REPORT: Muthambi Responds to SABC Board Purging
The legal opinion
The Communications portfolio committee has backed the Department of Communication’s with regards to the removal of the three SABC board members earlier this year. Deeming the move legal.
Parliament’s legal adviser, cited the following, amongst its reason for holding the welcome view that “the SABC has no legal competency to arbitrarily remove a Member of the Board”:
In terms of the Broadcasting Act:
- Only the President may remove an SABC Board member under two conditions:
- having used his sole executive discretion following the advice of the SABC Board having conducted an inquirys15(1)
- having been obliged to on the recommendation of the National Assembly having conducted a due inquiry on 5 listed grounds s15A(1)
- In spite of the application of the Companies Act on the SABC as a law of general application and the conflict it poses against the application of the Broadcasting Act, the latter must prevail because of the concrete specificity with which it addresses the removal of SABC Board members which the former does not
After the report was delivered, the parliamentary committee praised Legal services for their ‘clear legal opinion’ and there seemed to be a consensus established that the committee agreed with opinion.
The Minister of Communications presented what was supposed to be a rebuttal of the legal opinion described above after being invited to do so by the chairperson of the Committee Joyce Moloi-Moropa, who was notable absent from today’s proceedings due to illness leaving ANC MP Dikeledi Tsotesi to step in as a replacement chair.
The minister argued that not only was it not the scope of parliament to provide legal opinion to the executive, in her words
“The committee has no right to tell the executive which law to apply. The executive is bound the Constitution to apply all the laws from this house until such time the so said laws are declared unconstitutional.”
Following this she argued that the conflict presented in the legal opinion of the Parliamentary legal team between the Broadcasting acting and the Companies Act was not relevant, rather she disagreed strongly with this opinion. According to her and her legal team the Companies Act and the Broadcasting Act compliment each other and in line with the Companies act the SABC board can remove a member after following due process. The attempt to brand the removal of the three SABC members as illegal was a result of elements with the Committee overreaching and it was not the role of the Committee to tell the executive what to do and thus must be defeated. Furthermore none of the removed board members made formal complaints so it was not the duty of any of the involved entities to take this issue up
Following this her legal adviser presented an overview of the sections of the various acts considered relevant to the committee, this met with strong responses from opposition MPs, who deemed it ‘ a patronising tutorial’ and a waste of time.
Both Gavin Davis of the DA and Mbuyiseni Ndlozi of the EFF made strong arguments against the minister’s legal argument, claiming that it was not only a weak rebuttal to the original legal opinion, but it was an attack on the parliamentary committee and presented a fundamental misunderstanding on the role of SABC as a public broadcaster, instead it was being treated as a state broadcaster. Both Davis and Ndlozi’s arguments met with jeers and numerous interruption from both the chair of the meeting ANC MPS, one of them informing Ndlozi that he was “a sinful boy”. The ANC MPs merely asked at times rhetorical or softball questions of the ministers
Instead of responding to the arguments presented by Davis and Ndlozi the Minister and her legal adviser responded with an argument based on the fact that the Companies Act and the Broadcasting Act were not in conflict, ended in the legal adviser questioning the goodwill and intentions of the committee for bringing the removal of the SABC board members into question. After this set of exchanges it was determined that the Committee would continue the meeting after the presentations to deliberate on the course forward. In this exchange it was strongly suggested by the Department of the Communications that if anyone didn’t like their opinion, they would have to take it to the courts.
The Conclusion of the meeting
This deliberation saw further tensions rise between opposition and ANC MPs after it was deemed that the position taken in the previous meeting noted earlier that the Committee agreed with the legal opinion deeming the removals of board members was not what took place despite this being on record. Instead it was suggested that the Committee merely wanted to hear both sides of the arguments before forming a final opinion. In refutation of this Gavin Davis produced a letter to sent to him by the absent Joyce Moloi-Moropa which noted that the committee endorsed the legal opinion in the aforementioned meeting. ANC MPs jeered Davis, claiming that he had received a ‘love letter’ and it was merely a matter of semantics. The meeting ended with the committee endorsing the minister’s argument, agreeing that the removal of the board members was above board and after objections by the EFF, COPE and DA were registered the meeting was adjourned.