SABC Board status inquiry: Committee Report

Meeting report

The Chairperson gave the members some time to go over the Committee Report, which outlined the proceedings of the inquiry into the status of the South African Broadcasting Corporation (SABC) Board. It stated that the inquiry had been done in terms of section 15A(1)(b) of the Broadcasting Act (No 4 of 1999) as amended by the Broadcasting Amendment Act (No 4 of 2009). The inquiry had been motivated by the crisis within the SABC and the many resignations of Board members. Since a meeting with the SABC executive and Board members was scheduled for the 18 June, the Committee on 17 June had decided to amend the agenda in order to include the inquiry. The report made legal referrals to the Broadcasting Act, Broadcasting Amendment Act, the Articles of Association and the Company Law.

The first day of the inquiry had been 18 June 2008 when only two of the 11 Board members attended; Ms N Bulbulia and Ms A Gilwald. Due to the non-availability of the other members, the Committee decided to continue the inquiry on 23 June 2008. At that date nine of the non-executive Board members attended (Mr Trikamjee and Ms Bulbulia were absent). A presentation was submitted to the Committee on behalf of Ms Qunta, Ms Bulbulia, Ms Serobe, Mr Mbeki, Ms Lagadien, Mr Golding Ms Gilwald and Ms Mkhonza and this presentation was to form Annexure A of the report.

The Committee had also received correspondence from the presidency confirming that Mr Trikamjee, Mr Khumalo, Mr Golding, Mr Mbeki, Adv Tlakula and Ms Bulbulia had resigned. Some of them had asked to resign with immediate effect but the presidency had not yet decided on whether to accept a shorter period. As such the three months resignation notices still applied.

The inquiry continued on 24 June 2008 when Mr Harry Mathabathe, Deputy Director General of Finance and ICT Enterprise Development at the Department of Communications and the Minister of Communications, Mr Siphiwe Nyanda attended and presented to the Committee. Mr Mathabathe mainly spoke about the SABC’s non-compliance with the Public Finance Management Act (PFMA) and the relationship between the Shareholder, the Executive Management and the Board.

The Committee, the Board members and the Executive Management deliberated on the findings. The inquiry ended and the Board Members were invited to submit any further written evidence by 25 June 2009. The Committee received submissions from Ms Qunta, Ms Serobe and Ms Mkhonza as well as from Mr Mbeki, who later retracted his submission.

The Committee had found that the SABC was in a state of crisis in terms of corporate governance and finance. There had been a breakdown in the relationship between the Board and the Executive Management. While the Board might still technically be able to constitute a quorum it was in effect dysfunctional. There had also been evidence of serious lapses in the conduct of the Executive Management of the SABC. Although noting the concerns of due process from the DA and COPE, the Committee unanimously recommended that the National Assembly adopted a resolution recommending to the appointing authority the dissolution of the SABC Board as envisaged in section 15A (1)(b) of the Act.

Discussion
The Chairperson began by stating for the record that they had agreed to recall the SABC Board and Executive Management to the Committee on Tuesday 30 June. This was to get Mr Nicholson, Chief Financial Officer (CFO) of the SABC to table the financial statements and; secondly to go through the strategic plan of the SABC. The Committee recommendation on the SABC Board had been scheduled for passing in the House on 1 July at 12 noon, so parties should be present for that. If the House passed the recommendations the Committee would meet again on 2 July to consider nominations for an interim Board. The Committee then went through the Committee Report and the Chairperson asked if members were happy with all the content on page one.

Ms J Kilian (COPE) asked when they were going to look at the presentations that had been tabled to ensure that they were noted.

Adv J De Lange (ANC) suggested that if any member had a comment or addition that should be made as they went along, including a comment on any of the correspondence.

The Chairperson agreed with Adv De Lange. Members were happy with page one.

On page two the Committee had been advised by its legal advisor, Ms Zuraya Adhikarie, to rephrase the first paragraph. She recommended that under the “Terms of Reference” they changed the first paragraph to “Pursuant to section 15A(1)(b) of the Act the Committee agreed to invite members of the SABC Board to address the…” and slightly changing the next sentence to “ the brief submitted to the Board on 17 June 2009 was…”

Ms Kilian asked if they should not make a reference to the National Assembly Rules.

Adv De Lange did not think so, because all Committees in Parliament had all the powers under the Rules. If they had carried out the inquiry only in terms of the Rules it would not have had the statutory duty status that it did under the Act. The Amendment that was passed this year gave the Committee a more specific power and that was in terms of that that the Committee had been acting, although they had been guided by the Rules.

Also, considering Ms Adhikarie’s amendment he wanted to change the sentence from ‘invited to address’ to ‘invited to attend an inquiry’. What they could do in terms of the Assembly Rules was to include that the Committee was operating in terms of the Rules, but they had to do that in a separate section.

The Chairperson asked if members could agree to Adv De Lange’s suggestion.

Ms Kilian said that she knew that she was being very risk adverse, but she wanted a neat clean legal operation. The Amendment Act they had acted in terms of had recently been passed and had not previously been tested. Therefore, if someone questioned the due process in terms of the Amendment Act the Committee could be challenged, which would delay a solution to the crisis at the SABC. To avoid this she wanted to, in addition to the Amendment Act, point out that they had a responsibility in terms of the National Assembly Rule 201 IV. This would show that it had been the Committee’s duty to intervene. Was there a danger in including that?

Ms P De Lille wanted to make it clear in the document that the Committee had only changed the agenda of the meeting 17 June, a meeting which the Board members were already expected to attend.

The Chair pointed out that that had been mentioned at the bottom of page one.

Adv De Lange said that perhaps Ms Adhikarie could look into the wording of a paragraph stating that the Committee conducted the inquiry guided by the National Assembly Rules, including Rule 2.01 IV.

Ms Adhikarie said that that could be somewhat difficult since the Rule gave a power and did not relate to the process.

The Chair asked Adv De Lange to draft the sentence he wanted inserted.

Mr Van Den Berg wanted to ask if they could include in the Report that the Committee had failed to act on the issue for several months.

The Chairperson said that they should rather stick to the topic of report as it was.

Ms Kilian said that at the bottom of page two she wanted to change “the fiduciary duties are as following” to “the fiduciary duties include the following”.

That amendment was accepted by the Committee.

Page three and page and four were accepted. On page five Ms Kilian wanted to clarify for the record that the two Board members that attended the first day of the inquiry had expressed concerns about the late notification and the status of the inquiry.

Ms Mazibuko wanted to include the same thing, but suggested that it was added in the second paragraph of page six,  “…the inquiry proceeded but could not be concluded…”

The Chairperson reminded members that on the next page it said that the formal document that the Board Members had submitted to the Committee had been attached to the Report. In this document the Board Members had stated their reservations in full. Did this not cover the issue?

Ms Kilian said that it was fine. However some of the Committee members had raised worries about whether to continue the inquiry or not and the Chairperson had ruled, after receiving legal advice, that the inquiry would proceed. Could this be clarified in the Report?

Mr S Kholowane (ANC) wanted to highlight what the report was saying because perhaps they were delivering on things that were already stated.

Ms Mazibuko also wanted to add that the Chairperson had committed to inform all the SABC Board members personally about the continuation of the inquiry on 23 June.

Adv De Lange’s worry was that since the submission by the Board members was attached to the Report, taking just part of their reservations and adding it to the Report would water down their submission. On another note they could add that they had recordings of the entire proceeding and that those recordings formed part of the Report. In that way they would be entirely covered.

Mr Van Den Berg said that it was important to ensure that the recordings were properly conducted.

The Chairperson said that he had not yet listened to them but that he would do so. He asked Ms Adhikarie to draft a proposal in line with Adv De Lange’s suggestion.

Mr K Zondi (IFP) had a minor worry that they had included the capacity of all Board members and Executive Management except Mr D Mpofu. Could it perhaps be added that he attended the inquiry in his capacity as former Group Chief Executive Officer of the SABC?

The Chairperson agreed with that and the Committee decided to insert his title at every place where his name appeared.

On page six Ms Kilian wanted to insert a spacing after the sentence “Ms Nadia Bulbulia…” and she also wanted to ask if it would make a difference if they said “The Chairperson clarified, after receiving advice from the parliamentary legal advisor, that it was fair that the Board…” in the second last paragraph. She wanted to make it clear that the Committee had taken legal advice in deciding how to proceed.

Ms R Morutoa (ANC) thought that what Ms Kilian suggested would sound professional but she did not want to separate the Chairperson from the Committee; it was the Committee as a whole that was responsible. 

Adv De Lange wanted to keep it as it was, but said that Ms Kilian raised an important point and they should insert a separate sentence that clarified that throughout the process the Committee had had legal advice. That would cover all the legal issues. He suggested they inserted such a sentence either in the beginning where all present members were outlined or at the end.

Ms Kilian said that Committee members had suggested that they continued the interaction but outside of the inquiry. The reason she was raising this was that two of the Board members had stated that they did not consider the inquiry due process and she was concerned that that would expose the Committee if legal challenges were placed.

The Chairperson asked if they could agree that just before that section, they inserted a sentence stating that the Committee had acted on legal advice at all times. They did agree and Ms Adhikarie was asked to draft the wording.

Ms Adhikarie suggested that on page five under “4. The Proceedings of the Inquiry” they could add an introductory paragraph that generally stated how the proceedings were conducted, including that it had been recorded and that they had legal advice present.

The Chair asked Ms Adikharie to draft such a section.

On page seven Mr Van Den Berg wondered if they could add the dates to the resignation of the Board members.

The Chair responded that the Presidency had not detailed this and since it was a direct quotation they could not change it.

Ms Kilian wanted to know if the section of the Act should not be paragraphed.

The Chair answered that the whole section was paragraphed.

Further Ms Kilian wanted to change the first paragraph after the quotation of the letter to “The proceedings had been suspended and then proceeded the next day.

Adv De Lange asked if the wording “…the President has not yet made his mind…” was correctly transcribed.

The Chairperson responded that it was.

Mr Van Den Berg suggested that they inserted “…the President has not yet made up his mind [sic] …” and that was agreed upon by the Committee.

On Page eight Ms De Lille pointed out that the DDG had said that he would submit a written presentation; could they add this to the report?

The Chairperson said that the DDG had not yet submitted a report, but he would ask him to table it at the next meeting. They would clarify that it had been an oral presentation in the report.

Ms Kilian pointed out that she was uncomfortable with the sentence “…the non-compliance by the SABC Board in respect of the Public Finance Management Act…” since both Adv Tlakula and Ms Gilwald had pointed out that they reserved their rights regarding any findings in terms of the PFMA. Since the DDG had not yet given any written evidence and the statement had been challenged by both Board members and members of the Executive Management perhaps the Committee should not state that there had been non-compliance in their report.

Adv De Lange suggested that they changed it to “…the compliance or non-compliance by the SABC Board…” in order to make it neutral.

Ms De Lille said that they could definitely not do that. The DDG had mentioned that there had been an induction into the PFMA, and the Minister had sent a letter in terms of the non-compliance and further the corporate plans had not been received in time and were later rejected. He had definitely made examples of non-compliance. If they received the relevant letter, would the Committee be covered?

Mr L Mhkize (ANC) pointed out that the DDG had promised that he would provide any documentation that the Committee wanted.

The Chair asked if they could insert a sentence stating, “The Board rebutted this since as a new Board they had only had their first meeting in March 2008, which was after the corporate report deadline. This was why they had not been able to comply.”

Mr Kholwane said that they could not do this since they were dealing with the opinion of the DDG. The relevant section of the report relayed the DDG’s statement. Afterwards it said that the Committee and the Board had deliberated on the presentation. The report was just describing what had happened, which was neutral. The Committee had not taken any stance.

Ms Mazibuko suggested that in that case they changed the wording “…made a presentation on…” to “…made a presentation detailing…”. In that way, they made it clear that it was his interpretation and not objective facts.

Members agreed on that. The Chairperson then wanted to confirm that they would include Ms Tlakula’s submission and that they should leave out that Mr Mbeki had made a submission since it was later retracted and the members agreed. 

On page nine Ms Adhikarie proposed that in the second last paragraph they change “…calling upon Parliament to dissolve the Board…” to “…calling upon the Committee to recommend the dissolution of the Board, thereby concluded unanimously that there was no possibility…” and also suggested that that would form the last paragraph of the page.

Adv De Lange wondered if that was really what Mr Mbeki had said and Ms De Lille responded that it was.

Members agreed on the wording and Ms Adhikarie proposed that the paragraph be accepted.

On page nine, in what was now to be the second last paragraph, Ms Mazibuko wanted to change “…concern whether…” to “…concern as to whether…” She also wanted to take out the word initially in the sentence “initially expressed a preference for the filling of vacancies”.

Me Van Den Berg said that since there was no Board left they had not been able to go the route of filling the vacancies.

Ms De Lille said that the word “initially” had to remain since on the next page it stated that the Board unanimously recommended that the Board be dissolved.

Members agreed to that effect.

Ms Kilian wanted to change “…there is no possibility of the current Board being able and competent to fulfil its statutory duties” because she felt that it amounted to character assassination of very competent individuals.

Mr De Lange suggested they changed it to “...collectively able and legally competent…” and all members agreed to that.

All members agreed on page ten.

Ms Adhikarie was asked for the wording for page two and she said that she had had some difficulties with that one. She suggested that they changed the sentence “the brief submitted to the Board” to “In terms of its powers as articulated in National Assembly (NA) Rule 201, the Committee submitted the brief to the Board on 17 June which read:…”

Adv De Lange said that that was precisely what he had wanted to avoid since under that wording the brief was in terms of NA Rule 201. Instead they should insert a separate sentence saying that the inquiry was conducted in terms of the Rules of Parliament including the one stated in NA Rule 201.

The Committee agreed to insert that sentence between the one that ended …”18 June 2009” and the sentence that began “The brief submitted…”

On page five, Adv Adhikarie recommended that they inserted an introductory paragraph after the heading “4. Proceedings of the Inquiry” She suggested that they said: “The inquiry commenced on 18 June 2009. Adv Adhikarie was available throughout the process to provide legal advice to the Committee and the proceedings of the Committee were recorded for reference purposes.” Then they would only have to make a slight adjustment on page six of the paragraph that started with “The inquiry proceeded...” and change it to “The inquiry could not be concluded due to the non-availability of other Board Members…”

Adv De Lange wanted to add that the recordings would be kept with the Committee secretary.

The Committee agreed on that amendment and the report was put forward for final adoption.

The Committee adopted the report with its amendments unanimously.

The Chairperson commended the members on their hard work with the inquiry and said that the public broadcaster was an important institution and it was important that the Committee did everything in their power to restore its credibility, integrity and efficiency and ensure that there was proper control of the institution. In doing so they would be doing the country a favour.

Mr Van Den Berg wanted to point out that the Democratic Alliance was always right since he had pointed out in their first meeting of the session that they needed to look at the SABC.

Ms Kilian said that although the final report would now be processed she had shown initial concern that minority views had not been captured. She wanted to make sure that additional points could be raised in the debate and that the rest of the process was diligently followed so that they could get to the bottom of the problems at the SABC. It was not enough to replace the Board. It was a process of rescuing the public broadcaster and in that sense it was important that the executive management was also made accountable.

Mr Kholwane said that the ANC had appreciated the participation of all the parties and that the ANC wanted to ensure that they reflected the President’s sentiment and continued to reach consensus in all issues of national concern. In moving forward, they did not want to have to use their majority but rather to cooperate with opposition parties. To this effect he also wanted to thank Mr Holomisa for taking part in the inquiry although he was not a regular member of the Committee, and Ms De Lille since it was the first time he had worked closely with the ID leader.

Mr Mkhize said that it was not just the view of the minority parties that the process had to continue beyond dissolving the Board. It had been the view of all the parties, including the ANC.

Mr G Radebe (ANC) said that it was important that the minority parties took responsibility for the decisions they had taken in the Committee and did not change their minds when the Report came to the National Assembly, as they often did.

The Chairperson interjected and said that it was clear that this was a unanimous decision and the report was collective.

Mr Zondi wanted to speak as a member of a minority party and thank the Chairperson for being even handed throughout the process and he also thanked the ANC for their cooperation; it boded well for the future of the Committee and the Parliament.

Mr Van Den Berg said that what was important for the DA and probably also for the ANC was how they took the process forward. The DA might have certain specific concerns that would be raised, but he also hoped that there would be consensus going forward, that the Committee would be deciding in the best interest of the South African people.

Ms De Lille wanted to put on record that the ID also appreciated the cooperation of the parties during the process and the way the Chairperson had handled the inquiry. The Independent Democrats supported the dissolution of the Board mainly because of the impact of the crisis in the SABC on the workers and the producers that were not being paid.

Ms Kilian also wanted to thank the Committee and the Chair, although she had been very concerned about the process at some times. Finally she wanted to say that realistically they had not dissolved the Board; it had collapsed. She also wanted to ask that since Ms Qunta’s presentation had been added as an annexure to the report, should they not also annex the other submissions by the Board members. This would avoid accusations that they had not considered the Board’s submissions.

The Chair did not think that they had to include all the letters as part of the evidence. They had been tabled and made available to members and it was assumed that all members had read them. That they had been tabled meant that they were part of the process. Since they were looking at the Board as a collective entity, the initial statement was significant to the report since it was a joint submission, but not so much the individual statements.

Mr Kholwane wanted to clarify that they had dissolved the Board.

The Chairperson said that it was clear that they had dissolved the Board.

He adjourned the meeting.