While counsel for embattled SABC COO, Hlaudi Motsoeneng, argued that an application in the Cape High Court to have him immediately suspended was “politically opportunistic”, an affidavit by Public Protector, Thuli Madonsela, warned that the decision by the SABC Board and the Communications Minister to disregard her February report “has significant implications for the workings of our democracy and the independence and effectiveness of the institution of the Public Protector.” By MARIANNE THAMM.
The wood-panelled Court Nine at the Cape High Court was fully loaded on Tuesday as five silks (senior counsel) and 11 advocates packed the benches to present arguments in an application for an urgent interim interdict to have SABC COO, Hlaudi Motsoeneng, immediately suspended from the position he was permanently appointed to in July this year. At the time, Communications Minister, Faith Muthambi, claimed that a legal firm had cleared Motsoeneng of all wrongdoing.
Taxpayers are, of course, forking out for the considerable legal bills certain to be racked up in the continuing saga of Hlaudi ‘Teflon’ Motsoaneng, who rose from lowly freelancer in Qwa Qwa in 1996 to the SABC Acting COO and then the SABC COO, and who has been left standing after several attempts to remove him from his now powerful position at the ‘public’ broadcaster.
The decision by the SABC Board and the Communications Minister to permanently appoint Motsoeneng in July flagrantly disregarded the Public Protector’s February report titled “When Governance and Ethics Fail” which explicitly recommended that a new COO be appointed within 90 days.
The Democratic Alliance has brought the application before Justice Schippers in the Cape High Court to suspend and set aside the appointment of Motsoeneng, which the party says, was “irrational” and “unlawful”. The DA also seeks to compel the institution of disciplinary proceedings against Motsoeneng and effect the appointment of a suitably qualified acting COO pending the outcome of these proceedings. In addition it is seeking an order that the Minister and the Board have acted in contravention of their “duties in terms of Section 181 (3) of the Constitution”.
Madonsela’s February report had found, among other issues, that Motsoeneng’s salary had increased from R1.5 million to R2.4 million in one year, that he had purged senior staff and that he had misrepresented his matric qualifications to the SABC.
Photo: Where’s Hlaudi? SABC COO, Hlaudi Motsoeneng (centre) is welcomed by a Cape Town contingent of ANC supporters during the lunch break. (Picture Marianne Thamm).
Motsoeneng cut a suave but reserved figure in his cobalt blue suit as he sat among the black-clad legal team, while a crowd of supporters, dressed in ANC regalia, sang enthusiastically and trumpeted vuvuzelas outside the courthouse for close to six hours. Inside, Motsoeneng was supported by several members of the public, dressed in traditional garb, as well as a number of clergymen.
The applicant, the DA, is bringing the action against nine respondents; the SABC, the Board of Directors of the SABC, the Chairperson of the Board, the Communications Minister, President Jacob Zuma, the Speaker of the National Assembly, The Portfolio Committee for Communications of the National Assembly, Hlaudi Motsoeneng and the Public Protector.
Advocate Anton Katz (SC), acting for the Democratic Alliance, told the court that the respondents “[would] do everything in their power to avoid scrutiny. What are they hiding? The SABC is owned by South Africans. The Minister and the Board do not own it. They must act within in the Constitution.”
Katz argued that the DA did indeed have the standing to bring the matter to court – “who else could have?” – and that the party’s members “expect us to do so in order to promote the rule of law. It is in the public interest. It cannot be argued that the DA is acting in bad faith.”
Katz told Judge Schippers that the SABC Board and the Minster would not suspend Motsoeneng and that the only way he would be disciplined or removed was through an order of the court.
“They have clearly said ‘this is our man, he WILL be our COO’. This has to stop now! Maybe not tonight. The SABC will continue without him – perhaps not Generations – but his removal is urgent in the sense that we cannot watch Bafana Bafana matches because of the wasted expenditure by this man,” said Katz.
The Public Protector, said Katz, had found that Motsoeneng “is largely responsible for the ‘pathological corporate governance deficiencies at the SABC’, that he has wasted public money and acted unethically and against the principles of good governance in the appointment and remuneration of himself and others, and that he has ‘purged’ senior staff members.”
Motsoeneng, said Katz, was “toxic” and had to be removed; however, he added that the DA took a different stance to the Public Protector on the issue of the suggested remedial action.
“While she says the remedial action she has suggested is binding, the DA is arguing that it is not binding on an organ of the state in the same way as a court order.”
The argument by Motsoeneng’s legal team that suspension would infringe on his labour rights was a “red herring”, said Katz, when the very foundation of Motsoeneng’s employment was unlawful in the first place.
Photo: A heavy contingent of police prevented the crowds from entering the court.
In an affidavit that forms part of the court record Thuli Madonsela asserted that the permanent appointment of Motsoeneng in light of the findings of her report “represents yet another example of what would appear to have become a trend amongst politicians and organs of the sate to simply disregard reports issued and remedial actions taken by the PP. It is accordingly of critical importance, both for this matter and in general, for the legally binding effect of reports of the PP… to be confirmed.”
Madonsela insisted her findings are binding and that parties who disputed these “should challenge the report directly by way of a review application.”
Motsoeneng and the other respondents were now attacking her report “for purposes of avoiding relief sought by the applicant (DA)”. Madonsela advised “this court should uphold the report, including the findings and remedial action, until such a stage that it may be reviewed and set aside”.
She requested the Judge not to “countenance the respondent’s attempts to review the findings and remedial actions taken in the report, indirectly by means of a ‘back door’ review”. The court should proceed, she said, on the basis that “the report is unchallenged and fully enforceable.”
Advocate Norman Arendse for Motsoeneng told the court that his client had never applied for work at the SABC. The corporation had, in fact, head-hunted him in 1995 after the then head of radio, Govin Reddy, had instructed the SABC to make newsrooms more representative. At the time, said Arendse, Motsoeneng had informed his potential employer that he had not completed matric and he was employed with the proviso that he would “upskill” at a later stage. He later completed two certificate courses.
Motsoeneng worked for the SABC until 2006 when a hearing was held for misconduct. He appealed but this hearing was never concluded and he was re-employed in 2008 by Dali Mpofu.
“In strict labour law, this issue of matric or not, is completely irrelevant to his employment post 2008,” said Arendse.
His client, he said, had suffered “terrible insults based on hearsay and opinion” that he had also been “defamed” and that he “intends to pursue this in due course”.
Arendse suggested that the Public Protector’s report “does not do justice to her office” and was “flawed” as there were many issues –including affidavits by Motsoeneng’s former superiors – that were not taken into account.
“And the DA comes to court as the flag bearer of public interest, the rule of law and good governance. They are only here for two things. This is politically opportunistic designed to embarrass the SABC and the Minister. This action is designed to kick up a furore based on speculation”.
Arendse said the matter could by no means be considered “urgent” and the charge that “one man threatens freedom of expression in South Africa is clearly outlandish”.
Advocate Ngwako Maenetje SC, arguing for the SABC, the Board and the Chairperson, said the so-called “urgency” of the application by the DA was “self-created” and that there was no reason it could not have been brought before 16 July 2014 when Motsoeneng was permanently appointed.
He suggested the application was premature because it forced the Board, the Minister and the Public Protector to deal with the PP’s report in court proceedings “when it should be dealt with through an engagement amongst them and through the intervention of the National Assembly if deemed necessary by the Public Protector”.
The DA’s attempt to have him immediately suspended was a “drastic remedy” which was unconstitutional and unfair as it was a preventative suspension pending the outcome of a disciplinary hearing.
Advocate Maenetje’s Heads of Argument, however, offers some insight into how the SABC views Hlaudi Motsoeneng and his alleged abuses.
“Mr Motsoeneng has been Acting COO for more than two years. The alleged abuse of tens of millions of Rands have been shown to relate to instances of collective decisions in the SABC, properly approved, to spend money for the genuine interests of the SABC and its employees. Furthermore, it has been shown that the increase in his salary was properly motivated and approved through the existing procedures of the SABC.”
Maenetje argued that the Public Protector recommended that Motsoeneng be disciplined for “his dishonesty relating to the misrepresentation of his qualifications, abuse of power and improper conduct in the appointments and salary increments of Ms Sully Motsweni, and for his role in the purging of senior staff members resulting in numerous labour disputes and settlement awards against the SABC. There is no recommendation that he be disciplined for his salary increments or for other conduct other than that stipulated in the passage quoted above.”
Montsoeneng always informed the SABC, as corporate body represented by relevant officials, that he did not have matric, says Maenetje.
“In this regard he is not an admitted fraudster and liar. There is no prima facie case to advance against him in disciplinary proceedings. The Court cannot ignore the objective facts that have been set out by the respondents and give effect to findings of fact by the Public Protector that are clearly erroneous and irrational in relation to the facts placed before her”.
The appointment of Motsweni, said Maenetje, was explained in the answering affidavit for the SABC and “was done in accordance with proper recruitment policies of the SABC, and Mr Motsoeneng is not to blame for it. The DA has no direct knowledge of what occurred and cannot controvert the facts stated by the SABC.”
He said that issues of suspension and discipline were “employment matters that must be determined in the first instance by the employer and not the Courts.”
Today (Wednesday) Judge Schippers will hear further arguments in a case in which legal teams are navigating complex legal issues that are of considerable importance to the rule of law and the country’s constitutional democracy. This has always been about much more than only Hlaudi Motsoeneng. That lines have become extremely blurred in the process is evident by the obvious support by ANC members concerning a matter to do with the public (and not the State) broadcaster. DM
Main Pic: A crowd of ANC supporters sang enthusiastically outside the court for close to six hours. (Picture Marianne Thamm)