Motsoeneng & Tshabalala should pay their own legal fees

21 September 2015

Replies [1][2] to parliamentary questions have revealed that SABC COO Hlaudi Motsoeneng and former SABC Chairperson Ellen Tshabalala are not being held liable to pay their own legal fees in the respective cases against them. 

The replies indicate that the SABC has submitted a claim to its insurance company to pay for Motsoeneng and Tshabalala’s legal fees. In other words, the TV licence-paying public is footing the bill via the SABC’s insurance premiums, while Tshabalala and Motsoeneng pay nothing.

It is now clear why Tshabalala was prepared to use every tactic her legal team could dream up to delay the outcome of the parliamentary inquiry, including a court interdict. She had been guaranteed a bottomless pit of public money to avoid justice for as long as possible. Tshabalala stated last year that her legal fees came to more than R 1 million.

Hlaudi Motsoeneng is currently appealing a High Court judgment ordering the SABC to suspend and discipline him as directed by the Public Protector. With the public paying his legal expenses, it is no wonder that he has vowed to take his case all the way to the Constitutional Court if his appeal fails. The exact cost of Motsoeneng’s legal fees so far is not known, but it is likely to be in the region of R1.5 million - and counting. 

Not only is it morally unjustifiable for the public to pay Motsoeneng and Tshabalala’s legal costs, there are serious question marks over the legality of the SABC’s decision to indemnify them from paying.

Firstly, both Motsoeneng and Tshabalala lied about their qualifications before they joined the SABC. This means they committed wrongdoing in their personal capacity; it cannot be said that they committed these acts in the course and scope of their employment. Indeed, the SABC should be taking action against Motsoeneng and Tshabalala, not funding their legal battles.

Secondly, even if one accepts for a moment that Motsoeneng and Tshabalala did commit these acts in the line of duty, there is still no reason to indemnify them from paying their own legal costs. This much is clear in terms of the SABC Memorandum of Incorporation (MOI) recently signed by Minister Faith Muthambi.

Section 20.2.5 of the MOI states: 

“The Corporation may take insurance to protect a Director against any liability or expenses for which the Corporation is permitted to indemnify in terms of paragraph 20.2.1 of this MOI.”

Significantly, paragraph 20.2.1 (read with paragraph 20.2.2.1.2) expressly excludes indemnifying Directors found guilty of “wilful misconduct”. It states:

“The Corporation may provide a Director with an indemnity in respect of any of such Director’s liability except any liability arising from wilful misconduct…” 

It is quite obvious that, whichever you way you look at it, neither Motsoeneng nor Tshabalala can be lawfully indemnified from paying their own legal costs.

I will be calling for Minister Faith Muthambi to appear before the Portfolio Committee to explain the SABC’s contravention of its own regulations in relation to these legal expenses. If the Minister cannot explain the breach, she will have to exercise her rights as the shareholder and take steps to recover the money from Tshabalala and Motsoeneng.

Statement issued by Gavin Davis MP, DA Shadow Minister of Communications, September 21 2015