24 February 2023 Urgent Litigation: Appointment of the SABC Board JOHANNESBURG, 24 February 2023 – The ongoing failure of the President to appoint the SABC Board has left Media Monitoring Africa (MMA) with no option but to approach the Constitutional Court to compel the President to fulfil his constitutional mandate and appoint the twelve non-executive members to the SABC. The perils of the SABC operating without a board have been highlighted here and here. Since the end of the term of the previous Board and shortlisting of the candidates for the new Board, MMA has on numerous occasions corresponded with the President. The focus of our correspondence was to request the President to appoint the Board – 132 days later, the Board has yet to be appointed. The importance of the SABC Board cannot be overemphasised. The Board fulfils a key role in enabling the public broadcaster to provide news and information to the nation. It is trite that the public broadcaster has an indispensable role in fostering democracy and the free flow of information. Each day that goes by without a Board, the proper functioning of the public broadcaster is jeopardised, which in turn threatens the functioning of our constitutional democracy. Given this, we have thus been left with no choice but to bring an urgent application to the Constitutional Court for an order compelling the President to fulfil this obligation diligently and without further delay and appoint the twelve Board members selected by the National Assembly. According to section 13(1) of the Broadcasting Act of 1999, “The twelve non-executive members of the Board must be appointed by the President on the advice of the National Assembly.” The plain and purposive interpretation of this provision is that the President has no discretion or veto over the appointment of the twelve members advised by the National Assembly. To date, it appears the President is assuming powers we argue he does not have. Specifically, that he does not have the ability to veto or delay making these appointments. Were the President to have such power, it would potentially, fatally, undermine the independence of the SABC from the Executive. The design of the SABC is that it is independent from the executive government. The Broadcasting Act and the Constitution require the SABC to be meaningfully independent from the executive government, Where the President, or indeed any other interested body, has concerns over the appointment of one or more members of the SABC Board, there is nothing preventing them from taking such appointments on legal review. Some two months later, and with the SABC’s financial year end looming, not only is the SABC in a profoundly perilous position with a very real threat of insolvency, but if there is no Board there is no governance of the SABC and the ability of the SABC to fulfil its important constitutional role is jeopardised. This in turn means that tens of millions of people living in South Africa (who rely on it for news and information) face the possiblity of their fundamental right to access to information being denied. All this threatens our democratic society. The Constitutional Court application can be found here. For further information, please contact: William Bird, Director, MMA Contact: 0828871370, williamb@mma.org.za Thandi Smith, Head of Programmes, MMA Contact: 0734707306, thandis@mma.org.za Azola Dayile, Advocacy Litigation Lobbying Programme Manager, MMA Contact: 0658917220, azolad@mma.org.za About MMA Media Monitoring Africa‘s vision is a responsible, quality media that enables an engaged and informed citizenry in Africa and across the world. MMA aims to promote the development of a free, fair, ethical and critical media culture in South Africa and the rest of the continent. To achieve MMA’s vision, the three key areas that MMA seeks to address through a human rights-based approach are: media ethics, media quality and media freedom. For more information about MMA and its work for children visit www.mediamonitoringafrica.org Follow MMA on Twitter, Facebook and YouTube