The board of the SABC is meeting on Thursday – but the it doesn’t have a quorum to take important decisions. But in the meantime, the board – approved by communications minister Faith Muthambi – has appointed an acting GCEO and an acting CFO. Glenda Nevill reports.
Chairman of the board, Professor MO Maguvhe, responding to questions from The Media Online, said via company secretary, Theresa Geldenhuys, that in terms of “Clause 13.7.1 of the [SABC’s] MoI, in the event of the GCEO position being vacant for whatever reason, the COO shall act in that position upon approval of the minister”.
But, Maguvhe said, COO Hlaudi Motsoeneng, had declined the appointment of acting GCEO and “requested that he be allowed to continue with the numerous projects that he is currently working on”. Maguvhe said Muthambi had, as a consequence, approved the appointment of the CFO as the acting GCEO and approved the appointment of an acting CFO. This means “Mr J R Aguma, who is the appointed CFO, has been appointed as the acting GCEO and Ms T Dlamini has been appointed as the acting CFO”.
Despite these appointments, though, Maguvhe confirmed the board was not quorate.
The Broadcasting Act stipulates, “Nine members of the Board, which must include the chairperson or the deputy chairperson, will constitute a quorum at any meeting of the Board.” Maguvhe confirmed in an email to The Media Online that this is correct, and that the board did not have a quorum for Thursday’s meeting.
Earlier, the Democratic Alliance’s shadow communications minister, Gavin Davis, issued a statement saying, “An agenda for tomorrow’s SABC board meeting in the DA’s possession indicates that the Board is attempting to take legally binding decisions without a quorum”.
Davis said today’s meeting has only six board members (chairperson Professor MO Maguvhe; deputy chairperson Ms L T Khumalo; Mr V G M Mavuso; Mr N M Mhlakaza; Dr K Naidoo; and Dr N A Tshidzumba) and with the addition of two executive board members CFO (now acting GCEO) J R Aguma and COO Motsoeneng, this still left the board short one member.
“If Minister Muthambi had not spent the last year meddling with the SABC board, it would have a quorum and be in a position to take legally binding decisions. This ineptitude alone should put her at the front of the queue when President Zuma next reshuffles his Cabinet,” Davis said.
Asked how the board intended dealing with important decisions in light of not having a quorum, Maguvhe, via Geldenhuys, referred to the Companies Act 71 of 2008:
74 (1) Except to the extent that the Memorandum of Incorporation of a company provides otherwise, a decision that could be voted on at a meeting of the board of that company may instead be adopted by written consent of a majority of the directors, given in person, or by electronic communication, provided that each director has received notice of the matter to be decided;
74 (2) A decision made in the manner contemplated in this section is of the same effect as if it had been approved by voting at a meeting.
“The MoI of the SABC allows for decisions to be taken on a round robin basis – the request(s) are submitted electronically to all the directors and the approval on the round robin basis is also ratified at the next board meeting in keeping with good governance practices,” Maguvhe said.
“In terms of the Companies Act Regulations Clause 3.7, the process to be followed in terms of an adjourned meeting (due to the lack of a quorum) of the board is the same as the process for an adjourned meeting of the shareholder.”
Therefore, “Should a quorum not be present within 1 (one) hour after the appointment time, a General Meeting, if convened by or on a requisition of the Shareholder, shall be dissolved”.
But a source with knowledge of how the “round robin” process works said there should still be a quorate board and that decisions taken via round robin could backfire.
“If a meeting cannot be held, a round robin may be used i.e approval by email or other forms of electronic support for a particular resolution. If the majority of the approvals approved (i.e six out of nine), the resolution will then be ratified at the next meeting on the basis that if six approved electronically they will also confirm the ratification at the next meeting,” the source explained.
“Governance considers that there well may be members who disagree with a decision based on various decisions, it is therefore that an approval cannot be assumed to be guaranteed prior to the deliberations that ought to take place as part of a competent board applying its mind on any decision that may be legally challenged in a court of law; if the presumption of an approval can be made it can only mean that governance processes have been compromised through some manipulation,” the source said.
The source said if the board isn’t quorate, it cannot cancel meetings and use round robin which it would be unable to ratify at the next sitting. “If a round robin is used, and at the next properly quorate meeting that round robin is rejected, then an irregularity or irregular transaction arises”.
Thus, such a process is “not intended to be the normal form of running an entity but for special urgent circumstances and the members who would have otherwise been at a meeting are unable to urgently meet for that particular date requested”.
The source added that the acting CEO and CFO have “no standing” because a quorate board “would have approved them or authorised a recommendation to be made to any body, such as the minister, who can only receive matters after they have been properly processed by a quorate board,” said the source.
“They cannot be irregularly appointed to act, and then have them counted in the number of members to regularise the appointment irregularities, that is unconstitutional.”
The source said, “Only the non executive directors can consider matters relating to the executive directors as the executive directors constitute the 14-member exco which accounts to Board meaning the 12-member board”.
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