SCA throws out Motsoeneng case

SABC COO Hlaudi Motsoeneng has lost yet another bid to appeal against a 2015 Western Cape High Court ruling that found his permanent appointment as COO by the public broadcaster was irrational and should be set aside. The judgment, handed down by the Supreme Court in September 2016, was attached to part B of a case brought in 2014 by the DA against Motsoeneng and the SABC.

This was possibly Motsoeneng’s last chance to cling to his position. His only option now is the Constitutional Court, but it remains to be seen whether his lawyers can claim constitutional grounds on which to take the case further.

Part A of the DA’s case was an urgent interdict against Motsoeneng remaining in his position, after a damning 2014 Public Protector report, titled When Governance and Ethics Fail. The report recommended that Motsoeneng be suspended pending a disciplinary inquiry, and the DA wanted the court to order such, pending firstly the finalisation of the disciplinary proceedings and secondly, the determination of the relief sought in part B of its application.

Part B related to the recommendation by the SABC board of Motsoeneng as COO, and communications minister Faith Muthambi’s decision to approve the recommendation and appoint Motsoeneng to the position. The DA wanted both decisions to be set aside.

The Public Protector joined the case later because of its report, followed soon afterwards by Corruption Watch as amicus curiae, in support of the Public Protector. The organisation’s submissions focused on the proper interpretation of section 182 of the Constitution which confers the power on the Public Protector to “take appropriate remedial action” in the face of a finding of malfeasance by the state or a state official.

The case helped to clarify the powers of the Public Protector.

Dogged determination to defy the law

In October 2014 the Western Cape High Court ruled in the DA’s favour on the first matter. Judge Ashton Schippers ordered that the SABC board start disciplinary proceedings against Motsoeneng within 14 days of the order, and that the proceedings should take no longer than 60 days. Pending the outcome of the disciplinary hearings, the court ordered that Motsoeneng be suspended on full pay.

The SABC appealed this ruling in the Western Cape High Court and in April 2015 were granted leave to approach the Supreme Court of Appeal (SCA). But Judge Schippers also ruled that the suspension and disciplinary hearing be carried out, pending the SCA’s decision on the matter.

Despite all of this uncertainty and controversy, Motsoeneng’s appointment had been made permanent in July 2014. As per the April 2015 order of the Western Cape High Court, he appealed the ruling on part A in the Supreme Court. The SCA dismissed his challenge in October 2015. As Schippers had ordered, Motsoeneng was duly suspended, stating that he wanted to approach the Constitutional Court.

In December 2015 the disciplinary hearing, which had eventually got under way, cleared Motsoeneng of all charges, after he had pleaded not guilty. The DA said it would go back to the High Court to challenge this.

In November 2015 the Western Cape High Court found in favour of the DA’s part B. Judge Dennis Davis ordered that the recommendation made by the SABC and Muthambi to appoint Motsoeneng as COO be set aside.

Predictably, the SABC and Motsoeneng had also appealed this ruling. Because part B was put onto the normal court roll, rather than heard as a matter of urgency, its resolution was several months behind that of part A. The appeal was heard in the Western Cape High Court, which in May 2016 denied the SABC litigants leave to appeal. They then went to the SCA to seek leave to appeal. The SCA handed down judgment in September 2016, dismissing the case.