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SABC case to define Protector’s powers

By Charlene Stanley Time of article published Sep 18, 2015

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Bloemfontein - Can an organ of state, confronted with findings and recommendations of the Public Protector, decline to respond to those findings, and then act in direct contradiction to her findings and recommendations?

The Democratic Alliance believes the answer to this should be “no”.

Counsel for the DA, the Public Protector and the non-governmental organization Corruption Watch got a chance to address a full bench of appeal judges in Bloemfontein this afternoon on what has become a burning political question.

They are providing reasons why the court should not overturn an earlier decision by the Western Cape High Court, that orders the SABC to take disciplinary action against its COO, Hlaudi Motsoeneng, in line with a report by the Public Protector.

The report found Motsoeneng guilty of dishonesty (lying about the fact that he did not have matric), maladministration (improperly appointing and promoting certain employees while laying off others, resulting in expensive labour disputes), and irregularly receiving a pay hike of R900 000 in a single year.

Observers have said that this case is as much about the role of the Public Protector as it is about irregularities at the state broadcaster.

In their submissions before the court, the DA accuses the SABC and the minister of communications of placing the interests of Motsoeneng above the interests of the SABC.

“It threatens very basic principles about accountability of organs of state and the role of the Public Protector. It is a position which, if accepted, would undermine the Public Protector… and make it easier for organs of state to engage in corruption and maladministration”, the DA submits.

The party contends that when organs of the state disregard the findings of the Public Protector, without any explanation, they act irrationally and their decisions should not be allowed to stand.

The DA commended High Court Judge Schippers for understanding the important role of the Public Protector and the need for it to be respected and protected, and granting an order that “cannot be faulted.”

They however disagree with the judge on the issue of who should approach the court in the event of non-compliance with the Public Protector’s findings: “The High Court places the onus on the Public Protector or civil society groups to approach the court to vindicate the public protector if an organ of state refuses to comply. The DA, the Public Protector and Corruption Watch would place the onus on the organ of stage to approach the court if it does not wish to comply with remedial action taken by the Public Protector.”

The DA further claims that the SABC Board acted irrationally, in that, in stead of implementing the report, it chose to establish a committee to investigate the findings. The results of this investigation (the so-called Mchunu Report) were never made known.

The board also appointed Motsoeneng as permanent COO without advertising the position or considering any other candidates, despite the damning allegations against him. This appointment, the DA contends, clearly shows that they never had any intention of instituting disciplinary processes against him.

Counsel for the Public Protector told the court this afternoon that there was a constitutional duty on organs of the state to assist and protect institutions like the Public Protector’s office as it strengthened democracy, and although their client was accountable to the National Assembly, parliament could not interfere with her independency. They also pointed to the fact that earlier legislation had been amended, resulting in the fact that she can now only be removed by a two thirds majority vote in parliament, which validates her independence and functionality.

In the High Court judgment, Judge Schippers had found that the Public Protector’s findings could only be rejected if there was a rational reason to do so. Counsel for the Public Protector contended this afternoon that the view seemingly adopted by the SABC Board that state organs could simply decide to disagree with the reports, thereby passing the rationality test, was untenable.

“If complainants (to the Public Protector’s office) know that reports can be ignored like this, it would certainly dilute the effectiveness of this office”, they submitted.

Judgement was reserved. The appeal judges are expected to deliver judgment in a few weeks’ time.

ANA

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