When constitutions or ordinary laws are drafted, the drafters are often faced with an important question. The question is this: who must appoint the members of those public bodies or other office-bearers who are required to operate at arm’s length from the governing party and its leader?
Bodies and office-bearers who are tasked with checking the exercise of power by the political branches of government, who must hold people to account for wrongdoing, or who must ensure that there is a level playing field on which political parties can vie for power on an equitable footing, should not be too closely associated with those who wield political power. This is necessary to prevent the perception from taking hold that political power is being abused to rig the democratic process.
It is for this reason that the President of South Africa (who wields enormous power) does not have a discretion in the appointment of most judges, the members of the Electoral Commission, the Public Protector, the Human Rights and Gender Commissions and the board of the SABC. In all of these instances the President must appoint these individuals on the advice of another body.
Which brings us to the SABC, the supposed public broadcaster (which sometimes behaves like a state broadcaster) that plays a pivotal role in informing the public and in ensuring that voters are provided with fair and balanced reporting about political matters. Without an unbiased SABC free from government control, voters will not be able to make informed choices about which party to vote for in a national, provincial or local election.
It is for this reason that section 191 of the Constitution states that national legislation “must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society”. To give effect to section 191, the Independent Communications Authority of South Africa (ICASA) was set up.
But ICASA also relies on the wisdom and goodwill of broadcasters to ensure listeners and viewers have access to fair news reporting and balanced commentary. This means that the SABC board has an important role to play to ensure that voters have access to fair and accurately reported news from across the political spectrum.
The SABC is by far the largest broadcaster in South Africa (and thus the most important source of news and opinion for citizens). Ukhozi FM (7-million listeners), Umhlobo Wenene FM (5-million listeners), Metro FM (4-million listeners), Thobela FM (2.5-million listeners), Motsweding FM (2.5-million listeners), Lesedi FM (3-million listeners), and Radio Sonder Grense (1.5-million listeners), are among the most listened to radio stations and thus have huge potential impact on the attitudes of voters. Similarly, most voters obtain their news on current affairs from SABC TV channels (as most voters are not subscribed to a satellite television service).
If a specific political party or faction within that party captures the SABC, it will have a potentially catastrophic impact on the quality of democracy.
For elections to be free and fair, it is not sufficient that voting is conducted in a free and fair manner. Where one political party (or faction within that party) controls the SABC and abuses this control to promote itself and to denigrate political opponents, voters will not be free to make informed voting choices. It is for this reason that the appointment of SABC board members continues to be contentious. In this regard, section 13 of the Broadcasting Act states that:
“The 12 non-executive members of the [SABC] Board must be appointed by the President on the advice of the National Assembly.”
This means that the members of the National Assembly select the candidates for the SABC board (after interviewing candidates and checking their credentials). The National Assembly then forwards the 12 names to the President and the President must then appoint the 12 people nominated by the National Assembly. The President does not have any discretion in the matter.
The same principle applies to the appointment of High Court judges. The wording of section 174(6) of the Constitution mirrors that of section 13 of the Broadcasting Act, stating that the “President must appoint the judges of all other courts on the advice of the Judicial Service Commission” [JSC].
It is not in dispute that there is a vast difference between the President’s power to appoint the Chief Justice “after consulting the Judicial Service Commission”, and a list of other people, and the President’s power to appoint High Court judges “on the advice of” the JSC. In the first instance the President has a broad discretion and makes the final decision on who to appoint. In the second instance the President has no discretion and is legally required to follow the “advice” of the JSC and to appoint the applicants who were nominated by the JSC.
In the pre-democratic era, in the Appellate Division judgment of State President of South Africa and Others v United Democratic Front and Others, the court held that where the law requires the President to act “on the advice of” another person or body “he was obliged in law to accept and act on such advice”. This general principle of legal interpretation continues to apply in the democratic era. For example, in Cape Bar Council v Judicial Service Commission and Others the Western Cape High Court (discussing the appointment of High Court judges) stated as follows:
“The JSC serves a unique and crucial function in the South African judicial system, whether one accepts the construction that it has sole responsibility for deciding who should be appointed as judges to the various High Courts, or whether one inclines to the view that the President retains some limited form of discretion as the respondents contended. The latter construction is however difficult to reconcile with the imperative terms of s 174(6) of the Constitution.”
I have not been able to find a single academic author who disagrees with the position that the President has no discretion when making appointments on the advice of another body. Lovemore Madhuku, in an article published in Journal of African Law, states the well-established position as follows:
“[High Court judges] are appointed by the President ‘on advice of the Judicial Service Commission’. This means that the President is bound by the advice of the Judicial Service Commission.”
A similar position is taken by Iain Currie and Johan de Waal in The New Constitutional & Administrative Law and by myself and Warren Freedman in South African Constitutional Law in Context.
In a statement released on Sunday the Presidency made the following claim which seems to contradict all the judicial and academic authorities quoted above:
“The Broadcasting Act (Act no. 4 of 1999) enjoins the President as the Appointing Authority to ensure that persons recommended for appointment as members of the SABC board should meet certain requirements including citizenship and to have no criminal records. In addition, The Presidency wants to ensure that the candidates indeed possess the qualifications stated in their CVs among other routine pre-appointment checks.”
It is true that section 16 of the Broadcasting Act disqualifies some individuals from being appointed to the SABC board. Section 16 states that a person will not qualify to be appointed to the board if such person: is not a citizen of and not permanently resident in the Republic; is subject to an order of a competent court declaring such person to be mentally ill or disordered; is convicted, after the commencement of this Act, whether in the Republic or elsewhere, of any offence for which such person is sentenced to imprisonment without the option of a fine; at any time prior to the date of commencement of this Act was convicted, or at any time after such commencement is convicted of theft, fraud, forgery and uttering a forged document, perjury, or corruption.
However, while the President formally appoints the SABC board, substantively he is not the appointing authority. The National Assembly is substantively the appointing authority as it selects the candidates and checks their credentials, before forwarding the list to the President so that he can formally appoint the board members. When the President appoints the SABC board (or High Court judges for that matter) his role is not that different from the British monarch when she delivers a speech at the opening of Parliament, a speech that is not written by her but by cabinet ministers.
Of course, the President is bound by the principle of legality, which means that he is required to act rationally. When the President appoints board members of the SABC on the advice of the National Assembly, he acts rationally when he “takes the advice” of the National Assembly (as he is legally required to do) and appoints the board members nominated by the National Assembly. It would be irrational for the President to assume (at the very least in the absence of evidence to the contrary) that the National Assembly did not comply with the legal requirements guiding it in selecting the nominees to the SABC board.
Arguably, there may be exceptional circumstances which would require more from the President than merely appointing the nominees selected by the National Assembly. This might be the case where it is public knowledge (or where credible accusations have been made) that a nominee is disqualified from being appointed, but that person was nevertheless nominated by the National Assembly in flagrant disregard of the law.
But this is not the case with the 12 names selected by the National Assembly. This means the President has a duty to appoint the 12 candidates selected by the National Assembly. He does not have the legal authority to recheck the credentials of SABC board nominees as this has the potential to undermine the legal authority of the National Assembly to make the selection. One assumes that the President will forthwith comply with his legal duty under the Act and will appoint the 12 board members nominated by the National Assembly. DM
"Charms strike the sight but merit wins the soul." ~ Alexander Pope