Ramaphosa blames Parliament for ‘unlawful’ SABC board processes

President Cyril Ramaphosa has thrown Parliament under the bus over the continued drama surrounding SABC board candidates, telling the Constitutional Court that he could not make appointments on the basis of an “unlawful decision” emanating from Parliament’s 15-candidate list sent to him last year.

The president filed his answering affidavit to the apex court in the legal challenge launched by interest groups Media Monitoring SA (MMA) and the SOS Coalition.

The two organisations want the Constitutional Court to force Ramaphosa to appoint the board.

The public broadcaster has been without a board of directors for five months.

Delays ‘beyond my control’

In his 48-page affidavit, Ramaphosa said he raised “procedural concerns” with Parliament before he could take the final decision, adding that the latter’s responses to his inquiries failed to deal with the legality issues he raised.

Parliament’s portfolio committee shortlisted the 12 candidates last year, and the president received the candidates’ list on 21 December.

The 12 recommended candidates included former SABC head of news, Phathiswa Magopeni, who was dismissed from the public broadcaster last year, as well as former SABC journalist Dr Renee Horne, veteran broadcaster Mpho Tsedu, and the CEO of the Association of Comms and Technology, Nomvuyiso Batyi.

The list included additional three candidates that served as a reserve list, bringing the names to 15.

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While conceding that the appointments were long overdue, he argued he could not “proceed with haste at the expense of the rule of law”.

Legal action he sought pointed to concerns with Parliament’s responses, Ramaphosa said.

“It made it clear that I could not make appointments on the basis of what appears to be an unlawful decision by the National Assembly.

“I fully intend to make the appointments as soon as I am provided with a lawful decision by the National Assembly advising me of its decision as to who should be appointed to the board. The delay in the appointment process has been for reasons beyond my control.”

Legal status of reserve candidates questioned

Correspondence between Ramaphosa and Parliament showed his concerns with the legal status of the three additional candidates.

Following the interviews and on the recommendation of its subcommittee, the committee resolved to include an additional reserve list of three names to cater for any eventuality, given the length of the process of appointing a new board.

The candidates on the reserve list included axed Prasa CEO Zolani Matthews, Palesa Kadi, and Quentin Green.

According to National Assembly Speaker Nosiviwe Mapisa-Nqakula, the additional names were included “in case of any eventuality”.

Ramaphosa has since requested that the matter be urgently referred back to the communications portfolio committee.

This came after Parliament conceded in a letter to him that the Broadcasting Act doesn’t make provision for a reserve pool, further asking him to disregard the three names and appoint from the 12 candidates’ list.

Parliament ‘acted hastily’

Johannesburg attorney Lawrence Magagula said it seemed Parliament might have jumped the gun by adding more candidates.

“It will be interesting to see how the Constitutional Court will rule on this crucial issue. President Ramaphosa is arguing that he is following constitutional and relevant legal transcripts and hence needs clarity from Parliament.

“I don’t remember an instance where additional names for the SABC board are sent to the president to consider appointing from. I have not seen all the litigants’ papers, but I have questions as to why they deviated from the Act,” he said.

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Magagula added that Ramaphosa was probably trying to tick the boxes to avoid possible court action by the board candidates.

“Litigation takes time, meaning the board could only be in place after the ConCourt decision.”

Minister’s interference

Included in the papers before the apex court is a letter that showed possible interference in Ramaphosa’s decision-making by former communications minister Khumbudzo Ntshavheni.

In the letter accompanying Ramaphosa’s submissions, Mapisa-Nqakula and portfolio committee chairperson Boyce Maneli allege that the new Minister in the Presidency Ntshavheni had problems with the inclusion of Magopeni in the 12-candidate list.

Legally, no minister has a role in board appointments, only the president has the final say after parliamentary processes.

Last month, Ntshavheni drew the ire of lobby groups when she revealed that a decision had been made “with the concurrence of the Minister of Finance” for SABC CEO Madoda Mxakwe to take the role of the board.

It has since emerged that Mxakwe did not sign up to officially perform duties as a designated representative in the absence of the board.

Lobby groups lambasted the move by the minister, labelling it illegal and unconstitutional.

SABC’s future ‘bleak’

Meanwhile, the SOS Coalition says the future is bleak for a boardless SABC.

“If there is no board, then there is no governance, no independence, no credibility, no accountability at the SABC and the ability to fulfil its important constitutional role is jeopardised.

“In the board’s absentia, whose responsibility includes providing financial and ethical oversight to the corporation, and with the auditor general in her 2021/2022 annual report casting doubt on the SABC’s ability to continue due to significant financial loss and inability to generate substantial revenue – the future is bleak.”

According to an SABC insider, at least 20 matters pertaining to the business of the public broadcaster await board approval.

Ramaphosa argued that the MMA and SOS coalition’s application had no basis as he has acted in accordance with the constitution and the Broadcasting Act.

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