Civil society organisations are threatening to take two government departments to court over their decision to designate SABC group chief executive officer (GCEO) Madoda Mxakwe as the “board of the SABC”.
President Cyril Ramaphosa has delayed the appointment of the new SABC board by more than 100 days after the preferred candidates were sent to him for approval by parliament in terms of the Broadcasting Act.
Public broadcasting lobby group the SOS Coalition and Media Monitoring Africa (MMA) say they are considering legal action against Mxakwe’s designation, questioning the legality of the statement.
Communications minister Khumbudzo Ntshavheni told SABC TV during a post-state of the nation address (Sona) interview this week that, “in terms of the law, the GCEO of the SABC has been designated by the minister of communications and digital technologies with the concurrence of the minister of finance as the board of the SABC”.
But the SOS Coalition and the MMA have slammed the decision as unlawful, arguing that the two ministers exceeded their powers.
They said that Ntshavheni’s assertion that the GCEO is the board is at odds with the most rudimentary elements of governing at the SABC.
“On a simple basis of good governance, it cannot surely be legitimate for one individual to be given board powers and make decisions that otherwise require 15 members of which 12 are non-executive members,” they said.
The Broadcasting Act requires non-executive members to have a range of expertise and experience including media law, business practice, journalism and entertainment.
“These skills are essential to ensure that decisions are considered and debated and that all pertinent aspects for the running of the public broadcaster are taken into consideration.
“In this instance, we have the executive committee being accountable to one of its members, who is part of the decision-making body at operational level. As such, there is currently no accountability and no oversight at the SABC because the current gimmicks do not amount to adequate governance,” read their statement.
They also questioned the manner the appointment was announced through “an ad hoc interview”.
“The public was not informed of the decision when it was taken and its basis, which raises further questions about the decision. The lack of transparency gives credence to rumoured political interference and orchestrated delay tactics in appointing the board,” they said.
A source in the communications ministry said the department applied to the National Treasury for Mxakwe’s designation but he had not yet received his letter of appointment.
The SABC has been without a board for almost four months after both parliament and President Cyril Ramaphosa failed to appoint a new one within the legislated period.
Parliament’s standing committee on public accounts (Scopa) MPs suggested in November 2022 that Mxakwe be designated as the accounting authority until a board had been appointed.
They cited a legal provision in the Public Financial Management Act which states that “if the public entity does not have a controlling body, the CEO or the other person in charge of the public entity is the accounting authority for the public entity”.
It is argued that the provision precludes entities that have specific laws applying to them, and which designate another person as the accounting authority. In this case, the SABC is governed by the Broadcasting Act which states that “the board is the accounting authority of the corporation”.
The act does not make a provision for SABC executives to be appointed as non-executive directors in the absence of a board, the two organisations said.
“Thus, we believe the appointment of the GCEO as the accounting authority is illegal and a breach of the Broadcasting Act.”
An October 2017 judgment of the South Gauteng high court ruled that the Broadcasting Act prevails over other laws as it was specifically enacted to govern the operations of the SABC.
The court said the act has detailed provisions governing the appointment of members of the SABC board which are enacted to ensure that the objects of the act in section 16 of the constitution are met.
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