A scandal is unfolding in the SABC, apparently aimed at reversing significant steps to have the corporation fulfil its mandate as a public broadcaster - and not simply a mouthpiece for the ANC. The public needs to monitor that those in whom we have put trust ensure that the public broadcaster does not betray its responsibilities and return to any variant of capture.

A public broadcaster does not operate for private interests or profit nor as a sectarian propagator of the views of any interest group or political party. For many years under apartheid and more recently in the period of State Capture, the SABC saw itself as beholden to the ruling party and in our times, that is the ANC or the dominant faction of the ANC. It tried to tailor its programmes and news coverage in a way that benefitted the ANC and despite its extensive reach as a broadcaster, it lacked credibility.

In the last few years, the SABC has been trying to regain credibility as a public broadcaster, treating all political trends and organisations with fairness and insofar as political values have been advanced these have been founding values of democracy, consistent with the Constitution adopted in 1996.

In recent years, the performance of all SABC news services rose across platforms. The SABC News Channel is leading the 24-hour news market, beating eNCA that has always dominated that segment. SABC News’ YouTube service leads the South African news market. SABC News services have micro sites on YouTube in all official languages. All official languages have a presence on digital media platforms and their growth plans, start this year, for text-based news services to, among others, increase digital readership and support development and preservation of African languages as part of the SABC mandate.

Unsurprisingly this transition has not been without difficulty, insofar as the ANC had come to expect special treatment and some of the top leadership of the SABC have been hesitant to assert independence when confronting ANC requests and complaints.

Currently, apparently in relation to ANC complaints, there are ongoing efforts to remove the Head of News Phathiswa Magopeni. There is, however, a sharp contradiction between the reasons why the SABC has, in fact, acted against her and the legal processes which have seen her found guilty of negligence and misconduct for failure to ensure that which was outside of her powers and fell under a department over which she had no control.

The elections and pressure on Head of SABC news Phathiswa Magopeni

When the ANC suffered serious setbacks in the local government elections in November 2021, these derived from its record in government where it had failed to meet the constitutional rights of the people of South Africa in a number of parts of the country by not providing clean water, electricity, housing, healthcare, and a range of other basic needs.

The organisation had already suffered a loss of confidence deriving from the Jacob Zuma era where many of the leaders of the ANC and especially Zuma himself, were involved in corruption and State Capture. Although the election of Cyril Ramaphosa to the presidency of the ANC and later that of the country marked a change, insofar as Ramaphosa was not directly involved in corruption and State Capture, the changes in ANC governance and leadership have not been significant. Indeed, some of Ramaphosa’s allies have been fingered or charged with corruption.

When the ANC suffered setbacks in the elections, it was because of its own flaws in failing to do what was incumbent on it as government and for many acts of illegality in the Zuma and post-Zuma era, as in the fraudulent transactions related to purchase of healthcare equipment in the Covid-19 pandemic.

Government also demonstrated a high level of tolerance of excessive violence by security forces in enforcing lockdowns, violence primarily against the poor and marginalised, who remain oppressed under what had been dubbed a “new dawn”.

These and many other factors were in people’s minds when they voted in the local government elections, although very few former ANC supporters found an alternative to the ANC. But they were sufficiently disillusioned with the ANC-led government to either stay away or vote for one of the minority parties.

SABC top management ready to relinquish independence under ANC pressure

SABC top management through its CEO, Madoda Mxakwe, and chair of the board, Bongumusa Makhathini, sought to assist the ANC by leaning on Magopeni over a request from the ANC spokesperson, Pule Mabe, to have Cyril Ramaphosa interviewed in Limpopo. Magopeni writes and it is quoted at length, to indicate the character of the intervention:

“On Sunday 24 October 2021, Mr Mxakwe called me about the ANC’s Mr Pule Mabe who wanted to set up a  radio interview for the ANC President who was campaigning in Limpopo that day. The idea initially seemed to be about the SABC going to a private radio station to cover an interview that was being set up there for the ANC President. I objected to this because SABC News is a public news service with a national footprint servicing 18 radio stations, and allowing this would have made a mockery of the SABC’s own radio stations and undermining the capacity of its journalists to do the same.

“Also, editors were aware of a pending interview  with the ANC President that SABC News had asked for like we did with other political parties. From that point the focus shifted to the interview being done on the SABC radio platform/s in Polokwane. The calls I received from Mr. Mxakwe went beyond seeking clarity about why the interview could not be done. He was putting undue pressure on me to coordinate that the interview be done despite this falling outside the News Division’s editorial processes and being outright interference. I refused.

“He even mentioned having spoken to the Minister of DCDT [Department of Communications and Digital Technologies] about the issue which I found bizarre, because this was an editorial matter. I kept explaining why this was wrong and in violation of the prescribed editorial processes.

“On that day, not a single person from the ANC called me or any editor, they were communicating directly and exclusively with Mr Mxakwe. I pointed out to him that the news desk in Limpopo had journalists who were on the ground assigned to cover the ANC President’s campaign   as discussed by editors. Mr Mabe knew exactly what our elections coverage protocols were, so I was taken aback that the GCEO was involved in coordinating the interview on his behalf. Among others, the Politics Editor, the Head of Input (responsible for regions) and the Regional Editor had no knowledge of the interview and agreeing to it would have been a breach of SABC News editorial   processes. Despite all my objections, I was subsequently informed by the regional editor in Limpopo that he had been told that the interview was to be done with the ANC President as agreed to by radio management and apparently Mr. Mxakwe.

“In my communication with the regional editor, I pointed to this as a breach of editorial processes and that no SABC News journalist should take part in that interview as it was not discussed and sanctioned by senior editors, as was the case with all editorial content, particularly elections coverage. As a result, the interview did not happen. I have every reason to believe that the strange charges against me are the repercussions of my refusal to consent to the interview. As the Editor-in-Chief, it is my obligation to protect and maintain the editorial independence of the SABC’s public news service, to safeguard its integrity, and to ensure that its controls are not breached.  I had always thought that my principals understood this well, but I was proven wrong.”

The Chair of the board stressed how important this was, in the “last leg of the campaign”.

Clearly the failure to respond positively to Mabe’s approach embarrassed SABC top leadership, who apparently no longer see their accountability being in relation to how the SABC is conceived, but how the ANC reacts.

Mbalula and Duarte attack ANC news head Magopeni for ANC election losses

In this context, some ANC politicians, notably Deputy Secretary General Jessie Duarte and Head of Elections and Minister of Transport Fikile Mbalula, sought to blame the SABC and the SABC’s head of News, Phathiswa Magopeni, for the ANC's poor showing. The SABC had a “service delivery gauge” that measured performance of local governments against their promises and this appeared to have especially irritated the ANC.

Ms Jessie Duarte had approached SABC journalists at the IEC results centre and accused SABC News of being biased against the ANC in its elections’ coverage. She told Magopeni: “we have been monitoring and watching you, you are anti-ANC, you hate the ANC, and your coverage has been biased against the ANC”.

She said that Magopeni had “decampaigned” the ANC during the elections and she told Magopeni that she had spoken to the Board about  her conduct.

Magopeni told her she was not going to be intimidated and advised Duarte to follow the processes, of which she was fully aware. Magopeni reported to the CEO:

“That same afternoon, SABC News journalists were ridiculed on air during television interviews by some ANC leaders who were at the ROC [Results Operations Centre, the IEC’s Pretoria base for elections]. This is on record as it played out publicly. This continued off air with different journalists for the period we were at the facility.”

There had been a build up with Mbalula making almost identical accusations when SABC covered the ANC president’s campaign in the Free State. On 18 October 2021, Mbalula sent Magopeni a “message and a television screen shot disputing a headline we were running saying it was incorrect, despite facts and visuals proving the opposite. When I advised him to go to Icasa as we were not going to change the story he refused, and among other things he told me to go and form my own political party as I was trying to do the work of the opposition.”

Magopeni explained to the CEO that this was a pattern of several incidents relating to “editorial bullying, intimidation, and harassment of SABC News journalist by senior party officials. The Mpumalanga two-hour hostage by an ANC group that included a ward councilor is one of these. Journalists are feeling unsafe due to the continuing rhetoric by the party against SABC News. Journalists are journalists and have no business doing public relations work for any political party regardless of where it sits in the government hierarchy. It is the job of journalists to uncover and cover issues as raised by citizens and not censor them. Censorship and self-censorship contravene the SABC’s own Editorial Policies and can never be allowed. Media freedom and journalistic expression is protected by the country’s Constitution, and it is disconcerting that journalists get subjected to appalling treatment for doing their noble work.”

Minister of Communications’ ill-informed comments on SABC coverage of Ramaphosa West African tour

Alarmingly, the new Minster of Communications Khumbudzo Ntshavheni, joined in the attack. On the basis of inaccurate information, she expressed dissatisfaction over SABC coverage of the president’s recent visit to West African states:

“The Minister says she will be writing to the board of the SABC to formally register her concerns about the work of the SABC.

“Ntshavheni has cited President Cyril Ramaphosa’s visit to West Africa -saying it was not covered by the public broadcaster.

“There have been major events in the continent that are significant. Recently, the President toured West Africa four states and the SABC was not there to cover us.”

The SABC report, however contests this:

“Despite the Minister’s assertions, SABC News archival materials show that the President’s visit to West Africa was covered on all SABC platforms.”

In fact, a cursory search for SABC reports on the tour, on YouTube, reveal extensive coverage (see here and here).

Responding to allegations that the ANC was unhappy with the SABC’s coverage of the election campaign, Ntshavheni told City Press she had not received any such complaint from the party. (City Press, 23 January 2022). That may be so, but she must have seen the series of attacks on SABC News and Magopeni, in particular.

Discipling/driving out Magopeni

Clearly the failure to respond positively to Mabe’s approach embarrassed SABC top leadership, who no longer see their accountability being in relation to how the SABC is conceived, but how the ANC reacts.

But they were not able to act against Magopeni or charge her for what they saw as her real crime - not hosting Ramaphosa - on what would have been an irregular basis. Instead, they charged her with the airing of an interdicted episode of the programme “Special Assignment”.

This resulted in a disciplinary hearing chaired by Adv Nazeer Cassim, SC, just before Christmas last year. Cassim’s first sentence is: “The facts are uncomplicated.” Regrettably, they were more complicated than his findings allowed and this was prejudicial to Magopeni.

Cassim did not accept that Magopeni could not ensure that the interdicted episode was not aired - despite the reason - relating to internal processes of loading programmes. The department responsible for loading the interdicted episode was not the news department. It was not a department that was structurally accountable to Magopeni, one of the tiers below the head of news.

It is the TV Division now known as Video Entertainment that bears that responsibility. There are no structural links with News except that the News Division provides news and current affairs content to SABC 1, 2 and 3. In the case of Special Assignment, it is SABC 3 which was responsible for replacing the interdicted programme with a previously aired programme provided to them, and it is that division that aired the interdicted programme as a result of an error in assigning the same code to the interdicted programme and the one that was supposed to be aired in its place.

What this means, consequently, is that when Cassim was quoted as saying that someone had to “take the rap” he did not have in front of him anyone who was eligible to take the rap for the airing of the particular programme that had been interdicted.

Magopeni as the overall head of news has considerable authority, which, she argues, in interpreting SABC policy has to be exercised in a particular way in relation to those who operate in various tiers below her. Nevertheless, it has no application to those who are not within the structural makeup of the news department.

Cassim misunderstands or misrepresents what Magopeni explains regarding processes followed in two different departments:

“50. In her report of 3 November 2021, the Employee points that ‘the episode was supposed to have been deleted/removed from the FCC [Final Control Centre] database, but instruction to do so was never given’. The question is who should have given the instruction? First, I point out that in her evidence-in-chief Ms Magopeni, for the first time, stated that she thought that the special report would have been deleted from the system after six days. She did not persist with this, but the inference I draw is that she realised that some measures should have been implemented in ensuring that this particular report, being the subject matter of a court interdict, should be removed from the system or put differently, be isolated in order not to be a position where it could be aired.

“Secondly, in her conclusion in her report of 3 November 2021, she states the following: ‘Also, if programmes are to be retired, an instruction for removal, deletion must be given by the executive producers at News’. To me, this is a complete answer, the content belonged to News and it was for that department, under the leadership of Ms Magopeni, to have ensured that the report is removed or isolated in order to comply with the court order.

“51. It would be wrong to cast any blame on [Ntuthuzelo] Vanara of the Legal department; he showed appropriate respect in deferring the matter to Ms Magopeni who is responsible for News and the Special Assignment division. It is clearly inappropriate to cast blame on [Merlin] Naicker who, in the circumstances, dealt with Programming and cannot interfere in the content of programmes.”

Cassim is conflating issues. The reference to deletion of material relates to the news operation and general news content in particular, hence the reference to the period the division keeps its material in the system. This was, it appears clear, to illustrate how the different systems work - news and television.

That this is so is borne out by there being no precedent that involves management of content between the two divisions, hence Magopeni’s reference to it.

There are two different departments, only one of which could load programmes. That was not within Magopeni’s power and not taken into account in the findings of Cassim, despite evidence led explaining this. So the findings of Cassim are flawed for that reason.

The problem however, is that not only did they charge her with something for which she was not responsible, but they charged her with something that did not fall within the domain of the news department at all. Consequently, it seems that there are grounds for questioning the findings on more than one basis, most seriously being that monitoring the process of ensuring that the interdicted programme was not aired is not permissible for the head of news and she would not have been allowed to do that.

And if anyone were to have been held responsible for the failure to prevent the airing of the interdicted programme, it should have been those responsible for loading the programmes.

The processes were also flawed because the SABC disciplinary code requires an investigation before a person is charged. Thus, Section 9.1.14 of the SABC Disciplinary Code and Procedure, 2021 reads: “The Line Manager may, based on the outcome of the investigation, decide whether progressive disciplinary or formal disciplinary action is required considering the nature of the alleged misconduct…”.

This did not take place.

Magopeni’s lawyers wrote formally to the SABC a day before the hearing started, asking for a report and recommendations of the investigation that would have led to the charges against her:

“Employee hereby requests copies of the documents identified below to enable her to prepare for the above mentioned hearing:

“1.2   All documents and/or reports confirming the outcome of the investigation… relating to the above matter which were tabled at the aforesaid Board meeting.”

The SABC never acknowledged the letter and didn’t bother to respond formally.

Both Vanara and Naicker also confirmed in evidence for the SABC that they had no knowledge of any investigation that was conducted leading to the charges. In fact, even the letter containing the final charges says they are based on several allegations against Magopeni and her submission. There is no mention about where the allegations come from and what they are.

This was also raised during the hearing and Cassim chose to ignore what was so fundamental to due process in the hearing he was chairing. Magopeni pointed this out, in evidence, as a primary requirement stated in both the Disciplinary Code and the Delegation of Authority Framework of the SABC during the evidence-in-chief.

There is a specific process laid down for SABC disciplinary proceedings and these have not been followed. What is happening after the Cassim findings is not in the public eye and may well also be breaching procedures and fair process, given what has happened until now and what has been reported.

The flouting of procedures started from the constitution of the process to the request reported in the media that Magopeni has been called to submit mitigation arguments after the discipline process was concluded. It was in the disciplinary hearing that a finding was to be made and mitigation/aggravation arguments to be heard. The disciplinary code lays down in pages 29-31 how mitigation arguments are to be heard:

“18. Should the Chairperson find the employee guilty of the allegations, the Chairperson will then ask for any mitigating factors to be submitted by the employee and aggravating factors to be submitted by the initiator before he makes a decision regarding the appropriate sanction;…

“21. The Chairperson will call for a further recess in order to consider mitigating and aggravating factors and decide on the appropriate sanction;

“22. The Chairperson will reconvene the hearing and communicate the recommended sanction, with reasons, in writing, to the employee;…”

In the course of the developing conflict between Magopeni, the CEO and Board Chair, Magopeni wrote to the board raising grievances regarding their conduct.

Please see PDF above

From the contents of the letter - that has thus far not been disputed - one needs to ask whether the conduct of the CEO and board chair do not in fact demand a formal investigation and ask whether the board investigated the grievances?

What has the board done more generally in relation to the proceedings that in fact derive from SABC News coverage of elections? Sources claim that the Board has distanced itself from the election coverage of the SABC News team, and if this is valid, that amounts to repudiating key elements of the editorial policies of the corporation.

It is also reported that the process being followed in relation to Magopeni’s grievances against the CEO and Board Chair are not following due process and that the board has decided on mediation instead of investigation of Magopeni’s grievances.

Magopeni, known to be a highly skilled and dedicated SABC official has continued to work well over an eight-hour day throughout this turmoil. She spurned a financial settlement, according to a report in City Press (https://www.news24.com/citypress/news/sabc-board-chair-on-his-way-out-20220123):

“An insider told City Press that Magopeni had been offered a huge amount of cash to walk away from the organisation, but she had refused, saying that accepting it would be tantamount to an admission of guilt. 

“’They called her and her lawyers and tabled the offer, which included her salary for the remaining months of her contract, all the bonuses she could have received and a golden handshake for agreeing to leave the SABC quietly, but she rejected them,’ said the source.”

Veteran journalist Prof Anton Harber warns: “The SABC’s independence is fragile, as is our democracy. We are going to have to be vigilant to preserve it.”

Raymond Suttner is a former legal academic and currently an emeritus professor at the University of South Africa. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His writings cover contemporary politics, history, and social questions, especially issues relating to identities, gender and sexualities. He blogs at raymondsuttner.com and his twitter handle is @raymondsuttner. He is currently preparing memoirs covering his life experiences as well as analysing the political character of the periods through which he has lived.