Johannesburg - The clock is ticking for SABC chief operating officer (COO) Hlaudi Motsoeneng, but he has the uncanny ability, legally speaking, to slow time. Motsoeneng, the public broadcaster and counsel for Communications Minister Faith Muthambi agreed in the Supreme Court of Appeal (SCA) in Bloemfontein on Friday that he should face the disciplinary inquiry called for by Public Protector Thuli Madonsela.
The SCA may in any case make this an order of the court when it delivers judgment in the matter, having reserved judgment on Friday on the question as well as whether Motsoeneng should be suspended pending the outcome of the disciplinary hearing and the auxiliary, but critical, question of whether or not Madonsela’s findings are binding and enforceable.
Seemingly, that leaves Motsoeneng facing a speeding bullet.
The facts that caused Madonsela to find Motsoeneng’s appointment to have been irregular – that he lied in his initial job application to the SABC about having matric – would seem incontestable, since he has admitted to knowingly filling in false information, though he claims this was on the instruction of the official dealing with his application.
Madonsela also found he persuaded the SABC to approve irregular salary increases for himself and other staff close to him, while he purged opponents at the cost of millions to the company in settlement awards.
But in light of the SABC’s patent reluctance to act against him thus far it is quite possible – if not certain – it will make a less than zealous effort to secure a verdict against its all-powerful COO.
Motsoeneng would not, yet, be out of the woods, however.
The Western Cape High Court is to hear an application next month by the DA for a review of Motsoeneng’s permanent appointment to the post.
It argues this was irrational as it was done after Madonsela’s findings against Motsoeneng – who at the time held the position in an acting capacity – and in contradiction of her instruction that he be disciplined.
But even if the High Court finds in favour of the DA, Motsoeneng, and the SABC, would be in a position to appeal, leaving him ensconced in the post for some time yet, unless the court ordered, as it did the first time around, that he be suspended while the appeal was pending.
At the time, in a dizzying flurry of legal manoeuvres, Motsoeneng immediately lodged an application for leave to appeal against the order for his suspension, pending the other appeal, with the result that he remained in the job, as he does now.
Chairman of the DA federal executive, James Selfe, said the party would be obliged to “advance on all fronts” – securing the disciplinary hearing, Motsoeneng’s suspension and the review application, since it was clear that the COO was determined to “hold onto his empire”.
Even so, he admitted, it could be years before the matter was finalised. In the meantime, uncertainty over its COO’s fate leaves the SABC in limbo.
Three members of the board have resigned over the past year and three more were controversially axed after resisting a deal struck by Motsoeneng for the SABC to flight its news and entertainment channels on DStv.
The deal, and removal of the three, has caused tensions in the ANC as it is seen as an abdication by the public broadcaster of its mandate to serve the broader public and not the audience of a private subscription service.
Parliament’s communications oversight committee, which has the responsibility to interview and recommend candidates for appointment to the board, appears to have deadlocked after the ANC members turned on the chairwoman, a member of their party, over a legal opinion she sought on the removal of the three.
That opinion, provided by Parliament’s legal team, concluded the removals had been unlawful, but Muthambi brought her own legal adviser to dispute it and the ANC MPs, in the chairwoman’s absence, chose to support his view.
With only half the board left, DA spokesman on communications Gavin Davis argues this leaves the board inquorate and its decisions open to challenge, but the committee is in no hurry to make new appointments.
It has met just five times this quarter, postponing or cancelling three meetings, and the board vacancies are not on its agenda.
“It has been over a year since Thembinkosi Bonakele resigned from the SABC board, nine months since Ellen Tshabalala resigned and eight months since the resignation of Bongani Khumalo.
“We should all be embarrassed at the foot-dragging that has characterised our attempts to fill these vacancies,” Davis wrote in a letter to committee chairwoman, Joyce Moloi-Moropa, this week.
But it is unlikely she will be able to act while the ANC remains divided on the question of the board and, more especially, Motsoeneng.
While ANC secretary-general Gwede Mantashe has publicly questioned Motsoeneng’s appointment, as has the party’s alliance partner, the SACP, Motsoeneng has the full support of Muthambi, who reports to President Jacob Zuma.
The state of the public broadcaster is on the agenda for the party’s national general council next month and it is here, rather than in Parliament, that the question may be settled.
The fate of Motsoeneng, too, hangs on the outcome.