Now Sihlali takes SABC to court

Embattled South African Broadcasting Corporation legal head Mafika Sihlali is now taking the SABC to court in a desperate effort to save his career.

Sihlali will on Friday try to convince the Johannesburg High Court that he should not be suspended and that he needs more time to tell his bosses why.

This comes after an SABC deadline expired for Sihlali to defend himself against serious allegations of fraud to the amount of R1,8-million.

Three weeks ago, the Mail & Guardian was to reveal details of a damning forensic report, compiled by the SABC’s internal audit department and audit firm Nexus Forensic Services.

The report was handed to group executive Dali Mpofu, board chairperson Eddie Funde and other senior managers. It recommended that Sihlali be suspended and criminally charged.

But Sihlali obtained an interim gag order, preventing the M&G from reporting on the forensic report. Judge Ferdi Preller last week overturned this order, saying it was in the public interest to know how taxpayers’ money was being spent at the SABC.

A week ago, the SABC issued a press statement, saying that the board was still awaiting Sihlali’s response to the allegations levelled against him. ‘Only after that will it make a final decision on the recommendations of the report,” the statement read.

The M&G has now learnt that Sihlali’s first deadline to respond was July 27. In a letter to Mpofu, Sihlali’s lawyer, Barry Aaron, said that he was unable to complete his client’s response ‘due to the leak of the report to the press and the resultant urgent applications and other attendances arising therefrom”.

Aaron asked for a ‘reasonable” extension to allow Sihlali to furnish his response. An extension was granted, but Sihlali was due on Friday morning to make submissions to the effect that he needs even more time to respond fully.

An insider told the M&G that Sihlali’s case would rely strongly on an alleged campaign by the SABC’s chief financial officer, Robin Nicholson, to remove him from the public broadcaster.

In court papers filed as part of the M&G application, Sihlali argued that the investigation into his affairs ‘commenced at the instance of and on the instigation of Mr Nicholson, arising from the allegation of impropriety on the part of Mr Nicholson as set out in my client’s memorandum dated 27 March 2007”.

Stephen Hardie, an attorney acting on behalf of Sihlali, wrote a letter to Mpofu, Funde and others on May 18 2007 in which he referred to an investigation conducted by Sihlali’s legal department into a software tender by the SABC.

The investigation was allegedly conducted between December 2006 and March 2007.

‘Furthermore, an opinion from senior and junior counsel was obtained on March 16 2007, [which] advised the SABC’s legal department that there were prima facie breaches of the Public Finance Management Act — as well as the SABC’s own internal policies and procedures and in particular its delegation of authority framework,” Hardie wrote.

In a memorandum, allegedly submitted to Mpofu on March 27 2007, Sihlali recommended that disciplinary steps be taken against Nicholson and another SABC executive.

Sihlali claimed that, after he made these recommendations to Mpofu, the investigation into his affairs and his law firm (Sihlali Molefe Incorporated) was actively pursued. Nicholson, Sihlali alleged, was the driving force behind this and even participated in a search and seizure operation at Sihlali’s office.

‘Mr Nicholson is attempting to secure the dismissal of my client in order to ensure that any investigation against himself never sees the light of day,” Hardie wrote.

Nicholson did not want to comment on Sihlali’s allegations and referred the M&G to the SABC.

When confronted with these allegations, Mpofu said that the SABC ‘as a matter of principle and for obvious reasons” did not comment to the media on ‘ongoing investigations and/or disciplinary measures, which have not been completed”.

SABC spokesperson Kaizer Kganyago confirmed this, adding that ‘we don’t comment on any investigations and I see no reason why we should comment on this one”.

A source sympathetic to Nicholson commented that Sihlali’s claims were driven by ‘malice” and that Nicholson instigated the investigation into the software contract to which Sihlali referred.

The M&G also believes that Mpofu will provide the court with dates to refute Sihlali’s claims that the investigation came as a result of his probe into Nicholson.

Kganyago on Thursday confirmed that the Sihlali investigation was instigated by Mpofu after he received information and that Nicholson had nothing to do with this decision.

But a source sympathetic to Sihlali said he was dumbfounded how the SABC could ‘run after someone being accused of abusing a company car, while much more serious allegations against other people are not being followed up”.

One of the allegations against Sihlali is that he abused a pool Mercedes Benz, which he signed out in December last year when his personal vehicle was involved in an accident, but had not returned the car by July this year. It is also alleges that while he was in other provinces on official trips, the car was tracked driving in Gauteng.

In the meanwhile, the M&G has also established that SABC company secretary Ramani Naidoo was to send a lawyer’s letter to Mpofu on Friday, complaining that the SABC had done nothing about her complaint against Sihlali.

The M&G reported last week that Naidoo had accused Sihlali of threatening to break her legs. Her complaint forms part of the Sihlali report, which also focuses on ‘possible intimidation of SABC employees and/or witnesses”.

Naidoo’s lawyer, Rod Harper, confirmed this week that a letter would be sent to Mpofu insisting that the SABC address her grievance. ‘The board of the SABC recorded that any employee [who] threatens another employee must be suspended immediately. Her grievances have not been dealt with yet. She will be demanding that they do,” Harper said.

According to Harper, Naidoo, a corporate governance expert, was also investigated ‘among others” to determine if she leaked the report on Sihlali to the media. The letter proclaims her innocence in the strongest possible terms.

The M&G reported that Mpofu asked his top 20 managers to sign letters consenting to undergo polygraph tests in an effort to determine the source of the leaked report.

Sihlali, through his lawyer, said he had no comment to make on his approach to the court on Friday.