SOS Coalition: Comments on the Parliamentary Portfolio Committee on Communications and Digital Technologies’ process to appoint a new SABC Board

1. INTRODUCTION

a. The SOS Coalition in Support of Public Broadcasting (SOS) notes and appreciates the opportunity
to present its views on the above-mentioned process, currently being undertaken by the Parliamentary Portfolio Committee on Communications and Digital Technologies (“the Committee”). SOS trusts that the Committee will consider these submissions carefully in the public interest and having regard to the crises that have historically plagued the public broadcaster, the South African Broadcasting Corporation (“the SABC”) and given the imperative of ensuring the continuation of the excellent work of the current Board and management in bringing about both financial and corporate governance stability at the SABC.

b. The SOS Support Public Broadcasting Coalition (SOS) is a non-profit, civil society coalition that advocates for the presence of robust public service media in the public interest to deepen our constitutional democracy. The coalition represents trade unions, 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.

c. SOS campaigns for an independent and effective public broadcaster. We engage with policymakers, regulators, and lawmakers to secure changes that will promote citizen-friendly policy, legislative and regulatory changes to broadcasting and its associated sectors.

d. As part of its lobbying work the Coalition writes letters, submissions, commissions research, engages the media, organises public meetings and, where appropriate, mounts pickets and protests. Our contributions in advocating for a public-interest- focused public broadcaster have been recognised by the broadcasting sector, the media, the courts, and Parliament as being immensely valuable.

2. TIME FRAMES

a. SOS is extremely concerned that the CV’s of the shortlisted candidates were made publicly available only on Friday 9 September 2022. This effectively afforded members of the public effectively less than two working days to consider the implications of same when commenting on the Committee’s shortlist of candidates prior to the commencement of the interview process on Tuesday 13 September 2022.

b. The Broadcasting Act, 1999 (the Broadcasting Act) requires the Committee to engage in an open and transparent process characterised by public participation and the failure to provide the CVs to the public timeously does not evidence such a commitment.

c. In future, the public must be afforded at least 14 working days within which to make written submissions on shortlisted candidates before the interviews proceed.

3. OVERALL CONCERNS REGARDING THE UNDUE POLITICISATION OF THE SHORTLIST OF CANDIDATES

a. SOS understands that the short list of candidates was drawn up essentially by a process of considering those candidates that were shortlisted by most of the political parties with representation on the Committee.

b. SOS is extremely concerned about this from a public policy and process point of view

c. While shortlisting candidates that have found favour with all political parties might seem like a way of reducing political horse-trading as much as possible it does little to ensure that the people with the right skills, experience and other qualifications as required in terms of section 13(4) of the Broadcasting Act are in fact short-listed and appointed as non-executive Directors of the SABC, the Board of which is required to be independent.

d. In the circumstances, SOS is of the view is that the correct process would be for political parties to propose nominees to be shortlisted based on specified skills and expertise and not simply that they have found favour with one or more political parties. None of the candidates shortlisted have any publicly available justification or motivation for their shortlisting by the Committee, something that SOS finds extremely problematic.

4. SPECIFIC CONCERNS REGARDING CERTAIN OF THE SHORTLISTED CANDIDATES

a. SOS supports the proposed appointment of all of the existing Board members onto the Board as being essential to the continuation of the good work that has been commenced by the previous Board and in the interests of organizational stability, with two glaring exceptions: Ms Mamodupi Mohlala-Mulaudzi and Mr Kgalema Mohuba.

b. Frankly, Ms Mohlala-Mulaudzi has a troubled history of causing organisational chaos wherever she is deployed:

• As an ICASA councillor, press reports detail allegations that she “moonlighted through her legal practice including doing work for a telecoms industry player” – a clear conflict of interest and a contravention of the Councillors’ Code of Conduct and of the Icasa Act – https://mybroadband.co.za/news/telecoms/9266-confusion-over-new-communications- dg.html
• As the Pensions Funds Adjudicator she again courted controversy as the office of the Adjudicator was forced to expend R1.2 million in a contested lease agreement she entered into and then cancelled – something the next holder of the office described as constituting “fruitless and wasteful expenditure in terms of the Public Finance Management Act (PFMA)”.
• Ms Mohlala-Mulaudzi then moved to the Department of Communications as its Director- General but was shortly thereafter fired by the then-Minister of Communications “in the wake of an exodus of senior managers from the Department” https://mg.co.za/article/2010-08-16-costly-mess-wasted-public-funds/
• Thereafter, her term as head of the National Consumer Commission was also marred by controversy with the then Minister of Trade and industry going so far as to label her “a liar” and terminating her contract and appointment. https:/https://theppra.org.za/article/press_statement_the_final_forensic_investigations_report_on_allegations_against_the_property_practitioners_regulatory_authority_suspended_chief_executive_officer/www.iol.co.za/news/politics/consumer-commission-head-im-being-victimised- 1295874
• Ms Mohlala-Mulaudzi has also recently been suspended as the CEO of the Property Practitioners Regulatory Authority (PPRA) which has stated its intention to press criminal charges against her. The blistering seven-page press statement released just last week. https://theppra.org.za/article/press_statement_the_final_forensic_investigations_report_on_allegations_against_the_property_practitioners_regulatory_authority_suspended_chief_executive_officer
• and attached for your convenience) is an astonishing litany of potentially criminal behaviour, including the alleged non-payment of pension fund contributions, hiring of unqualified staff, the by-passing of the CFO in contravention of the PFMA and the subsequent incurring of unnecessary costs by the PPRA in respect of meals, study guides, apps etc

SOS submits that it is absolutely inconceivable that any party saw fit to shortlist Ms Mohlala- Mulaudzi and that the Committee has done so.

c. The SOS also has serious concerns about the shortlisting of Mr Kgalema Mohuba and wonders how such a shortlisting could have been made. Mr Mohuba is a current SABC Board member and it was during his tenure as a Board member that the scandal over his doctoral degree first came to light. It was alleged that he hired two Zimbabweans to write his thesis and the University of Limpopo of which he was the spokesperson at the time, refused to award him the degree https://teeveetee.blogspot.com/2018/04/yet-another-sabc-board-member-engulfed.html. The matter went to the High Court which sided with the University of Limpopo (http://www.saflii.org.za/za/cases/ZALMPPHC/2021/78.html). To reiterate, it is inconceivable that a person with such clear integrity issues be appointed, to act in the public interest, to the Board of a public broadcaster.

d. SOS is also concerned at the shortlisting of Ms Nomvuyiso Batyi. SOS wishes to stress that it is of the view that, at any other time, Ms Batyi would make an outstanding SABC board candidate as a result of her qualifications, experience and her fair and considered approach to regulating in the public interest. However, Ms Batyi enjoys full time employment as the CEO of the Association of Communications and Technology (ACT) an organisation that “aims to look after the interests of Africa’s major telecommunications operators” (https://mybroadband.co.za/news/telecoms/456229-south-african-network-operators-and- minister-launch-the-association-of-communications-and-technology.html). In this regard:

• SOS submits that this is an obvious direct conflict of interest as stipulated in section 17(1) of the Broadcasting Act and this conflict of interest (if Ms Batyi were to remain as CEO or as a member of the ACT) would be of a direct and on-going nature.
• The reason this is a conflict is that the SABC is clearly going to be moving more and more into the digital and online space as convergence gathers pace and as broadband internet is more ubiquitous, making the telecommunications operators (where content drives traffic over networks and services) a direct competitor to the SABC.
• Indeed there is a live conflict of interest issue at this time. Vodacom, a key member of the ATC, litigated in favour of the Analogue Switch-off (ASO) Date, including before the Constitutional Court, which ASO issue is still unresolved and underway. As the Committee will know, the SABC has opposed the ASO of the remaining four provinces as this would result in the loss of 68% of its audience. Indeed it has issued a press statement in this regard: https://www.sabc.co.za/sabc/media-statement-on-analogue-switch-off/.
• The effect of this is that every single time an issue of digital broadcasting or digital content and or services and/or distribution arises at an SABC Board meeting, Ms Batyi would have to disclose the conflict and the other Board members would have to consider whether or not she would be precluded from further participation on the issue, in terms of section 17(2) of the Broadcasting Act. Given the clear online and digital strategy being spearheaded by the public broadcaster, and the pressing issue of the ASO, it seems to SOS that this issue would arise at EVERY meeting, making is nearly impossible for Ms Batyi to function effectively as a Board member which would, therefore, undermine the smooth functioning of the Board as a whole which is not in the public interest.
• SOS very much wants to see Ms Batyi appointed to the SABC but the recommendation by Parliament to President must be that any appointment of her to the SABC be subject to the condition that she resigns both as CEO and as a member of the ACT prior to taking up her Board position.

e. Lastly, the SOS also has serious concerns regarding the shortlisting of Ms Thandeka Gqubule-Mbeki. SOS recognises the enormous historical contribution made by Ms Gqubule-Mbeki not only to the struggle for political emancipation in South Africa but also specifically to the cause of freedom of expression and freedom of the press, in her journalism career at, among others, the Weekly Mail (as the Mail & Guardian was then known) and at the SABC. SOS admired and supported Ms Gqubule-Mbeki and the other members of the so-called SABC 8 in their unfair dismissal proceedings during the tenure of former COO Mr Hlaudi Motsoeneng. However:

• Press reports (https://www.iol.co.za/news/politics/sabcs-economics-editor-thandeka- gqubule-mbeki-resigns-in-protest-9187a0f3-46ee-4d1f-a81c-1b4be240cfee) have detailed, how, just last year, Ms Gqubule-Mbeki resigned from her post as Economics Editor of the SABC rather than face serious disciplinary charges which are alleged to have included: intimidation of a colleague, offensive language and behaviour and violating the Public Management [Finance] Act.
• SOS is of the view that given Ms Gqubule-Mbeki’s reputation and seniority it is surprising that she did not:
  1. subject herself to an independent disciplinary enquiry into the charges; or
  2. challenge the said disciplinary enquiry in the CCMA or in the courts.
• Without any actual challenge to the charges proffered by the SABC by Ms Gqubule-Mbeki or anyone else, and without any kind of a settlement having been reached with the SABC, her resignation appears to us to reflect an unwillingness to defend herself against the serious charges the SABC brought against her.

5. Subsequently

As a result of the Committee’s shortlisting of the above compromised SABC Board candidates, SOS hereby gives notice that it reserves its right to act in the public interest (the fact that it does so has been recognised by the Constitutional Court https://collections.concourt.org.za/bitstream/id/61394/CCT%2089-22%20and%20CCT%2092- 22%20etv%20and%20Others%20v%20Minister%20of%20Communications%20and%20Others.pdf (at paragraph [102] of the judgment) to bring urgent legal proceedings to interdict Parliament from recommending any of the above shortlisted candidates (subject to the conditions suggested above for the appointment of Ms Batyi) for appointment by the President, should it become clear that the Committee intends to recommend that Parliament do so. Such a recommendation would be a violation of Parliament’s legal obligations as set out in section 13(4) of the Broadcasting Act, particularly of its obligations to ensure that members of the Board are persons who are committed to, inter alia, “accountability on the part of those holding public office”.

6. Vote of thanks

SOS thanks the Committee for the opportunity of commenting on its shortlist of candidates and trusts that its inputs will be considered as part of the process of finalising the Board recommendations to the President. SOS is happy to provide any further input should a member of the Committee require same.

Yours Sincerely

UYANDA SIYOTULA

NATIONAL COORDINATOR

SOS SUPPORT PUBLIC BROADCASTING COALITION

Cell: 060 691 2462