mr Tembe if he had a driver who he was paying to drive him in his capacity as CEO of the Mzansi NPO. He asked how much that driver was being paid.

He further asked whether the Memorandum of Understanding (MOA) between the NAC and the Mzansi NPO was drafted by an individual. He also asked why the Committee was not given a copy of the MOU.

He said it is alleged that the NAC chairperson is related to Mr Tembe and that the Mzansi NPO has close ties with their family. He sought clarity on this.

He asked the Minister what oversight role he has over the Mzansi NPO and which legislation gave him the right to appoint a shareholder for this organisation.

He raised concern about the lack of participation of other board members of the Mzansi NPO, stating that only the Professor was at the launch of the NPO, and no other board members were present.

Mr Mhlongo also asked why the financials were not included in the Mznatsi NPO as money had been allocated and the Committee would like to know how the allocations and what the R1 million were used for.

Ms R Adams (ANC) stated that the report mentions R54.7 million is allocated to the Mzansi NPO and 5% of that is levied to the NAC for administration of the project which amounted to R2.7million. She asked what the administrative support entailed.

She also asked the Mzansi NPO who their international partners were, as indicated in their presentation.

Ms Van Dyk asked whether any procurement processes were followed in establishing the orchestra. She said a non-profit company is owned by private individuals, which seems to suggest there was no transparency in the formation of the Mzansi NPO.

She added that the absence of the NAC board was not strange to her because she had documents which showed that they were not involved in putting together the MOU as that process was done by the chairperson only, unless they could give the Committee reports which stated otherwise.

She asked further how much of the money went into regional work, how much of the R41.5million had already been spent, and on what.

She asked if the R1million was transferred via the Kwa-Zulu Natal Philharmonic Orchestra and if it was not held in the name of Mzansi NPO.

Ms Van Dyk asked whether a feasibility study had been conducted for the establishment of the orchestra and if so, she asked by whom and how much it cost.

She asked for minutes of meetings of the NAC and the Mzansi NPO with attendance registers and the audited financial statements.

She mentioned that the NAC states it was used on administration and operations. She asked for names of the legal services and task teams who had conducted work for the orchestra.

She asked who funded the travel of the board member to London and how much it cost.

Ms van Dyk asked Mr Tembe how much he earned from the Mzansi NPO in his capacity as CEO and how much he earned as a Council member of the NAC.

She asked further whether the position of CEO of the Mzansi NPO was advertised as there seems to be no transparency and this excludes other people from seizing such employment opportunities.

Lastly, she asked why the NAC distributes the funds to the Mzansti NPO and why the Department itself did not do it.

Ms V Malomane (ANC) mentioned that the Mzansi NPO stated in their slide that the budget for the next three years was available for viewing ‘in the following pages’, however, the budget was not there.

She asked how much was allocated to upcoming performances.

She asked for clarity on why only seven provinces were mentioned as having orchestras and why the other two were omitted.

Ms Malomane asked why the budget for regional orchestras was reduced by about R20 million.

She asked what the orchestra was doing to develop indigenous music and to promote orchestral music in provinces that did not have it.

Mr D Joseph (DA) (Alt) commented that there is a place for public-private partnerships that could ultimately help organisations become financially independent.

He asked for the document outlining the process of electing board members to be forwarded to the Committee.

He asked further for clarity on whether the ring-fenced budget was a general practice of the DSAC.

He asked the DSAC whether they had been given all the questions raised by the Committee previously.

He asked the DSAC to look into the positions occupied by Mr Tembe and the financial benefits that seem to follow him in all these roles, as there could potentially be a conflict of interest.

Ms D Sibiya (ANC) stated that the DSAC’s presentation was not detailed. It lacked information about outcomes, outputs, and targets.

She said that the NAC presentation did not address steps taken about the irregular expenditure raised by the Auditor-General.

She said that she and Mr Mhlongo owe the Mzansi NPO an apology for disturbing them while they were still busy with their presentation. She said it was out of order and for that she apologised.

Lastly, she asked whether the Mzansi NPO was staffed, and if so, she asked them to present the Committee with an organogram.

Mr B Luthuli (IFP)   mentioned that he supports the Mzansi NPO fully as he believes there is a lot it will do to help mobilise youth against challenges like drugs.

The Chairperson asked how sustainable the orchestra is in sustaining the livelihoods of the artists and in also developing the artists.

She asked what international co-operation the orchestra has with other nations and whether there were any further plans to advance cultural Diplomas.

She asked further what plans the orchestra has to make itself accessible in schools across provinces without universities or universities without music departments. She asked how the orchestra would transform classical music.

Responses from the DSAC
Mr Vusithemba Ndima, DG, DSAC, responded that he would like to place on record that the apologies of Judge Theron and Ms Wendy Luhabe were presented to the Department and the Department forwarded them to the Portfolio Committee Secretary on 14 September at 19:39. He, however, acknowledged that as the Department with an oversight responsibility over the Mzansi NPO, they have learnt that these apologies need to be tendered again at the meeting with the Committee.

He stated that many things in government are done based on policy. The revised White Paper was very clear on the intention to establish a National Orchestra.

The Minister also has the prerogative during the formative stages of an idea to put together a panel or committee. The payment of such panels is determined by   National Treasury regulations. Sometimes ideas are tested before there is legislation such that by the time there is legislation; lessons on successes and the failure of the ideas are used. He said there was nothing wrong with incurring expenditure to work on an idea as there are people tasked to do this daily.

He said he would provide the Committee with the terms of reference asked for by Mr Joseph.

He responded that it was not a mistake that the presentation of the Department was a summary because the Department gave an overview of an organisation and then the relevant organisation came with a detailed presentation.

Responses from the NAC
H.R.H Celenhle Dlamini,   Chairperson, NAC, responded that Mr Tembe would recuse himself in his capacity as Council member of the NAC from the NAC deliberations about the Mzansi NPO. Even when the NAC members believed the matter under discussion was minor, he would still recuse himself. This was to avoid exactly the concern of conflict of interest.

She said she has no family relations with Mr Tembe and the first time she met him was actually when she started serving in the NAC and had not known him prior to that.

She lastly responded that the MOUs between the NAC and the Mzansti NPO went through Council and extensive deliberations before they were approved.

Ms Diphofa (Acting CEO) clarified that where the presentation refers to “NPO” after the word Mzansi, it is an abbreviation for the National Philharmonic Orchestra and does not mean a non-profit organisation in this context.

The Mzansi NPO was registered in 2021 with the CIPC as a not-for-profit company (NPC). She said the NAC are privy to the bank account they are using which is First National Bank. To date, the NAC has transferred R41 557 000,256 in terms of payments. The NAC has been engaging the DSAC on the release of the ring-fenced funding. This resulted in the NAC and the DSAC entering a formal legal contract to disburse this funding to the Mzansi NPO.

She added that the NAC had received two audited financial statements from the Mzansi NPO. The first one was received on 31 March 2021 and showed a breakdown of R889 487 still remaining in the funds of the orchestra. In March 2022 the breakdown showed R459 308 remaining in the orchestra.

She commented that the NAC’s strategic plan was to raise funds to contribute to the funds that it administers. This includes disbursements given on behalf of the Department.

She clarified that the NAC administers several funds on behalf of the Department. The NAC does not adjudicate and take applications to the board for approval. The NAC will receive a list from the DSAC to assist with making payments. For example, in the third wave of Covid, payments were made to artists. Likewise, the Mzansti NPO does not respond to any normal calls for funding made by the NAC. The orchestra receives its funding as reference funding from the Department.

Regarding the findings of the Auditor-General, she said the NAC had to develop a legal agreement between itself and DSAC which would govern the disbursements of funds. The NAC has gone further to draft a broader contract which is specific to the Mzansi NPO.

Responses from the Mzansi NPO
Mr Bongani Tembe, CEO, Mzansi NPO, thanked the Committee for the sincerity of their questions which indicate that Members have a keen interest in seeing it succeed. He said he would try not to be personal but rather to respond objectively from a point of view of principle or policy.

In response to the question about his role in the orchestra, he said he was very happy at the Kwa-Zulu Natal Philharmonic Orchestra as he had been running it for more than 25years. The Johannesburg Philharmonic Orchestra approached him to assist them after they had gone through a period of business rescue. And recently, he was approached to be part of the task team for Mzansi NPO. He said he has no intention of creating some form of power block by being placed in these organisations. In fact, he resists them for months until he gives in to their request to be part of the boards.

He clarified that the NPC and the NPO were similar in their legal nature as they are organisations established not for profit purposes. The legislation changed over time from calling entities Section 10 non-profit organisations to now not-for-profit companies. These entities do not have shareholders. The Mzansti NPO is a not-for-profit company, and it does not have shareholders.

Regarding international partners, he said the orchestra has been engaging a few; however he did not want to disclose their details just yet as a big announcement would follow soon. The orchestra’s mission is also to advocate for strengthening international relations.

The R1 million used for administration and operations was the much-needed help in the formation stage as no organisation was established yet and things like flight and other travel costs for tentative members needed to be booked.

He said that the ring-fenced money is a practice that has been going on for over 20 years. The funds are even ring-fenced at National Treasury for the use of the orchestra. The founding funds of the Mzansi NPO do not come from the surplus funds of the NAC but are part of these normal ring-fenced funds.

He said the Mzansi NPO Board do meet regularly. They have also met the Department about three times and Justice Theron was part of those meetings. The board is meeting this afternoon and again in two weeks. Board members also attend concerts as well.

He stated that he could not recall the two provinces that do not have orchestras. However, the orchestra recruited members from across the country. A notable recruit was a talented trumpeter from the Free State.

He told Members that he would share the Mzansi NPO organogram once it is finalised by the board, who is also currently revising the business plan based on interactions they have been having with different stakeholders.

He agreed that the Mzansi NPO is a form of private-public partnership as there is contribution from government and the orchestra has its own fundraising initiatives. Various organisations were also seeking to endorse the orchestra.

Mr Tembe said the orchestra does not have full-time musicians who they need to sustain. It works, for example, like the national soccer team Banyana Banyana. The players belong to certain clubs and are called in to play when there are significant national matches.

He said the orchestra had introduced the cadetship programme to identify and nurture young talent.

He mentioned that the Committee at one of the meetings had advised that the orchestra works with universities. The orchestra has since met with the University of Cape Town to discuss collaboration and plans to meet with Stellenbosch University. There is also work in progress with the University of Kwa-Zulu Natal. The interest from the universities in supporting orchestral talent was encouraging.

He stated that there were three tiers within the orchestra, the top one being relationships with the top professional orchestras in the country and the bottom tier being the smaller ensembles. These relationships are governed by memorandums of understanding which were being revised for relevance to each tier. This also allowed the Mzansi NPO to lobby the provincial government to support it through funding and outreach to local schools.

Some of the musical legends the orchestra is working with include PJ Powers, Thandiswa Mazwai, Mahotella Queens, Ladysmith Black Mambazo, Don Laka, among others to cater for the different South African flavour genres of music.

Lastly, he apologised to the Committee for not presenting the Mzansi NPO strategy on the screen and said that he would make it available to the Committee upon request.

Responses from the DSAC
Dr Khumalo added that her colleagues had covered most areas of the questions raised. She said in response to the question about the MOU with the Mzansi NPO being signed a year later that after Cabinet signed off the White Paper in 2018, the Department started work on the concept.

She added that funds were paid to the KZN Orchestra because Mzansi NPO was still in its formative stages in the period 2018/19.

Regarding the recruitment of the task team, she said the Department, through the Minister, identified a group of experienced experts in this particular field and sent them letters requesting them to be part of the task team. There is documentary evidence of the process. The task team worked on the concept and provided input which enriched the direction of setting up the orchestra.

Dr Khumalo said she would share the MOU between the Department and the NAC with the Committee. The MOU was signed in August 2021, after discussions between the Department and the NAC. The NAC requested that certain areas of the MOU be tightened during September. The Director-General responded to accept those amendments and the revised MOU was signed. The purpose of the MOU was to define the roles and responsibilities concerning the establishment of the Mzansi NPO. This process happened parallel to the formal registration of Mzansi NPO.

She confirmed that the letters of appointment of the Advisory Boards outline the roles and responsibilities of the members that were appointed and gave details of the expectations of the Department. A record of these letters will be shared with the Committee.

Follow-up questions from Members
Ms Van Dyk requested that it be put on record that she rejected the responses given by the representatives of the various organisations.

She said that Mr Heinneman (sp) was not in the task team as he only attended one meeting where the Minister was only giving information, and after that, he was never contacted again. So, the information presented was misleading.

She said further that she would put her questions in writing because none of her questions were answered.

The Chairperson commented that some Members seem to have information that other Members are not privy to. She therefore requested that information be put in writing to the Committee Secretary who will forward it to the Department for clarity or comment.

Mr Mhlongo agreed with Ms Van Dyk that the Department and the NAC have not responded to the questions raised. He said previously, the Committee sent questions to the Department and the NAC in writing and they remained unanswered. This means that the Committee had to listen to the media to get information.

He said further that his questions regarding shareholders of the NPC were not answered.

He said that Mr Tembe did not respond to the questions of how much his salary was and why he held three positions.

He said that Dr Khumalo should have included details of the Memorandum of Incorporation and the Memorandum of Understanding in her background presentation. He said he had copies of these documents; some were signed while others were not, which is quite confusing as these documents are in the public domain. He likened this to the same tactics of circling around critical information as the Department did with the flag. This shows that there are underlying problems within the Department.

The Chairperson requested that Mr Mhlongo not reference the flag matter as it was an issue that was finalised.

Mr Mhlongo responded that he was making a comparison and not raising the issue of the flag. He told the Chairperson that she could not tell him how to speak.

The Chairperson commented that Mr Mhlongo was out of order in his reference and requested that Members respect the role of the appointed Chairperson even if they do not like what the Chairperson is doing.

Mr Mhlongo asked for evidence of resolutions cancelling previous MOUs to the revised one.

He also asked whether the Department was aware of the cases against the Mzansi NPO as he had learned about them from the media instead of the Department informing him themselves.

Closing remarks
After the delegation left the meeting, the Chairperson requested that Members of the Committee treat each other respectfully and respect delegations who have come for deliberations. She said as public servants, they needed to make sure that discussions took place in a manner that advanced the best interest of the people who appointed them to serve. Therefore, as the Chairperson when she was trying to steer the Committee in a certain direction, Members should also assess if it was in the interest of good progress and if it was, they should respect that.

Lastly, the Chairperson asked Members to put all unanswered questions in writing which the Committee Secretary would forward to the Department for responses.

Minutes of previous meetings were adopted.

The meeting was adjourned.