Cape Town - The remedial action Public Protector Thuli Madonsela set out in her report on SABC COO Hlaudi Motsoeneng is binding, the Western Cape High Court heard on Wednesday.
Etienne Labuschagne, for Madonsela, said it had been assumed the remedial action was no more than a recommendation and that an organ of state could act in conflict with it.
“That, in our submission, would sound the death knell for the effectiveness of the office of the public protector,” he said.
Madonsela's submissions as a respondent were being heard during the Democratic Alliance's urgent application to have Motsoeneng suspended pending a review of the decision to permanently appoint him.
The political party has asked the court to immediately suspend him because he was a “toxic influence”. It believed his permanent appointment was fraught with irrationality and unlawful processes.
Labuschagne said there was a recent “pernicious” tendency by organs of state and government to avert complying with Madonsela's remedial action, either by appointing a task team to procure a report with a different conclusion, or to obtain another opinion from a law firm.
If organs of state did not abide by their constitutional obligation to enforce the remedial action, it constituted interference with the Chapter Nine institution and amounted to an offence in the Public Protector Act.
“The single most powerful weapon in the hands of the public protector that strengthens our democracy is the power to take remedial action... we would urge your lordship to find that her power to take remedial action is an authentic constitutional power.”
This power could not be watered down but, at best, regulated, Labuschagne said.
The court was not bound by Madonsela's findings and was in a position to dictate its own remedial action to be followed.
Lawyers for Motsoeneng, the SABC board and Communications Minister Faith Muthambi had argued that Madonsela's report offered proposals or recommendations.
They further argued the DA was “jumping the gun” and undermining the rule of law because Madonsela, Muthambi and the board were still in talks.
In February, Madonsela released a report on Motsoeneng while he was acting COO.
She found his salary increased from R1.5 million to R2.4m in one year, that he had purged senior staff, and misrepresented his matric qualifications to the SABC.
While she did not direct that he be immediately suspended, she said a new COO should be appointed at the SABC within 90 days.
In July, Muthambi announced Motsoeneng's permanent appointment. She said he was cleared of all wrongdoing by a legal firm before the decision was made.
On Wednesday, her lawyer defended the appointment, saying it would benefit the SABC.
According to Muthambi, Motsoeneng had 13 achievements to his name within the SABC and had brought about the “highest revenue generation and cost-saving that has brought more than R2 billion to the SABC coffers”.