The law can be a difficult mistress to love or admire. When wrongdoers with economic or political power use legal technicalities and procedural manoeuvres to protect themselves, and to avoid facing any consequences for their unlawful or even criminal behaviour, it reminds us that the law can be used both to pursue social justice and to defend the powerful and the privileged. When the law is used by the powerful and privileged to evade justice, it is difficult to love or admire the law in that instance.
But when the law finally catches up with such individuals and the courts hold them to account for their wrongful or criminal behaviour, it is as if one sees an old lover through fresh eyes and admires him or her afresh and with new vigour. Something like this happened earlier this year when the Constitutional Court handed down its Nkandla judgment. The Western Cape High Court judgment on Hlaudi Motsoeneng and (what is left of) the SABC board, which was handed down on Monday, leaves me with a similar feeling.
The judgment in Democratic Alliance v South African Broadcasting Corporation SOC Ltd (SABC) and Others; Democratic Alliance v Motsoeneng and Others contains several findings which appear specifically aimed at discouraging Mr Motsoeneng, his enablers at the SABC, and Communications Minister Faith Muthambi, from using technical legal manoeuvres to try to protect Motsoeneng from the consequences of his dishonest and unlawful actions.
It is almost three years since the Public Protector made serious adverse findings against Motsoeneng and the SABC Board. The Public Protector held among other things that:
Later evidence also emerged that he had attempted to bribe an SABC employee to lie on his behalf to cover up the fact that he lied about his matric certificate.
Despite being found by the Public Protector to have committed fraud, Motsoeneng was appointed to the permanent position of COO, an appointment later declared unlawful and invalid by the court. After the Supreme Court of Appeal (SCA) confirmed that his appointment as COO was unlawful and invalid, the SABC – in an attempt to circumvent the court judgment – appointed Motsoeneng Group Executive: Corporate Affairs (GECA) after a hastily convened and (what the court found to be) procedurally flawed disciplinary procedure in which it had dismissed disciplinary charges against Motsoeneng.
At the heart of the case (as noted by the Western Cape High Court in a judgment authored by Rogers J) is that the SCA described Motsoeneng’s version to the Public Protector about his matric qualification as “muddled and unclear” and as revealing an “alarming lack of insight”. He appeared not fully to appreciate that he had been guilty of a deliberate falsehood. His explanation “lacked contrition and honesty”. (Put differently, the SCA held that Motsoeneng is dishonest.)
The Western Cape High Court first considered whether the disciplinary proceedings against Mr Motsoeneng was a sham and hence invalid. It held that there were several problems with the disciplinary hearing conducted for Motsoeneng.
The remedial action imposed by the Public Protector on the SABC – including the order to institute disciplinary proceedings against Motsoeneng – were binding. The SABC could not fail to take disciplinary action on the grounds specified by the Public Protector unless her factual findings regarding Motsoeneng and the resultant remedial action were set aside by a court.
However, the disciplinary hearing disregarded the binding factual findings made against Mr Motsoeneng. This was a mistake. The disciplinary hearings should have had “due regard to the Public Protector’s report”.
This is because the report should have informed the charges brought against Motsoeneng (which was not the case) and should have identified at least some of the evidence available to support the charges. That evidence, and any other evidence gathered in preparation for the hearing, should have been fairly presented to the chairperson. As this was not done, the disciplinary outcome which cleared Motsoeneng of all charges was not credible.
Although the disciplinary hearing was not bound by the findings of the Public Protector, it was not allowed to ignore these findings completely (as seemed to have been the case). This rendered the disciplinary hearing irrational and invalid.
The inquiry was also conducted with “inappropriate haste” and there was an obvious lack of preparation for the hearing. It was characterised by the “omission of significant charges” and a “manifest failure to call relevant witnesses”, which meant that the disciplinary hearing was never going to comply with the remedial action imposed by the Public Protector.
“There was no credible process pursuant to which one could say that, on a conspectus of all the evidence – including that which was available to the Public Protector – Motsoeneng was or was not guilty of the misconduct found by the Public Protector. This was a case which cried out for greater intervention on the part of the chairperson to ensure that the objects of the Public Protector’s remedial action were met.”
For this reason, the court declared the disciplinary hearing invalid and ordered that a new hearing be held. But to prevent the disciplinary hearing from again being sabotaged by those at the SABC hell-bent on protecting Mr Motsoeneng, the court agreed that the new disciplinary hearing should be chaired by a person selected by the court from a list of three names agreed to by the parties (excluding for this purpose the DA but including the Public Protector).
The court also included the following instruction:
“The charges must include at least those identified by the Public Protector’s remedial action. It does not follow that the charges must be so restricted. The approach of the board and the initiator should not be that they will do only the bare minimum to comply with the remedial action. They must bona fide consider whether, apart from the matters identified by the Public Protector, there are other charges properly to be brought against Motsoeneng, particularly in relation to events post-dating the publication of the Public Protector’s report.”
The Western Cape High Court, second, considered the legality of the appointment of Mr Motsoeneng to the position of GECA. Although the court held that the “Public Protector’s report, for as long as it stood, provided a powerful reason not to offer Motsoeneng any employment which the SABC was not under an obligation to recognise” it left open the question of whether Mr Motsoeneng remained an employee of the SABC after the SCA invalidated his appointment as COO.
But assuming he was still an employee, it found that Motsoeneng’s new appointment as GECA was irrational and hence invalid.
“Motsoeneng was found by the SCA to have displayed a lack of candour in what he said about trying to get an affidavit [exonerating him from fraud]. There is nothing to show that this has been investigated [before appointment as GECA].”
The court noted that Motsoeneng was appointed as GECA, a senior executive position carrying with it significant responsibilities, even though serious adverse findings in the Public Protector’s report had not been set aside and despite subsequent events which cast a further significant shadow over his integrity and leadership abilities.
To add insult to injury, he was appointed as GECA for a standard five-year fixed term. Moreover, the court noted:
“And quite remarkably, he was appointed at a COO’s remuneration. I find it incomprehensible that the SABC could have thought that Motsoeneng remained entitled to a COO’s remuneration where that remuneration attached to a position to which he had been invalidly appointed.”
In a move to try to prevent the SABC and Motsoeneng from again circumventing the court findings, the court ordered the effective suspension of Motsoeneng from the SABC. This suspension was extended beyond the position of GECA.
The court thus held that, unless and until the negative findings against Mr Motsoeneng in the Public Protector’s report are reviewed and set aside, or unless and until Motsoeneng is exonerated from the negative findings by way of a valid disciplinary hearing, Motsoeneng may not hold any position at all at the SABC.
This extraordinary step was taken, first, because of the unacceptable “conduct of the board in defending Motsoeneng and showing scant respect for the Public Protector’s findings” and because the “remnant of the board has continued to evince an attitude of protecting and retaining Motsoeneng at all costs”. (As an aside, the court refers to “a remnant of the board” because the SABC board ceased to be quorate and to be able to make binding and valid decisions in September this year.)
Second, the suspension was ordered because the decision to appoint Mr Motsoeneng as COO in July 2014 would have been perceived by ordinary members of the public as displaying a contemptuous attitude to the Public Protector.
“Subsequent court cases had to be fought at first instance and on appeal, with the SABC all the while doing its best to ensure that Motsoeneng remained in office. Then in September 2016 the end of the road was seemingly reached insofar as the COO appointment is concerned. What did the SABC then do? It recommended to the Minister that she approve the appointment of Motsoeneng as the Acting COO and in the meanwhile proceeded to give Motsoeneng a five-year contract as GECA at a COO’s salary. This displayed a contemptuous attitude not only to the Public Protector but to the courts. Our public institutions and the administration of justice will be brought into disrepute if an organisation such as the SABC can play games like this. The rule of law must be vindicated.”
To prevent Mr Motsoeneng and the SABC from again circumventing the court judgment, the court took another extraordinary decision, namely to order that Motsoeneng (and James Aguma, the Chief Financial Officer of the SABC) pay the legal cost of the applicants in their personal capacities. The aim of this cost order seems to be to inhibit these gentlemen from pursuing further frivolous litigation in defence of Motsoeneng.
“Those controlling the affairs of the SABC have already been warned about jumping blindly to Motsoeneng’s defence and not paying due heed to the Public Protector’s report. The stage in this saga has been reached where a personal liability for costs is justified.”
It is important, noted the court, that courts in appropriate cases should hold officials “who behaved in the high-handed manner” personally liable for costs incurred. This might have a “sobering effect on truant public office-bearers”.
It will be interesting to see whether the cost order will have a sobering effect on the rather litigious Motsoeneng and on his side-kick at the SABC (and on their lawyer who may fear that he might not get paid). DM
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