The FXI also sympathises with the executives' call, made yesterday, for board members to resign, while noting the “deafening silence” of communications regulator, the Independent Communications Authority of South Africa (ICASA).
“The establishment of a Commission may ensure that there is due process in scrutinising the board's fitness for office. For senior managers to call on their board to resign is a serious matter indeed. In fact, it points to an irreparable breakdown of trust between the two parties. No organisation can function effectively in such a situation,” said Duncan in a media statement issued yesterday, Tuesday, 3 June 2008.
“Particularly disturbing”
“The FXI is disturbed by the Johannesburg High Court's recent finding that the board failed to constitute itself legally when suspending group chief executive officer (GCEO) Dali Mpofu. The court's finding that the board chairperson Khanyisiwe Mkonza's conduct fell short of a director who should act independently, openly, with integrity and honesty, is particularly disturbing. The High Court ruling, and its subsequent refusal for leave to appeal, has brought to light evidence that suggests the board's unfitness for office.
“A commission of inquiry would establish whether the board's conduct in relation to Mpofu is an isolated incident, or an indication of a pattern of misconduct. If the commission establishes such a pattern, then President Thabo Mbeki should institute proceedings to remove board members. If President Mbeki fails to act appropriately and in the public interest, then he will have to accept that his failure may precipitate calls for the date for national elections to be brought forward.”
The FXI notes that grounds for the removal of board members in the SABC's governing legislation, the Broadcasting Act, are weak. In terms of the Act, the appointing body (namely the President) may remove a member from the office on account of misconduct or inability to perform his or her duties efficiently after due inquiry and upon recommendation by the Board. There is no provision for Parliament to institute an inquiry into the conduct or performance of the board independently of the board, make a finding, and adopt a resolution calling for their removal.
This means that the Parliament cannot exercise its oversight role effectively, as it lacks a mechanism to enforce accountability. Also, it is unlikely that the board will agree to the removal of its members in the current circumstances. If the act does not allow for the removal of board members that have acted improperly, then the act itself may be unconstitutional, said Duncan.
“If the section on removal from office is struck down as being unconstitutional, then the legislators should consider replacing this section with the provision for the removal of ICASA councillors contained in the ICASA Act of 2000, before it was amended. S. 8(2) of the Act made provision for a Councillor to be removed from office only on a finding of misconduct by Parliament, inability to perform duties and other narrowly defined grounds, and once Parliament had adopted a resolution calling for that councillor's removal from office.”
The FXI believes that the commission's terms of reference should be extended to include the conduct and performance of all the directors, including the GCEO, who has been accused by the non-executive directors of poor performance, and of having suspending the group executive of news and current affairs, Snuki Zikalala, unprocedurally. “A commission would strip away the layers of self-interest in the current mudslinging, and establish who is right and who is wrong,” stated Duncan.
The FXI also believes that the commission's terms of reference should be extended to include the appointment procedure of the SABC's current non-executive directors which - it has been alleged - was subject to political manipulation by the-then leadership of the ruling African National Congress (ANC). The FXI trusts that the ANC members who were central to the process would be willing to move beyond their obvious reluctance to provide the evidence the FXI needed to take the appointment process on review to Court.
Continued Duncan, “The current SABC board was born in sin. The board's recent conduct suggests that a board born in sin cannot be expected to act in an honest manner. While only three individuals are alleged to have been imposed on the process, this manipulation of the appointment process seems to have fostered a climate of impunity where board members feel that they can do as they like. This problem cannot be avoided any longer.
“The FXI also supports the call made by Communications Minister Ivy Matsepe-Cassaburi [yesterday] for a national debate on the role of the SABC. This debate should culminate in a review of the Broadcasting Act, and its replacement by a new SABC Act in the first Parliamentary session next year. However, the FXI finds Matsepe-Cassaburi's call rather ironic, given that the public was deprived of an opportunity to make a meaningful input into the Broadcasting Act in 1998, as the Act was rushed through the Parliamentary process with obscene speed. In view of how it came into being, it is hardly surprising that the Act suffers from deficiencies.”
According to the FXI, apart from inadequate provisions around removal of board members, large chunks of the Act are repeated in an undigested form from British, Australian and Canadian legislation. In fact, of the SABC's sixteen objectives in its charter, ten are taken virtually verbatim from the British Broadcasting Corporation's (BBC) charter. “This means that the section of the act that constitutes the heart of the SABC's mandate is not a true reflection of what South Africans want from their public broadcaster. Yet in spite of the fact that the charter was largely a cut and paste from the BBC charter, the SABC charter does not contain the BBC's provision for charter renewal. This means that the SABC's mandate is not dynamic, and cannot respond to changing audience needs.”
The Broadcasting Act also does not include Australia's rather innovative provision for a staff-elected director on the board. By including such a provision in the SABC Act, the concerns expressed by the FXI and the labor movement about a lack of journalistic and labor representation on the board could be addressed. If the new SABC Act is to address these deficiencies, then Ministry of Communications and Parliament need to stop treating public consultation as window dressing.
The FXI also notes with disappointment the deafening silence of ICASA on the current crisis at the SABC. “ICASA is meant to monitor and enforce the SABC's compliance with the charter. There are grounds to believe that the current crisis will detract from the corporation's ability to deliver on its charter. ICASA's invisibility on these matters is worrying, and the FXI calls on the regulator to make its voice heard,” concluded Duncan.
