Judgment reserved in SABC chair's court case

SABC chair Ellen Tshabalala (Right). (David Harrison, M&G)

SABC chair Ellen Tshabalala (Right). (David Harrison, M&G)

Judgment has been reserved in Monday’s court case between SABC chairperson Ellen Tshabalala and Parliament, concerning the validity of an inquiry into her allegedly lying about her qualifications, which was set up by Parliament’s portfolio committee on communication.

Judgement is expected to be delivered soon to decide whether the parliamentary inquiry can continue or not, said a member of the committee Gavin Davis.

The court application was brought by Tshabalala’s lawyers after months of failing to produce the qualifications she claimed she had from the University of South Africa (Unisa), despite the university revealing in July that she had no qualifications with the institution.

Now instead of producing the qualifications Tshabalala is taking issue with the parliamentary inquiry that was set up to investigate the matter, and her lawyers have even called into question the section in the broadcasting act in terms of which the inquiry was constituted.

“It is absolutely ridiculous: she must just come clean and say whether she has the qualifications or not,” Liezl van der merwe, an Inkatha Freedom Party member who sits on the committee, told the Mail & Guardian when the application was made. “She is wasting time.”

‘Principles of justice’
Tshabalala’s legal argument is that the situation constitutes a disciplinary hearing and therefore “principles of natural justice” should apply.

“As the person accused I therefore have the right to a fair hearing and to an absence of bias. At present I am being denied these rights,” Tshabalala noted in her affidavit.
“If I am being charged with misconduct, which as I set out below is indeed the case, a properly constituted disciplinary committee should preside and conduct the proceedings in accordance with the requirements of natural justice.”

Democratic Alliance MP on the committee, Gavin Davis, said the argument was a “red herring” to delay the process.

“It’s very frustrating to be honest,” he told the M&G shortly after the matter was adjourned on Monday. “This whole thing is a monumental waste of time and money.”

Davis brought the initial complaint to the committee.

The committee has been united across party lines, with ANC chairperson Joyce Moloi-Moropa leading the charge to recommend Tshabalala be suspended while the inquiry was being conducted. But thanks to a procedural issue the recommendation never made it to the president, who is thought to be protecting Tshabalala.

Registered, but failed
The M&G revealed at the end of October that Tshabalala had registered for the relevant courses but failed badly at most of them, yet put them on her CV anyway.

On Monday’s hearing Tshabalala’s representative, high-profile advocate Norman Arendse, told the court that the committee failed to indicate the legal basis on which it was acting against Tshabalala for allegedly misrepresenting her academic qualifications.

But, he said, since the committee believed it had the power under the country’s broadcasting legislation to recommend to the National Assembly that she be suspended and potentially dismissed, it was running a disciplinary inquiry.

“We grapple with the chairwoman [of the committee] saying this is a parliamentary process, not a hearing,” he argued.

Arendse said if the court were to agree with him that in fact his client was facing a disciplinary hearing, she had legal rights, including that of a presumption of innocence.

He added that it was therefore “astonishing” that committee chairwoman Joyce Moloi-Moropa said the onus was on Tshabalala to produce copies of the degrees she claimed to hold.

Denzil Potgieter, for Parliament, argued that Arendse was mistaken in arguing the inquiry amounted to a disciplinary hearing, and that it was an ordinary administrative process.

It was one, he added, that had left the ordinary man in the street wondering why Tshabalala did not simply produce proof of her university qualifications and lay the matter to rest.

Neither BCom nor postgrad
The inquiry was set up by Parliament’s oversight committee on communication after City Press revealed in July that Tshabalala does not hold either the bachelor of commerce or postgraduate degree from Unisa as she has claimed on her CV, the university confirmed.

Parliament asked her to produce the degree certificates but she missed the first deadline on August 12 and a second one on August 31. She claimed that the certificates were in a bag that was stolen in a house burglary.

It would take her a week or slightly more to obtain new certificates from Unisa, or just four hours to confirm her degree with the National Qualifications Register, according to one report.

Instead the matter has dragged on for three months with no sight of the qualifications. With court action now involved, it could take much longer. The inquiry was meant to start in September, but Tshabalala requested a postponement to October 14 to give her an opportunity to prepare for the meeting.

At that meeting, however, she walked in with top advocate Norman Arendse and, over the course of four acrimonious hours, negotiated another postponement. The unhappy committee, comprising members of the ruling ANC and opposition parties, agreed to meet again on October 23. 

Tshabalala’s lawyers brought an 11th-hour interdict on October 23 to stop the inquiry.

The latest legal action is seeking to redefine the process.

Neither parliament nor Tshabalala’s lawyers were immediately available for comment, not committee chairperson Moloi-Moropa. – additional reporting by Sapa

Verashni Pillay

Verashni Pillay

Verashni Pillay is the former editor-in-chief of the Mail & Guardian, and inaugural editor-in chief of Huffington Post South Africa. She has worked at various periods as senior reporter covering politics and general news, specialises in mediamanagement and relishes the task of putting together the right team to create compelling and principled journalism across multiple platforms.  Read more from Verashni Pillay

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