Parliament – A draft report by MPs inquiring into the problem-ridden South African Broadcasting Corporation (SABC) crucifies Communications Minister Faith Muthambi, suggesting she may have violated the law by overstepping her mandate and unduly interfering in the affairs of the public broadcaster.
The report, published on Friday night, is still in draft form and could be subject to change once submissions from Muthambi and all other affected parties, including those who testified in the inquiry, is considered by the parliamentary ad hoc committee conducting the inquiry.
The report affirms the supremacy of the Broadcasting Act over the Companies Act when it relates to the appointment and removal of SABC board members.
Read the draft report here
Muthambi had asserted the opposite, amending the broadcaster's memorandum of incorporation (MOI) allowing Parliament, which the Broadcasting Act gives the power to recommend the removal of board members following due inquiry, to be bypassed and giving her the power to remove board members.
"The MOI as it stands empowers the Minister, as the appointing authority, to remove directors in line with the Companies Act. It also gives the Minister undue access to the SABC’s administration thereby compromising the SABC’s independence," the report reads.
"The irregular amendment of the MOI as well as the proposed amendments to the Broadcasting Act, demonstrate efforts to concentrate power in the Ministry by curtailing and removing the powers of both the Board as the accounting authority, and Parliament’s role in the appointment and removal of non-executive Board members."
MPs expressed concern about the the minister's role in the removal of board members "either through dismissal or resignation", adding that she may have "covertly or overtly" pressured members of the board to appoint Hlaudi Motsoeneng, the controversial SABC executive without a matric certificate which several courts and the Public Protector have found unfit to hold office at the broadcaster, as chief operating officer at a board meeting in July 2014.
Both these cases could have been illegal, MPs found.
"In both instances the Minister may have contravened section 96(b) and (c) of the Constitution, section 15(1) of the Broadcasting Act, section 2.1(b) and (d) of the Executive Code of Ethics, and section 17(e) of the Privileges Act."
Section 96 (b) of the Constitution speaks to ministers guarding against exposing themselves to "any situation involving the risk of a conflict between their official responsibilities and private interests", while section 15 of the Broadcasting Act deals with the manner in which SABC board members can be removed.
Section 17 (e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislature's Act makes it a criminal act for anyone to provide false or misleading statements to a parliamentary committee.
In terms of the former SABC boards, the committee said it received "overwhelming evidence" that it failed to do its job and did not understand what its responsibilities were.
"Board leadership, most notably chairpersons, appear to have failed to provide leadership which had prevented the CFO, COO and CEO from carrying out their operational duties. This had rendered the work environment unbearable which in turn led to a costly skills exodus, ill-informed policy decisions, loss of competitiveness, the SABC’s compromised fiscal position, reputational risk and a complete breakdown in governance."
MPs contend the board also failed to act to prevent irregular expenditure, which according to the report accumulated to R5.1 billion rand over the past few years. The bleeding of money was continuing, with the parliamentary committee noting a "looming financial crisis" at the SABC.
"In addition, there is reference in the management letters that point to material uncertainty on the going concern assumptions. In this regard, the funding model is of concern, particularly in light of the SABC’s mandate as a public entity and a commercial enterprise. The corporation may be at risk of becoming technically insolvent."
The disregard shown by SABC board members and executives, which upon failing to secure a court order to halt the inquiry, walked out of the committee meeting on December 7, which MPs found was "in essence a boycott of a Parliamentary process, and confirmed the former Chairperson and the SABC’s disregard and rejection of Parliament’s oversight authority which is enshrined in the Constitution".
Muthambi's failure to take action against former board chairman Mbulaheni Maguvhe and SABC executives for showing contempt for Parliament was also pointed out in the report.
The testimony of journalists who told the inquiry journalistic principles and ethics were being compromised were taken to heart by MPs, who noted in the draft report: "The gradual erosion of editorial independence and expectation of self-censorship stands in direct contradiction to the SABC’s obligation to report in a manner that is accurate, fair and responsible."
In this regard, the board had again failed to act, the report said. Parliament's portfolio committee on communications, the group of MPs responsible for oversight of the SABC, is also not spared from scrutiny and criticism.
"The Committee acknowledges that Parliament may have relinquished its constitutional duty to hold the Executive and consecutive SABC boards to account. This may have rendered Parliament complicit in the gradual decline of good governance, accountability and commitment to public broadcasting at the SABC," the draft findings said.
Muthambi, parties mentioned in the report, and those who testified, have been given a deadline of February 16 to make submissions on the findings. MPs will then deliberate and decide whether they will amend their findings before compiling a final report with recommendations by either February 21 and 22, committee chairman Vincent Smith said.
The final report would then be sent to Parliament for debate and possible adoption.