Pretoria - The Gauteng High Court Pretoria in a groundbreaking judgment delivered on Tuesday - the same day as President Jacob Zuma eventually appointed a new board of directors at the South African Broadcasting Corporation - limited the powers of the Communications Minister in appointing and firing members of the board.
Judge Elias Matojane declared several clauses of the Amended Memorandum of Incorporation (MoO) and the SABC Charter in respect to the appointment, discipline and suspension of the three executive directors - the Group Chief Executive Officer, Chief Operations Officer and Chief Financial Officer - inconsistent with the Broadcasting Act and thus invalid.
It was found that the powers vested in the minister undermined the independence of the SABC. In terms of the judgment, the SABC board must control the affairs of the public broadcaster.
It was ordered that the executive members of the Board are to be appointed solely by the non-executive members of the board and without any requirement of approval by the minister.
Before appointing any person to the position of executive director on a permanent basis, the non-executive members of the board shall follow a process which ensures transparency and openness, including publicly advertising the position.
The court further ordered that when necessary to appoint the executive director on an interim basis, that person may not serve this position for longer than four months.
It was also ruled that the board can now, without the prior approval of the minister, institute disciplinary proceedings against the GCEO, CFO or COO, as well as suspend them if need be.
It was further declared that members of the SABC Board may not be removed if it is not strictly done in accordance with the Broadcasting Act.
Judge Motojane’s judgement followed two applications by NGO’s SOS: Support Public Broadcasting Coalition and Freedom of Expression Institute, joined by the Right2Know Campaign as a friend of the court, which felt that the minister had too many powers regarding the SABC board.
They asked the court to streamline certain provisions to ensure the independence of the SABC.
The parties during their arguments said that as things stand, the minister had too much say in these matters, which hampered the independence of the board.
The judge started his lengthy judgment off by saying: “The two applications are instituted in the background of systematic and repeated failures in the governance and management of the SABC. This has presented itself in the continuous turn-over of Directors of the Board with resultant financial mismanagement.
“The critical systemic causes of governance failures and mismanagement were found to have been caused by Ministerial interference in the governance and operations of the SABC.”