By Media Monitoring Africa and the SOS Support Public Broadcast

Few will have welcomed the news that the SABC Head of News and Editor in Chief, Phathiswa Magopeni, was fired from the SABC.  Given that it is the SABC, the news has been met with a range of views and opinions, from conspiracy theories to righteous outrage.  Before people settle on one or the other view, we need to consider a scenario where elements of both may be true at the same time.

As Media Monitoring Africa and the SOS Coalition, we have been among Phathiswa Magopeni’s strongest supporters. Her commitment to editorial independence has been one of her greatest attributes.  Magopeni oversaw the latest version of the SABC editorial policies, which we welcomed and applauded.  One of the big battles we had been fighting since the editorial policies of 2004 was around the final decision making power on news and current affairs. It was deemed to be the CEO of the SABC.  Under Hlaudi Motsoeneng’s reign, the CEO was ignored and Motsoeneng opted to make himself supreme commander of SABC as COO, and the final arbiter for news and current affairs. It was an epic disaster which MMA and the SOS Coalition challenged in court and won.

The current SABC editorial policies are really strong and one of the most important and positive changes is that the Group Executive of News and Current Affairs, (i.e. Magopeni) is the Editor in Chief.  Clause 3.1.3 of the SABC Editorial Policies states that “final editorial responsibility rests with the Group Executive of News and Current Affairs, with no upward referral of editorial decisions to the GCEO, the Group Executive of News and Current Affairs is still accountable to the GCEO for the overall performance of the news division.”

The news that in late October 2021 the SABC had broadcast a News and Current Affairs programme in violation of a court order is a very serious matter. It was this broadcast that set in motion the events that would result in Magopeni being disciplined and ultimately fired.  Being in contempt of court is bad enough, but ignoring or failing to act on it would be to show the middle finger to the justice system and to undermine its integrity and authority.  In this regard it seems the SABC had to take action and be seen to take action, which they did through a disciplinary process against Magopeni.

Of course things are never straight forward when it comes to the SABC. While Magopeni has final editorial say and argued that she did everything in her power to ensure that the programme does not go on air, evidence was led  that the technical error with broadcast codes that caused the programme being aired was the responsibility of the Video Entertainment division, responsible for TV broadcasts. We know from the hearing that Magopeni said that she should have been invited to participate in the investigation to determine the facts about the erroneous broadcast before any disciplinary process.

In ordinary circumstances such hearings are not open to the public. Thanks to Magopeni agreeing, the disciplinary process was open to the public and broadcast live. The result is that the public could follow the proceedings.

The finding of Advocate Nazeer Cassim, who was appointed to conduct the disciplinary hearing, states: “In the result I find that Ms Magopeni is guilty of the misconduct of not having taken appropriate steps to ensure that the interdicted report was not aired.” Cassim went further to say, “My recommendation as to the appropriate sanction remains a recommendation to the Board. Ordinarily, on the facts of this case, I would recommend a warning.”  Importantly, Advocate Cassim also said, “However, the Employee’s written closing argument as prepared by Ms Carvalho, regrettably complicates matters and casts the Employee in a bad light. In paragraph 36 of the heads, it is asserted that “the charges brought against the Employee are a farce and done so hastily. I think the Board of the SABC must give Ms Magopeni the opportunity to distance herself from the contents of paragraph 36 as it would be unjust to punish Ms Magopeni for a submission and an opinion of her attorney. If she is prepared to distance herself from that view, my recommendation remains and that is of a warning. If, however, Ms Magopeni makes common cause with the view of her attorney, then the Board must, in its discretion and decision-making power, adopt a sanction which is consistent with that of a breakdown in the trust relationship between employer and employee. In short, it is now upon Ms Magopeni to decide her own future with the SABC.”

According to the letter sent to Magopeni carried in the media, Magopeni had failed to retract the comments or submit evidence in mitigation of her being found guilty on one of the charges.  There may well be errors in the ruling.  One of them was that advocate Cassim directed the SABC Board to determine the sanction and engage.  While well intentioned the instruction would have seen the Board overstepping its mandate.  As is clear from the Editorial policies the Head of News falls under the GCEO, not the Board.  We should consider that while it is enticing to invite Board intervention, it was precisely these oversteps in previous SABC Boards that saw direct interference in news.  Raymond Suttner raises additional issues of concern in this piece.

It is clear that Magopeni also disagrees with the process and the outcome and we would encourage her to pursue all avenues to ensure a just and fair outcome. What is important to note is that the issue wasn’t a trivial charge.  As Head of News, it was important for Magopeni to shoulder some measure of accountability for the error, even if many of the processes were beyond her control.    Whether that should have resulted in her being fired hinges on the process outlined in the disciplinary findings and letter and that will likely be a central issue of a challenge by Magopeni.  It also helps us understand Magopeni’s view that she was being forced out.

Before  the hearing, Magopeni had  levelled allegations of editorial interference against the SABC GCEO Madoda Mxakwe and SABC Board Chair Bongumusa Makhathini.  The allegations are serious and are summarised along with the actual letter by Magopeni, here. The day before Magopeni was fired, the 27^th of January, the SABC Board issued a press release setting out the process that was to be followed.  “A Special Committee of the Board has been established to deal with the allegations against the Chairperson fairly and expeditiously. The grievance against the GCEO will be dealt with in terms of SABC employment and disciplinary policies.”  What is absolutely critical is that the process involving the SABC Board Chair and GCEO continue despite Magopeni’s dismissal and with her full involvement.  It is essential that the issues and allegations are aired and that the process followed is transparent and accountable.  We call on the SABC to urgently inform the public as to how the process will continue to unfold.

Calls for parliament to intervene are misplaced and inappropriate for two reasons.  Firstly, political parties will further cloud the issues.  Secondly parliamentary intervention would constitute a direct incursion into the internal affairs of the SABC in what is a senior management responsibility.  Further action on the legality of the disciplinary process and Magopeni’s dismissal should be dealt with through the courts.

The completely unacceptable behaviour by the ANC in seeking to blame the SABC for its poor performance in the local government elections, as well as threats made by the ANC’s Jessie Duarte at the election results centre need to be condemned in the strongest terms.  We know the SABC issued a statement condemning the comments made by Mbalula.  There were also media reports  that the SABC has laid a complaint with the Independent Electoral Commission (IEC) over the verbal threats by Duarte.  We need to know what action, if any, the SABC took to defend and respond to the threats by Duarte.  While contemptible, they are also not new.  It may also be true that there are ongoing efforts to interfere with the editorial independence of the SABC that aren’t in the public domain.  As the public broadcaster, the SABC will always be the focus of concerted interference by political parties across the board.

What is new is that for the last few years, the current Board and SABC senior executives have made numerous and clear efforts to assert and protect the independence of the SABC.  The SABC Board rejected numerous ham-fisted efforts by former Ministers Mokonyane and Ndabeni-Abrahams. That the Board has distinguished itself for its independence over the last few years makes the allegations by Magopeni all the more concerning. Based on the series of events that resulted in Magopeni’s dismissal and the as yet unanswered allegations made, what further mechanisms could be implemented to protect potential editorial independence including possible misuse of administrative power by senior management that may have an impact on the editor in chief and editorial independence?

It is really tragic that the people involved in the current conflict are among those who have demonstrated the greatest commitment to fighting for the SABC’s independence.  To that extent, we have to ask who really stands to benefit if those who have been doing so are forced out? However,  we may feel about the decision to fire Magopeni, or the allegations she has levelled against the SABC Chair and GCEO, it would be a gross mischaracterisation to suggest that the SABC has returned to the 2016 Motsoeneng era.  We have seen an open disciplinary hearing process that can and will likely be challenged. The Board hasn’t ignored the charges, we know from leaked media pieces there are clear factions, and neither have an interest in sweeping the issues under the carpet.  What we need to see and will continue to call for is openness, transparency and accountability. The SABC will continue to be subjected to pressures and efforts to influence its news and current affairs.  It is why we need organisations like MMA and the SOS Coalition, and others, that have been lobbying and advocating for public broadcasting to be protected and sustainable.