OPINION: How the breakdown of governance has opened up the SABC to criminality

We can pride ourselves that, in 20 years, South Africa has succeeded in laying down a strong legislative and ethical framework of accountability and good governance that compares favourably with countries that have been in existence since the evolution of states more than 350 years ago.

With the King IV Report due to be released next month, our accountability framework is continually evolving. 

The key role of non-executive board members at   the South African Broadcasting Corporation  includes:

• Contributing to strategy by bringing a range of perspectives to strategic development and decision-making;

• Making sure  effective management arrangements and an effective team are in place at the top level of the organisation; and

• Holding the executive to account.

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The fiduciary duties of board members are essentially four-fold —    the duty of care, the  duty to act in good faith, the duty of loyalty and the duty to make disclosure. 

Our law does not require a board member to have special business acumen and board members may assume that officials in management will perform their duties honestly. However, each board member is obliged to apply their own mind and bring their own skill and expertise to bear to the facts at hand. 

Each board member is required to make a concerted effort to understand the information placed in front of them and to apply an inquiring mind to such information. Board members are required to act for a proper purpose and not to act illegally, dishonestly or outside their powers.  

Against this solid accountability framework, the sixty-four-million dollar question is: “Why is it so difficult to rein in the SABC?”

The primary challenge at the SABC is the breakdown of governance which opens up a large space for conduct which borders on criminality. 

When someone can appropriate a substantial amount of taxpayers’ money from the broadcaster with impunity and without proper assessment and procedures being followed, one is no longer dealing with inadequate governance. 

Many of us who availed ourselves to be part of the SABC board in September 2013 did so at the behest of the ANC  and with the sole purpose of fixing the SABC. 

Thembinkosi Bonakele resigned eight months into his tenure after he was appointed as the Competition Commission commissioner, leaving behind a solid contribution, particularly the legal challenges brought before the board. 

block_quotes_start The stand that I have taken is about jealously safeguarding our constitutional democracy which sits precariously on the sacrifices made by thousands of comrades who were exiled, imprisoned, maimed, bludgeoned to death and hanged block_quotes_end

Professor Bongani Khumalo chaired the human resources sub-committee of the board with aplomb and made incisive interventions at board level. He resigned last year. 

Board members Rachel Kalidass, Ronnie Lubisi and the late Hope Zinde were removed in terms of section 71 of the Companies Act. The reasons advanced were that they acted fraudulently (Kalidass), had a conflict of interest (Lubisi) and disclosed confidential information to an ANC workshop (Zinde). 

These members challenged their dismissal in court and the case is proceeding. The due process afforded to these members to respond to the allegations at a board meeting was woeful and legally unsound. Moreover, the majority of SABC board members transgressed an accepted principle in our law —  i.e. the provisions of a general statute (Companies Act) must yield to those of a special one (Broadcasting Act). 

In terms of the Broadcasting Act, SABC board members are appointed by the president, acting on the advice of the National Assembly, and only the president and the National Assembly may remove a board member from office. 

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The decision of the Supreme Court of Appeal about 3 weeks ago effectively terminated Mr Hlaudi Motsoeneng’s employment relationship with the SABC. 

His subsequent “employment” as group executive of corporate affairs is at variance with the employment policies and practices at the SABC, and is unlawful. 

In short, Mr Motsoeneng is trespassing at the SABC  —  a national key point. 

Good governance at the SABC must be underpinned by the principle to act in the public interest at all times. This requires a strong commitment to integrity, ethical values, the rule of law, transparency and comprehensive stakeholder engagement.

How can one go about trying to fix the SABC? 

A starting point would be to choose non-executive board members whose ethics and integrity are beyond reproach, and who can  be strong enough to hold the SABC executives to account and not allow them to usurp the authority of the board.

Board members and SABC executives should submit to lifestyle audits from time to time. This is a sure way of restoring public confidence in the organisation and eliminating any perception that SABC leaders have conflated their material interest with their fiduciary responsibilities. 

Section 217 of the constitution requires a procurement system to be fair, equitable, transparent, competitive and cost-effective. The SABC should instal an oversight mechanism to ensure that its strong compliance and control mechanisms in the business transacting environment are adhered to in line with the constitution. 

High ethical values and standards should form the basis of all policies, procedures and actions, as well as the personal behaviour of the board members and staff at the SABC. Functioning within the rule of law should enjoin the SABC to take into consideration the Bill of Rights and the  constitution, the legislative framework and the ethical standards contained in our law and expounded by our courts from time to time. 

To strengthen the ethical foundation, consideration should be given to the establishment of an integrity commissioner at the SABC on the same lines as the offices established in the Gauteng provincial government and the City of  Johannesburg. 

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I believe that these structural adjustments to the functioning of the SABC would go a long way to stabilise the public broadcaster and ensure that it is governable. 

The SABC, with its scarce skills, serves a critical function in building our nation and state. The organisation is unique in that it permeates practically every facet of our lives — political, social, economic, sport, cultural and religious. 

The SABC  is wholly owned by the state and is financed by advertising revenue, licence fees and the taxpayer. Hence, how we manage the SABC (our own funds) offers a dipstick to the investment community, both domestic and international, to predict South Africa’s eventual status as either a weak, failing or strong state.

The stand that I have taken is not about looking out for another T-shirt. Nor is it about  Motsoeneng or  SABC board  chairman  Professor Mbulaheni  Maguvhe. It is about jealously safeguarding our constitutional democracy which sits precariously on the sacrifices made by thousands of comrades who were exiled, imprisoned, maimed, bludgeoned to death and hanged.

Krish Naidoo is an ANC legal adviser and former SABC board member. He writes in his personal capacity.