Original SABC board list stands as lawyers label Ramaphosa’s instruction ‘unlawful’
The letter in which President Cyril Ramaphosa instructed Nosiviwe Mapisa-Nqakula to send the matter back to the portfolio committee had no basis in law
Parliament is reverting to the original list of candidates it nominated to serve on the SABC board after a scathing legal opinion questioned President Cyril Ramaphosa’s temerity in second-guessing legislative processes.
This comes exactly four months after parliament approved a list of 12 names to serve as nonexecutive members of the board. The SABC has been without a board for almost six months.
After questioning the inclusion of a “reserve pool” of three names from which to select in the event any of the 12 preferred candidates were no longer available for appointment, Ramaphosa insisted in March that the matter be referred to the portfolio committee on communications for urgent consideration.
He said he was confused because National Assembly speaker Nosiviwe Mapisa-Nqakula and Boyce Maneli, chair of the portfolio committee, appeared to be contradicting each other on whether he could ignore the reserve pool or whether he could select from it when making the appointments.
The matter was further complicated by a letter by then communications minister Khumbudzo Ntshavheni to Mapisa-Nqakula questioning the inclusion of Phathiswa Magopeni, the SABC’s former head of news who was dismissed early in 2022, and whom the corporation later settled with.
The letter opened the door for ANC MPs in the committee to flip-flop and question Magopeni’s suitability, despite having been part of and having supported her initial inclusion.
In a scathing legal opinion on Thursday, the office of the state attorney affirmed parliament’s December 6 resolution as “legally sound” and “legally executable”.
Citing the Broadcasting Act, the legal opinion stated that the president must appoint the 12 non-executive members of the board on the advice of the National Assembly.
“If you look at the wording of the statute, the statute directs the president. It does not limit and is not prescriptive on the nature or form the National Assembly must follow in terms of recommending to the president the nonexecutive members,” said Andile Tetyana, who presented the opinion to the committee on Thursday.
“What the opinion is saying is that if you look at the resolution, it is specific: these are the 12 members the president must appoint. It goes on to say in the event one of these or two are not available at the time when the appointments are made, there is a reserve pool.
“That reserve pool was provided for a specific purpose. Those in the reserve pool cannot argue that they have a legitimate purpose to be appointed to the board because the resolution is clear.”
Tetyana said Ramaphosa’s letter in which he instructed Mapisa-Nqakula to send the matter back to the portfolio committee had no basis in law.
“The letter by the president dated March 9 is not only unprecedented but it is grossly unlawful,” he said.
“The president has no legal basis whatsoever to prescribe to the National Assembly on how the National Assembly must conduct its business. Not only that, it speaks about the doctrine of separation of powers. You can’t have a situation where parliament accounts to the president.”
The only provision in the constitution which allows the president to second-guess the will of parliament is section 79, which relates to assent to bills and allows the president, when he has reservations, to refer a bill to the Constitutional Court for a constitutionality test.
“[Otherwise] the president is enjoined by the constitution not to defy or second-guess the will of the people. Parliament, in its wisdom, constitutes the will of the people and the president is constitutionally bound to appoint as per the resolution of the National Assembly.”
Tetyana said if the president felt that what parliament directed him to do was unlawful, he could approach the competent court and not take the law into his hands.
“Our constitution is not self-executing. The president cannot adopt a self-help constitutional style. The president may exercise no power and perform no function beyond that conferred on him by law. He must tell parliament where he is getting this power to instruct parliament on how it must conduct its business.”
The committee welcomed the legal advice, with opposition MPs saying they were validated.
ANC MPs, who had previously rejected the same advice when given by parliament’s own legal services on March 14, “fully appreciated” it on Thursday.
ANC MP Lesiba Molala said there was no need to further indulge the matter and that it has to be referred back to Ramaphosa for finalisation. “We fully appreciate and agree with the opinion,” he said.
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