The Freedom of Expression Institute is challenging the SABC's articles of association, writes Anton Harber in Business Day.  It has emerged that the articles were a sleight-of-hand attempt by the minister to get powers over the SABC that she could not get otherwise.  The question is: will the board defend these articles?

Anton Harber writes in Business Day:

THERE are two fascinating legal actions worth keeping an eye on for their wider impact on our media. The first arises from a letter the Freedom of Expression Institute (FXI) served on the SABC and the communications minister last week, demanding that they rewrite the public broadcaster’s Articles of Association or face legal action.

The FXI claims the articles are unlawful and unconstitutional and, if they are not amended, they will seek a court order compelling the minister to do so.

The articles, which only recently became public although they were last amended in 2006, allow a high level of interference fro m the minister in the affairs of the SABC and contradict the Broadcasting Act and the constitutional protections of the independence of the broadcaster. It appears that the articles were a sleight-of-hand attempt to give the minister the powers over the SABC she wanted in the legislation, but was denied after a campaign to preserve the institution’s political independence.

The articles give the minister veto power over the appointment and contracts of the group CEO and other executive directors, as well as over the SABC’s corporate and business plans. Directors are bound by the articles to comply with any resolution of a general meeting of the SABC. Since the minister is the sole shareholder, this means they need to comply with any decision made by the minister in this forum (where she alone constitutes a quorum).

It is a mystery how the board could have accepted these articles. They signed away their independence and breached their most fundamental obligations as protectors of the organisation. And they did so in secret. These documents only emerged when a determined researcher sought them out.

They were at the heart of the recent dispute between the recently dismissed CEO, Dali Mpofu, and the board, when he contested their power to get rid of him. Only the minister could hire or fire him, he said, citing the Articles of Association. The court found against him.

The minister said this was a matter between him and board. In another matter, meanwhile, another SABC person is suing the minister for blocking his appointment as chief operating officer . It seems she exercises her powers when it suits her, and offers a fake innocence when it doesn’t.

It is an important issue, because the SABC is being crippled by the uncertainty over who has authority and power. Parliament wants to exercise its power to get rid of the board it put in place, the board is exerting its power over the executives, the minister wants to hold sway in these matters, and the result is a rudderless organisation at a difficult time. With a severe downturn in advertising, the source of most of its revenue, the SABC is facing the prospect of joining the long list of parastatals totting up large losses, or facing significant cutbacks, or both.

Will the board defend the current articles? That will be interesting to see.

The second legal matter is the appeal by the nongovernmental organisation (NGO), Biowatch, against a court order to pay the costs of a legal action some years ago against the giant multinational Monsanto. Biowatch had sued Monsanto to release information about its genetic modification work, and won most of the case. But the court ordered it to pay Monsanto’s costs, a move which would cripple the NGO. It would also have a chilling effect, as others would become reluctant to pursue their rights to information if they were saddled with the costs even when they won the case.

Biowatch appealed, lost, and has now taken the matter to the Constitutional Court. There will be many activists watching the outcome closely. Our recourse to the Promotion of Access to Information Act has not proved very successful in bringing to life the constitutional right to information, and a defeat for Biowatch in this case will knock the heart out of that act, I expect.

* Harber is Caxton Professor of Journalism at Wits University and an executive member of the Freedom of Expression Institute. This column first appeared in Business Day on 18 February 2009.