Cape Town - The Supreme Court of Appeal ruled on Thursday that South African Broadcasting Corporation (SABC) chief operating officer Hlaudi Motsoeneng must be suspended and face disciplinary charges as ordered by Public Protector Thuli Madonsela, stressing that her findings may not be ignored.
In its terse response, the SABC said it would study the judgement once the broadcaster had received it and would consult with “all the relevant internal authorities before deciding on a way forward”.
In the statement, the SABC said it would “like to reiterate that it respects the decisions of the courts”.
The SCA ruling comes as a vindication for Madonsela after a 2014 Western Cape High Court judgment in the same case provided government with apparent leverage to overrule her reports, notably on the Nkandla controversy.
Thus the SCA upheld Judge Ashton Schippers’s ruling regarding Motsoeneng, but criticised his pronouncement on the powers of the chapter nine institution as potentially confusing.
Schippers had held that its findings were not binding and enforceable in the manner of a court order, but could not be ignored without cogent argument. However, earlier this year he granted the SABC and Motsoeneng leave to appeal against his judgment, noting that he believed they stood little chance of success but that it was important for democracy that the higher court settle the debate over the status of the office of the Public Protector.
In doing so, the SCA said that it viewed the term watchdog as an appropriate metaphor for the office and added “this watchdog should not be muzzled”.
Of the earlier judgment, it said: “A court is an inaccurate comparator and the phrase ‘binding and enforceable’ is terminologically inapt and in this context conduces to confusion.”
It said since it disagreed with Schippers’s view, it found it necessary to do so in detail. Turning to the apparent anomaly of the Constitution stating the chapter nine institutions are “independent and subject only to the law and the Constitution” but account to the National Assembly, the SCA clarified that these offices are not subject to national executive control.
“Accordingly, they should be, and must manifestly be seen to be, outside government.”
The SCA found that the only route for those who disagreed with the findings of the Public Protector, was filing a review application.
The SCA added that a person or a body that disagreed with a ruling of the Public Protector may not embark on a parallel investigation and decide that the outcome of that trumps the findings made by the protector.
“Moreover an individual or body affected by any finding, decision or remedial action taken by the Public Protector is not entitled to embark on a parallel investigation process to that of the Public Protector, and adopt the position that the outcome of that parallel process trumps the findings, decision or remedial action taken by the Public Protector,” the court said.
This is what the government did with Madonsela’s report “Secure in Comfort” which found that President Jacob Zuma had unduly benefited from the multi-million rand security upgrade to his private, rural home in Nkandla and ordered that he repay the state for luxuries included in the project.
Parliament instead endorsed a report by Police Minister Nathi Nhleko which dismissed Madonsela as not qualified to decide on issues of security and absolved Zuma from any liability.
The SCA in its judgment found that SABC and Minister Faith Muthambi had taken the route of seeking to usurp Madonsela’s damning findings on Motsoeneng with a parallel probe that the minister then cited as justification for her decision to appoint the former acting COO to the position permanently last year.
“The principle reason advanced by both the SABC and the Minister for ignoring the Public Protector’s remedial action is that the former had appointed Mchunu Attorneys to ‘investigate the veracity of the findings and recommendations of the Public Protector’.
“That in our view, was impermissible… Nor was it for the minister to prefer the Mchuni report to that of the Public Protector.”
Therefore, it said the SABC had been obliged to implement Madonsela’s findings and remedial measures.
Madonsela had found that successive SABC boards had allowed Motsoeneng to operate above the law, that his appointment as acting COO had been irregular, that he had twice been dishonest when applying for posts at the public broadcaster about his lack of a matric certificate, that he had had a hand in the irregular dismissal of employees and that his salary had irregularly been increased by R900,000 in the course of a single year.
Regarding Motsoeneng, the court said that given his position at the public broadcaster, the disciplinary process risked being compromised if he remained in his position while it unfolded.
It added that millions of South Africans relied on the SABC for news about their country and beyond and “for as long as it remains dysfunctional it will be unable to fulfil its statutory mandate”.
The suspension is immediate, and the disciplinary proceedings must begin in the next fourteen days and be completed within a 60-day period.
Last month, the SABC’s annual report revealed that Motsoeneng’s salary had again been increased by more than R900,000 in the course of last year, bringing his pay package to an annual R3.7 million.
The SABC and Muthambi were taken to court for their failure to implement Madonsela’s findings by the Democratic Alliance.
Responding to the SCA verdict, James Selfe, the chairman of the DA’S federal executive, said the impact of the judgment went far beyond the matter of Motsoeneng.
“This judgement has serious ramifications for President Jacob Zuma and his liability for the R246 million Nkandla-gate scandal into which taxpayer rands were plunged.
“President Zuma must face the music and simply pay back the money.”
ANA