Solly Malatsi seeks legal muscle

Communications minister Solly Malatsi. Image: DCDT

Government has initiated the process of hiring a legal advisor for communications minister Solly Malatsi.

According to Malatsi’s newly appointed spokesman, Kwena Moloto, a key component of the legal aid’s role is to ensure that decisions taken by Malatsi comply with the law.

The planned appointment comes just weeks after Malatsi – a member of the Democratic Alliance in the government of national unity – withdrew the contentious SABC Bill, a move that drew sharp criticism from the ANC, including the deputy communications minister, Mondli Gungubele.

It is important to clarify that this appointment is entirely unrelated to the withdrawal of the SABC Bill

“The department of public service & administration provisions support staff for all ministers, including the appointment of a legal advisor,” Moloto said in response to a query from TechCentral.

“Given the highly legislated nature of government operations, it is crucial for ministers to receive legal guidance to ensure all decisions comply with the law. The role of the legal advisor is to uphold sound corporate governance and compliance while advising the minister on policies that advance the department’s objectives. It is important to clarify that this appointment is entirely unrelated to the [withdrawal of] the SABC Bill.”

Despite Moloto’s warning not to conflate the department’s appointment of a legal advisor with the withdrawal of the SABC Bill from parliament, the legality of this action was called into question, including by minister in the presidency Khumbudzo Ntshavheni, herself a former minister of communications. Malatsi hit back at those accusations in a November interview with TechCentral, saying “we have done nothing wrong”.

Litigious sector

“Rule 334 of the national assembly rules allows the responsible executive authority – in this case, the minister – to withdraw a bill before its second reading. All procedural requirements for the withdrawal were met, and it is now the speaker of the national assembly’s responsibility to announce this withdrawal,” Kwena explained.

But the SABC Bill is not the only area where Malatsi may require good legal advice.

The minister earlier this month extended the deadline for switching off analogue broadcasts – and thus a big step forward in South Africa’s long-delayed digital migration project – by three months to 31 March 2025. Ntshavheni, who was the minister of communications from 2021 to 2023, was previously sued successfully by broadcaster eMedia Holdings for setting an unreasonable deadline for the analogue switch-off and failing to consult adequately with industry stakeholders.

Read: Ructions over SABC are just ‘democracy at work’: Solly Malatsi

eMedia argued that the premature termination of analogue broadcasts would alienate millions of South Africans who do not have the means to access digital signals, spelling disaster for e.tv, which it owns, and the SABC.

The matter went all the way to the constitutional court, where Ntshavheni was ordered to engage in a consultative process with industry stakeholders before setting a new deadline.

Former communications minister Khumbudzo Ntshavheni. Image: GCIS

Legal complexities in the communications portfolio are driven by the technical nature of the subject matter on one hand and the competitive nature of the industries under its purview on the other.

In May, communications regulator Icasa — which is overseen by the communications department — was dragged into a legal battle along with operators MTN, Cell C and Liquid Intelligent Technologies by Vodacom. Vodacom alleged that spectrum pooling arrangements between MTN and Cell C, as well as MTN and Liquid, were in 2022 approved unlawfully by Icasa, giving MTN an unfair advantage in network quality. The matter is still ongoing.

Malatsi earlier this week asked the Public Service Commission to investigate governance issues at Sita

Malatsi’s predecessor, Gungubele, also spent a fair amount of his tenure fighting litigation. Gungubele in July 2023 fired a number of State IT Agency (Sita) board members, leading others to resign, over then Sita CEO Bongani Mabaso’s salary. The battle was eventually resolved by the supreme court of appeal in September, with the court denying Gungubele leave to appeal a June high court ruling ordering the board be reinstated. Malatsi earlier this week asked the Public Service Commission to investigate governance issues at Sita, and a lack of stability at board level was one of the major issues raised.

Another of the battles between entities in Malatsi’s purview — and where legal advice will come in handy — involves the SABC and signal distributor Sentech. Sentech claims the SABC owes it more the R1-billion in signal distribution fees, but the SABC claims Sentech is subjecting it to exorbitant “monopoly pricing”. Malatsi in October told TechCentral Show that the fractious relationship between the SABC and Sentech was an “opportunity cost” given that funds spent on legal fees by the two entities could be redirected to helping both firms function better. He has engaged the services of a mediator to try to resolve the impasse.

So, the litigious nature of the communications sector is likely to challenge the candidate eventually selected to serve as special legal advisor to Malatsi.

Read: Malatsi was right to scrap the SABC Bill – now urgency is needed

“The successful candidate will provide written and oral legal advice to the minister on matters affecting the [communications] department and the ICT sector, ensure legally sound corporate governance and compliance for the state-owned companies, and draft legal documents,” the communications department said.

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