Our Constitutional democracy is looking fragile – and not only for all the obvious reasons. More recent moves, involving the restructuring of the SABC, are much more insidious, and perhaps all the more dangerous for that.
In recent months we have seen an intensification of the campaign to capture key state institutions to protect the president from prosecution. While these stories were dominating the headlines, another attempt at state capture was insidiously underway.
On 26 September last year, Zuma-loyalist and Communications Minister Faith Muthambi quietly signed a document giving her overarching control of the SABC. This Memorandum of Incorporation turns the SABC from a public broadcaster into a state broadcaster.
The Memorandum allows Muthambi to usurp the Board’s power in numerous ways, including giving her the right to veto any rule change proposed by the Board relating to the governance of the SABC. This is in clear contravention of the Broadcasting Act, which states that the Board “controls the affairs of the Corporation”.
The Memorandum also gives the Minister new powers to recommend the removal of Board Members. Again, this is in breach of the Broadcasting Act, which empowers only Parliament or the Board itself to recommend the removal of SABC Board Members.
Perhaps even more alarming is how the SABC Board’s authority over its Executive Directors (Chief Executive Officer, Chief Operations Officer and Chief Financial Officer) has been curtailed. The upshot is that Hlaudi Motsoeneng is now untouchable at the SABC, despite the numerous scandals that should have ended his career some time ago.
In terms of the Memorandum, Muthambi now has the power to make Motsoeneng the Acting CEO and keep him there for as long as she wishes. If Muthambi wants Motsoeneng to be appointed as the permanent CEO, she can waive the requirement that the position needs to be advertised and other candidates shortlisted. Then, if Muthambi wants to re-appoint Motsoeneng when his contract comes to an end, she can do so unilaterally.
If the Board decides it wants to discipline and/or suspend Motsoeneng, as the Public Protector directed it to do last year, Muthambi can now block the Board from doing so. And, to give Motsoeneng the best chance of surviving the DA’s court case challenging the legality of his appointment, the Memorandum makes the SABC liable to pay his legal fees.
All these amendments to the SABC’s Memorandum of Incorporation were made without discussion with the Board, and against the wishes of many Board Members. Meanwhile, Minister Muthambi has already begun using her newfound powers to bully Board Members who do not toe the line. In December last year she wrote to certain Board Members asking them to give her reasons not to have them removed from office. Board Members perceived as too independent are reportedly being targeted and victimised.
This Memorandum of Incorporation is only the first part of Muthambi’s plan to neuter the SABC Board. Shortly after assuming office last year, Muthambi raised eyebrows when she announced that she wished to reduce the number of SABC Board Members and to change the way the Board is appointed. This year she will table legislation that will “clarify” her powers as Communications Minister, reduce the size of the board from 15 to seven and revise what she calls the “current cumbersome process” of appointing the Board.
It is not an exaggeration to say that this ‘hostile takeover’ poses the gravest threat to SABC independence since 1994. But it must not be viewed in isolation. Make no mistake; the seizure of all the previously independent state institutions is a concerted effort to protect one man from prosecution. Our constitutional democracy has never looked so fragile. DM
Davis is the DA’s Shadow Minister of Communications
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