Cape Town - Taxpayers will be footing the bill for yet another appeal in the long-running legal battle over the appointment of SABC chief operating officer (COO) Hlaudi Motsoeneng after the Western Cape High Court on Friday set it aside as irrational and unlawful.
SABC spokesman Kaizer Kganyago confirmed the broadcaster would appeal against the judgment, while neither Motsoeneng nor the spokesman for Communications Minister Faith Muthambi, both respondents in the case, could be reached for comment.
Motsoeneng is already appealing a judgment of the Supreme Court of Appeal (SCA) confirming he should be suspended pending a disciplinary hearing over his faked matric results, purging of SABC staff and irregular salary increases for himself and others.
The SCA ruling followed an appeal against a Western Cape High Court judgment ordering his suspension and that disciplinary steps be taken against him, as well as an abandoned appeal against an order for his suspension to be effected while the appeal was under way.
Muthambi and the SABC have also been parties in these cases, with separate legal counsel, and were ordered on Friday, with Motsoeneng, to pay the costs of the DA, which brought the application to have Muthambi’s decision to appoint Motsoeneng set aside.
The DA argued the decision was irrational in light of Public Protector Thuli Madonsela’s findings against Motsoeneng, before he was appointed by the minister.
These included that he lied about having matric in his application for a job at the SABC, that he irregularly awarded himself a salary increase three times in one year and purged senior SABC staff who had testified against him in an earlier disciplinary process.
Madonsela’s remedial action in her report said Motsoeneng should be disciplined, but Muthambi accepted the view of a law firm appointed by the SABC, which cleared the then acting COO, and instead of his being disciplined she accepted a recommendation from the SABC board last year that he should be appointed permanently in the position.
Judge Dennis Davis said the SCA judgment last month, which found public protector reports were binding unless reviewed and set aside by a court, was “clearly binding on me as a judge of the high court”.
He added he embraced its findings “with jurisprudential enthusiasm”.
It followed that Muthambi could not argue she could ignore the public protector’s report “to such an extent that it would still be rational to appoint Motsoeneng to a permanent position of COO”.
To do so was “manifestly an act of irrationality which stands to be set aside”, Judge Davis said.
He also took into consideration arguments from counsel for the SABC, Muthambi and Motsoeneng, that the SCA judgment was the subject of an appeal to the Constitutional Court, which might come to a different conclusion on the nature of the public protector’s powers.
However, he said the report of the law firm appointed by the SABC had not actually canvassed the “gamut of conduct” investigated by Madonsela, and Muthambi had therefore been “in no position to exercise a rational decision to elevate Motsoeneng, whose tenure as acting COO had already been placed in severe doubt, to the more elevated position of a permanent COO”.
Political Bureau
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