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Judge suggests issue of Public Protector not settled as Motsoeneng review begins in WCape High Court

Judge suggests issue of Public Protector not settled as Motsoeneng review begins in WCape High Court

13th October 2015

By: African News Agency

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The Democratic Alliance’s (DA's) application for a review of Hlaudi Motsoeneng’s appointment as chief operating officer of the South African Broadcasting Corporation (SABC) got underway on Tuesday with Western Cape High Court Judge Dennis Davis voicing reservations about letting it proceed, given Motsoeneng’s pending disciplinary process and the upcoming court case over the powers of the Public Protector.

Davis told the DA’s counsel, Anton Katz, there was a risk that by the time he had ruled on whether it was indeed irrational, as the opposition contends, to appoint Motsoeneng, the SABC may already have decided to remove him from his post.

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“By the time the disciplinary is finished Mr Motsoeneng might already be on his bicycle,” the judge said.

He also signalled that he was reluctant to entertain argument contending that Communications Minister Faith Muthambi’s decision should be set aside because she had failed to take into account the Public Protector’s damning findings against Motsoeneng in February last year, as the Constitutional Court would deliberate on the status of the chapter nine institution in February.

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The higher court is due to hear an application by the Economic Freedom Fighters (EFF) to compel President Jacob Zuma to respect Public Protector Thuli Madonsela’s report on the R246-million security upgrade of his private home in Nkandla and to implement her recommendations, which include that he repay a portion of the cost.

Davis’s reluctance comes despite an unambiguous verdict by the Supreme Court of Appeal last week in which it sought to put to rest a spiralling debate on the powers of the Public Protector, finding that the only route available to those organs of state who wanted to challenge her findings, was a legal review.

It added that they could not launch a parallel investigation to that of the Public Protector and decide to prefer the outcome of the second process, as Muthambi did when she rejected Madonsela’s findings on the basis of a later investigation she commissioned the Mchunu law firm to do.

Katz went on to argue that even if the court were to leave aside the question of the powers of the Public Protector and the way in which Muthambi flouted Madonsela’s report on Motsoeneng, the court should find that the decision to appoint him on a permanent basis last June, was irrational.

He noted that the position was not advertised and no other candidates were interviewed.

Katz told the court the SABC’s decision to formalise Motsoeneng’s appointment after Madonsela had found that he had lied about qualifications and improperly purged staff and inflated his salary, was Orwellian and more to its justification that it did so because she had also found that the broadcaster must within 90 days appoint a permanent COO.

“It is Orwellian nonsense to appoint Motsoeneng because the Public Protector had told them to urgently appoint someone,” he said.

In the DA’s head of arguments submitted to the court, he said it was obvious from her adverse findings that Madonsela did not consider Motsoeneng a “suitably qualified” person for the post of COO and therefore the SABC could not claim that it was honouring her report by appointing him.

Katz also argues in these papers that the court “has no right to refuse to hear a matter properly before it because it is concerned that it may in the future become unnecessary or that it may result in conflicting decisions with a higher court”.

He adds that the Broadcasting Act requires the SABC board, and its chief operating officer, to be people who are committed to its charter — which in turn requires them to maintain high standards of integrity and accountability.

Both the act and the charter provide for the removal of board members who abuse their power or behave dishonestly.

The DA therefore argues that appointing Motsoeneng despite Madonsela’s conclusion that he had fraudulently misrepresented his qualifications, was irrational.

Katz told the court there was further proof that Motsoeneng was dishonest, in that he had earlier told the Western Cape High Court that he had tried but failed to locate the former SABC official with whom he had discussed his lack of a matric certificate.

It subsequently transpired that he had repeatedly spoken to her but that she had refused to perjure herself in an affadavit in support of his case.

The SCA last week ruled that Motsoeneng should be suspended while the SABC investigates disciplinary charges against him, as Madonsela had ordered. The SABC has lodged an appeal with the Constitutional Court to fight his suspension.

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