Court curtails Minister's power to interfere
The Gauteng High Court (Pretoria) in a landmark judgment delivered yesterday – the same day as President Jacob Zuma eventually appointed a new board of directors at the SABC – limited the powers of the Communications Minister in appointing and firing members of the board. According to a Pretoria News report, Judge Elias Matojane declared several clauses of the amended memorandum of incorporation (MoI) and the SABC charter in respect to the appointment, discipline and suspension of the three executive directors – the group chief executive officer, chief operations officer and chief financial officer – inconsistent with the Broadcasting Act and thus invalid.
It was found that the powers vested in the Minister undermined the independence of the SABC.
In terms of the judgment, the SABC board must control the affairs of the public broadcaster. It was ordered that the executive members of the board are to be appointed solely by the non-executive members of the board and without any requirement of approval by the Minister.
It was also ruled that the board can now, without the prior approval of the Minister, institute disciplinary proceedings against the GCEO, CFO or COO, as well as suspend them if need be. Motojane’s judgment followed two applications by NGO’s SOS: Support Public Broadcasting Coalition and Freedom of Expression Institute, joined by the Right2Know Campaign as a friend of the court.
The ruling brings clarity on the role of the Communications Minister and the President in the appointment of the SABC board and executives, says a Business Day report. It notes the SABC does not have permanent executives after former Communications Minister Ayanda Dlodlo refused to approve the candidates who were proposed for the interim board on the grounds that they were not sufficiently qualified.
In the judgment, the court noted that the executive members were to be appointed solely by the board without any requirement of approval by the Minister. It said the Broadcasting Act was silent on the appointment of the executive directors. Furthermore, certain sections of the amended memorandum of incorporation of the SABC and the board charter were not consistent with the Broadcasting Act.
The court suspended the declaration of invalidity for a year to allow for the defects to be remedied. ‘The President’s power to appoint non-executive directors of the SABC is purely a formal power as the National Assembly is the appointing authority that interviews and selects candidates,’ it noted. In 2014, then Communications Minister Faith Muthambi introduced an amended version of the SABC’s MoI, giving her power to veto the board’s recommended candidates for the top three executive positions.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.