Johannesburg - HlaudiI Motsoeneng is not easily rattled. The SABC chief operations officer wore a tailored purple suit to match his characteristic sang-froid when, on Thursday, the Western Cape High Court delivered the latest blow.
It is among many he has survived in his career, ordering his suspension pending disciplinary proceedings to be instituted against him within 14 days.
Hours later, his lawyers had lodged an appeal against the order and gave the assurance Motsoeneng would be reporting for work as usual the next day, the second time he has dodged this particular bullet.
The main thing, said the man himself, was he enjoyed life and would continue to do so.
He’s enjoyed a remarkable career at the SABC, for someone who shouldn’t have had a job there in the first place.
He didn’t have the matric he said he had when he filled in his application form in 1995, so he made up his symbols for the subjects he had supposedly passed.
The human resources official, in her version, said he would have to produce his certificate later, but he never did.
He in turn said she had told him to lie.
Years later, in 2003, and after several further attempts to have him produce his certificate, an internal inquiry recommended steps be taken against him, however, none were.
Possibly the most remarkable demonstration of his staying power came in early 2013, when the SABC board voted in favour of removing him.
That, for most people, would have been that, but then board chairman Ben Ngubane promptly overturned the decision and, in the ensuing impasse, members of the board began resigning, until it finally collapsed and an interim board was appointed in its place.
Scoreline: SABC board 0, Hlaudi Motsoeneng 1.
Then, senior staff at the SABC lodged a complaint with Public Protector Thuli Madonsela alleging various acts of maladministration and abuse of power by Motsoeneng, among them that he inflated his salary and those of others close to him, purged staff who had testified against him in a disciplinary hearing and had lied about his qualifications. In February last year, Madonsela issued a report saying Motsoeneng should be disciplined for these breaches and the then minister, Yunus Carrim, promised to implement her remedial actions but, by May of that year he had been replaced by Faith Muthambi.
In July, instead of providing a promised progress report to Madonsela on the implementation of her recommendations, Muthambi confirmed Motsoeneng’s appointment as permanent chief operations officer, saying she had obtained a legal opinion which cleared him.
Scoreline: Public Protector 0, Hlaudi Motsoeneng 1.
Within days, the DA applied to the Western Cape High Court to have the appointment reviewed and set aside, and for an interim order compelling the SABC to suspend him while it took the disciplinary steps against him that Madonsela had recommended.
That October, Judge Ashton Schippers granted the interim order, saying Motsoeneng must be suspended, but he immediately applied for leave to appeal and remained in his post.
This week, the judge granted leave to appeal, despite finding the grounds on which Motsoeneng, the SABC and Muthambi had based their application were unlikely to succeed in another court.
His only reason for granting leave to appeal was he wanted the enforceability of the Public Protector’s remedial actions clarified once and for all.
And he took the unusual step, based on the exceptional circumstances, of granting an order for his previous order to be effected while the appeal process continued, requiring Motsoeneng, once again, to be suspended and steps taken against him.
But Motsoeneng appealed against the order, that the previous order be enforced, and said the next day would be a “normal” one for him.
Along the way he has made powerful enemies, with no less a figure than ANC secretary-general Gwede Mantashe questioning his appointment, yet he remains, seemingly, untouchable for now.
His legal battles have also thrown into question the powers of the public protector and those of the minister of communications.
His fate, ultimately, may depend on how those many questions are decided. While his appeal against Judge Schippers’s order that steps be taken against him plays out, the question of whether or not the public protector’s remedial actions are enforceable will now head to the Supreme Court of Appeal.
Madonsela’s office welcomed the judgment of Thursday, calling it “insightful and affirming” and saying she would seek an opinion on how she could participate in the appeal proceedings to ensure her powers were clarified.
This process is likely to go all the way to the Constitutional Court and drag on for some years, so Motsoeneng is safe on this front for the foreseeable future.
But the second part of the DA’s initial application – for the decision to appoint Motsoeneng to be reviewed and set aside – will be heard in the Western Cape High Court sooner than that.
Again, should he lose this case, Motsoeneng is likely to appeal all the way to the Constitutional Court, even though it has already pronounced on an almost identical question – in the appointment of Menzi Simelane as national director of public prosecutions, which it set aside.
A far swifter instrument for Motsoeneng’s downfall may lie on the desk of National Assembly Speaker Baleka Mbete, awaiting her decision on what to do next.
It is a legal opinion sought by the chairwoman of Parliament’s communications oversight committee, Joyce Moloi-Moropa, on the powers Muthambi granted herself to appoint and remove SABC executives and board members without following due process.
Muthambi argues she has such powers in terms of the Companies Act, but legal experts are convinced the opinion sitting with Mbete will say the minister is wrong and that three board members removed earlier this year must be reinstated.
If they are right, the legal opinion could also have implications for the appointment of Motsoeneng, concluded without the post ever having been advertised.
That would give Parliament the ammunition it needs to short-circuit a protracted legal process and instruct the minister to start again, advertising Motsoeneng’s job and following due process, including the vetting of qualifications, before a final appointment is made.
But, considering he has survived a resolution of the SABC board to remove him, an internal disciplinary process, the public protector’s scathing findings and two court judgments so far, it all comes down to one question.
What power lies behind his charmed existence?
Political Bureau