There was elation in the corridors of power. Judge James Yekiso had ruled against the application of one Mark Hylton Gordon (the second applicant) and — allegedly — the National Arts Council (the first applicant), to set aside the decision of the minister to remove the board of the dysfunctional council. I say “allegedly” because, in his opposing affidavit, the director general of the department of arts and culture states: “Gordon has no authority from the first applicant to bring this application. The resolution he relies on … is apparently a forgery.” Welcome, ladies and gentlemen, to the final show of the National Arts Circus. Or is it?
In November last year the minister called council board members to a meeting in Cape Town and indicated that the public and arts sector had lost confidence in the board. He suggested that it was in the best interests of the arts that the board members resign, so that he could reconstitute the board. A few resigned. Some sent a lawyer’s letter the next day challenging the minister who, after consulting the provincial ministers, fired the board on December 13. Gordon — the council’s acting chairperson — then launched the urgent application on December 15.
The Director General, Itumeleng Mosala, contends in his opposing affidavit that “… Gordon’s allegations [in support of the urgent application to overturn the minister’s decision] are patently false”. Gordon apparently claims that the board had to be reinstated or staff would not be paid their salaries when, in fact, Gordon had already authorised the salaries five days before. The director general also alleges that Gordon misled Absa when, after learning that the board had been dissolved, he “authorised the transfer of R95 000 [of arts council funds] to the account of his attorneys, allegedly ‘in respect of a project of the NAC'”, when, in fact, it was to fund the legal battle with the minister.
In support of the “reasonableness” of the decision to dissolve the board, the director general cites numerous examples of maladministration, poor corporate governance and alleged illegal activities on the part of the board, including the absence of minutes of meetings that approved funding allocations of more than R30-million, the failure to submit an annual financial report, funding allocated to an individual despite being rejected by the advisory panel, companies being awarded work contrary to National Treasury regulations, and the like.
The irony of all this is that similar allegations against the same board members were made to the director general and the previous minister by the management of the council more than a year earlier. That management was suspended, and two of the three lost their jobs despite the director general stating in his affidavit “the Semenya report [the independent commissioner who made the findings at the disciplinary hearing of the management] had not confirmed the correctness of the board’s action”.
But the director general himself and the previous minister had declined to investigate the allegations against the board contrary to the National Arts Council management’s request, the appeals of arts organisations, letters from concerned board members and even after resignations from the board. Yet, now, in order to uphold the minister’s decision to fire the board, the director general concedes that there were, in fact, numerous problems, far in excess of those that came into the public domain.
Despite their knowledge of these allegations, at the November meeting where it was suggested that the board members resign, the director general states in his affidavit that the minister and director general said to the board members that they “would not publicly agree with allegations against individuals” (on the board) and that the minister “stated that he would not stand in the way of members of the board making themselves available for reappointment”. Go figure.
Two people — Doreen Nteta and André le Roux — lost their livelihoods and their reputations because of action taken against them that was proven to be “not correct”. Yet board members allegedly responsible for numerous irregularities were welcome to stand for reappointment. Where is the criminal investigation into the alleged forgery, perjury and illegal activities of Gordon? Why do other board members fingered in the director general’s affidavit continue to serve in senior positions in public entities? Where is the investigation into the director general himself and his neglect in investigating serious allegations against the board that resulted in the subsequent loss of millions of rands by the council, a body falling directly under his responsibility?
Unfortunately, Judge Yekiso took more than three months and then only made a ruling on a technical aspect of the case, that is that the matter fell outside the jurisdiction of the Cape courts. Will Gordon and cronies lodge the application in Pretoria? Who knows? And ultimately, who cares? One of the lessons for artists to learn from all this is that they shouldn’t bother with the “correct channels” and look to politicians and government officials to take corrective action where they become aware of corrupt or illegal activities. They should look to themselves, to independent artists’ organisations and to the media to bring pressure towards corrective action. That much is clear from the director general’s affidavit.