SABC: Faith Muthambi acted unlawfully – legal opinion

Communications Minister Faith Muthambi acted unlawfully when she interfered with the SABC’s board matters, which led to the dismissal of three councillors.

This is the thrust of a legal opinion that Nathi Mjenxane of Parliament’s legal department gave the portfolio committee on communications.

Before the committee could decide its next move, the ANC MPs first wanted to hear from Muthambi regarding the events that led to Rachel Kalidass, Ronnie Lubisi and Hope Zinde being removed from the SABC board.

In March, Muthambi had to explain the events to the committee. She said she had the authority to grant powers to herself to interfere in the public broadcaster in terms of a memorandum of incorporation – the document that sets out the relationship between the state and the SABC.

Muthambi said legally she was authorised to set up the memorandum – the last version of which was drafted last September, – because she was the “sole shareholder” of the SABC.

She also had the power to, in the memorandum, outline her authority to make appointments at the SABC.

Gavin Davis, DA member of Parliament, said that this wasn’t in line with the Broadcasting Act.

Muthambi quoted several articles from the Companies Act and insisted that she acted according to this law. “The Companies Act exceeds the Broadcasting Act” she maintained.

Parliament’s legal department disagreed.

“It is our view that, in this case, the Broadcasting Act is applicable to the dismissal of a board member and the relevant provisions of the Broadcasting Act should rank higher than any conflicting provisions of the Companies Act,” said Mjenxane’s legal opinion.

The law that is more specific trumps a more general law, and the Broadcasting Act deals specifically with appointments and dismissals at the SABC, he said.

“Any removal of an SABC board member that was not brought to implementation by the Broadcasting Act is invalid and therefore illegal.”

Under the Broadcasting Act only the president can dismiss an SABC board member.

After the legal opinion was read, Davis asked the committee to decide how he should take the matter forward.

ANC MPs Dikeledi Tsotetsi and Moses Tseli said Muthambi should be present.

Davis said that the whole point of the legal opinion was that she wouldn’t have to be involved.

Tsotetsi said: “Let’s give her space; let’s give her time to give her opinion.”

Mbuyiseni Ndlozi, Economic Freedom Fighters MP, said that Muthambi had already given her opinion.

Davis said: “Nothing that the minister says can trump the legal opinion. We are authorised to deal with it, not the minister.”

He suggested that the committee write to the dismissed board members, with the legal opinion attached, to inform them that they could go back to work.

Joyce Moloi-Moropa, committee chairperson, said that the committee did not have the right to do that.

Ndlozi said that even if the committee dealt with the president rather than the minister, he believed that Muthambi should appear before the committee.

“This legal opinion ... should be served to her. It is very educational. She should know these things,” he said.

“We have a duty as MPs to put the ministry in its place.”

Tseli said: “Minister Muthambi stays the minister of communication.”

The committee decided to invite Muthambi to a meeting where she would have the opportunity to present her case.
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