Why Hlaudi Motsoeneng’s re-appointment is irrational and invalid

The appointment of the disgraced Hlaudi Motsoeneng as the head of corporate affairs at the South African Broadcasting Corporation (SABC) after the Western Cape High Court confirmed that his appointment as Chief Operation Officer (COO) was irrational and thus invalid, is almost certainly also irrational and hence invalid. While probably not in contempt of the order issued by the High Court that invalidated Mr Motsoeneng’s appointment, the move by the SABC does show contempt for the Public Protector, for the proven facts, and for the settled legal principles.

This week the SABC decided to appoint Hlaudi Motsoeneng as the head of corporate affairs at that institution. This followed the finalisation of court proceedings which confirmed that his appointment as COO was irrational and which declared the appointment invalid.

Because many South Africans have a tendency to respond in a knee-jerk manner to actions like this without any detailed knowledge of the facts and the law (expressing either outrage about the appointment or staunchly supporting it), it is important to revisit the Public Protector’s findings against Mr Motsoeneng. It is also important to remind ourselves of the reasoning employed by the Western Cape High Court in Democratic Alliance v South African Broadcasting Corporation Soc Ltd and Others when it invalidated Mr Motsoeneng’s appointment as COO.

It is now settled law that the findings and remedial action of the Public Protector are binding. In SABC v DA the Supreme Court of Appeal (SCA) held that: “The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations.”

Moreover, the Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (the Nkandla judgement) rejected the notion that the findings of the Public Protector are not binding and enforceable and said that such an approach “is not only worrisome but also at odds with the rule of law”.

When the SABC originally appointed Mr Motsoeneng as COO (and recently as head of corporate affairs), it did not view the findings of the Public Protector as binding, preferring to rely on the reasoning of the Western Cape High Court which has been overtaken by the judgments quoted above. This, I contend, rendered the appointments (both as COO and now again as head of corporate affairs) irrational and invalid.

But what are the damning findings of the Public Protector against Mr Motsoeneng? Would such findings disqualify him from holding any position at the SABC? The findings can be summarised as follows:

• Mr Motsoeneng lied about his qualifications when applying for a position of COO and in applying for earlier positions. In an interview with the Public protector Mr Motsoeneng said the following about this matter: “From me… for now because I do understand all these issues, I was not supposed, to be honest, if I was … now I was clear in my mind, like now I know what is wrong, what is right, I was not supposed to even put it….”
• Mr Motsoeneng abused his power by increasing his salary three times in the space of one year from R 1.5 m to R 2.4 m per annum, thus enriching himself at the expense of the public purse.
• Mr Motsoeneng was responsible for the unlawful appointment of Ms Sulley Motsweni to various position as well as for salary increases which were allegedly unlawful between 2011 to 2012.
• Mr Motsoeneng was partly responsible for the unlawful appointment of Ms Gugu Duda as chief financial officer.
• Mr Motsoeneng was responsible for the purging of “senior staff” which led to the avoidable loss of millions of rand towards salaries in respect of unnecessary settlements for irregular termination of contracts”.
• Mr Motsoeneng was responsible for the unilateral increase of salaries of Ms Motsweni as well as Ms Thobekile Khumalo.
• There were ‘pathological’ corporate governance deficiencies within the SABC and this was partly due to the failure by Mr Motsoeneng to provide the necessary support, information and guidance to help the Board discharge its fiduciary responsibilities effectively. By his own admission Mr Motsoeneng caused the Board to make irregular and unlawful decisions.
• The Department of Communications and, indeed the Minister thereof, had “unduly interfered in affairs of the SABC”, conduct which according to the Public Protector Mr Motsoeneng had aided and abetted.

In the light of these findings, the Public Protector imposed a series of remedial actions on the SABC management and board. These included that appropriate disciplinary action be taken against Mr Motsoeneng for his dishonesty relating to the misrepresentation of his qualifications, his abuse of power and improper conduct and the fruitless and wasteful expenditure which had been incurred as a result of irregular salary increases. The SABC was also instructed to recover the money paid in terms of the improper salary increases from the appropriate persons.

The High Court and the SCA had confirmed the order of the Public Protector that disciplinary action must be taken against Mr Motsoeneng.

In what has now become a disputed process described as a sham and a farce, an internal disciplinary hearing proceeded to exonerate Mr Motsoeneng of all charges. This happened after the original prosecutor hired by Communications Minister Faith Muthambi was abruptly dismissed from his position shortly before the hearing started.

It is in doubt whether the head of this disciplinary hearing had the power to second guess and overturn the binding findings of the Public Protector made against Mr Motsoeneng.

As the findings against Mr Motsoeneng are binding and can only be reviewed and set aside by a court of law, it seems implausible that the chair of a disciplinary hearing had the power to set aside those findings and to replace them with new findings that exonerated Mr Motsoeneng.

To use somewhat of an extreme analogy to illustrate the point: if a court convicted an employee of torturing and murdering 50 fellow employees it would not be open to a disciplinary hearing arranged by the employer to exonerate the employee and then to proceed to appoint that employee as the CEO of the company.

It would, of course, always be open to the SABC, Mr Motsoeneng or the chair of the disciplinary hearing to approach a court to have the findings of the Public Protector reviewed and set aside – just as it would be open to the metaphorical mass murderer to appeal his conviction for murder.

The High Court handed down its judgment before the Constitutional Court definitively held in the Nkandla judgment that the findings and remedial action in a report by the Public Protector are binding.

The SABC and the Minister had argued at the time that the Constitutional Court might come to a different conclusion than the SCA as to the binding nature of the reports issued by the Public Protector. They argued that if the Public Protector’s report was not binding a different set of reasoning and justification might have to be applied.

The High Court thus also proceeded to consider the case against Mr Motsoeneng in the event that the Public Protector report was not binding. Because it proceeded to decide the matter on the assumption that the findings of the Public Protector were not binding, the High Court assumed that the SABC or Mr Motsoeneng could still show (or convince a disciplinary hearing) that none of the allegations made against Mr Motsoeneng were sustainable, which would have allowed it to disregard the findings and remedial action imposed by the Public Protector.

If the findings of the Public Protector were not binding, the court held, “it would be unfair and, hence premature at this stage, to preclude” Mr Motsoeneng from being considered for appointment as a permanent COO of the SABC.

But since the judgment was handed down the Constitutional Court has confirmed the binding nature of reports issued by the Public Protector and the original reasoning of the High Court no longer applies.

Does this preclude the legally valid appointment of Mr Motsoeneng to any position at the SABC? The answer must be yes. Before considering the possibility that the Public Protector’s findings are not binding, the High Court explained the legal position as it now stands in the light of the Constitutional Court’s Nkandla judgment as follows:

[I]t must follow that, as the Public Protector’s report was binding on the SABC and the Minister, there can be no basis by which the Minister can argue that a report, binding on her, could be ignored to such an extent that it would still be rational to appoint Mr Motsoeneng to a permanent position of COO, after being appraised by the report of the Public Protector of the problems relating to Mr Motsoeneng as acting COO.

The same reasoning must apply to Mr Motsoeneng’s appointment to any other position at the SABC. By ignoring the binding findings of the Public Protector – findings that would ordinarily lead to instant dismissal of any employee – the SABC must have acted irrationally when it appointed Mr Motsoeneng as the head of corporate affairs. The appointment must therefore be invalid.

Unless the validity of the Public Protector report is challenged in court and reviewed and set aside by that court, it stands and its findings cannot be ignored when deciding on whether to appoint Mr Motsoeneng to any position at the SABC. To do so would be completely irrational.

For reasons that are not immediately apparent the SABC management has therefore embarked on a course of action regarding Mr Motsoeneng which will almost certainly end in yet another defeat in the courts. It is a monumental waste of money, money the SABC does not have.

When the SABC loses yet another case about the irrational appointment of Mr Motsoeneng, the court might consider ordering senior managers at the SABC and the individual board members to pay for the legal fees from their own pockets.

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