Today, the Minister of Communications was scheduled to brief the Portfolio committee on Communications on progress she and the SABC had made in instituting the recommendations made by the Public Protector in her report When Governance and Ethics Fail. Earlier this year, the Public Protector had made a series of damning findings in the severe corporate governance deficiencies in the SABC including:
Instead of demonstrating the transparency and accountability so sorely needed by our embattled public broadcaster, the Minister refused to discuss any substantive issues pertaining to hers and the SABC’s progress in bringing finality to the matter, invoking the sub judice rule.
The sub judice rule is enforced to prevent people from commenting on a case before a court of law where such comments would prejudice the outcome or fair proceedings of the case. The Minister and SABC are currently defending an application brought by the Democratic Alliance before the Western Cape High Court to review the appointment of Mr Hlaudi Motsoeneng as permanent COO of the SABC.
The SOS Coalition believes that it is the Minister’s right to invoke the sub judice rule to avoid prejudicing the case against her, however ill-advised. However, as the representative body of the people, it is Parliament’s duty to be ensure the proper application of the rule in proceedings in order to enforce transparency and accountability for the benefit of the people of South Africa.
Today, Parliament abrogated its responsibility by refusing to test the validity of the Minister of Communication’s invocation of the sub judice rule and allowed her to evade accountability on the “pathological corporate governance failures” found by the Public Protector in the SABC. This, in spite of the repeated calls from opposition members, for the Committee to seek advice on the appropriate application of the sub judice rule from the Parliamentary State Law Advisor. Instead, the Committee refused to seek that advice and went as far as defending the Minister, allowing today’s meeting to descend into a game of political grand-standing between the ruling party and the opposition.
For the record: the matter of the appropriate application of the sub judice rule was settled by the Supreme Court of Appeal seven years ago in the Midi TV (Pty) Ltd v Director of Public Prosecutions (Western Cape) case in which a full bench handed down a judgment stating:
a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough.
It is the view of the Coalition that what the Minister presented was, indeed, mere conjecture and speculation. She did not provide substantive reasons to the Committee on how providing full details of hers and the SABC’s progress on acting on the Public Protector’s recommendations, only stating the possibility of her position in the case being prejudiced. Further, it is the view of the Coalition that the Committee’s defense of the Minister and refusal to compel to show the demonstrable and substantial risk of prejudice to her case and make a ruling having applied its mind to the evidence was not only wholly inappropriate, but made a mockery of Parliament’s role and responsibility to the public it is enjoined to represent.
We call on the Committee Chair to do the right thing and summon the Minister back to Parliament to account fully and substantively on the matter of the Public Protector’s report post haste. Anything short of this can only be read as a show of the Committee’s allegiance to the executive and not the public it is required to represent, and a consummate violation of the separation of powers on which our Constitutional Democracy is founded.
The SOS Coalition represents a broad spectrum of civil society stakeholders committed to the broadcasting of quality, diverse, citizen-orientated public-interest programming aligned to the goals of the South African Constitution. The Coalition includes a number of trade union federations including COSATU and FEDUSA, a number of independent unions including BEMAWU and MWASA; independent film and TV production sector organisations including the South African Screen Federation (SASFED); a host of NGOs and CBOs including the Freedom of Expression Institute (FXI), Media Monitoring Africa (MMA), SECTION27 and a number of academics and freedom of expression activists.