The latest episode in the ongoing drama surrounding the South African Broadcasting
Corporation (SABC) revolved around a revised memorandum of incorporation (MOI)
which came to light recently, and appeared to give the minister of communications,
Faith Muthambi, sweeping powers over the broadcaster’s board.
The measures enacted by the MOI increase direct control over the SABC by the
government, reduce the powers of the SABC board to little more than a rubber
stamp and make its three top executives more answerable to Minister Muthambi
than their own board.
As outlined by Gavin Davis, MP, spokesperson on national communications for
official opposition party the Democratic Alliance, the new MOI, which replaces the
Articles of Association signed in 2011, makes the following (alarming) changes to
the running of the SABC:
• Ministerial approval will be required for any changes to the governance of the
corporation – an area which, according to the Broadcasting Act, is meant to be
under the autonomous control of the board.
• The minister is empowered to waive the requirement to advertise for any
vacancies in the top three executive positions – CEO, COO and CFO.
• The minister has the power to approve or reject all proposed candidates for the
top three positions. The board previously had the power to decide whether or not to
reappoint the CEO, COO or CFO, the minister now has absolute authority over this
decision.
• The board may only discipline or suspend the CEO, CFO and COO with the
minister’s permission.
• The minister has the power to recommend the removal of a board member.
• The corporation is required to pay all legal fees for any of the directors “to defend
litigation in any proceedings arising out of the director’s services to the corporation’.
Davis described this MO, which, it appears, was signed secretly in September 2014,
as a “hostile takeover’ by Muthambi and embattled COO Hlaudi Motsoeneng, whose
interests are well served by the amendments.
In reports published just after the MOI came to light, a spokesperson from the
communications department brushed the matter off, saying that “there was nothing
untoward’ about it. The MOI, stated the department, “…can be changed or
supplemented to suit the particular needs of the company with the proviso that it is
consistent with the Companies Act. The MOI may include provisions dealing with
matters which the act does not address…’
Davis fundamentally disagrees with this statement. “Even if the MOI does comply
with the Companies Act, it is in blatant contravention of the Broadcasting Act. It
must be remembered that section 13 (11) of the Broadcasting Act gives the SABC
board the authority to “control the affairs of the Corporation’. This MOI removes that
power and places it in the hands of the minister. As such it is unlawful,’ he says.
This sentiment is mirrored by the SOS: Support Public Broadcasting Coalition, which
launched an application in the North Gauteng High Court last year against the SABC
and the minister over the manner in which the current top three executives were
appointed.
Says Sekoetlane Phamodi, the coordinator of the coalition: “Our challenge flows
from the Broadcasting Act, which establishes the SABC as an independent public
broadcaster, and the Constitution, which guarantees freedom of expression and
information, which the public broadcaster and, in turn, the public it serves, cannot
enjoy under this arrangement whereby the minister and government have
engineered the SABC to be a de facto state broadcaster.’
The distinction must be made between a public broadcaster, which is state funded
but independent, and a state broadcaster, which is truly state-run.
“By inserting herself into the appointment of both executive and no-executive
directors, the minister is not only overstating her scope of authority in
contravention of the law and the Constitution, but is also transforming the SABC into
a state broadcaster enjoined to drive a state agenda whether it be in the interests
of the public or not,’ Phamodi continues.
For an industry already hard hit by the SABC’s woes, this will only make matters
worse. “A government controlled SABC necessarily means a more closed SABC and
that is not an enabling environment that industry professionals are able to work in.
If there’s no room for them to produce the hot, topical, controversial content they
do… I fear that it’s not just the “good story’ that we need to worry about, but the
more insidious single story that is emerging about what it means to live in this
society,’ says Phamodi.
On the other hand, new developments in the broadcast sector, Phamodi adds, will
lessen the impact of the SABC’s woes on the work of industry professionals. “I think
that what’s survived of the industry following the SABC’s devastating financial
meltdown has been resilient enough to look elsewhere to keep it viable and
sustainable. Especially now, with the advent of DTT so near and new broadcasters
being licensed, industry professionals will have more opportunities to continue and
showcase their work.’
Davis sums up his views of his party regarding the ongoing problems at the public
broadcaster: “We believe in the value of independent and good quality public
broadcasting. This can only happen if the Minister’s power to appoint executive
directors of the SABC is removed, and the process to appoint board members is de-
politicised. Otherwise, you end up with a board of executive and non-executive
directors serving at the behest of the dominant faction of the majority party. This is
at the root of all our problems with the SABC over the past decade or so.’
Phamodi concludes: “We would have come out a whole lot more supportive of the
Minister if she had come out with a proposal that said: in keeping with
government’s commitment to ensure an independent national public broadcaster,
her Ministry was exploring concrete ways of transforming the SABC into a Chapter 9
institution that is ultimately accountable to Parliament and resourcing it adequately
to ensure that it meets its mandate not only around content, but also around being
the foremost and most trusted broadcasting institution in South Africa.’
Requests for comment directed to the SABC were deferred to the office of the
Minister of Communications, which, at the time of going to print, had not
responded.
– Warren Holden
