Understanding of South Africa’s Broadcasting Act is at the heart of several major clashes between communications minister Faith Muthambi, the chairman of the SABC board and the Democratic Alliance’s shadow minister of communications, Gavin Davis.
This was highlighted once more this week when Muthambi told the parliamentary portfolio committee on communications the Companies Act trumped the Broadcasting Act as the SABC is a state-owned company and she the shareholder. This meant she could write a new memorandum of incorporation that gives her sweeping powers over the SABC, including executive appointments and the board.
Davis disagrees. He says she has mounted what is tantamount to a “hostile takeover” of the public broadcaster and stripped the board of its powers. “The Memorandum of Incorporation (MOI) signed by Minister Muthambi in September last year, replaces the SABC Articles of Association signed in 2011. The new MOI gives (COO Hlaudi) Motsoeneng and Muthambi control over the SABC, with the board reduced to a rubber stamp,” Davis said.
“It gives Muthambi the power to recommend the removal of Board Members, in clear contravention of the Broadcasting Act,” he said. “Muthambi now has the power to make Motsoeneng the acting CEO and keep him there for as long as she wishes.”
This power became even more apparent last week with the removal of Hope Zinde as a board member. In an unprecedented move by an SABC board member, as it is known to close ranks in a crisis, Zinde issued a media statement late at night claiming she had been illegally removed from her position, and that she’d learnt of her dismissal in the media. “I, like you, was shocked to learn from the media that I have been removed from the SABC board. I want to assure you that I am still very much a member of the board of the SABC. I am currently awaiting a process to unfold through the appointing authority, Parliament and the Presidency, to look into a matter I have been alleged to have committed,” she said.
She stands accused of attending an ANC communications stakeholder lekgotla at which she is alleged to have”divulged board matters I was not mandated to discuss. I have refuted this with the contempt it deserves”. Zinde says the board did not have a quorum to proceed, and failed to investigate the allegations and interrogate the evidence against her. She also made it absolutely clear she was opposed to Muthambi’s unilateral decision to make Motsoeneng acting CEO of the SABC. “I must, while I share this with you, also CORRECT a false report last year in the Sunday Times, that I voted in favour of Mr Hlaudi Motsoeneng’s appointment as permanent COO. I DID NOT,” she wrote, using capital letters for emphasis.
Now the DA has stepped in to ask chairperson of the parliamentary portfolio committee on communications, Joyce Moloi-Moropa, to investigate the allegations. “This follows yesterday’s portfolio committee meeting in which it emerged that the SABC Board’s process to remove Zinde was fundamentally flawed,” said Davis in a statement. “In the committee meeting, acting SABC chairperson Professor Obert Maghuve confirmed that the Board had removed Zinde. ‘She’s removed. Once we remove… she’s removed’, he said.”
Quoting the Broadcasting Act, Davis said according to Section 15 “only the appointing body can remove an SABC board member. ‘Appointing body’ is defined in the Broadcasting Act as “the body charged with the appointment of members of the Board in terms of section 13 of this Act”.
This means 12 non-executive members of the Board must be appointed by the President on the advice of the National Assembly. “In other words, the appointing body, as defined by the Broadcasting Act, is the President acting on the advice of the National Assembly,” Davis said.
“It follows that neither the SABC board chairperson, nor the SABC Board as a whole, can remove Hope Zinde from her position on the board. Only the President, upon advice of the National Assembly, can do so,” he said.
But Muthambi is adamant. She told Davis it was the Companies Act that “specifically” governed the shareholder’s (government’s) relationship with the board. Davis argues the SABC is quite unlike other state-owned entities such as Eskom or Transnet. It’s position as an independent public broadcaster ensured it fell under the Broadcasting Act.
The Zinde case now lies at the heart of the argument of which Act applies to the SABC and whether Muthambi’s Memorandum of Incorporation holds water. Davis says Zinde must be “given the opportunity to respond to the allegations against her in an open inquiry conducted by the portfolio committee, following due process”.
“We must uphold the principle that all are equal before the law. We cannot subject different Board Members to different processes when allegations of misconduct are levelled against them.”
Zinde for her part says she remains a non executive director of the board as she has not been served with any documentation to the contrary. She said she will “continue to serve the Public Broadcaster in the same steadfast, honest, truthful, focused, vigorous, professional and UNFEARFUL manner that I have been serving it since I was appointed to date”.
