SPEECH BY DENE SMUTS MP, DA SPOKESPERSON FOR COMMUNICATIONS, CONSIDERATION OF BROADCASTING AMENDMENT BILL & PRESIDENT'S RESERVATIONS ON CONSTITUTIONALITY OF BILL AS SUBMITTED TO HIM, NATIONAL ASSEMBLY, FEBRUARY 17 2009

The Democratic Alliance (DA) petitioned President Motlanthe to send this Bill back to Parliament for unconstitutionality under section 79 of the Constitution, as did the IFP and the Freedom Front Plus.

We did so because the Bill tried to write an unprocedural political purge into the law.

There are three provisions dealing with the removal of SABC Board members. The first is the old one, under which the Board itself can ask the President to remove a director for misconduct or incapacity AFTER DUE ENQUIRY.

The second is the new provision which I first proposed a year ago, under which Parliament (as the institution which selects the Board members in the first place) may resolve AFTER A FINDING of misconduct, incapacity or ineligibility that such member should be removed. As I have said before, nothing more than this is needed for any bona fide case where a member is found unfit for office.

But the Bill creates a third removal provision. The National Assembly may by simple resolution decide on the dissolution of the entire Board for failure to discharge its duties, and by a further vote recommend five persons handpicked without public participation or transparency as an interim Board, which the President must appoint within ten days.

The absence of any explicit requirement for procedural fairness in this third removal clause stands in stark contrast to the requirement for due enquiry and for a finding in the two preceding provisions. In legal terms this may be read to be intentional, and thus constitutionally speaking to exclude the right to fair procedure which forms part of administrative justice. It is this that formed the basis of our petition and has caused the President's reservations.

In practical terms, we may remind the House that not only is the omission intentional - due enquiry was removed from the draft after the SACP's Mr Malesela Maleka described due process as a counterrevolutionary attempt to protect bourgeois space with legal concepts - but that it has been tried before!

When you undertake administrative action, you must inform the people at the receiving end of the nature and purpose of the proceeding you are about to embark on, and give them a reasonable opportunity to put their case. But the unsuspecting Board last April during a supposed appearance for its annual strategy and budget hearing was suddenly confronted with first one, then another, issue not on the agenda at all, and at the end of what can only be described as a kangaroo court during which fiduciary matters featured not at all, was found guilty of being incapable (at age 4 months) of discharging its duties. An attempt at passing a Motion of No Confidence in the Assembly followed. It failed. This dissolution  clause is a further attempt to achieve the same end.

Now the Bill has been amended to make a proper enquiry mandatory. I suspect the ANC MPs would be quite relieved to abandon the attempt to unseat the Board and to install a mini-Board in time for the election. They have had to function under the watchful eye of the wife of Dr Blade Nzimande, thinly disguised as a member of the SABC executive committee, who sat like Madame Defarge through every committee meeting for nearly a year, waiting for the guillotine to fall. The MPs know they are not going to be able to prove any of the grounds against the sitting Board and anything less than perfect procedural fairness can and will now be taken on review.

We are pleased that the amendments have been effected following our petition. We remain opposed to the Bill because the proposition that an entire Board can be evicted is destructive of the security of tenure without which an independent Board cannot protect the journalistic freedom of its editorial staff; and because the installation of an interim Board without any of the transparent, public, participatory selection procedures that normally apply is so clearly a further political ploy aimed at turning the SABC into an organ of the ANC, which itself has become an organ of the SACP.

Issued by the Democratic Alliance, February 17 2009