The Market Theatre Foundation Council issued a media release last week in which they welcomed the conclusion of disciplinary hearings initiated earlier in 2019 against five staff members — including the CEO, Ismail Mahomed and CFO, Christine McDonald. Four of the five have been cleared on all charges (the CEO, CFO, Marketing and Communications Manager Zama Buthelezi and senior Publicist Lusanda Zokufa) while the HR manager, Perpetua Mathsa, was found guilty on one charge.

This story of the Market Theatre is not only a story about “State Capture” in the more recent sense — the abuse and control of publicly funded or owned entities by individuals in governance and/or management positions to enrich themselves or protect those who would so abuse public resources — but also reveals how the state, represented by the Department of Sports, Arts and Culture and headed by its minister, Nathi Mthethwa, has captured key parts of the arts, culture and heritage sector to ensure the political hegemony of the ruling party and suppress freedom of expression.

It is also the all-too-common story of whistle-blowers having their reputations trashed and suffering emotional, physical and psychological trauma while the corrupt and their accomplices get off relatively unscathed. And finally, it is a story about the political class not giving a damn about the institutions for which they are responsible and for the people who work there — let alone about the public whom such institutions are required to serve — as long as these politicians do not suffer any reputational or ego damage.

The story begins before the City Press article of April 2018 in which allegations of financial misconduct against the chairperson of the board, Kwanele Gumbi, were made, and a subsequent Sowetan article in which some of the Market Theatre’s staff made allegations of “racism, unfair salary scales, harassment and abuse” against CEO of the theatre, Ismail Mahomed. These media stories led to the then Department of Arts and Culture commissioning a forensic investigation, which resulted in the Council of the Market Theatre Foundation instituting disciplinary processes against the five staff members.

Former CEO of the Market Theatre Annabell Lebethe — now CEO of Ditsong Museums and a former CEO of the National Arts Council and so a bureaucrat well-versed in regulations governing publicly funded cultural institutions — alleged she had been manipulated out of her position as Market Theatre CEO by Kwanele Gumbi, who chaired the council at the time. Lebethe claimed Gumbi had undermined her as CEO, for example, by instructing staff to make travel arrangements on his behalf without her knowledge, that he insisted on signing the contract with artistic director James Ngcobo, contrary to accepted practice where the CEO signs staff contracts.

She also said Gumbi abused the Market Theatre’s funds by attending meetings and events unrelated to the Market Theatre and having these costs attributed to the institution. Gumbi’s attitude to her changed particularly after she declined to increase remuneration for attending board meetings from just above R1,000 a meeting to his recommended R10,000, which he — falsely — claimed had been approved by the Department of Arts and Culture.

Based on her experience both at the Market and in other publicly funded institutions, Lebethe wrote a masters thesis (“Evaluating Corporate Governance Dilemmas in Publicly Funded Cultural Institutions in South Africa”) on governance in such structures. When the term of the Market Theatre Council was due to end in early 2018, Lebethe wrote to the Department of Arts and Culture, advising them to use the opportunity to vet potential board members and to appoint new members who would have the interests of the institution at heart, rather than their own personal interests.

By that time, Lebethe had been replaced by Mahomed as the CEO of the Market Theatre. Mahomed had himself experienced Gumbi’s interference in operational matters, his alleged abuse of the institution’s resources for his personal use and his attempts at self-enrichment.

The City Press article of April 2018 tells of how Gumbi allegedly tried to have the Market Theatre’s management pay him a bonus of R100,000 while his fellow council members would each receive R75,000. Having consulted with the Department of Arts and Culture, which agreed that this would have been an irregular expenditure, the CEO and CFO of the Market Theatre declined to make these payments.

The Department of Arts and Culture and the minister had been informed of the chairperson of the Market Theatre Foundation Council’s abuse of the institution’s resources, and of the complicity of other council members in not holding him accountable, or in actively supporting him, even when such support undermined management or contravened Treasury regulations. Notwithstanding this, the minister re-appointed the council in its entirety — except for Cedric Nunn, who by some accounts was one of the more vocal critics of the chairperson; Mthethwa also re-appointed Gumbi as chairperson of the Council!

In a subsequent letter to Mthethwa, the Market Theatre Ad Hoc Committee of Concerned Stakeholders (of which I was part) asked if he had appointed the council in consultation with the chairperson of the council, and what his rationale was for not re-appointing Nunn, the only previous council member whom he did not re-appoint. Given the serious allegations against the chairperson, Mthethwa was also asked why he deemed it fit to re-appoint Gumbi to the council and to return him as chairperson.

In his response, Mthethwa evaded the question with a technical response: “…in appointing the Council of the Market Theatre, I followed all procedures prescribed by the Cultural Institutions Act, 1998. As you are probably aware, appointment of council members is my prerogative as the Minister of Arts and Culture and I do not have any obligation to consult with any former or aspiring members of the council.”

He was not asked about the law; he was asked that notwithstanding his rights in terms of the law, whether he had consulted with Gumbi in re-appointing the council or was it just coincidence that Nunn — one of Gumbi’s more vocal critics — had been omitted?

The “arm’s length” principle of public funding for the arts and culture sector was an important one embedded in the first White Paper on Arts, Culture and Heritage by cultural activists who had learnt from the apartheid era that to protect and defend freedom of creative expression (even when it is enshrined within the Constitution) and to ensure the political independence of publicly funded cultural institutions to protect freedom of expression, public funding needed to be provided at “arm’s length”; without politicians and/or government bureaucrats determining or influencing who received taxpayer funds.

Thus it was that in the initial National Arts Council Act, for example, the arm’s length principle was affirmed thus: “The members of council shall…elect… a chairperson from among the members who are not provincial representatives”, a principle that ensured the chairperson was accountable to those who elected her or him. However, with the later Cultural Institutions Act and the amendments made to it, all publicly funded institutions now have their councils appointed by the minister (even though the public may make nominations), and the chairpersons of all such institutions are directly appointed by the responsible minister.

The implication of this is that the chairpersons of governing councils of publicly funded institutions are regarded as political appointees, directly accountable to the minister or at least needing to genuflect to the minister, thereby also serving as some form of censoring of council members who also owe their appointments to the minister and are aware that the chairperson is favoured by the minister.

The Market Theatre, having built its reputation on political independence, on speaking truth to power, on exercising freedom of creative expression against the apartheid-era odds, was rewarded for its role in the struggle against apartheid with public funding, except that such funding now comes with strings attached through the Cultural Institutions Act — the minister appoints its board and the chairperson of its board. And, like all publicly funded cultural institutions, the Market Theatre has to declare publicly that it is “an agency of the Department of Arts and Culture”.

Little wonder then that the media release of the Council of the Market Theatre insipidly “… expresses its gratitude to the Department of Sports, Arts and Culture for its ongoing support and guidance…” when, in fact, it is the minister and the department who were most responsible for knowingly appointing a council and a chairperson of that council with serious charges of financial misconduct against them.

On his re-appointment, Gumbi set about getting rid of the CEO and the CFO as he had done with Lebethe before. It was then as per the forensic report by Morar Incorporated — a company that earns millions from the Department of Sports, Arts and Culture by conducting “forensic investigations” into numerous entities that fall within the department’s ambit — a recording of a meeting between Gumbi and the staff of the Market Theatre was leaked to City Press by the CEO, Ismail Mahomed.

The report recommended that disciplinary action be taken against the CEO for contributing to a negative image of the Market Theatre and for disclosing information in breach of the Market’s policies. (The report also recommended that similar disciplinary action be taken against Gumbi for also leaking information to the media).

However, Mahomed and McDonald, whose cases were heard together, argued that they had acted in terms of the Protected Disclosures Act (PDA). They had pursued all the right channels in reporting irregular expenditure — actual and intended — against Gumbi and the council — to the audit committee, to the council itself, to the Department of Arts and Culture and to the minister, but to no avail, and now that Gumbi and the council had been returned by the minister, their very jobs as management were under threat.

The forensic report states that “evidence indicates a collaboration between Ms Mathsa (the HR manager) and the chairman (Gumbi) which points to an attempt to achieve the termination or dismissal of both the CEO and CFO of the MTF”. (It is unclear whether the charge on which Mathsa has been found guilty is related to this or not; at the time of writing, the chairperson of the Council of the Market Theatre had not responded to a set of questions sent by myself four days earlier).

Mahomed and McDonald were cleared of all charges against them and the commissioner upheld their case in terms of the Protected Disclosures Act, which raises serious questions about the former council, about the Department of Arts and Culture and about the minister. Why did the CEO and CFO have to go to the media — under threat of their jobs being terminated — to make their case against the former chair and council, when it was the very council, the Department of Sports, Arts and Culture and the minister who refused to act against the chair and council despite serious allegations of financial impropriety and misgovernance against them?

In a self-congratulatory media release in January 2019, the Department of Arts and Culture patted itself on the back for “cleaning house” at various cultural institutions for which it was responsible. On the Market Theatre, the release said:

• The Department of Arts and Culture appointed forensic investigators to investigate the veracity of the allegations levelled against the chairperson of the council, the CEO and CFO;

• The investigation has been finalised;

• The report was presented to the council in early December 2018 to implement the recommendations;

• Council has submitted its implementation plan (in line with the investigation findings) to the Department of Arts and Culture;

• The chairperson of council Mr Kwanele Gumbi has been relieved of his duties from the council as chairperson and council member;

• Based on the recommendations, the CEO Ismail Mahomed and CFO Christine McDonald are currently facing a disciplinary process; and

• Mr Gerald Dumas has been appointed as the new chairperson of the council.

From this, one gets the impression that the Department of Arts and Culture and the minister believed that they took corrective action against the chairperson of the council as per the forensic report, and that they now expected the new council of the Market Theatre to take similar action against the CEO and CFO.

“The report was presented to the council in early December 2018 to implement the recommendations” and the “council submitted its implementation plan (in line with the investigation findings) to the Department of Arts and Culture.”

There does not appear to be any interrogation of the forensic report by the Market Theatre’s council to determine whether the technical findings of a company of “chartered accountants and registered auditors” who would go strictly by regulations and policy, had any contextual substance or mitigation; the council simply seems to have gone along with the investigation and the report to please the Market Theatre’s paymasters and the minister who had appointed them.

The council and the Department of Arts and Culture might even have wished for at least one of the CEO and CFO to have been found guilty of a dismissable offence so as to balance the termination of the chairperson’s tenure, in so doing, to manage the potential perception of racial favouritism in favour of the (Indian) CEO and (white) CFO against the (black) chairperson.

It needs to be stated clearly that there is no equivalence in the alleged financial irregularities and interference in the operational affairs of the Market Theatre by the former chairperson of the council, and the measures taken by the management to protect the institution for which they were ultimately accountable. The alleged misconduct of the chairperson with respect to the Market Theatre preceded the current CEO and was similar to that experienced by the previous CEO, a black woman.

While charges of racism against the CEO were fomented as a familiar smokescreen under which corruption and incompetence can be sustained, the forensic report “found no evidence of ongoing racism, sexism and/or victimisation” on the part of the CEO and CFO”. But there have been no Sowetan billboards to announce this, unlike the billboards which alleged that the CEO was a racist.

A previous board member — J Brooks Spector — wrote to the Sowetan to protest against the poor-quality journalism that unjustifiably tarnished the name of the CEO and the Market Theatre, but there was no letter from the current council to The Star when, on the eve of the wedding of McDonald’s daughter, its front page led with the headline “Market Theatre falling apart despite R100m state cash injection”, blaming this “falling apart” on the “corrupt” activities of the CFO.

Mthethwa attended an event at the Market Theatre with President Ramaphosa to honour the Soweto Gospel Choir for their third Grammy award in March 2019 when the disciplinary hearings were still underway. Mthethwa requested council members to ask the CEO and CFO not to attend the event, lest the media ask questions that could be embarrassing. The council members acceded to his request, even though the CFO and CEO had not been found guilty of any charges: clearly, the rules had changed to “innocent until a minister believes the situation could be embarrassing”.

The personal and financial costs borne by those who have blown the whistle on corruption and irregular expenditure at the Market Theatre have been severe (Mahomed was obliged to walk with a crutch for several weeks due to a pinched nerve and both he and McDonald have spent hundreds of thousands of rand on legal costs to clear their names).

Now that they have been fully cleared, what do the charges say about the “forensic report”? What do they suggest about the council forging ahead with charges based on the report’s recommendations at the behest of the Department of Sports, Arts and Culture? Who will conduct a “forensic investigation” into the minister and the Department of Sports, Arts and Culture for its negligence in dealing with allegations of corruption and financial misconduct against the previous council and its chairperson? Who at the Department of Sports, Arts and Culture will be accountable for allegedly having the former council chairperson approve the terms of reference of the forensic investigation when he was implicated in the investigation?

And so, this chapter in the Market Theatre story nears its end.

But the battle for control of our publicly funded cultural institutions, both for access to public funds and for political purposes, will continue. As will the battle for freedom of expression and for independent organisations to act on behalf of the creative sector in the face of State Capture of institutions and organisations that serve the ruling party’s political agenda. DM