Illegality of appointment of CEO of the SABC as the Accounting Authority of the SABC under the Public Finance Management Act and obligation to avoid similar SABC Board appointments disaster in future

Letter to the Speaker of the National Assembly and the Chairperson of the Parliamentary Portfolio Committee

The SOS Support Public Broadcasting Coalition (SOS) is a non-profit, civil society coalition that represents non-governmental organisations (NGOs), community-based organisations (CBOs), community media, independent film and TV production sector organisations, academics, freedom of expression activists and concerned individuals. It advocates for the presence of robust public service media dedicated to broadcasting quality, diverse and citizen-orientated content to deepen South Africa’s constitutional values and principles.

Member organisations of SOS include: Campaign for Free Expression (CFE), Cape Town TV (CTV), Freedom of Expression Institute (FXI), Independent Producers Organisation (IPO), Media Monitoring Africa (MMA), Right to Know (R2K), South African Screen Federation (SASFED), Workers World Media Productions (WWMP), Institute for the Advancement of Journalism (IAJ).

SOS refers to:

• the recent SABC Board recommendations process undertaken by Parliamentary Portfolio Committee on Communications (PPCC) and by the National Assembly in terms of which the recommended names were provided to the President TWO MONTHS after the end of the term of the previous SABC Board; and
• the interview given by the Minister of Communications and Digital Technologies (the Minister) to the SABC at the State of the Nation Address on 9 February 2023 in which she stated that as a matter of law, that she, with the concurrence of the Minister of Finance, Mr Enoch Godongwana, had designated the CEO of the SABC, Mr Madoda Mxakwe, as the “SABC Board”. We assume she meant the accounting authority of the SABC, and presume this was done in terms of section 49(2)(b) of the Public Finance Management Act, 1999 (the PFMA).

SOS is of the view that the PFMA’s provisions regarding accounting authorities of State-Owned Enterprises has no application because section 13(11) of the Broadcasting Act, 1999 (the Broadcasting Act) specifies that the “Board is the accounting authority” of the SABC and that is the Act that specifically governs the operations of the SABC.

As you are no doubt aware (as the oversight bodies of both the SABC and of the Minister) of the High Court in the case of SOS v SABC and Others1, in which the High Court, per Matojane J, held at paragraph 141 and on an analogous situation with regard to the application of provisions of the Companies Act to the SABC:

The removal provisions of the Companies Act cannot be construed as applying to the SABC because the Broadcasting Act prevails over the Companies Act as it was specifically enacted to govern the operations of the SABC.

The obvious corollary applies – the PFMA cannot take precedence over the provisions of the Broadcasting Act because the Broadcasting Act was specifically enacted to govern the operations of the SABC.

Since the interview given by the Minister, doubt has arisen in respect of whether or not the designation of the SABC’s CEO has in fact taken place. Be that as it may, SOS requests that the PPCC urgently investigates the designation matter and instructs the Minister (as her oversight body) to not proceed with the proposed designation of the SABC CEO as the accounting authority of the SABC if this has not taken place. We understand that the Minister is due to appear before the PPCC on 17 February 2022.

Further, we urge the PPCC and the Speaker to recognise the enormous damage that has been done to the already-tenuous financial viability of the SABC resulting from the instability and uncertainty that has occasioned this now-four month delay in the appointment of the SABC Board. In this regard, we urge that going forward the timing of the replacement Boards be as follows:

• a prior period of at least nine-months must be provided for between the public call for nominations and the end of the term of the existing SABC board by the Speaker;
• a public notice and comment procedure deadline is gazetted with notice that all candidates’ CVs are available on the Parliamentary website, and with a deadline at least one month prior to the short-listing of candidates by the PPCC;
• vetting by the State Security Agency, if required (which SOS contests) be done only in respect of recommended (as opposed to short-listed candidates);
• at least three months’ notice of the recommendations for appointment (prior to the expiry of the existing Board) be given to the President by the Speaker; and
• at least one month is available to the newly appointed Board prior to the (prior to the expiry of the existing Board) in order to undertake a proper hand-over process to the new Board in accordance with basic good governance precepts.

SOS reiterates that the public interest has been extremely poorly served by the elected representatives in Parliament in respect of this matter and that Parliament has failed to act in a manner that protects the independence and financial viability of the SABC to date.

All of SOS’s legal rights are strictly reserved.