In an out-of-court settlement concluded in December of last year before the Pretoria High Court, Kubayi-Ngubane agreed to certain terms, which were intended to guarantee the independence of the SABC Board, no doubt in anticipation of interference from the Ministry. The Minister’s office has, in the past, been found guilty of exercising undue influence over the administration of the public broadcaster, particularly under former Communications Minister, Faith Muthambi. The interim order stipulates that only the non-executive members of the Board are permitted to appoint the executive members. These positions are that of COO, Chief Financial Officer and Group Chief Executive Officer. The interim order also states that the Minister has no right to veto any decision of the Board relating to the appointment, interim or permanent, of an executive member. The final condition is that any such appointment must be done only after consultation with the Minister of Communications and therein lies the Minister’s bone of contention.
The SABC Board issued a statement following the Minister’s objection stating that it was committed to abiding by both the spirit and letter of the interim order. This statement seems to communicate that the appointment has yet to be finalised, thus leaving room for consultation with the Minister to still take place. Considering the SABC’s history with corruption and the flouting of correct procedures when it comes to the appointment of individuals, the importance of adhering to the terms of the interim order cannot be overstated. Whilst the required consultation with the Minister does not give her a vote in the appointment, it must take place, if only to lend much-needed credibility to the ailing broadcaster.
The interim order states that the kind of consultation required is that which is described in The Premier, Western Cape v President of the Republic of South Africa. The Court defined the nature and effect of the consultation concerned as being necessary but that the Provinces could still take a decision that was contrary to the national opinion, after consultation. In the case of the SABC, the this means that whilst the Board must consult with the Minister, and give regard to her views, it is not, however, bound by them, and can make decisions as it wishes thereafter. It is important to note that there are two forms of consultation when taking administrative decisions. “In consultation with” means that the advice of the individual to be consulted must be followed, effectively affording him/her veto power. On the other hand, “after consultation with”, means that consultation must take place, however, the one with whom consultation takes place does not have veto power.
The oversight function played by Parliament’s Portfolio Committee on Communication, exercised early this week by calling both the Minister and the Chairperson of the SABC Board to account for the reports and discuss the appointments of the executives, is welcome. The vigilance displayed by immediately addressing the reports is encouraging. The Board has since clarified that a conditional offer was made to Maroleng, he has yet to be appointed and the Board has indeed consulted with the Minister.
The interim order serves to guard against Executive interference in the SABC which – as was seen last year – led to the shambles in which the SABC found itself. The SABC spent much of 2017 fielding accusations of maladministration and corruption, most of which were proven to be true. These revelations culminated in the implosion of its Board and the general management of the broadcaster. The restructuring that followed was intended to instil public confidence and restore credibility to the public broadcaster. The transition was far from smooth – with hiccups from the appointment process, right through to the resignation of a new Board Member within a month of appointment. The SABC is off to a lacklustre start, considering the effort that has been expended to restore it to its former glory. It is telling however, that these issues were identified quickly and addressed similarly. At a time where numerous state-owned entities are under the spotlight, one can only hope that the SABC will be the first of many success stories. The spirit of transparency must prevail in any public institution to guarantee that it serves the public in the intended manner.
By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights
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