The effect of the judgment is that the chief operating officer (COO) of the SABC, Hlaudi Motsoeneng, must be suspended pending the outcome of an investigation into his fitness to hold office.
But it is this paragraph from the Supreme Court of Appeal (SCA) judgment, handed down on Thursday, that cuts to the heart of the matter: “The public protector (Thuli Madonsela) cannot realise the constitutional purpose of her office if other organs of state may second-guess her findings and ignore her recommendations.”
Motsoeneng was permanently appointed to the position of chief operating officer of the SABC in July last year. He had been acting in the position for some time.
A public protector’s investigation found, among other things, that there should be disciplinary action against Motsoeneng, for faking his matric qualification, and maladministration.
But the SABC ignored the public protector’s findings, prompting the Democratic Alliance to approach the courts.
In the high court in Cape Town, judge Schippers also directed the SABC to implement the public protector’s findings. But in a puzzling development, Schippers said that while the public protector’s findings were not binding, they could not be ignored without being taken on review.
In September, the SABC, Motsoeneng and the minister of communications, Faith Muthambi, appealed.
The SCA handed down a unanimous judgment, co-written by judges Visvanathan Ponnan and Mahomed Navsa, dismissed the appeal with costs on Thursday.
Now, the SCA has for the first time clearly addressed whether or not the public protector can be ignored, or whether a state organ can conduct a parallel investigation which can trump the public protector’s. In short: the public protector cannot be ignored, and a parallel investigation cannot trump hers.
The minister said that the SABC Board had not ignored the public protector’s findings. It had appointed an external law firm, Mchunu Attorneys, to investigate the public protector’s report. After considering this report, which could not be submitted to court as it was “privileged”, Muthambi said: “…the SABC Board considered it appropriate to conclude that Mr Motsoeneng did not mislead the SABC about his qualifications.”
The SCA noted that there was no suggestion that the public protector had “exceeded her powers or that she acted corruptly”. Nor had Muthambi or Motsoeneng raised any grounds for a review of her report, wrote Navsa and Ponnan. Instead, the main reason given for ignoring the public protector’s report was that Mchunu Attorneys had been appointed to investigate the report.
“That, in our view, was impermissible,” said Navsa and Ponnan.
“If indeed (the SABC) was aggrieved by any aspect of the public protector’s report, its remedy was to challenge that by way of a review. It was not for it to set up a parallel process and then to adopt the stance that it preferred the outcome of that process and was thus free to ignore that of the public protector.”
The SCA said the public protector was “plainly better suited to determine issues of maladministration than the SABC itself”.
“That, after all, is why the office of the public protector exists.”
The SCA said that without a review of her findings, the SABC was “obliged to implement her findings and remedial measures”.
The SCA went further, to say that it was clear that the SABC and Muthambi were “dead set” on Motsoeneng’s appointment and “had no genuine intention of engaging with the public protector”.
The SCA also noted that Motsoeneng’s explanation to the public protector about why he lied about having passed matric was “muddled and unclear”.
He said that someone from the SABC had told him to lie about the fact that he had not passed matric.
But the SCA was not convinced.
“That others may have known the truth simply makes them complicit in the lie. It does not excuse his lie. Mr Motsoeneng’s more recent lack of candour and contrition is also cause for concern.”
Navsa and Ponnan also had harsh words for Muthambi and the chair of the SABC board at the time, Ellen Tshabalala. Tshabalala resigned in December last year. A new chairperson, Professor Mbulaheni Maguvhe, was appointed as chair of the board in June this year.
Muthambi and Tshabalala said the “allegations” about Motsoeneng were based on media reports.
The SCA said they were senior public office bearers, and that “the overriding public interest obliged them to make full and frank disclosure rather than shield themselves from scrutiny by resorting to technical points in opposition. After all, the information pertaining to Mr Motsoeneng’s appointment was peculiarly within their knowledge.”
The public protector has previously complained about government bodies ignoring her findings. The word was not mentioned in court, but fresh in the public’s mind will be her Nkandla report, which government has yet to implement, pending the outcome of its own small catalogue of parallel investigations.
But absent a review application, said the SCA on Thursday, no one can ignore the public protector’s “findings, decision or remedial action”.
“Moreover, an individual or body affected by any finding, decision or remedial action taken by the public protector is not entitled to embark on a parallel investigation process to that of the public protector, and adopt the position that the outcome of that parallel process trumps the findings, decision or remedial action taken by the public protector,” the SCA said.
The SCA said all the participants in the Motsoeneng case had agreed that the public protector was a “watchdog”.
“As is evident from what is set out above, this watchdog should not be muzzled,” Ponnan and Navsa wrote.
The high court had also ordered that Motsoeneng should be suspended pending the outcome of a disciplinary enquiry. But the public protector did not recommend this.
The SCA said that it appeared that the Minister and the chair of the Board had no intention of disciplining Motsoeneng, because he appointed as the permanent COO.
And this meant that their assertion that they were still going to engage the public protector on her report was “contrived and disingenuous”.
“…it strongly dispels the notion that they can still bring an open and impartial mind to bear on the matter.”
The appeal against the suspension order was therefore dismissed.