Threat of lawsuit may dislodge SABC board

Perhaps the risk of being sued for every cent spent irregularly on their watch will be enough to convince the SABC board to go.

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When SABC board chairperson Mbulaheni Maghuve thumbed his nose this week at MPs calling for the remaining diehards on the board to quit while they were ahead or face an inquiry, there may have been less bravado than shrewd calculation in his stance.

While it is now inevitable the board will be dissolved in ignominy - given that all parties in Parliament are behind such a move - Maghuve’s attitude makes it clear it will not go quietly, and the SABC is a past master at delaying the inevitable.

That’s why Hlaudi Motsoeneng is still calling the shots at the public broadcaster instead of pawning his belongings to pay back all the irregular bonuses and salary hikes he awarded himself.

How long it will take to dislodge Maghuve and company depends heavily on the precise legal interpretation of the term “due inquiry”.

The Broadcasting Act gives Parliament's portfolio committee on communications the power to recommend the dissolution of the board, after which a resolution to this effect must be passed in the National Assembly and the president must then remove the board.

But such a recommendation can be made only after a due inquiry has established that the board has failed to fulfil its fiduciary responsibilities, and/or failed to adhere to the SABC charter, and/or failed to fulfil its obligations in terms of Section 13(11) of the Broadcasting Act, which enjoins the board to control the affairs of the SABC and to protect freedom of expression and journalistic, creative and programming independence.

On the face of it, failures on all three counts are already a matter of public record and an inquiry would seem a mere formality.

The board recommended the appointment of Motsoeneng as permanent chief operations officer after Public Protector Thuli Madonsela had directed he must be disciplined for lying about having a matric when he first applied for a job at the SABC, purging staff who questioned him and irregularly promoting favourites and irregularly awarding them and himself increases. The board also approved further increases for Motsoeneng subsequent to these findings. Motsoeneng’s appointment has since been found to have been irrational, unlawful and has been set aside.

So the board (and Communications Minister Faith Muthambi) has - as the Constitutional Court found President Jacob Zuma had done - not only defied the remedial actions of the public protector by initially resisting her instruction to discipline Motsoeneng, but compounded its defiance by subsequently appointing him to a senior executive position and awarding him increases on top of those already found to have been unlawful.

This alone should be adequate grounds for the board’s dissolution.

What is more, although it was initially in the same position as Zuma in that it could argue the nature of the public protector's powers had not yet been clarified in court when it was first given her report (in 2014), the Constitutional Court judgment on Nkandla gave that clarity in March.

Yet, while the SABC has purported to implement Madonsela’s remedial actions by holding a disciplinary inquiry, that inquiry did exactly what Police Minister Nathi Nhleko tried to do with his report on Nkandla - replace the public protector's findings with more favourable ones, which cleared Motsoeneng. The Constitutional Court has also found this to be unlawful.

Nor has the SABC complied with the instruction to recover the money from those, including Motsoeneng, who received it unlawfully.

Taken together, all of this must amount to a flagrant breach of the board’s fiduciary obligations and adherence to the principles of good corporate governance.

There is also the removal of three board members - Ronnie Lubisi, Rachel Kalidass and the late Hope Zinde - without involving Parliament or the president, who, in terms of the Broadcasting Act, is the only person with the authority to do so. The board has defended the move by arguing it is covered by the Companies Act. The matter is now before the courts and a judgment against the board would provide the committee with further ammunition in its inquiry.

The board also clearly failed to protect freedom of expression and journalistic independence when it let Motsoeneng ban footage of violent public protests before the recent municipal elections.

And on Wednesday, in tendering his resignation from the board, Vusi Mavuso revealed the board had appointed Bessie Tugwana as acting chief operations officer without the knowledge of himself and fellow board member Krish Naidoo, who also resigned. This means the appointment was made without a quorum and is unlawful.

UCT Constitutional Law Professor Pierre de Vos said this may mean the board, in purporting to continue functioning despite the lack of quorum, has made the argument for its dissolution on the grounds it can no longer fulfil its fiduciary obligations. Had it not done so, the argument might still have been made that its lack of quorum should be cured by the appointment of new board members.

“The problem they would have is they have been acting as if the board has been validly constituted in the meantime, so on that basis I would think you can't say we're going to pretend to make decisions when we don't have any authority to take those decisions,” De Vos said.

However, he agreed with Parliament’s senior legal adviser that a “due inquiry” would at a minimum have to afford the remaining members of the board a chance to respond to allegations against them that would be used as grounds to dissolve the board. Legal adviser Ntuthuzelo Vanara told MPs such an inquiry would be a lengthy process in which charges were formulated and put to the board, who would have a right to respond and legal representation.

De Vos said a recent judgment which set aside a finding by Parliament's ethics committee against DA leader Mmusi Maimane on the grounds he had not been given a chance to respond to the charges was an indication that a parliamentary inquiry, while not a formal legal process, had to give a fair hearing to the affected party.

However, it was not clear whether it would be necessary to allow board members to have legal representation as this was not usually required in a non-legal setting.

The problem for Parliament is that, regardless of whether or not it takes the broadest possible approach to its inquiry, Maghuve's attitude suggests he will have no qualms about challenging the outcome in court, probably on the grounds that the process was flawed or the outcome predetermined, using the SABC’s funds to do so. He knows he cannot win in the long run, but the longer the board holds out the longer Motsoeneng will remain in his job and the longer the SABC’s agony will continue.

There is another possibility, hinted at by Naidoo.

“Our law has evolved in the last seven or eight years; we’ve got a thing called delinquent directorships now,” he said. “If you’re a director on a board and you act in a delinquent fashion, first you could be prevented from sitting on any other board in the future; second, you could be asked to pay back the losses incurred because of your negligence and your recklessness.”

If shame and public outrage are not enough to get the board to go, perhaps the risk of being sued for every cent spent irregularly on their watch will be, bearing in mind that irregular and fruitless and wasteful expenditure now stands north of R4 billion at the SABC.

Political Bureau