Is the upcoming 2024 election the real reason two branches of government (the National Assembly and the Presidency) have and are, respectively, failing to comply with their legislative and constitutional obligations to appoint the SABC Board?
It is beginning to look like the conspiracy theories might be justified.
The SABC is our public broadcaster. It operates 19 radio stations and three free-to-air analogue television channels and a 24-hour news channel on DStv. For many South Africans, the SABC is our only source of news and information. According to the Broadcast Research Council of South Africa, a third of all television viewers rely entirely on free-to-air television (the SABC and e-tv) to access audio-visual content.
The SABC’s last board (with one or two glaring exceptions) performed with distinction under the able direction of Chairperson Bongumusa Makhathini. Indeed Peter Bruce in his Podcasts from the Edge asked rhetorically if the SABC wasn’t the best-run SOE under Makhathini.
According to accounts from previous board members, the board had prepared detailed handover packs and was looking forward to briefing the new board to ensure a seamless transfer of corporate governance between the old and new board.
So where did it all go wrong and whose fault was it?
Parliament’s Portfolio Committee on Communications and Digital Technologies is certainly at fault. It is the body tasked with the lion’s share of the appointments process. It has known, to the day, when the previous board’s term ended (15 October 2022) for five years. Even the most inexperienced project manager could have determined when the process ought to have begun to:
- Call for nominations;
- Review nominations;
- Develop a short list;
- Post CVs online;
- Call for public submissions on candidates;
- Review public submissions on candidates;
- Conduct interviews;
- Develop the proposed list of recommendations;
- Ensure that the vetting of candidates by the State Security Agency, if actually required, was conducted; and
- Ensure that the Speaker of the National Assembly sent the names of the recommended candidates to the Presidency.
This is quite a process. It should have been started at the beginning of 2022.
Astonishingly, despite much prodding from civil society organisations such as the SOS Support Public Broadcasting Coalition, the process only kicked off on 8 July 2022 with the call for nominations.
The call for public submissions on shortlisted candidates was made on 9 September (with the closing date of 22 September) but the interviews were conducted between 13 and 16 September! Not a proper public engagement process by any stretch of the imagination.
Then the Portfolio Committee on Communications and Digital Technologies (PPCC) called in the State Security Agency for pre-vetting of all 37 short-listed candidates.
In my view this was ridiculous. The SSA vets people holding public office and who will be handling classified information — we are talking about public representatives to the board of the public broadcaster — whose actual job is to publish information as widely as possible to the four corners of the country.
It beggars belief that this was necessary — why would any SABC Board member have access to classified information? And why now, 28 years into our democracy when this hasn’t been required before?
In any event, this rigmarole pushed the process far beyond the end of term of the previous board.
Eventually, the National Assembly made the recommendations on 6 December 2022 — but it took another 14 days for the Speaker to summon up the energy to hit the send button to email these over to the Presidency.
And it is now two months since the recommendations landed on the desk of the president and there they languish.
The rationales from the Presidency for not appointing the SABC are thin. There are three of these:
The first is that the president doesn’t know what to do about the three additional recommended candidates that the National Assembly included in addition to the 12 non-executive board members it recommended.
SOS had raised a number of concerns with certain of the shortlisted candidates — some had conflicts of interest that would make it difficult to participate in SABC Board meetings, others were simply not fit and proper people given active controversies involving questions of trust and candour.
Instead of ensuring that the shortlisted candidates were above reproach, it recommended three candidates with serious question marks relating to conflicts and/or trust and candour.
And then, in a move not provided for in the governing legislation, the Broadcasting Act of 1999, it recommended a reserve team of three additional candidates. Frankly, we are of the view that the president can and should:
- Appoint the nine non-executive directors that were recommended and against whom no concerns have been raised. There is NO basis for not appointing them immediately which would result in a quorate board being able to begin operating tomorrow; and
- Send the six other names (the three about whom concerns have been raised and the three “reserve” recommendations) back to Parliament with a request that they provide him with recommendations for the remaining three candidates who are not the subject of questions and controversy.
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Secondly, the president doesn’t know if the three reserve candidates have been vetted by the SSA. This is really laughable. A simple Google search throws up dozens of press reports about the 34 candidates who were vetted by the SSA — in other words, all shortlisted candidates were vetted. In any event, an exchange of emails between the Presidency and the Speaker or the chair of the portfolio committee could clear that query up in under five minutes.
Thirdly, the president is concerning himself with the objections raised. Although the SOS objections have not been mentioned directly, I assume these are what are referred to.
On the one hand, it is good that the Presidency takes seriously questions of conflicts of interest and trust and candour of candidates raised by civil society organisations.
However, these relate only to three candidates and there is, again, nothing preventing the appointment of the nine non-executive directors that were recommended and against whom no concerns have been raised. They could be appointed today which would result in a quorate board being able to begin operating tomorrow.
In the absence of any of the Presidency’s rationales for the non-appointment of the SABC holding water, one has to look at what the real reasons could be.
The upcoming elections are, undoubtedly, a biggie. The SABC, as a result of its strong news team headed by then Editor-in-Chief Phathiswa Magopeni won plaudits from Media Monitoring Africa for its election coverage in 2021. The coverage was comprehensive and even-handed — just what you want from a public broadcaster.
Sadly, the ruling ANC did not find it so. The party’s then head of elections, now ANC Secretary General, Fikile Mbalula, accused the SABC of “not showing the good side of the party and only focussing on negative service delivery issues in the municipalities the ANC ran”. Further, and worryingly, he said he was “stating the party’s view”.
What is the take-home from that? Clearly, the ANC did not appreciate a public broadcaster that reports comprehensively and even-handedly about its governance at local government level. The whole country knows that the 2024 national elections are going to be the most hotly contested yet — and every citizen who shows up at the ballot box needs to be as informed as possible to secure the best possible democratic outcome.
The government knows that the SABC cannot operate for long without its accounting authority — the board in terms of the Broadcasting Act. But it has already, very quietly, and in my view unlawfully, put an alternate accounting authority in place: not a 15-person board, 12 of whom are non-executive representatives appointed in the public interest.
No, instead, a single person, the SABC GCEO has apparently been appointed by Treasury acting in terms of section 49(3) of the Public Finance Management Act, 1999 which entitles Treasury to appoint another functionary to act as the accounting authority of a public entity in “exceptional circumstances”.
In my view, the Public Finance Management Act cannot be relied on when the SABC has its own governing statute, the Broadcasting Act, that does not provide for an alternate accounting authority to be appointed in this or any other manner.
But in any event what are the “exceptional circumstances” that are required before the exercise of this power by Treasury? According to correspondence sent to the SOS Coalition on Friday 17 February by the Minister of Communications and Digital Technologies, the “exceptional circumstances” are that (you cannot make this stuff up) “the SABC is without a Board”!
As the country faces a national state of disaster brought about by the government’s inability to maintain the electricity grid with any degree of competence, we also face a much quieter set of “exceptional circumstances” being the president’s refusal to appoint a quorate (if not complete) board when he is perfectly able to do so and is indeed required to do so under the Broadcasting Act and the Constitution (and has been able and required to so do since 20 December 2022).
And so the SABC, at a time of growing financial precariousness due to the loss of its analogue free-to-air television audience which is proposed by the minister of communications and digital technologies to take place on 31 March 2023, finds itself without a board for over four months and for no good reason.
This executive dismemberment of the SABC’s broadcasting operations and corporate governance structures is no accident. Instead of strengthening the SABC as was recommended by the Zondo Commission, it seems that two branches of government, Parliament and the Presidency are hell bent on weakening it to the point of collapse.
Whose interests are served by destroying the public broadcaster? Whose interests are served if the SABC cannot or does not report comprehensively and even-handedly in an election? Is the SABC effectively a PR tool in the hands of the ruling party?
I hope I am proved wrong. I hope that the president makes the appointments this week. He had promised civil society he would do so by Friday 17 February. But at the time of writing (Sunday night, 19 February) no appointments have yet been made. And so civil society might have to lawyer up to protect the SABC.
Our democracy depends on a functional public — as opposed to state — broadcaster. This is not a drill… DM