Broadcasting Amendment Bill: public hearings

NCOP Public Enterprises and Communication

09 September 2008
Chairperson: Mrs M Themba (Mpumalanga/ANC)
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Meeting Summary

The Committee heard submissions on the Broadcasting Amendment Bill from the Civil Society Coalition: “Save our South African Broadcasting Corporation”; the Media Monitoring Project; the Freedom of Expression Institute; and Media Institute of Southern Africa-South Africa. Each touched on similar issues. The Broadcasting Amendment Bill was seen as an improvement on the Draft Broadcasting Amendment Bill. The critical role of the South African Broadcasting Corporation in society was emphasised, and all submissions agreed that it was vital to restore its integrity and credibility, together with public confidence in the Corporation as a public, rather than State, broadcaster. The crises at the Corporation had also reflected adversely on the public image of Parliament. Parliament’s efforts to resolve the crisis were appreciated. However, it was suggested that some further work on this Bill was required. In addition, the Coalition suggested that ultimately there was a need to assess the root causes of the problems and begin a Green Paper and White Paper process leading to the promulgation of a new SABC Act.

The Coalition was adamant that there must be greater transparency and public participation in appointment processes. It suggested that there must be shortlists published, public interviews for shortlisted candidates, and written evaluations by members of Parliament with reasons for shortlisting. The Bill should deal specifically with the appointment of executive members to the Board, and also with the appointment of the Executive Committee. The present quorum was criticised as unworkable and contradictory. COSATU, a member of the Coalition, supported the criteria for removing individual members of the Board, but disagreed that board members should be allowed to remove a non-executive Board member as in principle every appointment or removal should go through Parliament. It should be clarified that the removal of the collective Board would extend to non-executive Board members only. Specific provisions were proposed to section 13 of the Broadcasting Act, including clarity that the non-executive Board members appointed the executive members, to section 13(10) by providing for a quorum of six for the Interim Board, and to section 14 to provide for appointment of the Executive Committee. It also proposed amendments to sections 15 and the proposed 15A, stating that the provisions must distinguish between executive and non executive Board appointments.

The Media Monitoring Project’s supporting submission drew attention to two key elements highlighted in the Coalition’s submission - encouraging open and transparent practice in the nomination, selection and appointment of new non-executive members of the SABC board, and in the criteria for members of an Interim Board. It criticised Independent Communications Authority of South Africa for not addressing the build up of unacceptable behaviour at all levels and stressed that more public awareness was needed.
The Freedom of Expression Institute supported the Coalition’s submission but stressed the vague terminology around the appointment of executive board members. The appointment of non-executive board members must be an open and transparent process that ensured public participation, and the current role of the Minister was criticised as being too politically influenced and capable of creating manipulation.
The Media Institute supported the involvement of Parliament should Board members need to be removed, individually or collectively, but asked that the Bill specify that it was referring to dismissal only of non executive members. It stressed that the SABC must be allowed to fulfil its role as a public broadcaster without political interference, especially in the months leading to the 2009 elections.

Members noted that there had obviously been some collaboration and asked to what extent the Coalition was representing the views of all its constituent Members. They stressed that the wording of the appointment processes should refer to “Parliament” and not simply to the “National Assembly”.

Meeting report

Introduction
The Chairperson welcomed Members and guests to the continuation of the process of the Broadcasting Amendment Bill that had begun in the National Assembly. The Committee had followed with keen interest the submissions on the Bill to the National Assembly’s Portfolio Committee on Communications, even though its Members had not been present at the Portfolio Committee’s meetings. She explained to guests that Members of the Select Committee represented their respective provinces, and it was the responsibility of Members to be informed so that they could respond when called upon by members of the public. She felt that, broadly speaking, the submissions to both Committees were mainly the same, and that the purpose of the Bill was to identity and address deficiencies in the present Act.

Submission by the Civil Society Coalition: Save our SABC – Reclaiming our Public Broadcaster
Ms Kate Skinner, Campaign Co-ordinator, Save our SABC Coalition, said that the ‘Save our SABC’ Campaign had been launched in June 2008, with the purpose of finding short, medium and long term solutions to the SABC crises. Its members included trade unions, non-governmental organisations, training institutions, producers, academics, and freedom of expression activists.

The Coalition welcomed the Broadcasting Amendment Bill, which was a significant improvement on the Draft Broadcasting Act Amendment Bill. However, the Coalition believed that it was not sufficient to consider piecemeal amendments to the Broadcasting Act. Ultimately, to solve the SABC crises there was a need to assess the root causes of the problems and begin a green paper/white paper process leading to the promulgation of a new SABC Act. However, if key changes to the Amendment Bill were made as suggested, the Coalition would support it as a short term measure.

The Broadcasting Amendment Bill focused primarily on removal of SABC Board members. In order to begin to solve the immediate crises at the SABC it was necessary to address the following matters: appointments to the Board, including the appointment of executive members to the Board; appointments to the Executive Committee; issues concerning the quorum required for meetings of the Board; the criteria for appointment to the Interim  Board; the removal of non-executive members by Parliament and of executive members by the non-executive members.

Ms Skinner said the crises at the SABC started with problems concerning appointments. To restore the credibility of future SABC boards, there needed to be greater transparency and public participation in appointment processes. The following were needed: shortlists of candidates to be published with the names of nominees; public interviews for short-listed candidates; Members of Parliament should be required to give a written evaluation including reasons for the selection of candidates to the shortlist.

To begin to resolve the ongoing tensions between the non-executive and executive members of the Board, and gaps around the appointment of SABC Executive Committee members, there was a need for an amendment that dealt with the appointment of executive members to the Board. This was at present a serious omission from the Broadcasting Act and a cause of the crisis. There should also be an amendment that dealt with the appointment of the Executive Committee, another omission in the Act.

With regard to the quorum required for meetings of the Board, she said that the present clause in the Bill was unworkable for the Interim  Board. The quorum for a normal board meeting was nine, but the Interim  Board comprised only eight members. Without amendments to the quorum clause, the Interim  Board would not be able to sit. Given the extraordinary nature of an Interim  Board, it was critical that appropriate criteria for appointment of members be enacted.

Ms Prakashnee Govender, Parliamentary Officer, COSATU, said that the Coalition supported the criteria for removing individual board members but disagreed with the proposal to allow board members to remove a non-executive board member. On principle all non-executive appointments and removals should go through Parliament.

With regard to the removal clauses for board members as a collective, it needed to be made explicit that only the non-executive members of the Board would be removed in this process. Otherwise Interim Board provisions would be unworkable. Due process needed to be entrenched.

In the medium term, the Coalition believed strongly that, through a green paper/white paper process, the issues of the composition of the Board and augmentation of the criteria for disqualification should be addressed.

Ms Justine Limpitlaw, representative of the Coalition, said that the Coalition proposed a number of amendments to section 13 of the Broadcasting Act, as set out in the written submission, that were meant specifically to strengthen and improve the provisions for appointments to the Board, to avoid repetitions of the current crises. The Coalition sought improved processes for the appointment of non-executive directors; the publications of short listed candidates and their curricula vitae, and publication of the names of those nominating them. There should be a public interview process of short listed candidates, and written evaluation of short listed candidates should be carried out by Parliament and published.  It should be clarified that the non-executive Board members appointed executive Board members in line with the principles of corporate governance.

The Coalition then proposed a number of amendments to section 13(10) of the Broadcasting Act, to deal with the requisite quorum for ordinary and Interim Board meetings. The quorum for ordinary board meetings should be nine, but for meetings of the Interim Board the quorum should be six and the Chairperson or the Deputy Chairperson of the Board must be present. The current requirement for a quorum of nine, even for the Interim Board, was unworkable.

The Coalition also proposed amendments to section 14 of the Broadcasting Act to provide for the appointment of the Executive Committee in line with corporate governance principles; namely, by the Chief Executive Officer, after consultation with the Board.

The Coalition proposed significant amendments to section 15 of the Broadcasting Act. Provisions of the Bill dealing with the removal of an entire Board must make reference to due process, and a finding by a National Assembly Committee. Such provisions must also make reference to the non-executive members only, to avoid the provisions of the Interim Board being unworkable.

The Coalition then proposed significant amendments to the proposed section 15A. Provisions of the Bill dealing with Interim Board should clarify the distinction between the executive and non-executive appointments, or else the Board would be unworkable.  The Bill’s provisions must contain qualification criteria for non-executive Interim Board appointments. The provisions of the Bill dealing with the Interim Board must contain time limits for National Assembly recommendations for the appointment on non-executive Interim Board members to avoid the SABC being unable to operate.

Submission by the Media Monitoring Project (MMP)
Mr William Bird, Director, Media Monitoring Project, said that the Project was a founding member of the Save our SABC Coalition. The Project fully supported the contents and aims of the Coalition’s submission. The Project reiterated the Coalition’s position that the Broadcasting Amendment Bill should be seen as a short-term temporary measure that sought to resolve immediate issues whilst longer-term process of restoring the credibility and integrity of a key public institution, including a comprehensive review of all related legislation, should begin.

The Project noted the positive changes included in the Bill subsequent to the Portfolio Committee on Communications public hearings. However, it submitted that whilst the Bill was clearly aimed at addressing particular issues, it was absolutely critical to ensure that the Bill’s contents did not perpetuate or contribute to any repetition of or formation of new crises in the SABC as a result of its enactment.

If the Bill was to serve a positive and constructive purpose in addressing some of the crises at the SABC, the Project noted that some key areas remained to be addressed. The Coalition’s submission had drawn attention to the most urgent and essential of these issues. The Project wished to highlight two key elements and emphasise their importance in helping to restore the SABC’s credibility and in setting a positive precedent that would serve the SABC in the future.

The two elements were encouraging open and transparent practice in the nomination, selection and appointment of new non-executive members of the SABC board, and in the criteria for members of an Interim Board. This should include a published evaluation of each individual candidate.

The core role of the SABC was seen as informing the public. The Project was ‘very passionate’ about this. There was need for due process. It had to be accepted that significant damage had been done to the integrity of the SABC, and in the process, Parliament’s credibility had also suffered. This was damaging to democracy, and public confidence in Parliament was decreasing. This was especially dangerous in a young democracy such as South Africa, since it discouraged citizens from engaging in the democratic process.

Openness and communication between the concerned parties were essential if crises such as those of the SABC were to be resolved successfully. The role of the Interim SABC Board would be of crucial importance, since it would be in place during an election period. Moreover, the public must be fully informed. With regard to Parliamentary information, Mr Bird praised ‘excellent services’ like those of the Parliamentary Monitoring Group (PMG) and Parliament’s own outreach efforts, but said that it was always important to encourage even greater public access.

Mr Bird said that the SABC building could be considered ‘an apartheid crime’. Its poor design, especially poor lighting, was conducive to non-communication, and he quoted the writer Tom Stoppard, to the effect that it was worse in places where people were kept in the dark. He asked if that was really in the public interest. Mr Bird also criticised the lethargy of the Independent Communication Authority of South Africa (ICASA), and asked when that body would realise that the SABC was in crisis. He commended Parliament for taking proactive steps.

Submission by the Freedom of Expression Institute (FXI)
Ms Melissa Moore, Attorney, Freedom of Expression Institute, said that the Institute commended the National Assembly for its improvements to the Draft Bill, but wished to comment on the principal objectives and suggest further amendments. The Institute applauded Parliament’s attempts to solve the crisis, and fully supported the Coalition’s attempt to begin an independent and transparent legislative review process.

Ms Moore said that, in the view of the Institute, the crises had arisen from a build-up of unacceptable behaviour at all levels. Such behaviour had not been addressed by ICASA. Ms Moore referred to those sections of the Constitution dealing with freedom of expression.

She noted that since 2003 there had been an increasing confusion between governance and managerial functions, and also between managerial and editorial functions. This had led to a situation in which the SABC had become a State rather than a public broadcaster. The distinction between the two was very important. The appointment of the Group Chief Executive Officer of the SABC must not be at the discretion of the Minister, for this would be conducive to censorship. She suggested that Executive members of the Board should be appointed by the non-executive members.

Submission by the Media Institute of Southern Africa-South Africa
Ms Faiza Abrahams, Director, Media Institute of Southern Africa-South Africa, said that the Institute was one of 11 chapters in the Southern African Development Community (SADC) region. The region looked to South Africa for leadership in transforming its State broadcasters into public broadcasters. As a result of the crises at the SABC, many questions were being posed to the Institute as to how other countries could avoid falling into the same pit.

The Institute was a member of the Civil Society Coalition and fully supported the Coalition’s submission. However, the Institute wished to draw attention to the vague manner in which the Bill dealt with the appointment of executive Board members, as it described only the appointment of the non-executive Board members. The Institute believed that the non-executive Board members should appoint the executive members. The appointment of non-executive Board members must be an open and transparent process that ensured public participation, in accordance with national and international corporate governance best practices.  The Institute criticised the present role of the Minister in this process, as it feared that the role was politically influenced and would subject the process to political manipulation.

The Institute supported the involvement of Parliament, should a situation arise in which it was necessary to remove Board members individually or collectively. The Institute deplored the removal process within the Board itself without the engagement of Parliament, since that gave too much power to the Board. The Bill should clearly specify that dissolution of the Board referred to dismissal of the non-executive members of the Board.  It was crucial that the executive members of the Board remain in their posts to form part of the Interim Board.

It was also essential that the SABC fulfil its role as a public broadcaster without political interference, especially in the coming months leading to the 2009 elections. The Institute welcomed the Interim  amendment that enabled it to participate in this process and ensure the independence of the public broadcaster. 

Discussion
The Chairperson said that Ms Abrahams’ oral presentation had contained more than the Institute’s written submission, and requested a written copy to assist the Committee in its deliberations.

Ms Abrahams undertook to provide a copy. 

The Chairperson explained that it would not be possible for the Committee to respond at length to the submissions in the present meeting, but that Members would study them in detail.

The Chairperson asked if all those who had made submissions had met previously to share their views, and emphasised the importance of consensus. She perceived a divergence between the views of Mr Bird and other delegates.

Ms Skinner responded that the Coalition, which was formed of many organisations with different mandates, would operate by trying to achieve consensus, but without prejudice to the right of member organisations and individuals to propose their own views. The Media Monitoring Project, the Freedom of Expression Institute, and the Media Institute of Southern Africa-South Africa, had wished to put forward some additional issues. Some amplified on points made in the first presentation, and some diverged. However, it was gratifying that there was such considerable consensus and goodwill in civil society towards finding a solution to the SABC crises.

Mr Z Kolweni (North West/ANC) said that he found considerable common ground between the submissions, which indicated some degree of consultation. He noted that the Coalition had stated that ‘piecemeal change’ may not be helpful, and that there must be an intensive engagement through a Green Paper. However, despite this, he thought that their substantial proposals for amendments were reasonable.

Mr Kolweni said that the Committee could not deny the validity of the Coalition’s call for media freedom and transparency. He requested copies of Mr Bird’s electronic presentation.

Mr Kolweni also pointed out that it was only the Media Institute of Southern Africa-South Africa that had clearly used inclusive terminology, referring to “Parliament” rather than the “National Assembly”. If the Bill said that appointments to and removals from the SABC board were to be processed through the National Assembly, this would imply that the National Council of Provinces would be excluded from the process, defeating the work in which the Committee was currently engaged.

Ms Limpitlaw responded that, notwithstanding its support for the Bill as an Interim  measure, the Coalition was still calling for a Green Paper, since a thorough legislative review was required. The Coalition commended Parliament for being the only public institution who, as Mr Bird had said, had exerted itself to resolve the crises of the SABC. The Coalition commended the Bill as a significant immediate measure but still reaffirmed that it wanted a long term review of legislation concerning the SABC. The Coalition, though it had derived terminology from the existing Act, would welcome broadening of that terminology and she agreed that the term “Parliament” should be used in the definitions, instead of “National Assembly”. 

The public part of the meeting was adjourned.

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