The relevant committee of the National Assembly must select appropriate individuals to serve on the SABC board – people with the skills and integrity to right the ship.
The ad hoc committee investigating the fitness of the board of the South African Broadcasting Corporation (SABC) to hold office has so far done a remarkable job. While it has not yet finalised its report, the committee (comprising of six ANC and seven opposition members of the National Assembly) has so far put political differences aside in an attempt to address the catastrophic management implosion at the public broadcaster. However, the committee almost certainly does not have the legal power to fix the problems at the SABC – although the National Assembly can appoint a competent board which does have such power.
The SABC has for some time operated as a state broadcaster (promoting the interests of the dominant faction within the governing party), instead of as a public broadcaster serving the interest of all South Africans. As the draft report of the ad hoc committee of the National Assembly suggests, the now defunct board of the SABC (and previous iterations of the board) and the Minister of Communication are at least partly to blame for this sorry state of affairs.
In terms of the Constitution and the Broadcasting Act the National Assembly has an important but limited role to play in overseeing the SABC board and senior management of the SABC.
In terms of section 55(2)(b) of the Constitution, the National Assembly must provide for mechanisms to maintain oversight over the exercise of national executive authority, including the implementation of legislation, and over any organ of state. The National Assembly thus has an oversight function over the SABC, as the SABC is an organ of state.
Oversight resembles but is distinct from accountability. It entails the watchful, strategic and structured scrutiny over various bodies to check whether they comply with the law and to expose wrongdoing by such bodies where these occur. It does not entail interference in the day to day running of an institution that is being overseen.
The National Assembly has broad powers to enable it to fulfil its oversight role. In terms of section 56 of the Constitution the National Assembly and its committees may summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; require any person or institution to report to it; and compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons.
As far as the SABC is concerned, section 20(3) of the Broadcasting Act also requires the Minister of Communication to table the SABC’s annual financial statements in the National Assembly. The appropriate committee of the National Assembly can then call the Minister or SABC board to come and answer critical questions about the financial statements of the SABC (or about any other aspect of the management of the SABC).
The relevant committees of the National Assembly (whether an ad hoc committee or the Communications Committee) do not have the power to issue binding instructions to the SABC board or management, as the SABC is supposed to be independent from the political branches of government. It is for this reason that section 13(11) of the Broadcasting Act states that: “[t]he board controls the affairs of the corporation” and must ensure compliance with the Broadcasting Charter of the SABC. The Act does not allow either the National Assembly or the Minister of Communications to control the affairs of the SABC.
This does not mean that the National Assembly and its committees do not have the power to put pressure on the SABC board and management to comply with their legal duties.
First, in terms of section 13(1) of the Broadcasting Act the 12 non-executive members of the board must be appointed by the president on the advice of the National Assembly. In this regard the president does not have any discretion: he or she must appoint the 12 members selected for appointment to the SABC board by the relevant committee of the National Assembly.
If the relevant committee of the National Assembly does its job properly and in compliance with the Broadcasting Act, it will select appropriate individuals with the requisite skills and integrity to serve on the board. In fact, section 13(4) of the Broadcasting Act places a duty on the National Assembly to select a board that, when viewed collectively, comprises:
The National Assembly obviously failed to comply with this obligation in the recent past, appointing SABC boards which, viewed collectively (and with some notable exceptions), lacked the skills and commitment to fairness and free expression as required by the Broadcasting Act. There is therefore some evidence that the National Assembly had previously acted in breach of its legal duties when it appointed previous SABC boards.
Second, the National Assembly has the power to remove SABC board members (or the entire board) from office if an investigation by the relevant committee of the National Assembly concludes that a board member (or the entire board) is guilty of misconduct or is unable to perform his or her duties efficiently. The current ad hoc committee of the National Assembly was set up to conduct just such an investigation in terms of section 15A(1)(b) of the Broadcasting Act.
In fulfilling its oversight role over the SABC board, the threat of removal for misconduct or incompetence provides the National Assembly with some leverage over the board. While it cannot issue binding instructions to the board to take certain decisions or to refrain from taking other decisions, it can assist the board to do better by pointing out weaknesses and by suggesting ways in which the board can fix management problems and can address maladministration.
However, at present there are no SABC board members left: they have all resigned. The legal reason for establishing the ad hoc committee (to decide whether to remove the SABC board) has therefore fallen away. This means that legally the nature of the enquiry by the National Assembly ad hoc committee has essentially changed. Instead of an enquiry to determine whether the SABC board should be removed from office, the ad hoc committee is now fulfilling an oversight function.
Inasmuch as the draft report of the ad hoc committee purports to instruct the soon to be appointed interim SABC board to take certain steps to address the corruption, maladministration and governance failures at the SABC, the ad hoc committee is probably overstepping the mark: it cannot issue legally binding instructions to the SABC board as this would interfere with the independence of the SABC.
It is perfectly within the rights of the ad hoc committee to make recommendations to the new SABC board. If these recommendations are sound in law, the new board would be well advised to implement the recommendations.
As the draft report from the ad hoc committee now stands, it contains several instructions to the new SABC board. The draft report instructs the interim board to investigate all irregular, fruitless and wasteful expenditure and to take appropriate steps against employees guilty of authorising such expenditure. It also instructs the SABC board to institute a forensic audit on the transfer of the SABC archive to a private monopoly.
These are all important issues that a proper functioning board will have to address. If the ad hoc committee rephrased these as recommendations, a new board would be hard-pressed to ignore them. One could advance a plausible argument that it would be irrational for a proper functioning board to ignore such valid recommendations.
Given the fact that the ad hoc committee has so far, by and large, conducted itself in an exemplary manner and given that there is an extreme crisis at the SABC, it might be tempting to turn a blind eye to any behaviour by the National Assembly that encroaches on the independence and impartiality of the SABC. But this would be a mistake.
It is therefore important to insist that – as a matter of law and as a matter of principle – no committee of the National Assembly should claim the power (which it does not legally have) to instruct the SABC board to do or not to do anything.
The ad hoc committee can make recommendations and if these recommendations are sound in law and if their implementation would help to address the catastrophic governance failures at the SABC, any half credible SABC board will implement them.
But the most urgent task of the National Assembly is to appoint an interim board which will serve for the next six months until such time as the National Assembly can appoint a permanent board. If the National Assembly is serious about dealing with the problems at the SABC, it will appoint members to an interim board and then a final board who have the requisite qualifications and experience to fix the problems at the SABC.
The real test of the National Assembly’s commitment to re-establish a well-functioning public broadcaster will arise when it has to select an interim and final board for the SABC. Hopefully the National Assembly will select appropriate individuals who will have the skills and integrity to right the SABC ship. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.