Media Monitoring Africa Trust v President of the Republic of South Africa and Others

Court: Constitutional Court of South Africa

Date of hearing: N/a

Status: Finalised

Last updated: 29 May 2023

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Case overview: Media Monitoring Africa (“MMA”), a not-for-profit organisation that monitors the media and promotes the development of a free, fair, ethical, and critical media culture in South Africa, filed an urgent application in the Constitutional Court concerning the ongoing failure of President Cyril Ramaphosa to appoint the twelve non-executive members of the Board of the South African Broadcasting Corporation (“SABC”). At the time of filing the application on 24 February 2023, the SABC had been without a Board for 132 days. MMA sought an order declaring that the President failed to fulfil his constitutional obligation diligently and without delay, and directing him to make the appointments without further delay. MMA was represented by Power & Associates.

The appointment process of the SABC Board is governed by the Broadcasting Act 4 of 1999 (“the Act”). Section 13(1) of the Act requires that the President must appoint the twelve non-executive members of the Board on the advice of the National Assembly.

On 6 December 2022, following a nomination and shortlisting process, the National Assembly approved twelve persons to be appointed to the Board, as well as three reserve candidates. On 20 December 2022, the Speaker reportedly notified the President of the outcome of the National Assembly process. The names and CVs of the selected candidates were sent to the President on 10 January 2023.

In January 2023, concerned that the SABC had been without a Board for an extended period and had therefore been unable to properly fulfil its duty of informing the public, MMA sent a letter to the President explaining the importance of making the appointments and requesting they be made urgently. In the interim, MMA repeatedly engaged with the President, but despite undertakings to take action, to date no appointments have been made.

MMA made four arguments in its founding papers:

• First, the final response from the President noted that the delay in the appointments was occasioned by the fact that the President has concerns about the National Assembly process and that the appointment will be made once the concerns have been clarified. MMA argues that the President is under a misapprehension that he has the discretion to reject appointees selected by the National Assembly. MMA argues that the plain and purposive interpretation of the law is that the President has no discretion or veto power over the appointment of the twelve members chosen by the National Assembly, but rather is bound by the National Assembly’s decision.

• Second, giving the President a veto over the selections made by the National Assembly implicates the independence and governance of a critical public institution mandated to serve constitutional aims, including the fulfilment of the rights to equality and freedom of expression.

• Third, the delay in making the appointments is contrary to the President’s duty to fulfil all constitutional obligations diligently and without delay.

• Fourth, the proper functioning of the public broadcaster is jeopardised by its continued lack of a Board, which in turn threatens the functioning of our constitutional democracy. MMA emphasises the importance of the SABC Board and that it fulfils a key role in enabling the public broadcaster to provide news and information to the nation. It is trite that the public broadcaster holds an indispensable role in fostering democracy and the free flow of information. As the SABC currently operates with no financial, functional, or ethical oversight, the majority of South Africa’s public is likely to have their right to receive and impart information and ideas eroded and the information gap will grow between those who have access to paid broadcasting services and those who do not.

As a result, MMA brought an urgent application to the Constitutional Court for an order compelling the President to fulfil his obligation diligently and without further delay and to appoint the twelve Board members selected by the National Assembly. On 18 April 2023, in the midst of the urgent litigation, the President appointed the SABC Board. As a result, and while acknowledging its exclusive jurisdiction, the Constitutional Court held that the matter had become moot.

Advocates Ben Winks and Jabu Chanza were on brief in this matter.

Court Papers:

• Urgent Application (24 February 2023) (17mb)
• Registry Filing Notice and Case Number (24 February 2023) (320kb)
• Notice of Intention to Oppose – First Respondent (2 March 2023) (55kb)
• Directions from the Constitutional Court (3 March 2023) (702kb)
• First Respondent’s Answering Affidavit (10 March 2023) (2mb)
• Fourth Respondent’s Notice to Abide (10 March 2023) (657kb)
• Applicant’s Replying Affidavit (15 March 2023) (757kb)
• Directions from the Constitutional Court (23 March 2023) (804kb)
• Notice to Abide – Second Respondent (27 March 2023) (9kb)
• Explanatory Affidavit – Second Respondent (27 March 2023) (179kb)
• First Respondent’s Supplementary Affidavit (5 April 2023) (452kb)
• First Respondent’s Further Supplementary Affidavit (18 April 2023) (2mb)
• Applicant’s Supplementary Affidavit (20 April 2023) (1mb)
• Order of the Constitutional Court (29 May 2023) (754kb)

• Written Submissions on behalf of the Applicant (30 March 2023) (230kb)
• Written Submissions on behalf of the First Respondent (6 April 2023) (854kb)

• MMA, Media Release: Urgent Litigation on Appointment of SABC Board (24 February 2023)