Broadcasting Amendment Draft Bill [B72-2008]: deliberations & adoption

Meeting report

The Chair said that the Committee was reaching the final stages of deliberations on the Bill. However further discussion was needed on certain issues before the Memorandum of Desirability could be adopted. He asked the ANC to present their proposals, in accordance with what had been decided at the previous day’s meeting.

Mr M Kholwane (ANC) read through the ANC proposals in the document titled “Submission of Legislative Proposals by the ANC”.

Discussion
Ms D Smuts (DA) said that she could not understand what the ANC hoped to achieve by involving the Speaker in the process of appointing the Board in Clause 1. She asked why the Committee had looked at the laws of other countries like Korea at all. The entire clause rests on a misconstruction about the role of the Speaker. The proposals differed from what had been discussed in the Committee the previous day. She explained that the Speaker was meant to be neutral and have no vote (save in exceptional circumstances). This was contrary to the role being proposed by this Clause which allowed the Speaker to act in an executive sense.

Ms Smuts also found the proposal that the entire Board could be dissolved to be hugely problematic, since it did not provide for security of tenure. Usually such a step would require due process to have been followed.

Ms S Vos (IFP) referred to an apparent contradiction between Clauses 2 (a) and 2 (b). In (a) it was stated that the member may be removed after due enquiry, while in (b) it stated that the removal would happen after a finding to this effect. She asked which one was correct.

Mr K Khumalo (ANC) said that the due enquiry would take place upon recommendation by the Board. However when a finding was made by a National Assembly Committee, there would not be a need to follow the same process. In addition it could be argued that removal by due process and removal by a Committee finding was the same thing.

Ms Vos pointed out that if this was the explanation, the IFP would not support this clause.

Mr Kholwane added that a finding would be reached after having gone through the relevant processes. With regard to concerns of security of tenure, he argued that there could be situations where the entire Board might have to be dissolved. It was important to ensure that members who did not adhere to a code of conduct could be removed.

Ms Vos referred to the appointment of the interim board after the dissolution of the Board in Clause 3 (3) (a). She asked how they would achieve what was being proposed in this sub-clause. Also, she asked where the “five other persons” recommended by the National Assembly would come from.

The Chair explained that this Clause was based on S194 of the Constitution dealing with the removal of the Public Protector. On matters like this Parliament could determine its own procedure.

Mr Khumalo complained that the weakness of the ANC was that they were willing to accept proposals from the opposition. The opposition parties however refused to accept any proposals made by the ANC. Ms Smuts was rejecting the five people based on her assumptions of who these people would be. The ANC had tried to be conciliatory because of the fact that the opposition parties were so small. However these parties did not want to accept any proposals made by the ANC. The five people would have the requisite experience as was usually outlined in the advertisements.

Mr Kholwane joked that introducing these proposals to the Committee would be like forcing a child to drink castor oil, which means that it would be introduced despite opposition for the benefit of all. He said that Members should not be unreasonable and prevent the process from moving forward. Prior to making the proposals the drafters of the proposals had taken into account the views of the opposition and those expressed at public hearings.

Mr Khumalo argued that concerns regarding security of tenure did not outweigh the importance of the need to ensure that the Board would be accountable to the public, Parliament and the President.

Mr R Pieterse (ANC) said that the ANC proposals strengthened the hand of Government to deal with the problems concerning the Board. Regarding the appointment of the Board, he said that Parliament would continue to play a role in the process. Everyone claimed to care about the public broadcaster, but the actions of the few high-level individuals were threatening the livelihood of those below. It was important that the Committee intervened to address this.

Ms Vos said that the Committee and National Assembly would have recommended the twelve Board members based on their honour, integrity, intelligence and capabilities. Nothing would therefore convince the IFP that all twelve members should be fired without an enquiry. This amounted to the “ZANU-fication” of the South African Broadcasting Corporation (SABC).

Mr Kholwene responded that a finding was the same as a due enquiry as it would have resulted from a particular process.

Ms Vos said that this should then be inserted in the Bill. It cannot just be assumed that the finding would be based on some kind of process.

Ms L Yengeni (ANC) referred to the situation of the Memorandum which had been leaked by a Board member and asked how one would decide whom to remove if all twelve would not be removed.

Ms Vos asked if the ANC would fire their entire ANC Executive and its minute-takers if sensitive information was leaked from an Executive committee meeting.

Ms Smuts pointed out that there was no proof that the Memorandum had in fact been leaked by the Board.

Ms Yengeni argued that if something went wrong and no single person could be held accountable, the entire group should take responsibility.

Mr Khumalo explained that on 4 April 2008 the Chairman of the Board had drafted a Memorandum containing sensitive information. On 9 April he discussed it with the Board and on 13 April, this confidential document appeared in the Sunday Times.

Ms Smuts argued that the Committee had no way of knowing if that in fact had happened.

Mr Khumalo continued that the Board had to date not begun to investigate the matter. The issue was not about the leakage but about correcting a defect in the law by making the Board accountable.

The Chair adjourned the meeting to allow the State Law Advisor to clean up the Bill before Members voted on it. When the meeting resumed Members were handed two documents titled “Broadcasting Amendment Bill, 2008 (incorporating all proposals agreed to by the Portfolio Committee on Communications) and Memorandum on the Objects of the Broadcasting Amendment Bill ((incorporating all proposals agreed to by the Portfolio Committee on Communications).

Mr Herman Smuts (State Law Advisor) first read through the document titled “Broadcasting Amendment Bill, 2008”.

Mr Pieterse referred to Clause 4 (3) b. He asked if the 6 months referred to referred to a fixed term or if it referred to a maximum period.

Mr Smuts answered that it could be changed to “a period not exceeding six months” to provide more clarity.

Mr Smuts referred to Clause 4 (3) 9a) and asked if he could cross-reference “dissolution of the board” with the same term referred to in Clause 2 (c).

The Chair agreed.

The Chair asked if the word “the” before “deputy chairperson” in Clause 4 (4) should be removed.

Mr Smuts said that he would look at this wording later.

Mr Smuts referred to the short title and asked if Members wished to include a commencement date. It could either be specified or omitted altogether. If the Bill was silent on it, the commencement date would be when it was assented to, signed and published. This was provided for in the Constitution.

Mr Khumalo said that it was important that the Bill take effect as soon as possible. It should be drafted in a way that would ensure this.

Mr Smuts cautioned against specifying a commencement date which made it come into effect prior to the passing of the Bill. This could be problematic, since its application until that point would be retrospective, which is not provided for in the Bill.

The Chair allowed the ANC Members to meet for a few minutes to discuss their proposal on this issue.

Mr Khumalo reported that the ANC had decided that the date should be omitted and S81 of the Constitution should take effect.

The Chair read the Long title of the Bill and asked Members to vote on it.
The ANC supported it. The DA and IFP opposed it.

The Chair then read Clauses 1 to 4 of the Bill and asked Members to vote on them
ANC agreed to them while the IFP and DA opposed it.

The Chair read the document titled “Memorandum on the Objects of the Broadcasting Amendment Bill ((incorporating all proposals agreed to by the Portfolio Committee on Communications)”. He referred to the heading “Consultation” and asked if the names of the people who made public submissions should be listed under this heading.

Ms Z Adhikari (Parliamentary Law Advisor) suggested that it should simply state “None”. The public submissions were not usually listed in this paragraph.

Mr Khumalo felt that these names should be listed to show the extent of the consultation. In addition, since the Committee had sent a letter to the Department inviting them to comment, they too should be listed (despite the fact that they did not submit comments).

Mr Kholwane suggested that the reference to “dismissal” of Board members should be replaced with “removal” to ensure consistency with the rest of the Bill.

The Chair suggested that “drafters” be replaced with “Parliamentary Law Advisors” under the heading “Parliamentary Procedure”.

The Committee voted on the Bill and Memorandum as amended. The ANC agreed. The DA opposed and the IFP was absent from the voting.

The Chair read the resolution which the ANC supported and the DA opposed. The IFP was absent from the voting.

The Chair said that the work on the Bill had ended. He thanked Members for the respect with which they had conducted discussions. He was confident that the Committee had carefully considered the public inputs.  He commended everyone who had been involved in the process for their hard work.

The Chair adjourned the meeting.