By Rebecca Sibanda: Centre for Constitutional Rights
7 March 2018
The newly-appointed Minister of Communications, Nomvula Mokonyane, has indicated that she and her Department have sought legal counsel regarding a High Court appeal which was initiated by her predecessor, Mmamoloko Kubayi-Ngubane, late last year. The appeal is in relation to the SOS Coalition and the Right2Know Campaign application, which requested the Court to determine the extent of the Minister’s powers over the functions of the South African Broadcasting Corporation (SABC).
In October 2017, the High Court in Pretoria declared that the Memorandum of Incorporation (MOI), which afforded the Minster extensive powers to interfere with the workings of the SABC, was invalid as it did not protect the independence of the public broadcaster. Some of the identified powers were that of the appointment and dismissal of senior executives, the Minister’s veto powers regarding appointments, as well as the Minister’s powers to remove all Directors at will. This judgment reinforced the principles of transparency and openness, which are an essential buttress to South Africa’s democracy.
In a briefing before the Parliamentary Portfolio Committee on Communications earlier this year, Kubayi-Ngubane stated that the appeal would not be going ahead due to a technicality. Namely, that the contentious MOI was invalid, as it was never registered at the Companies and Intellectual Property Commission (CIPC) as is required by law. Therefore, the only valid MOI was that which was initiated and signed by Faith Muthambi in 2013, during her tenure as Communications Minister. Mokonyane has since commenced negotiations with the current SABC Board Members regarding a revised MOI, which reflects the spirit of the October ruling. It is important that the new MOI, once found agreeable by all parties, also abide by the constitutional principles of accountability and openness.
Any agreement must serve the interests of the SABC before those of the Department of Communications. As has been seen, Executive overreach in the functioning of state-owned enterprises (SOEs) has been identified as a catalyst to the detriment of the same. Where the Executive becomes overly involved in the day-to-day running of an entity, maladministration is likely to follow. This limitation similarly applies to the role of the Board at the SABC, in particular, the non-executive members. The MOI cannot confer extensive power to the Minister, especially where the appointment of Board Members is concerned. Whilst there must of course, be a healthy relationship between the Minister and the public broadcaster, strict independence must be maintained. Political interference breeds bias, which in turn breeds poor administration of SOEs.
Another important point concerning the Minister’s role in the appointment of Board Members is the elimination of the element of public participation through duly elected representatives in Parliament. There have been reports that the Department has approached Parliament regarding a possible amendment of the Broadcasting Act to effectively render the SABC Board an arm of the Communications Ministry, removing Parliament’s role in the appointment of Board Members.
It must be noted that the Broadcasting Amendment Bill was initiated by Faith Muthambi in 2015. That it has been resuscitated so close on the heels of the High Court judgment suggests a desire by the Minister to exercise unnecessary power at the public broadcaster. This is a clear violation of the principles of transparency, openness and most importantly, that of public participation in the decision-making of the country. This is a fundamental element of the country’s democracy and its removal threatens the foundation of the Constitution. The checks and balances that are instilled by the Constitution cannot be arbitrarily tampered with.