The Western Cape High Court has dismissed South African Broadcasting Corporation (SABC) board chairman Mbulaheni Maguvhe’s application to interdict Parliament from proceeding with an inquiry into the problems at the public broadcaster.
Maguvhe, the last remaining board member, launched an urgent court application earlier this week, arguing that some members of the ad hoc committee set up to investigate the SABC and its dysfunctional board — such as Democratic Alliance (DA) MP Phumzile van Damme and Economic Freedom Fighters (EFF) chief whip Floyd Shivambu — were biased against him because they had made up their minds that the SABC board be dissolved. He wanted the ad hoc committee to be reconstituted without the "partial members".
Judge Siraj Desai dismissed Maguvhe’s application with costs and said he would provide reasons later. This means the inquiry into the SABC can continue.
Maguvhe’s lawyer, Thabani Masuku, had argued that his client had already been “pre-judged” even before appearing before the ad hoc committee.
“They [the ad hoc committee] must still decide on the matter [that the board under Maguvhe has dismally failed and it must be dissolved]. Yet some MPs have already declared that the board must be dissolved. It is pre-judgment. If you appear before these individuals, you are already stuffed,” said Masuku.
“We submit that the Constitution requires that where a party appears before an ad hoc committee to give evidence under oath, the party should expect some independence. They [the MPs] are not entitled to pre-judge a matter that is the subject of that particular inquiry.”
Ismail Jamie, for the SABC, also argued that the composition of the ad hoc committee was a cause for concern. The broadcaster wants the committee to be reconstituted with “unbiased” members. The SABC also wants to be included in the inquiry; be allowed to call witnesses; cross-examine; and be given the option of presenting evidence in camera because of the commercially sensitive nature of some of the information the ad hoc committee requested.
“The inquiry is not just about the board, but [also about] the SABC … that is why we are interested. Some documents required by the ad hoc committee are confidential and commercially sensitive,” said Jamie.
Among other things the inquiry will consider:
- the board’s ability to discharge its fiduciary duties;
- the SABC’s financial status and sustainability;
- the SABC’s response to the public protector’s 2014 report titled When Governance and Ethics Fail;
- high court judgments and rulings by the Independent Communications Authority of South African on the SABC’s decision to ban the broadcast of violent protests;
- the resignations of two SABC board members in October;
- adherence to the Broadcasting Charter; and
- the broadcaster’s overall ability to carry out its duties in terms of the Broadcasting Act.
The committee has to report back to the National Assembly by February 28 2017.
Parliament lawyer Denzil Potgieter said Maguvhe’s application was pre-emptive and it would have been logical for him to take the decision on review after the ad hoc committee had concluded its work.
Anton Katz, for the DA, said the inquiry was not necessarily about Maguvhe and therefore his rights were not at stake.
“Maguvhe has no rights at stake … it is the board that is being investigation, not Maguvhe,” said Katz.
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