Communications Minister Faith Muthambi believes that the legal opinion of Parliament’s legal department undermines the separation of powers and the interpretation of the law should be left to the judiciary, not the legislature.
The Minister said on this basis that the legal opinion made by Parliament’s legal advisor Nathi Mjenxane in May infringes on her duty as an executive shareholder of the SABC to institute disciplinary measures as per the provisions of the Companies Act No 71 of 2008.
“The said legal opinion by the Parliamentary officer, I must say, is unprecedented since it had made the Portfolio Committee and Parliament in this regard to be the interpreter and the enforcer of the law of which the Constitution of this country reserves that for the judiciary and the executive respectively.
“The legal opinion offends the doctrine of the separation of powers. … The responsibility of this … the function of this house is to make laws and expect the executive to implement the laws [made in] Parliament,” she said.
The Minister also said that the responsibility of Parliament was also to make laws and to hold the executive to account.
“The reason why we came here is solely to account.”
The Minister’s statement comes after Parliament’s legal department, on request of the Portfolio Committee on Communications, found that the Minister’s use of the Companies Act to implement disciplinary measures against several SABC board members due to ill-discipline earlier this year was unlawful.
Earlier this year, the media reported that Minister Muthambi sent letters to several members of the board asking them why they should not be suspended.
When she appeared before the committee in April, the Minister told the committee that she was, according to the Companies Act, empowered to approach board members to ask them why they should not be suspended.
Opposition MP Gavin Davis insisted that the Minister’s intervention was unlawful according to the Broadcast Act.
The contention over the two Acts led to the Committee taking a decision to seek a legal opinion on the matter.
In his legal opinion, Mjenxane said in his view, applying the Companies Act over the Broadcasting Act was unlawful.
At the heart of the dispute is the fact that the Companies Act and the Broadcasting Act are not in concurrence when it comes to implementing disciplinary measures.
According to Section 13 of the Broadcasting Act No.4 of 1999, the appointment of the board’s chairperson, as well as other non-executive directors, rests with the President on the advice of the National Assembly.
Section 15 (1) of the same Act also empowers the President to remove a member from office on account of misconduct or inability to perform his or her duties.
The section also empowers the President to remove Board members in an event that a committee of the National Assembly has made a finding and recommended for the member to be removed from office.
On the other hand, Section 71 (3)(a) and (b) of the Companies Act gives the SABC Board grounds of removing a director.
By virtue of being the sole shareholder of the SABC Board, the Memorandum of Incorporation empowers the Minister to remove board members on the grounds of ill-discipline.
The Minister said while she noted the legal opinion, interpreting laws remained the duty of the judiciary.
“The conclusion of the legal opinion contravenes and offends the doctrine of the separation of powers since it has assumed the role of the judiciary to interpret and declare the conflict in any law.
“In fact, the Constitution has empowered only the Constitutional Court to declare any legislation of the Parliament unconstitutional.
“…I received a letter wherein I was told that the majority of the members agree with the legal opinion and I want to put upfront to say the committee had no right to tell the executive which law to apply.”