Draft Broadcasting Amendment Bill [B72-2008]: deliberations

Meeting report

Ms D Smuts (DA) said that although the SABC might not be as grand an institution as the Chapter 9 Institutions, its independence was important in a different constitutional manner. She said that the DA opposed clauses 2(c) and 3, which proposed dissolution of the entire board, dismissing this as a perch for political purposes.

Ms S Vos (IFP) said that most of the submissions they had received were substantive and of extremely high quality, addressing matters that went to the heart of what they wished to achieve. She said it was inherent in the Constitution – in particular the freedom of expression clause contained in section 16 – that there should be sufficient independence of the media.
She wished to put the genesis of the Bill on record, that it was the “ramming down our throats” of the current board. However, the Bill in its current form would not have the support of the IFP as it was anti-democratic and unconstitutional. It was the obvious intention of Luthuli House to dissolve the current board and appoint another. She finished by saying that the IFP would approach the Constitutional Court if need be.

Mr M Kholwane (ANC) replied by first stating that the ANC was elected by the electorate and that the NEC was merely carrying out the mandate given by the voters. That claim of “anti-democratic” and “unconstitutional” made by the IFP was a sweeping statement and he requested further details as to what was meant. He pointed out that the Committee had heard a number of submissions and that these submissions would be taken into consideration. Lastly, he asked what the definition of a “tiny party” was, noting that as far as he was concerned, the SACP was bigger than the other organisations, in particular opposition parties.

Mr K Khumalo (ANC) said that the ANC had noticed a lacuna existed as to the removal of board members and that an independent body was needed. He referred to an incident a few years befoe where a Zimbabwean was unknowingly appointed to the board in contravention of the Act which stated that only South Africans might sit on the board. He pointed out that people might come and go, but the SABC as an institution would be around for longer.

Mr R Pieters (ANC) pointed out to Ms Vos that Luthuli House was a building not a person.

Ms Vos noted that, in her experience, matters were sometimes forced down their throat. It was the view of the IFP that it would not stand the test of constitutional law and that the IFP would make every attempt to change bad drafting into good law.

Ms Smuts said that the mere fact that an organisation was not mentioned in the Constitution did not mean that the Constitution did not apply to it, as the Constitution guides conduct in all of society. She rejected the argument that the board was “rammed down our throats”, stating that of the existing 12 board members, the opposition parties togehter had objected only to four; the DA had objected to the appointment of only three. She did not see how clause three could be alleviated or made acceptable in any way. She then referred to several court cases: the Certification Judgment, where it was stated that the independence of an institution can be determined by how responsible it was for the appointment or removal of directors, as well as its financial and administrative independence. This was expanded upon in the Van Rooyen case, which introduced the model of the reasonable / objective man, as to whether one would perceive an institution to be independent.

Mr Khumalo referred to a submission by Save Our SABC, that suggested that public officials from government departments should not be allowed to make nominations. Currently all citizens are allowed to make nominations. However, Mr Khumalo believed this would give rise to a number of constitutional problems.

Ms Vos responded that that submission was directly related to the so-called “Gloria Serobe” clause. She did not think that the submission should be dismissed out of hand, but that they needed to apply their minds. She suggested that persons who are public officials and who make nominations for the SABC board should be open and transparent about who they are.

Mr Khumalo responded that the issue of open disclosure was catered for in the advertisements for nominations, whereby nominees had to state workplace and employer. Furthermore, there was an assumption that a public official was the same as a public servant, which was not the same.

Ms Smuts asked how this would prevent the appointment of people who were political figures. She noted that the old IEC members could not be leading members of parties or MPs / MPLs unless they had left their party some years previously. She further commented that a number of these ‘cooling off’ clauses had disappeared from various other legislation over the years.

Mr Kholwane commented that merely nominating a person did not mean it was a foregone conclusion that they would be appointed to the board.

Mr Khumalo said that the shortlist of nominees to the board included the names of the nominated and the nominee and that it could be quite cumbersome to publish their CVs alongside their nominations in newspapers. However, there was no need to publish their CVs as they would be made available on request. He agreed with the spirit of transparency and noted that the Freedom of Expression Institute had requested CVs of nominated persons before, which they had obtained.

Ms Vos added that when the current board had appeared before the Committee, several weeks were spent examining who should perform what functions. This was not prescriptive, merely a recommendation, but she was surprised to discover that none of the current board members fulfilled the recommended role.

Ms Smuts objected to clause 15, saying that the provision which did not allow for an interim board to be appointed during an election period, was meaningless as one could not know when all enquiries and appeals would be finalised.

The meeting was adjourned.