The final chapter for Motsoeneng? - CFCR

Organisation says SRC ruling should be an example to all state enterprises that they are not above the Rule of Law

The final chapter for Motsoeneng?

21 September 2016

The embattled Chief Operations Officer (COO) of the South African Broadcasting Cooperation (SABC) may have reached the end of his tenure at the public broadcaster. After a series of court battles with opposition parties, the Supreme Court of Appeal (SCA) has dismissed SABC COO, Hlaudi Motsoeneng's application for leave to appeal a High Court ruling that his permanent appointment should be set aside.

In 2014, in the report When Governance and Ethics Fail, the Public Protector found that Motsoeneng had lied about his matric certificate and as a direct result, obtained a position at the broadcaster. Furthermore, despite the release of the report, he was appointed permanently into his current position. In fact, the SABC and the Department of Communications went over and above to retain Motsoeneng and, in 2015, it was revealed that he had awarded himself a salary increase of almost R1 million (R2.8 to R3.7 million). The SABC and Motsoeneng contested the findings of the Public Protector in both the High Court and the SCA, asserting that the findings of the Public Protector were not necessarily binding.

The SABC has faced a good deal of controversy in recent months. One such controversy was the sudden resignation of acting Chief Executive Officer (CEO) - Jimi Matthews - due to what he described as a corrosive atmosphere at the broadcaster. The editorial decision to refrain from broadcasting footage of violent protests, which led to the dismissal of journalists who refused to abide by this directive, also raised concern. As a result, these journalists are before the highest court of the land - the Constitutional Court - due to the unconstitutional infringement of their freedom of expression caused by the aforementioned editorial policy. When one considers these developments, together with Motsoeneng’s refusal to step down despite the evidence against him, one can assume that the situation at the SABC is dire. All of this occurred with Motsoeneng at the helm of the SABC.

In August of this year, Motsoeneng and the Minister of Communications - Faith Muthambi - were requested to report to Parliament in order to account for the contentious decisions that had been made by the broadcaster, which arguably tarnished its reputation and credibility. After Members of Parliament from the African National Congress (ANC) dismissed the calls for an inquiry, Motsoeneng attacked members of the opposition and levelled accusations of ulterior motives. He further asserted that because Parliament does not contribute financially to the functions of the SABC, it had no business requiring the broadcaster to be accountable to it. He could not be more wrong. The SABC as the public broadcaster is accountable to the legislature in accordance with the Constitution.

According to the Constitution, the founding values of the nation include accountability, responsiveness and openness. As a public entity, the SABC is bound by these values. The Portfolio Committee on Communication is well within its mandate to set up an inquiry into the events and processes at the public broadcaster. As representatives of the public - to whom the SABC broadcasts - Parliament was only doing its due diligence. Secondly, in section 195 of the Constitution, where public administration is provided for, it is required that transparency be fostered by the provision of timely, accessible and accurate information. Parliament is not only the voice of the people; it also exercises an oversight function.

The dismissal by the SCA of Motsoeneng’s application for leave to appeal the High Court ruling that his permanent appointment should be set aside is based on the absence of a reasonable prospect of success. The ruling is not only a victory for those who instituted the proceedings that culminated in this outcome. It goes further, vindicating the Office of the Public Protector. Considering the fact that the Constitutional Court affirmed the powers of her Office in the Nkandla matter, this ruling is a final testament to the good work that this Office has done under her leadership. This ruling should be considered an example to all state enterprises - that they are not above the Rule of Law that protects the progression of our democracy.

By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights