(Sub-Committee) SABC Board: deliberations

Meeting report

The Chairperson welcomed everyone present and announced that the Committee was commencing with the sub-committee meeting on the South African Broadcasting Corporation (SABC) board appointment process. The Committee meeting would convene after and separately.

The Committee would receive a briefing from the legal department. During the board appointment process, there had been submissions that came from members of the public, organisations and individuals. Those received earlier were specific about the objections to certain candidates that were to come before the Committee, after the advertisement of the shortlisted candidates. It had been agreed to refer those to the legal department. Subsequently, the closing date for comments was 22 September, but there were others received during the interviews reflecting on some of the candidates. Those would have to be placed on record to be recorded as part of the public participation process. It would also assist the Committee in deciding the direction it would take after the clarification from the legal department.

Members would also receive a brief report on the status of the vetting process.

Once the legal opinion had been received, the comments from the public would be placed on record and the Committee would receive an update on the vetting process.

Briefing by Parliamentary Legal Advisor

Mr Andile Tetyana, Parliamentary Legal Adviser, said the Committee had requested an opinion on disputes emanating from interviews related to filling vacancies for the SABC board.

Firstly, the work done by Parliament was rooted in the Constitution of the Republic of South Africa. He referred to Section 57(1)(a) and (b) of the Constitution. Section 59(1)(a) states that the National Assembly (NA) must facilitate public involvement in the legislative and other processes of the Assembly and its Committees. These provisions were also echoed in Rules 167(d) and (f) of the NA Rules.

Section 13(2) of the SABC Act states that the non-executive members of the board must be appointed in a manner that ensures participation by the public, transparency and openness, and that a shortlist of candidates must be published through the objectives and principles of this Act.

He also quoted Section 2(a) of the SABC Act, which described its objective. From Section 13(a) to (d), there was a list of who may be eligible to serve on the board of the SABC.

Rule 227(1)(c) referred to the functions of a Portfolio Committee, but the point was coded in Section 13(1) of the SABC Act, which states that the President must appoint the 12 non-executive members of the board on the advice of the National Assembly.

Concerning the suitability of the candidates in question -- Ms Mohlala, Mr Mohuba, Ms Mbeki and Ms Batyi -- he said that when the sub-committee sat, it did not sit as a court of law, but as a Committee of Parliament, with its own constitutional obligations. The mandate of the court was not to make findings against any candidate. Given public participation, submissions could not be ignored, and it had to consider and evaluate the objections from the public and arrive at a conclusion. One of the things the Committee must do is to demonstrate that any decisions it takes are rational. The Committee was also bound by the audi alteram partem rule. There were submissions from the public that had to be considered.

The Committee would also have to indicate whether the questions that formed the substance of the allegations had been raised during the interviews with the affected candidates. The submissions must be considered, and because someone had an ongoing matter before the courts, it was not this Committee’s business to say that it would wait for the outcome of the court before it decided on the candidate. The Committee must make recommendations and look at matters as they pertain in front of it now. Of all the candidates before the Committee, would Members still want to tie their hands on a candidate who already had findings against them, without pronouncing those findings? Or would the Committee rather examine Section 13(4) of the SABC Act, to assess whether the candidate possessed the characteristics which the Act required? He did not want Parliament to embroil itself in unnecessary battles.

The Committee was presented with the information and had a constitutional responsibility to apply itself and its mind to what was currently served before it. These outlined principles broadly concerned the candidates in question, Ms Mohlala, Mr Mohuba and Ms Mbeki.

Regarding Ms Batyi, which involved a conflict of interest, he said the Association of Comms and Technology (ACT) was not directly competing with the SABC. It was not a monopolistic block with homogenous interests, but a conglomeration of independent network operators, so there was no need for her candidature be denied because she was the Chief Executive Officer (CEO) of ACT.

The Committee must also clarify whether, during the interviews, what was contained in the submissions had been presented to the affected candidate. If that was done, nothing prohibited the Committee from applying its mind and recommending candidates who were fit for purposes whose integrity and reputation was beyond reproach.

If they were talking about moral fibre, the Committee would have to consider the strength of character, the toughness of spirit, and similar factors.

The Committee’s hands were not tied if it was not acting beyond the scope of what it was required to do.

The Chairperson confirmed that Members had asked the affected candidates questions related to the submissions so that they could put their side of the story.

Discussion

Ms D Kohler-Barnard (DA) said the issues raised about those three candidates had been raised during the interviews. They had the opportunity to explain their side of the story.

Ms Z Majozi (IFP) said the legal advisor had mentioned that the public must play a part in ensuring that the process was handled properly. The people who had their CVs taken were the candidates that were eligible for the vacancies. The shortlisted candidates were eligible for the vacancies, but the public had a say in what happened throughout the process. Would it not present challenges for the Sub-Committee, if it merely focused on eligibility based on the merits and ignored the submissions of the public regarding a particular candidate or candidates? Would it not present challenges for the Sub-Committee that it would seem Members ignored what the public said?

Mr L Molala (ANC) was pleased with the legal opinion. The opinion was necessary because there were outcries about certain candidates. It sounded like the final decision remained with the Committee. It was interesting that some of the people alleged to have done certain things were candidates that had served on the SABC board for some time and the very same public opinion had not done anything until this process commenced. Legal services have done their part; the Sub-Committee should now decide. As much as the public had a right, they could still abuse that right.

He welcomed the legal advice.

Dr M Basopu (ANC) said that the role of the sub-committee was not to appoint, but to recommend candidates for appointment. There were also terms of reference for the sub-committee, but was there any harm in stating in the report what the sub-committee's recommendations were, and indicating what the public submissions had said about any candidate?

Mr Tetyana said that if these matters were put to the candidates during the interviews, the sub-committee would have applied the audi alteram partem rule.

In response to Ms Majozi’s question, paragraph 33 of the opinion states that the sub-committee cannot ignore the submission made by the public regarding the suitability or otherwise of a candidate in question. The sub-committee had a Constitutional duty to consider them and must do so within the bounds of rationality. The rationality requirement had a low threshold, and even when the courts look at it, they do not state whether the process was correct or not, but rather want to see a map that shows that when one considered the matters, one was rational. It was just a question of demonstrating that rationality was applied in the steps taken.

Ms Kohler-Barnard was pleased with the legal input. However, she was concerned when she read a piece which quoted the Minister extensively and her threats to declare the current board delinquent for reckless trading. It had gone on to refer to the failure to submit a revenue plan in June, and the losses and decline in revenue. She had demanded a plan ten days before the board was dissolved. If she went ahead to declare them delinquent, was she not trying to influence the outcome of this process? It was not appropriate for the Minister to come out shortly before this process commenced. It may not be a coincidence.

Mr Tetyana said that this would be beyond the scope of the legal opinion to comment on. He had not had sight of this statement.

The Chairperson agreed, saying this statement had no bearing on the work of the sub-committee. The statement had a bearing on the current members of the board, not the new board that the Committee was in the process of recommending for the appointment.

The legal adviser had provided a sense of how the sub-committee may proceed. When it reports, it must do so comprehensively and be seen to have considered the public's views. The ultimate recommendation rested with the Committee having applied its mind within the scope of its responsibilities and the law.

Mr Molala emphasised the point that it would not be proper for the sub-committee to attach all the information when it could deal with it. The recommendation that would be made would have considered all the submitted information, so it would not be proper to recommend a name and write something negative close to the name. After considering all the relevant information, the sub-committee was responsible for looking at all these matters and making a clear decision. Everything would be raised to the Committee, and it must finalise the matter and present the final decision. The same people could still write to the President or the National Assembly if there were serious issues with the recommended candidates.

The Chairperson said it was a distinction between what was recommended as a decision, and the report. The report could not ignore that the Committee had considered and sought legal advice on everything raised. It must apply its mind to all facts available before it.

The sub-committee would place on record what had been received from the public comments. Some comments were about removing some of the candidates from the shortlisting. The sub-committee had decided to obtain legal advice on how it could proceed further, given the objections that had come from the public comments.

Ms Portia Ntabeni, Committee Coordinator, shared with the sub-committee further comments that had been received from the public after the interviews. These comments involved Mr Mohuba and Ms Batyi. The comments were received from SOS Coalition, Public Interest South Africa, and the Property Practitioners Regulatory Authority.

The Chairperson said these matters were also forwarded to the candidates, and clarity had been received on some matters. Correspondence had been received from the attorneys of the University of Limpopo and Mr Mohuba's attorneys, to emphasise the point he would have shared with the sub-committee. These must be noted during the deliberations, including the board’s assessment, and where matters that had been raised by the public were not consistent with the assessment of the board.

Mr Molala asked who had done the board evaluation, and what the sub-committee’s input had been on that evaluation.

The Chairperson said this had been raised by the current board members, who had referred the sub-committee to the independent evaluation that was done. The difference the sub-committee wanted to see was around particular topics or subject matters. It was resolved that it would be part of a handover report to the board that the President would appoint.

Vetting process

Ms Ntabeni said that all candidates were sent the consent forms for human resources (HR) qualifications to be checked, and for State Security Agency consent. They were required to send those forms back including the fingerprints. The ones that were submitted were with the SSA, but it currently had a challenge with its system – it was not working. It was requesting assistance on its security checks, and would revert.

Feedback was received for the verification of qualifications, and all returned positive. Only five candidates had not yet submitted their consent forms, but she had followed up with them.

The Chairperson welcomed the comments. Those that had not consented or submitted the forms of consent may well be contacted to submit immediately, or risk being left out. They need to move more quickly. Recommendations could not be made without a complete vetting report.

He suggested that Members agree to have some space, and communication would resume after the processes had been completed. The sub-committee would consider meeting during recess to finalise matters. They did not want interim arrangements -- they wanted a proper board that would receive a proper handover from the current board.

Ms Kohler-Barnard suggested that the five candidates should be given a deadline for signing the consent forms, because they should not hamstring the process. Failure to meet that deadline should mean the sub-committee could proceed without them.

The Chairperson agreed. The vetting process was also being halted by issues involving the SSA. The same suggestion must be given to them, because the sub-committee would need the vetting to be concluded before recommending the candidates.

The meeting was adjourned.