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The SABC’s Hlaudi Motsoeneng has lost his bid to appeal against a 2015 Western Cape high court ruling that found his permanent appointment as chief operating officer by the public broadcaster was irrational and should be set aside.

The DA had approached the court in a bid to force the SABC to dismiss Motsoeneng following the release of findings of an investigation into his appointment, among other matters, by public protector Thuli Madonsela in 2014. Madonsela’s report is titled When Governance and Ethics Fail.

After the court ruled in the party’s favour, Motsoeneng appealed to the Supreme Court of Appeal (SCA). In August last year, Corruption Watch was granted leave to intervene as amicus curiae in the case, and made submissions to the SCA in September. The SCA ruled that Madonsela’s powers are binding. The ruling further said in the absence of a review application, state and public institutions may not simply ignore the public protector’s findings, decisions or remedial action, or run parallel investigation processes.

Motsoeneng was appointed permanently to the position by communications minister Faith Muthambi, only months after Madonsela’s report. At the time of the release of the report he had been acting in the post. Muthambi has supported his legal cause from the start, earning a zero of the week status by Corruption Watch in November last year when she first announced that the high court ruling would be appealed.

Irrational and unlawful appointment

The latest judgment comes after the high court considered the DA’s review application seeking to have Motsoeneng’s appointment by Muthambi set aside on the grounds that it was irrational and therefore unlawful from the outset, the party said in a statement.

Madonsela had recommended that Motsoeneng be suspended, pending a disciplinary inquiry, but when no action was taken against him by Muthambi and the permanent appointment happened, even the ANC sought clarity on her decision.

DA MP James Selfe said: “Judge Dennis Davis, at the time of handing down judgment, described the information before the minister at the time of the appointment of Motsoeneng as ‘muddled and unclear’ and that it put [Muthambi] ‘in no position to exercise a rational decision to elevate Motsoeneng, whose tenure as acting chief operating officer had already been placed in severe doubt’, particularly in view of the very clear and damning findings of the public protector.”

In April, soon after the Constitutional Court had ruled that the public protector’s remedial action is binding in relation to the Nkandla case, City Press quoted Lawson Naidoo, executive secretary of the Council for the Advancement of the SA Constitution, as saying that now that the highest court in the land had made its finding, hopefully the public protector’s reports would no longer be undermined.

“Thuli Madonsela has said before that since the president’s attempt to undermine her report, other reports her office has produced have not met with co-operation,” said Naidoo. “It has had an impact on the effectiveness of her office. Now, if there is a challenge, the only option is a judicial review.”