Media watchdog Media Monitoring Africa (MMA) has approached the Constitutional Court on an urgent basis to compel President Cyril Ramaphosa to appoint a new SABC board.
The cash-strapped public broadcaster has operated without a board since October last year.
The process of appointing new non-executive directors was first held up in parliament due to vetting delays by the State Security Agency. But it’s been 12 weeks since the National Assembly approved the names of selected candidates on December 6 and sent them to Ramaphosa for appointment.
“The board fulfils a key role in enabling the public broadcaster to provide news and information to the nation. It is trite that the public broadcaster has an indispensable role in fostering democracy and the free flow of information,” MMA director William Bird said on Friday.
“Each day that goes by without a board, the proper functioning of the public broadcaster is jeopardised, which in turn threatens the functioning of our constitutional democracy.”
He said the court was well placed to answer the question of whether the president has a veto on the names submitted to him by the National Assembly.
In correspondence between the presidency and MMA, officials said the president had sought legal advice on the process followed by parliament and was applying his mind to the issue.
According to the Broadcasting Act, the 12 non-executive members of the board must be appointed by the president on the advice of the National Assembly.
“The plain and purposive interpretation of this provision is that the president has no discretion or veto over the appointment of the 12 members advised by the National Assembly,” said Bird.
To the extent that several policies may be outstanding and are waiting for board approval, this can greatly hinder the public broadcaster's ability to function Michael Markovitz, a member of the last board of the SABC
“To date, it appears the president is assuming powers we argue he does not have. Specifically, that he does not have the ability to veto or delay making these appointments.”
He said Ramaphosa was bound by the National Assembly's choices. Were the president to have such power, it would undermine the independence of the SABC from the executive.
In court papers filed on Friday, MMA is seeking an order declaring that Ramaphosa has failed to fulfil his obligation diligently and without delay, and to direct him to appoint the board without further delay.
“The application falls within the exclusive jurisdiction of this court, alternatively, it is in the interests of justice to grant the applicant direct access to this court.”
MMA said its application was urgent because the SABC, a public institution serving cardinal constitutional aims, will soon have been without a board for half a financial year, which ends on March 31.
“The matter raises a crisp question of constitutional and statutory interpretation: Does the president have the power to reject any of the appointees chosen by the National Assembly? (The) MMA submits not.”
It said the president does not have such a power, as it would undercut the independence of the SABC. “Accordingly, the president's delay in appointing the members of the SABC board is unconstitutional.”
MMA said a proper discharge of the SABC’s crucial democratic mandate requires good governance, a responsibility that rests with the board.
The organisation is also challenging the designation of SABC group CEO Madoda Mxakwe as “the board”, saying this was in conflict with the law as a single CEO could not substitute for a full board or discharge the board's obligations.
Reacting to the state of the nation address on February 9, communications minister Khumbudzo Ntshavheni told an SABC TV interviewer that she, with the concurrence of finance minister Enoch Godongwana, had designated Mxakwe as “the board”.
In a supporting affidavit, Michael Markovitz, a member of the last board of the SABC, said parliament and Ramaphosa’s failure to replace the former board had a severely prejudicial impact on the public broadcaster and needed to be remedied urgently.
He said this was based on his five years as a board member and his direct knowledge of the SABC’s governance and reporting obligations, the contents of the board handover report and the SABC's financial position.
From a policy perspective, all the SABC's policies have to be approved at the board level. This includes editorial policies, said Markovitz.
“To the extent that several policies may be outstanding and are waiting for board approval, this can greatly hinder the public broadcaster's ability to function.”
National Assembly speaker Nosiviwe Mapisa-Nqakula, Ntshavheni and the SABC are also cited as respondents in the application but MMA is seeking no relief against them.
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