/ 22 October 2015

Faith, Hope and the SABC’s charity

About 100 ANC supporters and members of Ses'khona People’s Rights Movement protested outside the Cape Town high court in support of the SABC's chief operating officer.
About 100 ANC supporters and members of Ses'khona People’s Rights Movement protested outside the Cape Town high court in support of the SABC's chief operating officer.

A flurry of fresh court action over controversial decisions at the SABC – many connected to the rise of chief operating officer (COO) Hlaudi Motsoeneng – is coming back to haunt Communications Minister Faith Muthambi.

After a public showdown with the ANC’s subcommittee on communications last week, over the thorny issue of the digital migration project and instability at the SABC, Muthambi is now being drawn into high court litigation that will further heighten tensions.

Two separate high court cases will now determine whether Muthambi and the SABC board acted illegally when three non-executive members of the public broadcaster’s board were removed in March this year.

Two dismissed board members – Mashangu Ronny Lubisi and Rachel Kalidass – voted against Motsoeneng being given a permanent post at the SABC.

The third dismissed board member, Hope Zinde, was not given an opportunity to vote on Motsoeneng’s permanent post at a board meeting chaired by disgraced former board chairperson Ellen Tshabalala in July last year.

The Mail &Guardian has seen an email Zinde sent to the chief whips’ forum in Parliament last week, clarifying how she was denied the opportunity to vote on Hlaudi’s permanent appointment after she raised questions about the board’s fiduciary responsibilities, and what the public reaction was likely to be.

“I also made it very clear in my one-on-one meeting with minister Muthambi late last year that I never voted for Hlaudi,” wrote Zinde in her email. “And that it meant there was no majority vote to support her endorsing his appointment, because I didn’t vote.”

Dismissed: Rachel Kalidass.

Late last year, the three board members were served with letters from Muthambi threatening their dismissal, and claiming unspecified allegations of a breach of their fiduciary duties. Zinde, Lubisi and Kalidass were eventually dismissed from the SABC board, but they claim their removal was illegal. Six months later, they have yet to receive any official confirmation from the public broadcaster of their dismissal.

Spokesperson for the communications ministry Mish Molakeng told the M&G this week: “The matter of the SABC board has been discussed at great length in the portfolio committee on communications. The minister neither directly nor indirectly illegally dismissed any of the SABC board members as alleged.”

Motsoeneng’s own career soared after Muthambi announced his permanent appointment in July last year. He drove the contested SABC and Multichoice agreement, and the deal is currently being challenged as being “a notifiable merger” at the Competition Commission by Caxton, Media Monitoring Africa and the SOS Support Public Broadcasting Coalition.

Didn’t vote: Hope Zinde.

Until last week Motsoeneng appeared to be invincible. After the public protector Thuli Madonsela found he had lied about having a matric certificate and declared his appointment as acting chief operation officer and his salary hike irregular, the SABC board promoted him. The DA turned to the courts for a protracted legal battle to try to have Madonsela’s recommendations implemented. Last week Motsoeneng took “a leave of absence” from the public broadcaster, and he was finally charged by the SABC with gross misconduct, abuse of his position and gross dishonesty.

The chairperson of the parliamentary portfolio committee on communications, the ANC’s Joyce Moloi-Moropa, who has been at odds with Muthambi over SABC issues, told the M&G she was not going to be seeking redeployment. “I cannot comment on the court matters from Parliament’s side,” she said. “But stepping down, no, I will not. It is not an individual matter but a party matter.”

The SOS Support Public Broadcasting Coalition, the Freedom of Expression Institute and the current trustees of the Media Monitoring Project Benefit Trust have proceeded with court action in the high court in Pretoria over the dismissal of the SABC board members.

Seeking to stay: Sipho Masinga.

Kalidass and Lubisi have been cited as respondents and the applicants are seeking to have the removal of these board members reviewed, declared unlawful and invalid, and set aside. The SABC and a long list of respondents, including the communications minister, still have to file their responses.

“The three directors were removed without any involvement by either the National Assembly or the president. Instead the decisions were taken by the board alone, possibly with support from the minister of communications,” wrote the case co-ordinator, Sekoetlane Phamodi, in his founding affidavit. “It is plain that the processes followed in this regard do not comply with section 15 and 15a of the Broadcasting Act. However, the board and the minister have adopted the stance that these sections no longer apply and that section 71 of the Companies Act now governs their position.”

Though Zinde declined to join in any of the legal action, she has been vocal in other issues affecting the SABC, including the SABC and Multichoice agreement and the minister’s reversal of the ANC’s policy decision to introduce encrypted digital television.

Fighting back: Ronny Lubisi.

In a separate court case in the Pretoria high court, chartered accountant and auditor Lubisi has fired the first salvo in his own court action to try to clear his name following his dismissal. The SABC has lodged a motion to oppose his application, and its responding affidavits still have to be filed.

In his founding affidavit, Lubisi claims that Muthambi supported and defended the decision to remove him, both publicly and in the National Assembly. The decision to remove him by the SABC board was “arbitrary and irrational, and consequently constitutionally unlawful”, he states.

The SABC dismissed Lubisi on the grounds of a nondisclosure of a conflict of interest, which he disputes.

In his affidavit he provides supporting documentation and says no conflicts existed.

Lubisi recalls in his affidavit that, after the installation of the new board, a meeting was held with the minister. “Among the matters that the minister raised with members of the board was that the then acting COO, Mr Hlaudi Motsoeneng, had been acting too long and she suggested that we needed to appoint him permanently,” Lubisi wrote. “At that stage we were dealing with the public protector’s report, which had made some unfavourable finds against Motsoeneng.”

Embroiled: Faith Muthambi. (David Harrison, M&G)

After he spoke out at that board meeting, Lubsisi said he became seen as one of the members favouring implementation of the public protector’s recommendations that steps be taken against Motsoeneng.

“It is a matter of public record that Tshabalala [Ellen Tshabalala, former chairperson of the SABC board] was forced to resign by the National Assembly after it turned out that she had embellished her CV,” Lubisi wrote.

What is central to both these court cases is a confidential legal opinion from Parliament, which looked at powers to remove board members, and served to highlight how Mathumbi and the SABC board might have contravened the provisions of the Broadcasting Act in dismissing them. This legal opinion was sought by the chairperson of the communications committee, but it was rejected in Parliament by the minister, who is herself an admitted attorney.

Instead Muthambi went with the advice of her own legal advisers, which it was claimed in Parliament by members of the communication committee included an attorney who was at one time struck off the roll for deceitfulness and dishonesty.

And on a day the chairperson was absent from the parliamentary communications committee, the ANC-dominated committee decided to back the minister in her dismissal of the board members, which in effect shut down all complaints.

It seems the furore has only just begun.

Technology head fights suspension

Another thorny legal issue for the public broadcaster comes in a case brought by the SABC’s suspended head of technology, Sipho Masinga, in the Western Cape High Court. Masinga claims he was illegally suspended by SABC chief operations officer Hlaudi Motsoeneng, who was using powers afforded him in a revised memorandum of incorporation (MOI) signed by Communications Minister Faith Muthambi last year.

The MOI sets out the rights, duties and responsibilities of shareholders, directors and other within a company, but the SABC board was never consulted on any changes to the MOI.

In July this year, Masinga made an urgent application at the Labour Court, seeking a stay of his disciplinary hearing until he had obtained a court order in the high court setting aside this revised MOI. “The SABC, my employer, instituted disciplinary action against me based on an invalid and unregistered MOI that was adopted by the current minister of communications on September 20 2014.”