By Ismail Mahomed
Yesterday (Friday March, 19, 2021) you met with the arts sector hoping to find a way to bring an end to the artists’ “occupation” of the offices of the National Arts Council. Almost three hours later your meeting ended with artists showing that they are even more resolute not to end their “occupation” of the NAC offices until justice is done.
When South Africa is barely one day away from Human Rights Day and “until justice is done” is the single most important demand of the “occupiers” it is a very serious concern. It should leave you worried that artists have reached the end of their tether.
“Until justice is done” is both the essence and the antithesis of our constitution. Our valued constitution is built on the pillars of equality and Justice for all. This goal is achieved through good governance, transparency and accountability. It implies that order prevails because everyone is treated with dignity. It is the basis for building a socially cohesive society.
The artists’ grievances however is now more than just about delayed payments of the PESP funding. Instead it now points increasingly more to how your Department and the National Arts Council continues to trample on the dignity of artists by betraying their trust.
It is in this regard that the artists’ demand that “until justice is done” is now more than just wanting payments of their grants but it is also about wanting heads to roll or heads to be on the block. For many of the artists it is your head that is now wanted on the block.
In each speaker’s comment yesterday the sub-text was that the buck stops with you. It is you who head a Department that has lost artists’ confidence and it is you who have appointed a Council of the NAC which since its appointment in January has done irreparable damage to the Council and the DSAC’s reputation and its relationship with the arts sector.
These two factors of breach of trust and reputations damage which arises from poor administration, corruption, fraud, irregularity of processes and wasteful expenditure are listed as serious matters in the NAC’s Risk Register which is annexed to its Strategic Performance plan. The Strategic Performance Plan and the Risk Register together form the basis for the Institutional Compact that is signed between you and the NAC. A breach of this Institutional Compact literally underlines why you should be exercising your authority to call this Council to order or to give it the marching orders.
Rightfully, this Council should never have been appointed in haste while the former Council was administering one of the largest and most significant grants that the NAC has had to deliver in the last 26 years since the Council’s inception. The former Council should have been entrusted to complete this task with oversight and due diligence from the Directorate of Institutional Governance in the Department of Sports, Arts & Culture and with the NAC’s internal auditors and external auditors doing due diligence
Whilst the term of the former Council as reflected in its appointment letters had come to its end you, dear Minister, had the legislative powers vested in you through the Government Gazette published on 9 April 2020 to extend the tenure of that Council until matters pertaining to Covid-19 initiatives are concluded. There was no bigger initiative at hand other than the effective and accountable delivery and administration of the PESP.
A transition from one Council to another Council in the midst of administering the PESP and without a proper handover between the Councils and further conpounded by a delayed induction of the Council was inevitably going to lead to confusion, chaos and corruption.
The trust relationship between the NAC and the arts sector is broken irretrievably. It would be totally foolish of you to even imagine that it can ever be repaired when a person who was on your panel that was appointed to recommend to you the individuals for the Council has now also publicly turned against you and stated that you have compromised their integrity because you have ignored their recommendations, you have manipulated the process and you have appointed a Chairperson to the Council not on the basis of competence but on their political proximity to you.
These are serious allegations, dear Minister, but they don’t ring hollow. The alarm bells should have been sounded to you after the first meeting of the Council when a Council member who is celebrated for her ethics, conduct and good governance immediately tendered her resignation to you.
At the meeting yesterday, Sibongile Mngoma drew the line in the sand. This Council has to go before the impasse is broken. Whilst I fully understand and 100% support her call for the dismissal of the Council you and I both know that the immediate dissolution of this Council would result in a further delay of payments until a new Council is appointed and inducted before it can commence its governance role. So let’s discuss the options:
1. The current Council should be put on notice. In its notice period the Council and the management of the NAC should function with optimal oversight by the Directorate of Institutional Governance to ensure that PESP payments are rolled out. A team of independent auditors should perform due diligence of documents before the payment button is hit. At least four elected representatives from the sector with knowledge of governance and audits should be seconded to the NAC to monitor the process.
2. All grants that have been identified by the “occupiers” as corrupt must be immediately stalled and be investigated by the auditors. Where there is proof of corruption criminal charges should be laid and the National Arts Council Act which makes provision for lost funds to be recouped from the “fraudulent beneficiaries” should be invoked.
3. Council member Sipho Sithole should be suspended with immediate effect and an independent investigation should be conducted as to whether he had disclosed to the interviewing panel the perceived conflict of interest. The provision in the Cultural Institutions Act which precludes Council members from being grantees should either be invoked or the matter about Sipho Sithole’s tenure on the Council should be referred to the South African Institute of Directors and an independent expert legal panel for interpretation and adjudication. The Minister’s interpretation as presented last night is questionable and rejected by the sector.
4. All contracts as originally agreed with grantees should be reinstated. Letters issued by the NAC which unilaterally amend the grant conditions which is in violation of Clause 15 of the original grants and of Contracts Law should be declared null, void and be revoked.
5. The DSAC should act on the principle of “people before buildings” and freeze all budgets for new capital works projects at its entities and divert the funds to supplement the grants budget so that all commitments to grantees can be met. The explanation provided by the Acting DG last night is nonsensical. This demand refers specifically to new capital works projects and not to the operational budgets of entities which the ADG tried to conflate.
6. Any attempts by the current Council to evict the “occupiers” from the NAC offices and any plans by the NAC to litigate for any reason against an aggrieved persons / bodies in the arts sector should immediately cease. A professional and independent mediation company whose terms of reference are agreed upon by both parties should be appointed to mediate and resolve the current crisis.
7. The processes to appoint a new Council in terms of the National Arts Council Act No 56 of 1997 should immediately roll out while the current Council is on notice. The Act requires public participation in the call for nominations and for objections and the public viewing of the interviews for purposes of transparency. Notices of such processes should be more broadly advertised through agreed upon channels in the arts sector. Notices of such can no longer be advertised on only the DSAC’s website.
8. The interviewing panel be comprised of experts in the field of the arts, governance, finances and law; and that the panel is weighted with 60% gravitas in favour of the arts. In addition to the public observation process observer status should be granted to representatives nominated by each of the political parties that comprise Parliament’s Portfolio Committee to ensure that the process is not manipulated for political expediency by the Minister of the ruling party. The Committee’s recommendation for the Council chair should be binding save where it is established and reasons provided as to why the Committee’s recommendation cannot be exercised and this shall be specific to either new screened information having surfaced, the person declining the post of Council chair or it is established that the proposed chair may not be familiar with the governance oversight role that is required of the Council chair.
9. The above processes of calling for nominations, interviews and appointment of Council as well as the induction of a new Council be concluded within the regulatory timeframes to ensure an effective transition.
10. That in following the processes of the Act which require publication of both the long-list and short-list of nominations the skills set of the nominees is also published so that public engagement with the process of filing objections can be meaningfully exercised.
11. A breakthrough be achieved by the mediation company and their recommendations be implemented in the fastest term possible to end the impasse between the DSAC / Council and the “occupying artists” whose grievances and mission is representative of the sector. Noting that apologies by the NAC and officials of the DSAC are hollow platitudes such apology following the ending of the impasse should be issued formally and publicly to the arts sector by the Minister through a press release and in parliament.
12. The labour relations processes with regard to the suspensions of the CEO and CFO of the NAC be expedited; and that in the interim a competent Acting CEO and Acting CFO with their full delegated authorities be appointed and without interference from a Council that will be on notice period but that oversight of the Acting CEO and Acting CFO be delegated to the authorities as designated to the Directorate of Institutional Governance and the independent auditors as referred to in point 1 above.
13. That following a breakthrough a plaque be placed in the foyer of the National Arts Council honouring Sibongile Mngoma and the 15 “occupiers” for their courageous stand which is unprecedented in South African cultural history; and which should serve as a reminder to both the Council and the Management of the National Arts Council about their obligations for servant leadership.
Dear Minister, if you are unable to implement a simple 13 point plan as recommended above; and which is within the powers vested in you by the National Arts Council Act and the executive authority conferred on you by your ministerial post then you should do some deep reflection. If you cannot fathom the immense responsibility that you have to resolve the current crisis and to take the sector into a new era of hope then I suggest that you take up the offer that Sibongile Mngoma has tendered to you; and that is to leave your office with dignity but I would just add sooner than later.
The longer you take to resolve this crisis the more you are assaulting the dignity of artists. Dear Minister, as you reflect on Human Rights Day you will realise what is currently playing out right under your nose and as a result of your continually failing leadership is a violation of the human rights of the artistic, cultural and creative sectors.
And just a final thought, Human Rights Day is not a chill day to down your Tequilla while artists are shouting Aluta Continua. Human Rights Day is when political leadership in our country needs to step back and seriously address the people’s grievances which makes them shout out Aluta Continua or as in the case of the PESP … A Looter Continua!