By Bekezela Phakathi
There is no rational explanation why Communications Minister Faith Muthambi and South African Broadcasting Corporation (SABC) executives are intent on defending chief operating officer Hlaudi Motsoeneng at all costs, other than contempt for the public protector.
The ink had hardly dried on the ruling by the High Court in Cape Town setting aside Mr Motsoeneng’s appointment as irrational and unlawful when Muthambi said she would appeal, while the SABC’s lawyers are studying the judgment to follow similar action.
“(We) will be meeting with our legal team to review the judgment and to prepare our appeal,” said spokesman Mish Molakeng.
Motsoeneng – four years of tussling:
• Nov 2011: Hlaudi Motsoeneng appointed SABC acting chief operating officer.
• Nov 2011: Former staff submit complaints to public protector of maladministration, abuse of power and his irregular appointment.
• Feb 2014: Public Protector Thuli Madonsela releases When Governance and Ethics Fail and recommends that he be disciplined and a new chief operating office be appointed.
• Jul 2014: Communications Minister Faith Muthambi makes Motsoeneng’s post permanent.
• Jul 2014: The ANC says it is puzzled by the move.
• Aug 2014: The High Court in Cape Town hears an urgent application by the DA to enforce the public protector’s recommendations.
• Oct 2014: The court rules he be suspended pending the finalisation of disciplinary proceedings.
• Sep 2015: Supreme Court of Appeal (SCA) hears his appeal against the high court ruling.
• Oct 2015: The SCA dismisses the appeal and reaffirms the public protector’s recommendations.
• Oct 2015: He says he will approach the Constitutional Court to challenge the SCA ruling.
• Oct 2015: High Court in Cape Town hears second part of the DA’s applications, which sought to have his appointment set aside.
• Nov 2015: High Court in Cape Town sets aside Motsoeneng’s appointment.
The Democratic Alliance (DA), aggrieved that Public Protector Thuli Madonsela’s damning findings and remedial action against Motsoeneng were being ignored, approached the court to pronounce on the appointment and the public protector’s powers.
The DA approached the high court seeking to enforce the public protector’s recommendations made in a report released last year. After the court ruled in the party’s favour, Motsoeneng appealed to the Supreme Court of Appeal (SCA).
In August Corruption Watch was granted leave to intervene as amicus curiae in the case, and made submissions to the SCA in September. The SCA subsequently ruled that the public protector’s powers are binding and that, in the absence of a review application, state and public institutions may not simply ignore the public protector’s findings, decisions or remedial action.
The appeal court ordered that Motsoeneng be suspended pending a disciplinary hearing and said, given Motsoeneng’s position at the broadcaster, the process risked being compromised if he remained in his position while it unfolded.
Defending the indefensible
Constitutional law expert and political commentator Shadrack Gutto said: “There can be no rational explanation why they are going to great lengths to defend Mr Motsoeneng. They are defending the indefensible.… The conflict between the government and the public protector will continue being played out in the courts.”
Motsoeneng’s disciplinary hearing is scheduled for Tuesday, but an insider, who asked not to be named for fear of reprisals, said the process would be nothing more than a formality and is likely to result in a slap on the wrist.
“The minister’s appealing … so it’s clear that they want to keep him in the position,” said the source.
Motsoeneng’s lawyer, Zola Majavu, said on Sunday his client would appeal against Friday’s ruling, the latest one delivered against the SABC executive.
“Yes (we will appeal), but we will wait for the employer to take a decision,” said Mr Majavu.
They were preparing for the disciplinary hearing.
Meanwhile, James Selfe, the DA federal executive chairman, said the judgment was “an indictment” of Muthambi, “who has shown persistent disregard for the rule of law and has managed the SABC as her personal fiefdom”.
“Unsurprisingly, and in its vexatious tendencies, the SABC will no doubt continue to waste more taxpayers’ money by taking the judgment on appeal to the Supreme Court of Appeal.”
Judge Dennis Davis, who delivered the ruling, described the information before Muthambi at the time of Mr Motsoeneng’s appointment as “muddled and unclear” and ruled that it put her “in no position to exercise a rational decision to elevate (him)”.
Judge Davis said last month’s SCA judgment, which found the public protector’s reports were binding unless reviewed and set aside by a court, was “clearly binding on me as a judge of the high court”.
African National Congress communications subcommittee chairman Jackson Mthembu referred queries to the Department of Communications.
• This article was first published in Business Day