This is the essence of the ruling delivered by Judge Lebogang Modiba, president of the Special Tribunal, on Tuesday 18 October.

The judgment found that the SABC was aware of the decision taken in 2017 to pay the musicians and did nothing. Now, five years, later the time period to reclaim the loss has expired, meaning the SABC has lost the R2.42-million.

By setting aside the decision to pay 53 musicians R50,000 each, this means no other musician can now claim for this amount. The payments were meant to compensate musicians who had not received “needletime” royalties prior to 1996. They were paid a once-off amount of R50,000 each, but only 53 were paid the sum total the Special Investigating Unit (SIU) and SABC sought to recover.

 The matter relates to litigation between the SABC and the SIU involving former COO Hlaudi Motsoeneng; former acting chief financial officer Audrey Raphela; former group executive sport, Sully Motsweni; former group executive radio, Leslie Ntloko; former group executive television, Nomsa Philiso; former group executive, news and current affairs, Simon Tebele; former group executive corporate affairs, Bessie Tugwana; former group executive commercial enterprises, Tshifiwa Mulaudzi; former general manager operations, Nompumelelo Phasa, and former acting group chief executive officer, James Aguma.

The SIU ordered in March 2021 that Motsoeneng and the others must pay back the money. However, Motsoeneng took the matter on review. In papers, Motsoeneng said the money used to pay the musicians was raised from sources that included MultiChoice. The tribunal found that the SABC did not receive any funds from MultiChoice.

The SIU and the SABC have jointly instituted legal proceedings with the tribunal to recover the money paid to “music legends”. In their application, the SIU and SABC sought to review and set aside the two decisions the SABC made on 24 July and 5 September 2021 to award R50,000 to each person identified as a “music legend”.

The SIU further argued that Motsoeneng and the others had collectively acted in flagrant disregard of the SABC’s internal policies, were recklessly and grossly negligent in the performance of their duties, and had abused their powers as SABC executives.

After hearing arguments from both sides, Judge Modiba ordered that:

1. The decision taken by Motsoeneng and the others on 24 July 2016 and on 5 September 2016 to reward musicians identified as music legends with R50,000 is declared irregular and unlawful.
2. The debt in respect of which the SIU and the SABC seek an order that the respondents pay an amount of R2,425,000 to the SABC has become prescribed (or expired.)

The judge further found that Motsoeneng and the other nine respondents had attended and participated in the meetings in which the impugned decisions were taken, and that there was no policy within the SABC authorising the decisions.

“The identification of music legends who would benefit from the music legend projects was arbitrary as there was no approved criteria. Yet, SABC funds reserved for emergencies were used to fund the music legend project. The SABC derived no benefit from the project and the funds used to pay for the music legends, which had not been budgeted for,” the judge said.

Modiba found that “even if there is a basis to hold Motsoeneng and the other[s] liable for the loss the SABC suffered as a result of the impugned decisions… [it] has become prescribed. Therefore it would serve no purpose to determine where the respondents ought to be held personally responsible for the loss the SABC incurred as a result of the payments.”

On the 53 musicians, the judge said the payments were made more than five years ago and the loss the SABC incurred was found to have been prescribed.

The SABC’s corporate affairs boss, Gugu Ntuli, said: “The SABC has received judgment on this matter. The Corporation will study the judgment and comment at a later stage.” DM