ANC says yes, and then no, to Phathiswa Magopeni for SABC board

ANC MPs have done an about-turn on whether former SABC head of news Phathiswa Magopeni is a suitable candidate to serve on the public broadcaster’s board.

After initially including her in the list of 12 names, they have had a rethink about whether they should consider “good governance principles” on the suggestion of former communications minister Khumbudzo Ntshavheni.

In a meeting held on Tuesday night, ANC MPs called for the communications portfolio committee, which interviewed and selected candidates for the new board, to reconsider the names it recommended for appointment. They questioned the committee’s sole reliance on the Broadcasting Act in making its recommendations, saying it wasn’t sufficient and it should have also considered the King IV report on good governance.

It would be the first time the Broadcasting Act is supplemented by another prescript in appointing the SABC board.

The matter was referred to the committee by National Assembly Speaker Nosiviwe Mapisa-Nqakula at the insistence of President Cyril Ramaphosa, who questioned a “reserve pool” of three names from which to select in the event any of the 12 preferred candidates was no longer available for appointment.

In consultation with parliament’s legal office, the committee decided to can the reserve pool and only submit 12 names, as required by law.

However, ANC MPs questioned whether the 12 names shouldn’t be reconsidered.

ANC MP Lesiba Molala insisted the committee should reconsider the 12 names in light of Ntshavheni’s letter to Mapisa-Nqakula on January 25, seven weeks after parliament adopted the candidates for the SABC board, questioning Magopeni’s suitability for the board and citing the King IV report.

“My understanding is the King IV report is not the law but it is principles of governance, good governance for that matter. From where I am sitting, you can’t ignore those principles,” said Molala.

“We are going to send 12 names to the president, but a question arises: can we still send the same 12 names despite the King IV report on good governance?

“In terms of the law, we comply — but in terms of good governance, are we in compliance?

“Why can’t we say we have agreed it is 12? But who are the 12 after the King IV report? Because we can’t ignore good governance and say we have complied. We can’t ignore the point raised by the minister as advice to the president. How do you ignore good governance?”

Ntshavheni wrote: “We would like to find out whether consideration of other good governance prescripts like the King report on Corporate Governance (King IV) was taken into account to determine her suitability for appointment?”

She said the King IV Principle 7 provides “the governing body should comprise the appropriate balance of skill, knowledge, diversity and independent [emphasis added] for it to discharge the governance role and responsibilities objectively and effectively.

“To this end it recommends that when assessing the independence of a member of a governing body, the governing body should consider on a substance over form basis, whether ‘the member of the governing body has been in the employ of the organisation as an executive manager during the preceding three financial years or is a related party to such executive manager’.”

The SABC axed Magopeni in January 2022, citing a breakdown of trust. An internal hearing found her guilty of misconduct for failing to prevent the broadcast of an interdicted episode of the investigative news programme Special Assignment. 

Her sacking was controversial and came amid suggestions it was politically motivated. The SABC later reached a settlement with her, but the details have not been disclosed.

On Tuesday, parliament’s legal adviser, advocate Frank Jenkins, warned there was nothing that said the committee should consider the King IV report as it appointed the 12 in terms of the law.

“I do not think the issue of independence, and that you have served as an executive in the SABC within the last three years, is a legally correct way to exclude a member at this point. King is not a strong enough argument to do that. That’s not the purpose of the King IV report,” he said.

“This is the legal aspect. There might be politics within this issue, but that is the legal points I am making.”

Opposition MPs agreed with Jenkins’s opinion, with the EFF’s Vuyani Pambo adding “there was obviously a political game being played”.

“There is absolutely no reason we are here. There is no confusion who are the 12 names that must be appointed,” he said.

The DA’s Dianne Kohler Barnard also sought clarity about where the confusion with the 12 names came from. “We did this entire process with clarity and slowly and any questions we had went to legal and they dealt with every issue raised,” she said.

ANC MPs, however, resolved to seek external legal advice, a resolution to which opposition parties objected.

The committee will meet again on Friday.

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