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By Kwazi DlaminiCW Voices

South Africans waited six months after the term of the previous South African Broadcasting Corporation (SABC) board members ended in mid-October 2022, for final confirmation of the new board. This only came on 18 April this year.

Six months is a long time for a fragile institution like the SABC, that has had governance problems and leadership struggles for many years, to be without guidance. That long-standing lack of leadership and the resultant underperformance has already caused the public broadcaster to lose audiences to private competitors, suffer heavy financial losses because of corrupt activities, and deal with other financial implications.

The unreasonable delay came from the Presidency – specifically President Cyril Ramaphosa, who did not immediately appoint the 12 members recommended by the Portfolio Committee on Communications and Digital Technologies, as he was required to. One would have thought he was aware of the urgency of the matter, because on the announcement of the new board he personally described the SABC as a vital institution of South Africa’s constitutional democracy.

Pointing fingers

The president defended the delay on his side, explaining that Parliament recommended 15 candidates, whereas he is only allowed to appoint 12. This, he said, placed him in “an invidious position of acting unlawfully”, had he upheld the committee’s recommendations.

However, the committee communicated that Ramaphosa had questioned whether the committee had adequately engaged with public submissions, expressing that certain submissions contained allegations against some of the candidates. He also asked for more information on the three extra candidates, which was not within his purview.

There were 12 main candidates recommended, and the extra three were only there in case any of the 12 were unavailable – thereby preventing any more delays. It must be assumed that Ramaphosa was required only to confirm the appointment of the 12 primary candidates.

This raises another issue – Ramaphosa’s understanding of the role of the portfolio committee on Communications and Digital Technologies, and his own role in the appointment of board members. The committee subsequently sought a legal opinion, which confirmed that Ramaphosa overstepped.

“The opinion emphasised that the President had no legal basis whatsoever to prescribe to the National Assembly how it had to conduct its business. Further, the opinion said that the resolution of the National Assembly of 6 December was legally sound and executable as it currently stood.”

Furthermore, said the committee, the SABC had been negatively affected by not having a board for five months.

While the president’s concerns are valid, he failed to raise them through the correct channels stipulated in the Constitution. Parliamentary legal advisor Adv Andile Tetyana explained that the only provision in the Constitution which allowed the president to second-guess the will of Parliament was Section 79, which related to assent to bills and allowed the president, when he had reservations, to refer a bill to the Constitutional Court for a constitutionality test.

“Parliament constitutes the will of the people, and the President is constitutionally bound to appoint as per the resolution of the National Assembly.”

If Ramaphosa at any point believed that what Parliament directed to him was unlawful, he could go to the competent court, said Tetyana. The letter that he wrote to the committee on 9 March, therefore, was “not just unprecedented, but grossly unlawful”.

This failure on Ramaphosa’s part to decisively lead and make decisions that improve state-owned entities (SOEs) is the latest in a string of such indecision.

At this point nobody has an idea on why there was this much delay on making these appointments or who advised the president to question the committee, but this is yet another example of political gimmickry negatively affecting SOEs. Even ANC members within the committee could not make sense of the president’s request.

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