Last week the SABC board announced that it would ask Minister of Communications Faith Muthambi to appoint Hlaudi Motsoeneng as the acting chief operating officer of the broadcaster. This announcement followed the Supreme Court of Appeal ruling dismissing the petition lodged by Motsoeneng, the minister and the board of the SABC against the refusal by the Cape Town high court to grant leave against its order that the appointment of Motsoeneng as chief operating officer of the SABC was irrational and unlawful.
This column recently posed the question of who is above the law in this country. It omitted to deal with the primary case: the redoubtable Motsoeneng clearly believes he is above any law, and apparently the SABC board feels the same way.
The public protector produced a report in 2014 that contained damning findings against Motsoeneng and recommended that a proper hearing be conducted into these findings. Undeterred by this report, the minister, acting on the advice of the board, appointed Motsoeneng as chief operating officer.
The Democratic Alliance applied for the suspension of Motsoeneng pending implementation of the recommendations of the public protector and, in a related application, for the setting aside of his appointment. This led to Motsoeneng’s appointment being found irrational and unlawful. The SABC and the minister took this judgment to the appeal court.
In this connection, the judgment of the appeal court in upholding the suspension order is illuminating:
“We know how the board reacted to the public protector’s findings. In the face of her serious findings of dishonesty, abuse of power and maladministration against Mr Motsoeneng, the SABC purported to recommend him for appointment as the permanent COO [chief operating officer]. And the minister, on the strength of that recommendation, purported to appoint him.
“On the undisputed evidence it would appear that the minister was able to apply her mind to the Mchunu [Attorneys] report, the recommendation of the board and the transcript of Mr Motsoeneng’s interview before acting on the recommendation of the SABC board. She had to then weigh that against the 150-page public protector report, which she already had in her possession. She did all of that within a single day. As this court has previously pointed out: ‘Promptitude by public functionaries is ordinarily meritorious, but not where that is at the cost of neglecting the task.’
“Moreover, the minister seems to have restricted herself to a consideration of only one of the several negative findings against Mr Motsoeneng, namely, the allegation of dishonesty concerning his matric qualification. She does not state that she considered the findings of abuse of power, waste of public money, purging of senior staff and the disregard for principles of good corporate governance, all of which were plainly relevant to her decision.
She also says nothing about the failure of the board to advertise the post, consider other candidates or hold interviews before recommending Mr Motsoeneng for appointment in circumstances where, had she properly considered the public protector’s report, she would have known that the public protector had found that he had ‘been allowed by successive boards to operate above the law’.”
In light of this finding, it was hardly surprising that the second DA application met with success – after all, the minister had ignored the public protector, relied instead on a report from her attorneys and promptly appointed Motsoeneng.
What is even more shocking is that Motsoeneng, the SABC and the minister sought to appeal this decision – presumably on taxpayers’ money, of which there is not enough to assist poor university students but always sufficient for fruitless litigation.
And they sought to appeal even after the Constitutional Court had held that the public protector’s reports, in the absence of a successful application for judicial review, are binding. The only regrettable aspect of this latest saga is that the minister was not made to pay the costs of this litigation personally.
Clearly the members of the SABC board have, at best, only skim-read the Broadcasting Act, in particular section 2, which provides that fairness, accountability on the part of those holding public office and a commitment to the broadcasting charter are central concerns.
It is possible that the SABC has taken legal advice similar to the muddled legal advice that has wasted vast sums of public money in the two cases already decided. By so acting, the board would have manifestly flouted the spirit of the law and, arguably, is in contempt of court by acting before the review of the findings of the internal disciplinary hearing, which exonerated Motsoeneng in respect of the public protector’s finding, has been finalised.
The effect of the judgment setting aside the appointment of Motsoeneng as the SABC’s chief operating officer was to make it clear that, if he was cleared of all wrongdoing, he was free to apply again for the post, pursuant to a legal and thus transparent process of appointment.
Obviously a board beholden to Motsoeneng and the minister, rather than fulfilling its fiduciary obligations to the corporation, has taken the view that a properly legal process would not lead to the appointment of Motsoeneng, so they have avoided proper process.
In so doing, the SABC and the minister have not only damaged the reputation of the public broadcaster, they have also eroded public confidence in the efficacy of the rule of law, which is an even more devastating blow.