Communications Minister Faith Muthambi and SABC COO Hlaudi Motsoeneng.

The Communications Minister should have studied cases similar to Hlaudi Motsoeneng’s before confirming him as SABC COO, says Fikile-Ntsikelelo Moya.

Pretoria - Communications Minister Faith Muthambi’s insistence that her ratification of the SABC board’s decision to confirm the appointment of Hlaudi Motsoeneng as chief operating officer was rational beggars belief.

The minister seems to think that for a decision to be rational, the person making it must simply declare it so.

If she had familiarised herself with lessons from the ill-fated appointment of Menzi Simelane as head of the National Prosecuting Authority, she would have realised that ignoring a cloud hanging over a preferred candidate’s head proves that the choice was irrational.

The Simelane decision is of many relating to how those who wield state power can use it, but few have received as much attention from the public, politicians and commentators, hence an expectation that Muthambi be familiar with it.

Even if Muthambi had not done rudimentary homework about what qualifies as acting rationally, she ought to have known there is nothing rational about confirming the appointment of a person who, according to the public protector’s report, has a string of irregularities hanging over his head without first proving why the public protector’s findings are wrong.

As has been emphasised elsewhere, mostly by those who did not like the public protector’s findings, the chapter nine office is not a court of law. It makes findings, not judgments.

Contrary to what Motsoeneng’s supporters argue, the issue is not whether Motsoeneng is good or bad at his job.

It is not whether there is room for experience counting in the absence of academic experience.

It is possible that Motsoeneng could in the end be vindicated and everyone else questioning his appointment exposed as a “bloody agent” or worse.

For now, Motsoeneng stands accused of being appointed irregularly; of benefiting from former SABC board chairman Ben Ngubane irregularly ordering that the qualification requirement for the appointment to the position of chief operating officer be altered to remove academic qualifications as previously advertised – which in the public protector’s view was clearly aimed at tailor- making the advert to suit Motsoeneng’s circumstances.

It was found that he irregularly had his salary upped three times in one year – from R1.5 million to R2.4m.

His salary progression as the acting chief operations officer concomitantly rose from R122 961 to R211 172 (a 63 percent increase) in 12 months and was in violation of the SABC’s personnel regulations and policy.

With these facts in the public domain, it is clear that Muthambi has failed to understand the import of the Simelane judgment.

A popular narrative doing the rounds suggests Simelane was fired because he was found to be unfit for the job.

Simelane in fact lost his job because the courts found that, given the cloud over his head at the time, the president ought to have taken this into account before appointing him to the post.

“This failure to take into account adverse comments by the Ginwala Commission probing the then NDPP head Vusi Pikoli’s fitness for office, the president ignored relevant considerations when he took a decision.

“By doing so he misconstrued his powers and acted irrationally.”

The court left the question of whether Simelane was “fit and proper” unanswered because it was not within its remit to do so.

“Although the criticism levelled (at Simelane) in this regard may be justified, I find myself unable to hold that he is not a fit and proper person to hold the position of NDPP,” the Supreme Court of Appeal said, approvingly quoting a lower court’s ruling.

By constantly returning to the information that was or ought to have been in the president’s realm of knowledge, the court emphasised the need to take all facts into consideration before making a rational decision.

“The president and the minister wrongly discounted minister (Enver) Surty’s serious concerns about the Ginwala report and its impact on Mr Simelane. So too they were too easily dismissive of the Public Service Commission’s attitude in this regard.

“It ought also to have been a matter of concern that the General Council of the Bar had been poised to enquire into Mr Simelane’s conduct – it is a matter that would directly affect public perception about his candidacy,” reads the ruling.

Elsewhere, the judgment reads: “On the available evidence the president could in any event not have reached a conclusion favourable to Simelane as there were too many unresolved questions concerning his integrity and experience.”

That is the crux of the matter again with regard to Motsoeneng and the test of the rationality of his appointment. To misquote the SCA, on the available evidence the minister could in any event not have reached a conclusion favourable to Motsoeneng.

This means that even if Muthambi believed Motsoeneng was a victim of vicious rumours spread by his foes, she had to acknowledge these and respond to them in some way when choosing to ratify the board’s decision.

Instead she has thrown words like “due diligence” around without backing them up with any reasoning. The objective facts, as expressed in the public protector’s findings, have placed the ball in the minister’s court to prove that there has indeed been “due diligence” and that she exercised her mind before backing the board’s decision.

Post-apartheid jurisprudence has been strong against arbitrariness in the exercise of state power.

Countless judgments and papers have been written in this regard affecting a wide area of public life, ranging from how tenders were awarded to the granting of parole. It is therefore sad that we have a minister who does not seem to grasp the fact that her office does not allow her to do as she likes just because she is the minister. Unless Muthambi meets the challenge set by the public protector’s findings regarding Motsoeneng and familiarises herself with other rulings and processes pertaining to how to use state power, she has no business telling us “my decision was rational”.

* Fikile-Ntsikelelo Moya is an executive editor at the Pretoria News. Follow him on Twitter @fikelelom

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