Cape Town - The Democratic Alliance cannot tell the SABC who it can employ. That was the contention by Advocate Stephan du Toit SC, acting for the SABC, in the Western Cape High Court on Thursday.
Du Toit was arguing on the second day of hearings into an application brought by the Democratic Alliance (DA) to have the re-appointment of Group Executive of Corporate Affairs Hlaudi Motsoeneng in September declared invalid and the outcome of a disciplinary inquiry into his fitness to hold office set aside.
The DA believes he should not be in any senior position at the public broadcaster and has described him as a threat to South African democracy.
Du Toit argued that “on the one hand the Public Protector’s findings are immutable, on the other hand he is entitled to a fair disciplinary hearing” and therefore the SABC faced a dilemma.
He argued that you cannot start a disciplinary with a finding of guilty.
“We regard this as unfair”.
Former Public Protector Thuli Madonsela’s 2014 report found that Motsoeneng had been dishonest and had misrepresented his matric qualifications, had irregulary increased his own salary, purged the broadcaster of senior staff, and abused his powers.
Her recommended remedial action was for the SABC to hold a disciplinary hearing against Motsoeneng.
On Wednesday, lawyer for the DA, Advocate Anton Katz SC, argued that that disciplinary hearing had been a “charade”.
“This is a battle about legality, not about getting votes in the next election. When it comes to the principle of legality, the courts are obliged to enter the arena.”
In September, Motsoeneng was moved from his position as chief operating officer (COO) to his new position after the Supreme Court of Appeal (SCA) dismissed his application for leave to appeal an earlier high court ruling which found his appointment as COO was irrational and unlawful.
Following the SCA ruling, the SABC board moved him to his new job. He was given a new five-year contract as head of corporate affairs.
Katz said it was a new contract with his old salary and while he sounded like a “stuck record”, he had been in court for two and a half years.
“When you tell a lie, you must be careful that the lie is consistent. The entire bang shoot is a lie. You are talking about Alice in Wonderland.”
But on Thursday, du Toit questioned “on what basis can the DA decide who is employed at the SABC, the DA cannot tell the SABC who they can employ”.
When Judge Owen Rogers, who is hearing the application with Judge Andre le Grange, asked: “So the court is powerless to deal with it”, du Toit responded with an emphatic “yes”.
Du Toit said Motsoeneng’s appointment was a business decision and the “court cannot dismiss him as an employee”.
He said the public broadcaster regarded Motsoeneng as an asset and should be allowed to run its own affairs as it finds best.
“The fact that its shareholder is the state, does not mean its not an independent entity”.
He further argued that attaching “immutable consequences to the remedial action conflicts with fair labour practice”.
Du Toit said, however, that the SABC had conceded there were grounds for the review and setting aside of the disciplinary hearing.
He described the DA’s approach with regard to costs as “vindictive”. The DA wants the court to order that the “four horsemen” which includes Motsoeneng and Communications Minister Faith Muthambi pay the costs of the application in their personal capacities.
Motsoeneng’s supporters gathered outside the Western Cape High Court for a second day and chanted “Hands Off Hlaudi” as he left the court building during the lunch adjournment. He did not address the crowd, but was flanked by a supporter who told the protesters he appreciated their support.
African News Agency