Governance gimmicks surface at the SABC as it continues to be Board-less

The SOS Coalition and Media Monitoring Africa (MMA) are appalled and deeply concerned to learn that the Group Chief Executive Officer (GCEO) of the South African Broadcasting Corporation (SABC) has been designated as “the Board”.

The Minister of Communications and Digital Technologies (DCDT), Khumbudzo Ntshavheni, announced, after the State of the Nation Address (SONA) (9 February) that, “In terms of the law, the GCEO of the SABC has been designated by the Minister of DCDT with the concurrence of the Minister of Finance as the Board of the SABC”.

SOS and MMA believe the decision is unlawful and that the two Ministers exceeded their powers. On a simple basis of good governance, it cannot surely be legitimate for one individual to be given Board powers and make decisions that otherwise require 15 members of which 12 are non-executive members. The Broadcasting Act requires non-executive members to have a variety of expertise and experience ranging from media law, business practice, journalism, entertainment. These skills are essential to ensure that decisions are considered and debated and that all pertinent aspects for the running of the public broadcaster are taken into consideration. The Minister’s assertion that the GCEO is the Board is at odds with even the most rudimentary elements of governing the SABC.

The origin of the apparent decision stems from a meeting with Parliament’s Standing Committee on Public Accounts (SCOPA) on 23 November 2022, where already it was clear that the SABC did not have an accounting authority and the reports indicated that the Ministry was pushing for the appointment of the SABC’s GCEO as the accounting authority pending approval by National Treasury. Needless to say that the more obvious and preferable decision should have been to push for the appointment of the Board. It is the failure by parliament to fulfill its mandate in a timeous manner coupled with the President’s failure to act swiftly to appoint the SABC that has resulted in us being in a scenario where we now must contend with the absurdity of a GCEO being the SABC Board.

It is equally alarming that the public learns through an ad hoc interview that “the GCEO is the SABC Board. The public was not informed of the decision when it was taken and its basis which raises further questions about the decision. The lack of transparency gives credence to rumoured political interference and orchestrated delay tactics in appointing the Board. The objects of the Broadcasting Act 2(n) aim to “ensure that broadcasting services are effectively controlled by South Africans. The SABC is a public broadcaster that belongs to the people of South Africa,” whom, in this instance have been deprived crucial information regarding the appointment of an interim accounting authority.

The Broadcasting Act stipulates in section 14 (1)(2) that “the affairs of the Corporation are administered by an executive committee consisting of the Group Chief Executive Officer, Chief operating Officer, Chief Financial Officer and no more than other 11 members. The executive committee is accountable to the Board”. In this instance, we have the executive committee being accountable to one of its members, who is part of the decision-making body at operational level. As such, there is currently no accountability and no oversight at the SABC because the current gimmicks do not amount to adequate governance.

The issues are not merely academic, as we know of at least two key decisions that have been taken in the absence of the SABC Board. These include; a submission pertaining to the Analogue Switch Off (ASO) date due to the Ministry on 27 January 2023. It is not clear who made the submission and on what basis it be an SABC position when there was no Board. The public then learned of the launch of a 24-hour news channel in January 2023.

Subsequently, additional questions arise which include: Who oversees the implementation of the activities? Who is SABC management accountable to? Are the decisions being taken based on resolutions of the previous Board and are they being implemented accordingly without deviation? How valid are these decisions that being made in the absence of a quorate Board (as envisioned by the Act)? How can government consider its consultation process on analogue switch off to be legitimate when the public broadcaster has no board and basis on which to make a considered and independent submission? The decision is all the more critical knowing that the SABC is going to be greatly affected by the switch-off? (Particularly its strategic direction on which the Board takes lead) Are Board appointments being delayed tactically to manipulate the CEO to make decisions in favour of government that wouldn’t otherwise be made when there is a Board?

The legality of the CEO’s appointment as the SABC Board

The Public Financial Management Act 49 (2)(b) states that “if the public entity does not have a controlling body, the chief executive officer or the other person in charge of the public entity is the accounting authority for the public entity unless specific legislation applicable to that entity designates another person as the accounting authority. The Broadcasting Act 13(13) states that “the Board is the accounting authority of the Corporation”. Nowhere does it make a provision for SABC executives to be appointed in the absence of the Board. Thus, we believe the appointment of the GCEO as the accounting authority is illegal and a breach of the Broadcasting Act.

SOS and MMA also would also like to understand the basis on which the Ministers are mandated to make such appointments at the SABC? The Matojane Judgement of 2017 spelled out the critical importance of the independence of the SABC Board and the role and limitation of the Minister of DCDT in seeking to interfere with the running of the SABC. All such powers are clearly conferred to the SABC Board. We note further that the Broadcasting Act has designated the President as the appointing authority of the Board. Assuming it was legal, which we dispute, to appoint the GCEO as the accounting authority in the interim it could only be the President who could stipulate that the GCEO could act as interim accounting authority with Board powers.

SOS and MMA repeat their call for the President to appoint the SABC Board. Last month, President Ramaphosa indicated that he was seeking legal opinion on objections that implicate two recommended candidates. Seven (7) weeks have passed since the President received the recommended names on 20 December 2022. We ask that the President proceeds to make appointments of the 10 candidates that aren’t implicated as the Board would still quorate. Section 13(10) of the Act states that “nine members of the Board which must include a chairperson or deputy chairperson will constitute a quorum at any meeting of the Board.

It is unacceptable to have the SABC be without a Board for more than 16 weeks. The vacuum created by the absence of a Board is causing further damage and deepening an entirely preventable crisis. SOS and MMA demand the urgent appointment of the SABC Board – in the public interest.

SOS and MMA are currently taking legal advice and will act on an urgent basis if necessary.