Johannesburg - Hlaudi Motsoeneng’s appointment as SABC chief operations officer was neither rational nor procedural and should be declared invalid, according to a former member of the board.
The former board member, who has intimate knowledge of governance rules and processes at the SABC, said the appointment of the controversial Motsoeneng was “doubly illegal” as the job was not advertised as required by statute, and carried out in contravention of the public protector’s recommendations.
“The appointment would be declared invalid if it was taken to court,” he said.
The source added that the appointment should have been taken before the cabinet for ratification, in line with established practice for appointing senior executive directors of the SABC, such as the chief executive and the chief financial officer.
“Precedent under all previous ministers is that it goes to cabinet. Under Ivy Matsepe-Casaburri, the board at the time recommended the appointment of Mvuzo Mbebe. Ivy declined to take it to cabinet and the whole thing went to court and, in fact, Mvuzo has prevented the appointment of a permanent chief financial officer since then, not because Ivy refused to appoint him, but because she refused to take it to cabinet,” he said.
The irregular appointment of Motsoeneng seems set to plunge the public broadcaster into a fresh political and legal crisis. The first problem for new Communications Minister Faith Muthambi, who was scrambling on Thursday to justify the appointment, is the existence of the public protector’s damning report, “When Governance and Ethics Fail”.
Released in February, the report recommended disciplinary action against Motsoeneng for a raft of corporate governance breaches that had led to the broadcaster losing millions of rand. The public protector further recommended that he be compelled to pay back the SABC for his “irregular” salary increases, which amounted to 63 percent over a single year, in contravention of internal company rules.
She further directed that the post be advertised and permanently filled by a qualified and suitable candidate, after normal employment procedures had been followed.
Muthambi on Thursday hid behind the findings of another, privately commissioned report from a legal firm, which apparently “cleared” Motsoeneng of all wrongdoing, to explain why the protector’s recommendations had been ignored.
“The appointment of (an) independent law firm by (the) SABC board to investigate all issues raised by (the) public protector was the most responsible way to deal with the… report. The board and myself are satisfied that the report by (the) appointed firm has cleared Motsoeneng of any wrongdoing and, therefore, there was nothing before me that suggested that I should not confirm the appointment,” Muthambi told a post-cabinet press briefing on Thursday.
But this explanation could lead to a legal and constitutional wrangle, since Muthambi has effectively endorsed the findings of a paid firm of lawyers, which have never been released to the public, over those of a constitutional body.
DA MP and member of the communications committee, Gavin Davis, said it was unheard of for an independent legal opinion to “trump” a Chapter 9 institution’s findings like the public protector.
“Only a court of law can clear someone,” Davis said.
The saga also threatens to split the new SABC board. The 12-member board is said to have been divided on the appointment, with at least two members abstaining when it was brought to the vote, and a minority voting against the decision.
Former SABC executive Mbebe, who previously made a claim against the broadcaster, is also taking the matter to court to interdict Motsoeneng’s appointment.
Meanwhile, Cosatu welcomed and “fully agrees” with the SACP, which urged Muthambi and the SABC board to comply with the call to review the appointment.