The one big caveat in the laws governing the Public Protector’s office is that they do not afford her the powers to enforce her decisions. The Constitution states that the Public Protector has the power to investigate any conduct in state affairs or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice. It says she has the power to report on that conduct and take “appropriate remedial action”. In most cases, the Public Protector makes recommendations for other people, departments or agencies to implement, but has no power to enforce these recommendations.

The Public Protector Act states that no person shall act in contempt of a Public Protector investigation and that it is an offence to refuse or fail to comply with her directions or requests. “Any person convicted of an offence in terms of this Act shall be liable to a fine not exceeding R40,000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.,” the Act states.

R40,000, it would seem, is hardly a deterrent for those in the political elite who bend the rules and exploit the system. And when it comes to matters involving the chief operating officer (COO) of the SABC, Hlaudi Motsoeneng, compliance with rules and regulations do not seem to be high priority. In order to understand Motsoeneng’s extraordinary power and ability to survive, it is perhaps necessary to retrace some of Madonsela’s damning findings against him.

In a report released in February this year, titled “When Governance and Ethics Fail”, Public Protector Thuli Madonsela found that Motsoeneng’s appointment and his salary progression at the public broadcaster were irregular. She found that his salary increased from R1.5 million to R2.4 million in one year. In the report, Madonsela said she was “unable to rule out bad faith in Mr Motsoeneng in the circumstances that allowed three salary increases in one fiscal year”.

“My discomfort with the whole situation is exacerbated by the fact that all were triggered by him presenting his salary increase requests to new incumbents who would have legitimately relied on him for guidance on compliance with corporate prescripts and ethics. It cannot be said that he did not abuse power and/or his position to unduly benefit himself although on paper the decisions were made by other people,” Madonsela said.

She also found that Motsoeneng committed fraud when he stated in his application form to the SABC that he had completed matric. “The allegation that Mr Motsoeneng was appointed to several posts at the SABC despite having no qualifications as required for such posts, including a matric certificate, is substantiated and this constitutes improper conduct and maladministration,” Madonsela said in the report.

She went on to say: “I am also concerned the Mr Motsoeneng’s employment file disappeared amid his denial of ever falsifying his qualification and that at one point he used the absence of such information to support his contention that there was no evidence of this alleged fraudulent misrepresentation.”

Madonsela recommended that urgent steps be taken to fill the COO post within 90 days, which have long since lapsed. She also recommended that disciplinary action be taken against Motsoeneng for his dishonesty, abuse of power and improper conduct, and that any fruitless and wasteful expenditure incurred as a result of irregular salary increments be recovered.

“All actions requested in this report as part of the remedial action I have taken in terms of my powers under section 182(1)(c) of the Constitution to be finalised within six months and a final report presented to my office by 16 August 2014,” Madonsela said.

A lot has happened in the meantime, and what, if anything, lands on the Public Protector’s desk next week is likely to be lathered with contempt.

The Minister of Communications has been changed since the Public Protector’s report was released and the new incumbent, Faith Muthambi, in tandem with the SABC Board, has thumbed her nose at Madonsela. Last month SABC Board chairperson Zandile Tshabalala told Parliament there was no basis to suspend Motsoeneng. “We don’t have a basis for suspension because… in our case he performs,” Tshabalala said. “He has even gone to a role which isn’t his role of raising funding for the SABC,” she declared proudly.

And Muthambi went on to appoint Motsoeneng as the permanent COO of the SABC. She claimed there was nothing wrong with the appointment as he had been cleared of wrongdoing by a legal firm that she declined to name. “The SABC board and myself are satisfied that the report by the appointed firm of attorneys has cleared Mr Motsoeneng of any wrongdoing and therefore there was nothing before me that suggested that I should not confirm the appointment… I believe the board has exercised due diligence, therefore I’m saying my decision was rational,” Muthambi said last month.

Madonsela was blown away by the blatant flouting of her report. “I’m still waiting for a response from the SABC and from the minister; until then I’m not in a position to understand what has just happened,” she told the SABC after Muthambi’s announcement. She has since begun a new investigation into Motsoeneng’s permanent appointment, obviously not discouraged by the flagrant disregard of her first report.

Madonsela’s spokesperson Kgalalelo Masibi said the Public Protector had written to Muthambi last month, requesting a meeting to discuss Motsoeneng’s permanent appointment. “The minister responded by saying that as the matter is a subject of an ongoing court process, she was not going to avail herself for a meeting with the public protector.”

“The public protector decided to subpoena the minister because attempts to persuade her to meet have been ignored by the minister,” Masibi said.

The court process referred to is a high court bid by the Democratic Alliance (DA) to have Motsoeneng’s appointment set aside. Media reports on Thursday stated that the SABC Board has further rubbished Madonsela’s report in its responding court papers.

“Upon investigation into this recommendation by the public protector, the SABC is satisfied that there has been no irregular spending through unlawful and improper actions of Motsoeneng,” Tshabalala states in the papers, according to The New Age. She also said Motsoeneng should not be punished for a lie he told 19 years ago. “He has been appointed in the interests of the SABC – to achieve its stability going forward,” Tshabalala was quoted as stating.

So with both the High Court and the Public Protector investigating Motsoeneng’s appointment, surely he must be uneasy and looking for ways to extricate himself from the mess?

Not the indomitable Hlaudi.

What exactly is the source of his power and confidence remains a mystery, although there are many whispers in ANC and government circles about his close relationship with President Jacob Zuma. There have even been rumours that Motsoeneng was the one who recommended Muthambi for the position of Communications Minister, which would make his own appointment a quid pro quo.

So is Zuma the wind beneath Motsoeneng’s substantial wings?

After the hullabaloo over Motsoeneng’s permanent appointment, the President distanced himself from the matter and said he had nothing to do with it. The ANC, South African Communist Party and Cosatu have all expressed alarm and disapproval over Motsoeneng’s appointment. Until the source of his power is discovered, Motsoeneng is likely to remain flying high and the public broadcaster is bound to keep lurching from crisis to crisis.

In the meantime, a Chapter Nine institution in the form of the Public Protector’s office will continue to be undermined and treated with contempt. It should also be remembered that even though anyone who refuses to comply with her findings with be guilty of an offence, it would have to be the National Prosecuting Authority (NPA) who charges such a person. With the NPA in the throes of its own complicated crisis, it is unlikely that anyone there would jump at the chance to take on the Almighty Hlaudi and his band of cheerleaders.

The point to consider though is that this is not about Madonsela or Motsoeneng. It is about the Constitution and the rule of law in South Africa. Only one of them seems to know what that means. DM