Broadcasting Amendment Draft Bill [B72-2008]: deliberations

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Communications and Digital Technologies

12 August 2008
Chairperson: Mr I Vadi (ANC)
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Meeting Summary

The Committee discussed the Democratic Alliance’s proposals for the Broadcasting Amendment Bill and its objections to some of the ANC’s proposals.

The Democratic Alliance objected to the ANC proposal for the mass sacking of the SABC Board amendments which they found to be unconstitutional and offensive.

The Democratic Alliance suggested that the ANC use the Civil Society Coalition’s idea, which proposed the written justification for each of the selected SABC Board members in Section 13. The DA proposed that an evaluation be written on the board as a whole instead. The DA proposed the deletion of the requirement for “frequency planning” skills, which the Committee agreed to.

The ANC argued that there was no need for the written evaluation, as the process of selecting board members was already open to the public. The ANC noted that the Committee had to be sensitive to the background of some of the candidate, as this proposal would make the selection process seem exclusionary.

The ANC explained that the appointment process for selecting board members had implications for the removal process. They were looking at whether the President should select the Chairperson of the SABC Board or whether the board members should. The ANC wanted the National Assembly to play a greater role in the appointment and dismissal process of board members and were looking to include the Speaker in this process, as well as in the appointments of an interim board. They also proposed a provision that would allow board members to resign from their SABC duties.

The DA did not think that the Speaker should play a role in the appointment and dismissal of the board, as she was supposed to be neutral. The opposition also did not think there was a need for an interim board, as there was no need to dismiss the entire SABC Board. They said that the ANC had to look only at dismissing single board members after due enquiry, not the whole board. One could not hold out a proposition of mass sacking and dissolution against a duly appointed body of people without becoming intimidatory and threatening security of tenure. The ANC argued that they were trying to cover all eventualities.

The DA proposed amending Section 14 to read that the non-executive members of the board would select the Chief Executive Officer, the Chief Financial Officer and the Chief Operating Officer in consultation with board members would select the other members of the executive. They also suggested that Section 14 be amended to state that politicians would not be eligible for appointment to the SABC Board.

The ANC stated that they wanted Section 14 to remain unchanged because it had implications for Section 15 in the Broadcasting Amendment Bill.

Meeting report

The Chairperson stated that the Committee was at the point where ot wanted to hear the proposals of the different parties. He asked the Democratic Alliance to propose its amendments.

Democratic Alliance proposed amendments
Ms D Smuts (DA) stated that her position remained unchanged on the unconstitutionality of the ANC proposal 2(c) which she found offensive. It read, “The appointing body must dissolve the Board if the resolution recommends the removal of all the members of the Board”. She thought that the Committee could usefully take on board the proposal from the Coalition for Civil Society that there should be written justification for each of the elected SABC Board members. Ms Smuts wanted to recommend this proposal because she thought there was merit in the suggestion. However, she proposed that the selection committee had to write an evaluation of the twelve board members viewed collectively, not individually.

Ms Smuts stated that Section 13(4) contained the list of skills and qualifications that had to be reflected in the board. She proposed the deletion of the requirement for skill of frequency planning, as the SABC was not involved in frequency planning, the Independent Communications Authority of South Africa (ICASA) was.

Mr K Khumalo (ANC) stated that the Coalition’s proposal said that in the interview process, once the selection committee had a short list of candidates, the process had be open to the public and the written evaluations had to be published. There would be a difficulty in giving a joint evaluation of all the nominees. He was not sure how this would be done and if the evaluation would be given on the basis of qualifications.  The ANC could agree with the removal of the clause that spoke about frequency planning, as it was not relevant for the broadcasting environment at the moment. The ANC however had an issue with the proposal for written evaluation of nominated board members. Mr Khumalo stated that the ANC was not sure by whom the evaluations would be written.

Ms Smuts replied that there were difficulties, as not all the parties were going to agree on the candidates and therefore the Committee would also have to provide for a minority report in the Committee Report to Parliament. She stated that this was not an issue of principle – it was just an idea from the Coalition that she thought had some merit.

Mr R Pieterse (ANC) said that the Coalition’s proposal had more to do with when there was no public participatory process. The selection of the board members was a process that was open to the public.

Ms S Vos (IFP) said that she had a slightly different view. The law stated that the Committee had to select people with certain skills. She thought that there was merit in putting forward the names of candidates recommended to the National Assembly and the reasons they were selected. This would show that the Committee had applied its mind to what the law required.

Mr Khumalo commented that the Coalition wanted a written evaluation of every single candidate. Ms Smuts seemed to think that it could make sense to have a collective evaluation of the members. He noted that the Committee had to be sensitive to the backgrounds from which some of people came. The proposal could be exclusionary. The Committee already compiled a report for the Speaker, so to write a collective evaluation on the nominees would be a cumbersome process.

Ms Smuts said that she thought there was some merit in her proposal of the written evaluation. When the Committee reached the final stage of considering the Bill, she would move for the provision and the ANC would vote as they saw appropriate. However, this was not an issue of principle.

The Chairperson said that the word “evaluation” implied reporting on candidates’ strengths and weaknesses. “Evaluation” was a bit of a problem; however, if the DA was just talking about a written evaluation of why the candidates were chosen then there could be a point to the proposal. The parties would decide if the wanted to support the concept of a written evaluation.

The Committee agreed that “frequency planning” would be removed from the section. The Chair asked for any more proposals for Section 13.

Mr Khumalo stated that the appointment process for selecting board members had implications for the removal process. This was why the ANC decided to amend the Bill. The ANC was also thinking about whether the President and the Deputy President or the National Assembly should appoint the Chairperson of the SABC Board or if this should be left to the board to decide.

Mr M Kholwane (ANC) said that in terms of Section 13, the ANC was thinking about a situation where the National Assembly or Parliament would play a bigger role in the appointment and removal of the board. The ANC was also looking at whether they could give the Speaker a role in these processes. There was no provision for the resignation of board members. There was an assumption that after their appointment, board members would not resign during their five-year term. The ANC was looking at putting in a provision that would allow board members to resign. The ANC still felt strongly about the section, clause 2(c), that the DA has indicated that the ANC should delete. The ANC was trying to pre-empt any situation that they could be faced with in the future. The ANC was also looking at conditions for dissolving the board and what constituted a board member’s removal.

Mr Khumalo added that the ANC wanted to see if it was possible for the Speaker of the National Assembly to also play the role that the appointing authority played. This would force the Committee to gather a two-thirds majority vote in the House to approve such a situation. He wondered if this helped the Committee on the issue of separation of powers. In a situation where there was the removal or appointment of the interim board, the Speaker should be able to play a role. He said that the ANC was trying to correct a defect in the law.

The Chairperson said that at the moment, the only role that Parliament played was in the advertising, selection, interviewing and recommendation of board members. The ANC was proposing a legal mechanism by which, after the parliamentary process was completed, there had to be some role for the Speaker.

Mr Khumalo said that he was saying that the Committee needed to find a way in which the appointing authority and the Speaker could play similar roles. The ANC was proposing that they should be given a chance to draft something where there had to be a role for the Speaker.

Dr P Mulder (FFP) wondered if there were any instances where the Speaker would play an executive role.

Ms Smuts stated that the reason the President appointed the board members was because the one thing the Committee lacked as the legislative authority of the country, was the ability to appoint people to office. The Committee recommended candidates to the House, the House would then vote and that was it. The decision went to the President because he was the executive of the country. Therefore, she did not think what the ANC was planning was achievable.

Ms Smuts said that she did not think it was appropriate for the Speaker to play a role in selecting board members, as the Speaker was by definition the person chosen by Parliament to preside in a neutral way. However, she supported the proposal that the chairperson of the SABC Board should be chosen by the SABC Board members.

Ms Smuts wondered if the ANC had looked at the cycle of all board appointments, which for historic reasons happened to coincide with the election cycle. She suggested that they differ the board term so as to break away from the cycle. Her proposal was that Parliament had to have a role in removing members for the board after due enquiry. This meant that the removal provisions had to be in line with appointment provisions in terms of Chapter Nine. The present position was that the board itself had to trigger due enquiry into a member. The President may only remove a board member after due enquiry. The DA was saying that Parliament had to have a role in the dismissal of single board members who was guilty of misconduct or who was incapacitated in some way. Clause 3, which said that the President could directly appoint an interim board, was unconstitutional. The appointment of an interim board rested entirely on the position that the whole SABC Board would be dissolved. This proposition in itself was offensive to the independence of duly appointed people. One could not hold out a proposition of mass sacking and dissolution against a duly appointed body of people without becoming intimidatory and threatening their security of tenure. This was not something that she could entertain. Once the ANC accepted that they could not dissolve the entire board, there would be no need for an interim board. The ANC could not just dissolve an entire board; they would have to lodge complaints one by one against certain members and then they would have to start due enquiry one by one with due process.

Mr Khumalo wondered if the Committee was done discussing Section 13 of the Bill, as Ms Smuts was now talking about Section 15.

Mr Kholwane wondered why it would be unconstitutional for the President to appoint board members in consultation with the Speaker.

Mr Mulder did not understand what the ANC meant when they wanted to give the Speaker a role to appoint members. The Speaker had a neutral role in Parliament. If the ANC meant that the Speaker would act on behalf of the Assembly, then it would make sense. However, he got the impression that the Speaker would be acting and making decisions on her own. From his point of view, the SABC Board was a Chapter 9 type of body that was supposed to be independent.

Mr Kholwane said that the ANC was not talking about the Speaker as an individual. She would be acting on advice from the National Assembly and the Portfolio Committee.

Mr Khumalo stated that Ms Smuts was correct in saying that there might not be a situation where not all the board members would be guilty of misconduct. There had to be compelling reasons for the dissolution of the whole board. However, if a board decided to say that they have not resolved any matter regarding their management issues, then the board became a problem. If a board decided to leak a memorandum about its management and nobody is found guilty, then there was a problem. There were a number of reasons that the SABC Board had to be dissolved. Dissolution was a worst-case scenario.

Ms Smuts said that she did not approve of any role for the Speaker, as the Speaker was supposed to be neutral. She did however approve of the board members selecting their own chairperson and deputy chairperson of the board.

Mr Kholwane stated that the ANC was just trying to cover all eventualities.

Mr Herman Smuts, the State Law Adviser, said that he was not aware of any Act where the Speaker was involved or played a role such as what the ANC was proposing. He stated that he was concerned about the proposal and that he would look in to the matter very carefully. He added that there might be a separation of powers issue. One of the reasons that there was a separation of powers was for the different checks and balances between the executive and legislature as well as the judiciary. If the Speaker were to play a role in the appointment of board members, then to a certain extent it would be playing a governance role. This was when the issue became confused. However, the Constitution said that the Speaker could advise the President but the President had to make the final decision. So, the President could make the final decision after consultation with the Speaker, not in consultation with the Speaker.

Mr Mulder stated that the ANC needed a proposal on how to remove a single member from the SABC Board. He did not understand why the ANC wanted to propose removing the whole board. There would not be any need for an interim board if there were only proposals for the removal of single members. He could not be convinced that there was a need to remove the whole board. In terms of the resignation procedure, members would have to be given time limits. He agreed that board members had to appoint their own chairperson.

Mr Pieterse wondered what would happen if the whole board suddenly resigned. If the board could be replaced in a week then there would not be a need for an interim board. Unfortunately, the selection process did not happen overnight. Therefore, there was a need for an interim board.

Ms Vos asked if she was to understand that the ANC did not want to give reasons why the board had to be dissolved. She wanted more clarity, as this would bring up the issue of due enquiry. The idea of politically engineering the collapse of the entire SABC Board and then politically engineering an interim board was simply unacceptable. She wanted to see what the ANC was going to put in writing for the rest of the Committee; however, she was not convinced that this was valid in terms of the current law.

Ms Smuts argued that there was no need for an interim board because once there was a proper procedure whereby Parliament itself could trigger enquiries into board members and once a member was removed on proper grounds, the vacancies could be filled the “normal” way. If a considerable number of members, after due enquiry, were dismissed then the vacancies would be filled using existing appointments and procedures. The idea of the dissolution of the board was a “purge” and the idea of the interim board was being proposed for political reasons. The Committee did not need such provisions.

Mr Pieterse wondered how a board would operate if many board members were dismissed after due enquiry. He wondered how the board would operate if it did not have a quorum and therefore the ability to operate.

Mr Kholwane said that he did not know where the ideas of “purging” and “politically engineering” came from. There were reasons provided in the memo to the National Assembly as to why the ANC wanted to engage in this process. The ANC was looking to finalise the amendment.

Ms Vos stated that she still did not understand why the ANC wanted to dismiss the entire SABC Board. Law advisers might be needed to help Member’s understand.

Mr Kholwane said that the ANC would table its proposals the following day.

Section 14
Ms Smuts stated that her proposals for Section 14(1) were similar to that of the Coalition’s. The proposal brought back what used to be in the Broadcasting Act of 1999 under the section 14, which said that the non-executive members of the board would appoint the Chief Executive Officer (CEO), the Chief Financial Officer (CFO) and the Chief Operating Officer (COO). She also proposed that the CEO in consultation with the board appoint the other members of the executive. She addressed the disqualification provisions, saying that politicians were not to be eligible for appointment to the board.

Mr Khumalo said that the ANC had made their position quite clear. The ANC wanted to stay with the original Section 14. After discussions, it was decided to leave the Section of the Act the same, as it would have implications for Section 15.

The Chairperson stated that the Committee would meet the following day to discuss the ANCs proposals.

The meeting was adjourned.



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