This suggests that but for the threat of litigation, the President would have continued to hold out on the appointment, thus extending the public broadcaster’s turmoil. This speaks volumes about the President’s priorities and disregard for the Rule of Law, as well as the stability of the SABC. The application has since been abandoned as the appointment has rendered it moot. This leaves the question of costs and the fact that the Presidency will have to carry the load, once again dipping into taxpayers’ money to do so over unnecessary litigation.

Furthermore, the President appointed Bongumusa Makhathini and Febe Potgeiter-Gqubule as Chairperson and Deputy Chairperson, respectively. Both these individuals were flagged during the nomination process as being problematic due to their ties to the governing party. Makhathini is currently Chairperson of First Lady, Bongi Ngema-Zuma’s Foundation. Already there have been calls for his resignation therefrom. Potgeiter-Gqubule served under Presidential hopeful, Nkosazana Dlamini-Zuma, at the African Union. After going through the pains of trying to place independent individuals at the SABC, which was previously plagued by cadre deployments who did not execute their tasks with the public’s best interests in mind, this seems counterproductive. However, it remains to be seen whether the two will carry out their duties impartially. Another question raised is the removal of Khanyisile Kweyama from position as Chair when she was clearly doing a stellar job, and replacing her with what appears to be a political placement.

The President threw another spanner in the works via the latest Cabinet reshuffle by reassigning Ayanda Dlodlo to the Department of Home Affairs and replacing her with Mmamoloko Kubayi. Kubayi becomes the third Minister of Communications this year alone, and the seventh since 2009. This can only be described as sabotage in respect of continuity and stability in the Communications portfolio. Dlodlo was an appointment who seemed bent on raising the SABC’s credibility and by the looks of things, was well on her way. This reassignment could undermine the great work done by the Interim Board, and stall further progress.

Whilst these concerning developments unfolded, one victory for the independence of the SABC was scored at the North Gauteng High Court. The SOS Coalition and the Right2Know Campaign approached the Court requesting a limitation of the Minister’s powers over the SABC. They argued that the current powers were at odds with the independence of the public broadcaster. They cited too many commercial and political interests which sought to undermine this independence as reasons. Some of the identified powers were that of the appointment and dismissal of senior executives, the Minister’s veto powers regarding appointments, as well as the Minister’s powers to remove all Directors at will. The applicants said that the SABC governance structure, its Memorandum of Incorporation (MOI) and the Charter of the Board did not serve to protect the independence of the SABC. The Minister argued that the existing checks and balances assured the Board’s independence.

The Court agreed with the applicants and declared the offending sections of the MOI and the Charter inconsistent with the Broadcasting Act (which has primacy), and thus invalid. Executive Board Members are to be appointed solely by their non-executive peers without any ministerial approval. This process must be conducted in a transparent and open process as envisaged by the Act. The Minister’s power to remove Board Members has also been limited to strict compliance with the Broadcasting Act’s provisions.

The SABC has the widest reach in terms of broadcasting in the country and thus, millions of people rely on it for information. It is important that it not only function with some semblance of stability but also that it appears to be operating with independence, free from any and all political interference. These sentiments have been echoed repeatedly by the former Public Protector in her report on the SABC, by civil society and our Courts. The above events exhibit a disregard for the pronouncements of the courts and constitutional institutions. An apparent recapture of the SABC would render all this work in vain.

By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights
18 October 2017