Letter to the Minister of Finance: Illegality of Appointment of GCEO of the SABC as the SABC’s Accounting Authority Under the Public Finance Management Act

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 interview given by the Minister of Communications and Digital Technologies, Khumbudzo Ntshavheni, on SABC News at the State of the Nation Address on 9 February 2023 where she stated that as a matter of law, that she, with the concurrence of yourself, had designated the Group Chief Executive Officer (GCEO) of the SABC, Mr Madoda Mxakwe, as the “SABC Board” presumably meaning the accounting authority of the SABC, and presumably 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. In any event, notwithstanding the provision in s49(2)(b) that “if the public entity does not have a controlling body, the chief executive officer … is the accounting authority”, that same section states clearly that this is the case, “unless specific legislation applicable to that public entity designates another person as the accounting authority. That is exactly what section 13(11) of the Broadcasting Act provides for.

You might not be aware that the Ministry of Communications was party to a High Court 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, 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 requires:

• urgent assurances from yourself that the designation of the SABC CEO as the accounting authority of the SABC has not taken place;
• a copy of the designation,

be provided to it by close of business on 17 February 2023.

All of SOS’s legal rights are strictly reserved.