Muthambi rejects Parly's legal opinion on SABC board

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Communications Minister Faith Muthambi interacts with National Youth Development Agency beneficiaries in Nelspruit as part of the Ministerial Imbizo Outreach Programme on 5 September 2014.

PARLIAMENT – Communications Minister Faith Muthambi on Tuesday stared down Parliament’s portfolio committee on communications over her endorsement of the axing of three SABC board members, winning over the ANC majority who had earlier accepted legal opinion that she was in the wrong on the matter.

After Muthambi insisted that under the opinion written by parliamentary legal adviser Nathi Mjenxane was flawed, ANC members of the committee appeared to distance themselves from an earlier endorsement of his stance by chairwoman Joyce Moloi-Moropa, who was absent.

Muthambi said under the Companies Act, the board had the right to remove its own members without the involvement of the president. Mjenxane had in May told the committee the Broadcasting Act was the governing legislation in this regard, and said it stated plainly that only the president could remove board members of the public broadcaster, after proper inquiry.

But Muthambi was unapologetic, and went on to accuse Parliament of flouting the constitutional separation of powers by seeking to prescribe to a member of the executive which legislation to apply.

“It is not a function of Parliament to tell a member of the executive which law must be applied over other legislation… it offends the doctrine of separation of powers.”

She said if there was no conflict between the two pieces of legislation but had there been, only the Constitutional Court would have been able to dictate to government which to uphold.

Muthambi began her presentation by saying claims that she had overstepped her powers by allowing the removal of Hope Zinde, Rachel Kalidass and Ronnie Lubisi was political rumour-mongering meant to destabilise the SABC, and the Democratic Alliance in particular was guilty of this.

“Sometimes especially the DA, I have detected it in the past, that they deem it fit to go around sharing the gossip,” she said.

“In any event, the SABC did not arbitrarily remove the three former directors. The former directors were given hearings in terms of section 71 (3) of the Companies Act, so there was no arbitrary removal. ”

She argued that Mjengxane overlooked the fact that the Companies Act of 2008 gives the boards of state owned companies the power to remove their directors. There was no conflict between this law and the earlier Broadcasting Act of 1999 — in which case the older act would apply — and therefore directors could be removed according to the provisions of either.

“I think and I must maintain that because I have also sought a legal opinion … this conclusion is very wrong because the author opted not to consider the provisions of section 71 (3) of the Companies Act … this is not precluded by section 8 (A) of the Broadcasting Act.

“I strongly believe and I am still saying the author here made a wrong assumption of law.”

Muthambi was invoking a section of the Broadcasting Act which states that the SABC is a public company incorporated in terms of the Companies Act, and has repeatedly been cited by her to defend a memorandum of incorporation which gives the minister wide powers to hire and fire top officials at the SABC — a bone of contention with opposition parties who are contesting her controversial appointment of Hlaudi Motsoeneng as chief operating officer.

“So you like it or not, that is what was legislated Honourable (Gavin) Davis. This is the law of this Parliament,” she told the DA’s communications spokesman.

Davies weighed in that the memorandum of incorporation was “fundamentally unlawful” because it ignores section 13 (11) of the Broadcasting Act which said that the board controls the affairs of the SABC.

“Under this memorandum of understanding the board cannot do that because the minister is effectively doing that,” he said, adding that the net effect was turning the SABC into a state broadcaster reminiscent of apartheid days.

Further, he said the Broadcasting Act took precedence over the Companies Act when it came to the removal of board members.

The Economic Freedom Fighters’ Mbuyiseni Ndlozi objected that Muthambi had no respect for MPs and were patronising them with a misplaced, factually incorrect “tutorial” on laws that originated in Parliament.

“The minister arrives and says it is not our place, and I lost my cool there, because ….there is an attitude problem. The minister thinks we must not have this conversation with her … in her head it is not our place to come here and contest the interpretation of the laws that we make,” he said.

“Then she will come again the day the court finds against her, and say: ‘We are being run by judges.’

Davis said after the meeting the DA was indeed considering going to court to ask for a ruling overturning the removal of Zinde, Kalidass and Lubisi.

“It is unfortunate that the ANC today turned its back on the Constitution and South African people, choosing to side with Minister Muthambi instead.”

“Now that the ANC members of the Portfolio Committee have washed their hands of this matter, the only recourse left is to challenge the removal of the three SABC Members in court. If left unchallenged, the Minister and her handpicked stooges will continue to arbitrarily and unlawfully purge independently minded SABC Board.”

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