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[2015] ZAWCHC 182
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Democratic Alliance v South African Broadcasting Corporation Soc Ltd and Others (12497/2014) [2015] ZAWCHC 182; [2016] 1 All SA 504 (WCC); 2016 (3) SA 468 (WCC) (27 November 2015)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NO: 12497/2014
DATE: 27 NOVEMBER 2015
Reportable
In the matter between:
DEMOCRATIC
ALLIANCE
...................................................................................................
Applicant
And
THE SOUTH AFRICAN BROADCASTING
CORPORATION SOC LTD
...........
First
Respondent
THE BOARD OF DIRECTORS OF THE SOUTH
AFRICAN
BROADCASTING CORPORATION SOC
LTD
..................................................
Second
Respondent
THE CHAIRPERSON OF THE BOARD OF
DIRECTORS OF THE
SOUTH AFRICAN BROADCASTING
CORPORATIONS SOC LTD
................
Third
Respondent
THE MINISTER OF
COMMUNICATIONS
.........................................................
Fourth
Respondent
THE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
.............................
Fifth
Respondent
SPEAKER OF THE NATIONAL
ASSEMBLY
.........................................................
Sixth
Respondent
THE PORTFOLIO COMMITTEE FOR
COMMUNICATIONS
OF THE NATIONAL
ASSEMBLY
........................................................................
Seventh
Respondent
HLAUDI MOTSOENENG: THE CHIEF
OPERATING OFFICER OF THE
SOUTH AFRICAN BROADCASTING
CORPORATION SOC LTD
.................
Eighth
Respondent
THE PUBLIC
PROTECTOR
....................................................................................
Ninth
Respondent
JUDGMENT: 27 November 2015
DAVIS J
Introduction
[1] The Republic of South Africa
Constitution Act 108 of 1996 (‘the Constitution’) sought
to reimagine the relationship
between the represented and those who
were elected to represent, we the people of South Africa. It was
envisaged that this particular
model of democracy would transcend the
voting process as constituting the only basis of political
participation, particularly as
it is an event that only takes place
every five years. It was intended that governance would take place
within a meticulously
legally constructed framework of legal rules
and principles, the latter of which are set out in detail and
considerable care in
the 1996 constitutional text. As the custodian
of this text, courts are called upon to make a range of policy
orientated decisions,
many of which are saturated with polycentric
consequences, others of which raise controversial political questions
and all of which
may well place the courts at the centre of political
debate. However controversial the implications of a judgment, the
judicial
task is to ensure that government adheres to and promotes
the values and principles in the Constitution and thus complies with
the overarching principle of legality. Recourse to the concept of
deference to the manifestation of the popular will, as sourced
in the
policies of the majority party in Parliament, must be located within
this context. See in particular Karl Klare ‘Self-Realization,

human rights and the separation of powers: A democracy-seeking
approach’
2015 Stellenbosch Law Review 465.
[2] This case concerns a decision of a
member of the executive and its relationship to legality as I have
sought to outline it.
During argument, respondents repeatedly
emphasised the critical need to defer to the choice of fourth
respondent; (‘the
Minister’) hence the imperative to
locate the appropriate approach to the adjudication of this case.
[3] Briefly, on 7 July 2014 the third
respondent (‘the Board’) recommended that the Minister
should appoint the eighth
respondent (‘Mr Motsoeneng’) as
the chief operating officer (‘COO’) of the South African
Broadcasting Corporation
(‘SABC’). The next day, on 8
July 2014, the Minister accepted this recommendation and duly
appointed Mr Motsoeneng
as the COO of the SABC.
[4] It might have been expected by the
designers of the Constitution, who had laid out an intricate set of
rules dealing with Parliament,
that the official opposition in
Parliament would have viewed the latter institution as the preferable
location for disputing this
appointment. But lawfare, the use of law
as a replacement for political warfare, has become common place in
South Africa. The
applicant thus bases its case on arguments which
contend that the decision both to recommended and later to appoint Mr
Motsoeneng
as the COO of the SABC are procedurally and substantially
irrational. These arguments require this Court to examine and
evaluate
the merits of these submissions, notwithstanding that this
dispute can be described as lawfare. It is the court’s role to

examine whether the appointment was made in terms of the principle of
legality, only after which deference must be paid to the
choice of a
democratically elected Minister. Courts are the custodians of the
principle of legality, as it is sourced in the Constitution.
Where
this principle is invoked, Courts are obliged to enter the arena.
Beyond the scope of this principle, the invitation to
be a custodian
must be firmly refused.
A brief background
[5] In November 2011 Mr Motsoeneng was
appointed as the acting COO of the SABC. Between 11 November 2011
and 26 February 2012,
a series of complaints were lodged by former
employees of the SABC which focussed on the alleged irregular
appointment and conduct
of Mr Motsoeneng as the acting COO of the
SABC as well as a systematic manner of maladministration, mainly
relating to human resources
and financial management, governance
failures within the SABC and irregular interference by the then
Minister.
[6] These complaints were referred to
the ninth respondent (‘the Public Protector’). Following
an investigations, the
Public Protector issued a report on 17
February 2014 entitled “When Governance and Ethics Fail”.
She made a series
of damming findings against the appointment of Mr
Motsoeneng as interim COO well as his subsequent conduct; in
particular she found
the following:
1. Mr Motsoeneng lied about his
qualifications when applying for a position of COO and in applying
for earlier positions.
2. He 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.
3. He 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
4. He was partly responsible for the
unlawful appointment of Ms Gugu Duda as chief financial officer.
5. He 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”.
6. He was responsible for the
unilateral increase of salaries of Ms Motsweni as well as Ms
Thobekile Khumalo.
7. There were ‘pathological’
corporate governance deficiencies within the SABC; and
8. 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.
[7] Pursuant to these findings, the
Public Protector made a series of recommendations, including 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 which
should, in turn, be
recovered from the appropriate persons.
The Public Protector also recommended
to the Minister that he should “take urgent steps to fill the
long outstanding vacant
position of the chief operating officer with
a suitably qualified permanent incumbent within 90 days of this
report.”
[8] According to Mr James Selfe, who
deposed to the founding affidavit on behalf of the applicant, on 07
July 2014 a board meeting
of the SABC was held. The filling of a new
post of the COO was not on the agenda of this meeting. However,
when the Minister
arrived at the SABC on 7 July 2014, she conferred
with the chairperson of SABC, as a result of which the chairperson
proposed to
the Board that it immediately appoint Mr Motsoeneng as
the permanent COO. This version is placed in issue by respondent.
What
is clear however, is that the recommendation to appoint Mr
Motsoeneng was made at approximately 23: 30 on 07 July 2014 by the
Board.
On the next day, 08 July 2014, the Minister announced the
appointment of Mr Motsoeneng as COO.
[9] At a press briefing on 10 July
2014, the Minister indicated that the Board had obtained an opinion
of an independent law firm
to ‘investigate all the issues
raised by the Public Protector’. The Minister stated that she
and the Board was ‘satisfied
that the report… cleared Mr
Motsoeneng of any wrongdoing’. This report, known after the
lawyer who had been briefed,
was termed the Mchunu report in these
proceedings.
[10] This action spurred a response
from applicant, which then applied to the High Court first to suspend
Mr Motsoeneng and then
to set aside his appointment. Applicant
contended that, in light of the damming findings by the Public
Protector in relation to
Mr Motsoeneng and the clear requirements for
the appointment of a COO, the appointment which had been made was
both irrational
and unlawful.
[11] The application was brought in two
parts. Part A was in the form of an urgent application seeking,
inter alia, a declaration
that Mr Motsoeneng be suspended with
immediate effect from his position as COO of the SABC and that he
remain suspended until the
finalisation of disciplinary proceedings
to brought against him. A further declaration was sought that the
Board institute disciplinary
proceedings against Mr Motsoeneng within
five days of the date of the court order together with a further
declaration that the
Board appoint a suitably qualified person as the
acting COO to fill the position, pending the appointment of a
suitably qualified
COO.
[12] Part A was decided in favour of
the applicant by the Cape High Court. See Democratic Alliance v
South African Broadcasting
Corporation Limited and other
2015 (1) SA
551
(WCC). The order of the Cape High Court was appealed to the
Supreme Court of Appeal. In the light of the proceedings which took

place in this court, it is now necessary to briefly examine the basis
of this latter judgement.
The Supreme Court of Appeal judgment
with regard to Part A
[13] Much of the argument before the
SCA turned on the status of the Public Protector’s report; that
is the debate before
the SCA was framed in terms of the key question
posed by the High Court per Schippers J; ‘are the findings of
the Public
Protector binding and enforceable?’ Schippers J
concluded that ‘the findings of the Public Protector are not
binding
and enforceable. However, when an organ of State rejects
those findings or the remedial action, that decision itself must not
be irrational.’ (para 74)
[14] Schippers J found that the conduct
of the Board and the Minister, in rejecting the findings and the
remedial action of the
Public Protector, was arbitrary and irrational
and consequently constitutionally unlawful. He ordered that the
board of the SABC,
within 14 days of the date of the court order,
commence disciplinary proceedings against Mr Motsoeneng for his
alleged dishonesty
relating to the misrepresentation of his
qualifications, abuse of power and improper conduct in various
appointments and salary
increases.
[15] On appeal, Navsa and Ponnan JJA
adopted a different approach to the legal status of the report of the
Public Protector. The
learned judges of appeal found, through a
meticulous examination of the constitutional status of the Public
Protector, and, particularly
s 182 (1) (c) of the Constitution, which
provides that the Public Protector has the power to take appropriate
remedial action,
that it was incorrect to find that the Public
Protector’s findings and declaration of remedial action could
be ignored, if
the SABC had cogent reasons for doing so. In short,
the Public Protector’s report was binding, save if set aside by
a court
on review.
[16] The learned judges on appeal had
the following to say which is of particular relevance to the present
dispute:
‘Here, there is no suggestion
that the Public protector exceeded her powers or that she acted
corruptly. Nor have any of
the other transitional grounds for a
review been raised. The principal reason advanced by both the SABC
and the Minister for ignoring
the Public Protector’s remedial
action is that the former had appointed Mchunu Attorneys to
‘investigate the veracity
of the findings and recommendations
of the Public Protector’. That, in our view, was
impermissible. Whilst it may have
been permissible for the SABC to
have appointed a firm of attorneys to assist it with the
implementation of the Public Protector’s
findings and remedial
measures, it was quite impermissible for it to have established a
parallel process to that already undertaken
by the Public Protector
and to thereafter assert privilege in respect thereof. The assertion
of privilege in the context of this
case is in any event
incomprehensible. If indeed it was aggrieved by any aspect of the
Public Protector’s report, its remedy
was to challenge that by
way of a review. It was not for it to set up a parallel process and
then to adopt the stance that it
preferred the outcome of that
process and was thus free to ignore that the Public Protector. Nor
was it for the Minister to prefer
the Mchunu report to that of the
Public Protector.’ (para 47)
[17] Before the Supreme Court of
Appeal, it appeared that counsel for all the parties agreed that Mr
Motsoeneng should be subjected
to a disciplinary enquiry. (see para
54) Hence, much of the debate before the SCA appeared to have
concerned an attack on the
correctness of the order of the High Court
suspending Mr Motsoeneng. There are further passages from the
judgment of the Supreme
Court of Appeal which are relevant to the
present dispute; in particular, the court’s approach to the
appointment by the
Minister of Mr Motsoeneng as COO:
‘On the undisputed evidence, it
would appear that the Minister was able to apply her mind to the
Mchunu Report, the recommendation
of the Board and the transcript of
Mr Motsoeneng’s interview before acting on the recommendation
of the SABC Board. She
had to then weigh that against the 150 page
Public Protector Report, which she already had in her possession.
She did all of that
within a single day. As this court has
previously pointed out: ‘Promptitude by public functionaries is
ordinarily meritorious,
but not where that is at the cost of
neglecting the task. Moreover, the Minister seems to have
restricted herself to a consideration
of only one of the several
negative findings against Mr Motsoeneng, namely, the allegation of
dishonestly concerning his matric
qualification. She does not
state that she considered the findings of abuse of power, waste of
public money, purging of senior
staff and the disregard for
principles of good corporate governance, all of which were plainly
relevant to her decision. She
also says nothing about the failure
of the Board to advertise the post, consider other candidates or hold
interviews before recommending
Mr Motsoeneng for appointment in
circumstances where, had she properly considered the Public
Protector’s Report, she would
have known that the Public
Protector had found that he had ‘been allowed by successive
Boards to operate above the law’.
Armed with that knowledge,
she ought to have considered that greater vigilance was required of
her in acting on the recommendation
of the Board. Thus, despite the
appellants’ protestations to the contrary, the permanent
appointment of Mr Motsoeneng is
inconsistent with the Public
Protector’s findings and remedial action and is inconsistent
with the principles of co-operative
governance.’ (para 56)
A final passage of the judgment is also
worth noting:
‘For it seems to be inconsistent
to promote a person to one of the most senior position at the public
broadcaster if there
had been any genuine intention of instituting
disciplinary proceedings against him. Rationally, implicit in his
promotion has
to be a rejection of the rather damning findings by the
Public Protector. Not only does all of that render their assertion
that
they were still intent on engaging with the Public Protector
contrived and disingenuous, but it strongly dispels the notion that

they can still bring an open and impartial mind to bear on the
matter.’ (para 64)
Applicant’s case
[18] Applicant’s seeks to set
aside the decision of the Board and the Minister to recommend and
appoint Mr Motsoeneng to the
post of COO respectively. It also
requests this Court to direct that the Board recommend the
appointment to the Minister of a
suitably qualified COO within 60
days of the date of this order together with certain ancillary relief
that flows therefrom.
[19] Mr Katz, who appeared together
with Ms Mayosi and Mr Bishop on behalf of the applicant, contended
that the Board’s decision
to recommend the appointment of Mr
Motsoeneng and the consequent decision of the Minister to accept this
recommendation were patently
irrational, both procedurally and
substantially. In support of his argument, Mr Katz referred to the
decision in Democratic Alliance
v President of South Africa and
others
2013 (1) SA 248
(CC). In that case, the President had
appointed Mr Menzi Simelane as the National Director of Public
Prosecutions, notwithstanding
findings by the Ginwala Commission of
Enquiry into the fitness of Advocate V P Pikoli to hold the office of
NDPP that Mr Simelane
was dishonest.
[20] The President acted on advice
obtained from the Minister of Justice. The Minister of Justice
considered that the President
could ignore the adverse findings about
Mr Simelane, because the Public Service Commission (PSC) had not
given Mr Simelane’s
an opportunity to be heard. The legal
submissions made by Mr Simelane lawyers focused on the point that Mr
Simelane had not been
given an opportunity to respond to the PSC‘s
findings and that the Ginwala Commission’s mandate was not to
investigate
Mr Simelane but rather former National Director of Public
Prosecutions, Mr Vusi Pikoli.
[21] The court rejected these findings.
It held that the findings of the Ginwala Commission and the PSC were
relevant to Mr Simelane’s
appointment. Yacoob ADCJ gave short
shift to these arguments, finding:
‘The reason given by the Minister
for ignoring these indications of dishonesty, albeit prima facie, in
the evidence of Mr
Simelane before the Ginwala Commission, the
evaluation of his evidence by that Commission, and the
recommendations of the Public
Service Commission did not in all
circumstances hold any water. Indeed, they do not disturb my
original conclusion that the failure
to take these indications into
account were not rationally related to the purpose for which the
power to appoint a fit and proper
person as a National Director were
given.’ (para 85)
Of equal relevance is the following
passage from Yacoob ADCJ’s judgment:
‘The President too should have
been alerted by the adverse findings of the Ginwala Commission
against Mr Simelane and ought
to have initiated a further
investigation for the purpose of determining whether real and
important questions had been raised about
Mr Simelane’s honesty
and conscientiousness. This he should have done despite his
knowledge of Mr Simelane as a person.
There is no rational
relationship between ignoring the findings of the Ginwala Commission
without more and the purpose for which
the power had been given.
(para 88)
[22] Mr Katz submitted that the
Constitutional Court’s assessment of a suitable National
Director of Public Prosecutions was
equally applicable to the
appointment of a COO. This conclusion further derived authority from
the
Broadcasting Act 4 of 1999
, together with the Memorandum of
Association of the SABC and its Board’s Charter. The
Broadcasting Act requires
that the members of the Board including the
COO be persons that are ‘committed to fairness… and
openness and accountability
on the part of those holding public
office’ and ‘who are committed to the objects and
principles as enunciated in the
Charter of the Corporation.’
Clause 8.1.9 of the Charter, for example, provides that members of
the Board are required
to ‘maintain the highest standard of
integrity, responsibility and accountability. Both the Act and the
Charter permit the
suspension and removal of Board members who have
acted dishonestly or abused their positions.
[23] In the present case, the Public
Protector, who had expressly investigated Mr Motsoeneng, concluded
that he had lied and was
guilty of serious acts of maladministration,
abuse of power and other forms of misconduct. In the context of
this case, Mr Katz
contended that the approach adopted in Simelane,
was even more compelling for, in the Simelane case, the negative
findings about
Mr Simelane arose as a by-product of an enquiry into
Mr Pikoli. Here, the express focus of the Public Protector was upon
Mr Motsoeneng
and his conduct.
[24] Before proceeding to analyse these
submissions, I need to return to the SCA judgment and its role in the
process of evaluation
of applicant’s case.
The implications of the judgment of the
SCA as to part A
[25] At the conclusion of their
judgment, Navsa and Ponnan JJA made the following observation:
‘We appreciate that we were
called upon to adjudicate only that part of the relief sought in Part
A of the notice of motion.
However, Part A is not a hermetically
sealed enquiry and because of the manner in which the litigation was
conducted we were obliged
to range beyond it to a consideration of
some matters upon which the High Court is yet to finally pronounce.
In determining whether
a suspension order was apt, it was necessary
for use to consider, at least on a prima facie basis, as was done by
the court below,
matter pertaining to Part B of the notice of motion.
For, it must be accepted that the suspension order could only issue
if there
were prospects of success in relation to Part B. That is
not to suggest that we have made any final decisions in relation to
the
review application not have we pre-empted any decision that the
High Court might be in due course be called upon to make, including

those that related to relevant Ministerial decisions and their proper
classification.‘ (para 69)
[26] Two important consequences flow
from this judgment insofar as the disposition of the present dispute
is concerned. In the
first place, as the learned judges of appeal
noted, certain findings that are contained in their judgment have a
bearing upon the
evidence which has been placed before this Court.
Secondly, the question arises as to the status of the SCA judgment,
insofar
as the finding of the binding nature of the Public
Protector’s report is concerned.
[27] The judgment of the SCA is clearly
binding on me as a judge of the High Court. I should add that I
embrace its findings with
jurisprudential enthusiasm. Accordingly,
on the basis of the law contained in the SCA judgment, it 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.
[28] Although this conclusion may
appear to be obvious, some justification is necessary. When the
Minister appointed Mr Motsoeneng
on 08 July 2014, the Public
Protector had published her report. It was available to the
Minister. The Minister must have known
or must be taken to have
known of the damming findings made against Mr Motsoeneng, sufficient,
inter alia, to justify a set of
remedial actions, including the
institution of disciplinary proceedings against Mr Motsoeneng. To
quote from the report: ‘His
dishonesty relating to the
misrepresentation of his qualifications, abuse of power and improper
conduct about the appointments
of salary increments of Ms Sully
Motsweni and for his role in the purging of senior staff members
resulting in numerous labour
disputes and settlement awards against
the SABC.’ On any plausible basis, to ignore a binding report
and appoint the person
to a permanent position when that person is
required to be subjected to disciplinary action, pursuant to their
conduct as an acting
COO, is manifestly an act of irrationality which
stands to be set aside.
[29] However, an issue which was raised
in the present proceedings concerned an application for leave to
appeal to the Constitutional
Court against the judgment and order of
the Supreme Court of Appeal which I have analysed. The argument was
raised by the respondents
that, were the Constitutional Court to set
aside the approach which the Supreme Court of Appeal had adopted to
the status of the
Public Protector’s report, a different set of
reasoning and justification might have to be applied. This
submission followed
from
s 18
of the
Superior Courts Act 10 of 2013
which provides that, unless the Court under exceptional
circumstances, orders otherwise, the operation and execution of a
decision
which is the subject of an application for leave to appeal
is suspended, pending the decision of the application or the appeal.
[30] It was as a result of s 18 of the
Supreme Courts Act and its implications that a considerable amount of
argument was devoted
in this case to the position which would have
applied had Schippers J’s approach to the legal status of the
Public Protector
report been followed; that is, on the assumption
that the Constitutional Court adopts a similar position or,
alternatively that
the status quo ante applies until the appeal is
settled. What follows in this judgment is an evaluation of the
present dispute
in terms of these assumptions.
The respondent’s justification
for making an appointment notwithstanding the Public Protector’s
report
[31] In her affidavit, the Minister
explained that there was four documents that she considered in detail
prior to taking the decision
to appoint Mr Motsoeneng as COO, namely
a letter from the chairperson of the SABC of 7 July 2014, a letter
from the chairperson
of the SABC addressed to her on 8 July 2014, the
Public Protector’s report and the Mchunu report. She further
stated that
she had attended at the offices of SABC on 07 July 2014.
After the board meeting, the chairperson had relayed to her the
discussion
and resolution that the Board had taken on the question of
who should be appointed as COO on the SABC and its reasons therefore.

Pursuant to the Minister’s request, she received a written
recommendation that the SABC should appoint Mr Motsoeneng as
the
permanent COO. This recommendation was accompanied by a motivation
together with the Public Protector’s report and
the Mchunu
report. The Minister stated that she considered all of this
information. She remained concerned about the findings
of the
Public Protector’s report, in particular the allegation that Mr
Motsoeneng had lied to the SABC about his qualifications
when he
initially was employed and, in particular, the finding that Mr
Motsoeneng had fraudulently represented that he had a matric

certificate when it was clear that he had not.
[32] These concerns were raised with
the chairperson of the Board. The Minister was then provided with a
transcript of an exchange
between the Public Protector and Mr
Motsoeneng. She read this transcript and was satisfied that Mr
Motsoeneng had not lied to
the SABC about having a matric
qualification. Consequently, she was satisfied that he was competent
and had the necessary expertise
to be appointed as the COO.
[33] Applicant attacked the Minister’s
affidavit on a number of grounds. In particular, it noted that she
had failed to disclose
that she had access to the various reports, in
particular the Mchunu report prior to 07 July 2014 in her answering
affidavit which
she deposed to in respect of Part A of the
application. It was only when the evidential shoe pinched, that, in
her affidavit deposed
to in respect of the Part B application, she
made these claims about reading these reports prior to 7 July 2014.
[34] Mr Maleka, who appeared together
with Ms Pillay on behalf of the fourth respondent, submitted that
there was no basis for this
complaint. Even in her Part A answering
affidavit, the Minister had explained that she received the written
recommendation from
the Board on 8 July 2014 which was accompanied by
the Public Protector’s report and that of Mr Mchunu. She also
had access
to these reports prior to 7 July 2014; that is before she
was appointed as the Minister when she had served as a member of
Parliament
and a Whip in the Portfolio Committee on Communications
for some two, years before the previous National Assembly came to an
end.
As she said in her affidavit:
‘The Public Protector’s
Report was important to my work on the Committee. I was also in
receipt of a copy of that report
since at least early June 2014. I
was also in receipt of the Mchunu report since about the first week
of June 2014. Indeed,
at one of my very first meetings with my
special advisor with Mr Mantasha I specifically discussed the content
of both these reports
and handed copies of them to him.’
[35] Mr Maleka submitted that in the
light of this evidence placed before the Court, the Court had to be
careful before trespassing
into the domain of public officials by
interfering with decisions entrusted by the Constitution or
legislation these persons.
So long as there was a rational
connection between the facts and information available to a public
official and the achievement
of a purpose falling within the power
being exercised, a court could not interfere merely because it
considered the decision to
be wrong or that a different outcome could
be preferable. See Minister of Education Western Cape and another v
Beauvallon Secondary
School and others
2015 (2) SA 154
(SCA) at para
38.
[36] I accept that in many decisions
what is required “is a judgment call” by the relevant
authority. But a judgment
call does not give carte blanche to the
designated functionary. The latter must make a decision of which it
can be said that the
means selected are rationally related to the
objectives that are sought to be achieved. What was sought to be
achieved in this
case was the appointment of a person who was not
only competent to perform the tasks required as the COO but was also
a person
who would maintain the highest standard of integrity,
responsibility and accountability, all of which were objectives which
are
set out in the charter of the SABC.
[37] Given the nature of the answering
affidavit it appears that a critical component of the reasoning
employed by the Minister
in ignoring the finding of the Public
Protector and hence appointing Mr Motsoeneng was the Mchunu report.
Indeed in her affidavit
the Minister states:
‘1. The Public Protector had made
a range of very serious findings against Mr Motsoeneng.
2. The Mchunu report addressed these
findings, with the result, certainly in my mind, the report of the
Public Protector could not
constitute a bar or indeed an impediment
to the appointment of Mr Motsoeneng as COO.
3. I was therefore satisfied that the
Mchunu report provided detailed answer to the findings of the Public
Protector, and the answers
as well as conclusions provided in Mchunu
report are both rational and reasonable.
4. Notwithstanding the Mchunu report, I
still had concerns in respect of the deceit.
5. in addition to the aforegoing, I had
been furnished with a range of very impressive achievements by Mr
Motsoeneng during his
tenure as Acting COO. This, together with the
findings of the Mchunu report motivated, informed and ultimately
underpinned my
decision.’
[38] Mr Katz made much of the fact that
the Mchunu report was not an independent report in that Mchunu
attorneys were the attorneys
of the SABC and were paid by the SABC to
prepare this report.
[39] It is not necessary to consider
and evaluate this particular submission, for, far more important to
the disposition of this
case is the question to whether the Mchunu
report dealt with the findings of the Public Protector, in a
sufficient amount of detail
to represent a justifiable answer to the
Public Protector’s finding.
[40] As illustrative, I will examine
the question of Mr Motsoeneng’s qualifications. In essence,
the Mchunu report found
that in 1995 Mr Motsoeneng obtained his first
appointment at SABC. It was ‘well known in fact to all in
attendance that
he had no matric, he did not lie about this and the
SABC was not misled in this regard.’ Accordingly, the Mchunu
report
finds that SABC personnel had always been fully aware that
when he was employed by the SABC, Mr Motsoeneng did not have a
matric
qualification. As a result, it arrived at the following
conclusion:
‘In view of the above, it would
be difficult if not impossible for the SABC to charge Mr Motsoeneng
with dishonesty and/or
misrepresentation of his qualifications as the
SABC’s own evidence unequivocally supports his case.
Effectively, the evidence
of Mr Kloppers and Mr Mothibi constitutes
some form of investigation which would clear Mr Motsoeneng of any
allegation of dishonesty
and/or misrepresentation as these senior
officials of the SABC were part of his appointment by the SABC at the
time.
Consequently, when considering the
provisions of the SABC’s Disciplinary Code and Procedure, and
the case law stated above,
it would appear to us that any
disciplinary action that may be instituted against Mr Motsoeneng
would not succeed and that the
evidence that has already been
gathered in this matter is sufficient to dispose of this matter.’
[41] However, this set of findings, in
my view, does not provide an adequate answer to the Public
Protector’s report. When
viewed through the prism of a
rational decision maker, who satisfies herself that she can ignore an
otherwise damming set of findings
against the candidate for a very
senior position. A short extract from the Public Protector’s
report reveals an entirely
different picture to that which is the
product of the Mchunu report:
‘Dr Ngubane’s insistence
that there is no evidence could be found that Mr Motsoeneng
misrepresented his qualifications
is astounding.
This assertion is however contradicted
by the documentation and information submitted by the SABC to me as
well as Mr Motsoeneng’s
own admission.
On 19 July 2013, Mr Motsoeneng
indicated that he never misrepresented his qualifications during his
employment at the SABC, as it
was common knowledge that he did not
possess a matric certificate.
However, after being shown the
employment application form Mr Motsoeneng had completed at the SABC
indicating the symbols he had
claimed to have obtained in matric by
me, he submitted that he was asked to fill the subjects as mere
compliance by Mrs Swanepoel.
Mr Motsoeneng finally admitted to me
during our meeting on 19 July 2013, that it was wrong of him to have
claimed to have a matric
certificate while knowing that he had not
passed the grade.’
[42] The Public Protector also noted
that there were findings of 11 September 2003 where the SABC group
internal audit reported
that the content of Mr Motsoeneng’s
application for employment was false because he had misrepresented
his qualifications.
[43] A further passage of evidence
referred to above appears in the Public Protector’s report as
follows:
‘Adv Madonsela: But you knew …
you are saying to me you knew that you had failed, so you …
because when you
put these symbols you knew you hadn’t found …
never seen them anywhere, you were making them up.So I’m asking

you that in retrospect do you think then you should have made up
these symbols, now that you are older and you are not twenty-three?
Mr Motsoeneng: 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,
but there they said
“No, put it”, but what is important
for me Public Protector, is everybody knew and even when I put there
I said to
the lady “I’m not sure about my symbols”
and why I was not sure Public Protector, because I got a sub, you
know
I remember okay in English I think it was an “E”,
because you know after … it was 1995.
If you check there we are talking about
1991, now it was 1995 and for me I had even to … I was
supposed to go to school to
check. Someone said “No, no, no,
you know what you need to do? Just go to Pretoria.” At that
time Public Protector,
taxi, go and check, they said, “no, you
fail”, I went and … that one is … and people who
are putting
this, Public Protector … and I’m going to
give you … I know its Phumemele and Charlotte and this people
when
SABC were charging me, they were my witness.
Mr Madiba: I think if … I want
to understand you correctly. You say you were asked by the SABC to
put in those forms. …
I mean to put in those …
Adv Madonsela: To make up the symbols.
Mr Madiba: To make up the symbols. Do
you recall who said that to you?
Mr Motsoeneng: Marie Swanepoel.’
[44] When this evidence is examined, it
is clear that the Mchunu report concentrated on a question, which may
well be important,
but it is not the question that is relevant to the
present dispute. In short, the Mchunu report was concerned with
whether there
could a basis to charge Mr Motsoeneng with dishonesty
or misrepresentation. The Public Protector, by contrast, shows
that, at
best for Mr Motsoeneng, there was significant doubt as to
whether he had misrepresented his qualifications. That doubt
concerning
his integrity is relevant to an assessment as to whether
he was a person of sufficient integrity to merit an appointment of
COO.
There is no need to criticise the Mchunu report, given its
scope and purpose. Suffice to note that it did not canvass the gamut

of conduct examined by the Public Protector.
[45] This finding requires some
qualification. As I have indicated throughout the argument in this
case, Mr Motsoeneng is not on
trial. This approach has implications
to which I shall refer presently. What is important is that the
Minister, without a clear
answer sourced in the Mchunu report and
with a transcript described correctly by the SCA as being an
explanation which was “muddled
and unclear” was in no
position to exercise a rational decision to elevate Mr Motsoeneng,
whose tenure as acting COO had
already been placed in severe doubt,
to the more elevated position of a permanent COO.
[46] If the passage that I cited was
not sufficient to justify this conclusion the following from the
transcript from exchange between
Mr Motsoeneng and the Public
Protector should have triggered even brighter warning lights:
‘Adv Madonsela: But you know …
you are saying to me you knew then that you failed so you …
because when you
put these symbols you knew that you hadn’t
found… never seen them anywhere, you were making them up. So
I’m
asking that in retrospect do you think you should have made
up these symbols, now that you are older and you are not twenty
three?
Mr Motsoeneng: From me … for now
because I do understand all the 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 to put
it, but they said,
“No, put it”…’
[47] Another issue which again
highlights the difficulty in ignoring the Public Protector’s
report, notwithstanding its legal
status, relates to increases in Mr
Motsoeneng’s salary. According to the Public Protector, Mr
Motsoeneng increased his salary
three times in the space of one year
from R 1.5 m to R 2.4 m. She concluded that this constituted both
improper conduct and maladministration.
The Mchunu report has the
following comment ‘all the above mentioned salaries and/or
salary adjustments contributed to
the amount of R 29 m referred to in
the Public Protector’s report; however, in all instances the
SABC appears to have followed
its internal policies and procedures
such as the DAF Policy in implementing the adjustment’.
Nowhere does it appear that
the Mchunu report evaluated its finding
against those of the Public Protector in this connection. Thus,
nowhere in the papers
do I find reasons for how the Minister rejected
the Public Protector’s report on the increased salaries, save
for the following:
‘The Mchunu report investigated
in detail the findings of the Public Protector and provided answers
that show that the Public
Protector’s findings are incorrect
and not based on the documentary evidence, none of the findings of
the Mchunu report suggest
lack of the independence; the report is
comprehensive and detailed.’
Furthermore, the Mchunu report relied
almost entirely upon documentation of the SABC and hardly canvasses
the reasons offered by
the Public Protector in this particular
connection. I doubt very much whether a board of a bank would
countenance the appointment
of a deputy bank manager for the
Kroonstad branch so dense a cloud was there hanging over the head of
the candidate, unless the
appointment process was accompanied by a
further, precise inquiry into the exact nature of all of the adverse
findings made against
the candidate for the position.
[48] A further disturbing feature, even
if one is prepared to assume away the omission in the affidavit of
the Minister to which
she deposed insofar as the Part A proceedings
are concerned, is her account of her deliberations with respect to
Part B. It is
clear that a recommendation was made by the Board to
the Minister to appoint Mr Motsoeneng to the position of COO on 07
July 2014.
It does not appear to be disputed that several board
members objected to this process of recommendation, claiming that the
position
had to be advertised, candidates had to be shortlisted and
interviewed. Five of the eleven board members did not support this
appointment of which two abstained. The recommendation was passed
onto the Minister at around 23:30 on 07 July 2014. On the next
day,
she announced the appointment of Mr Motsoeneng. There is
insufficient evidence as to how she examined all of the complex

issues raised by way of a comparison between the Public Protector’s
report and the Mchunu report and the various implications
which
flowed therefrom. It is possible that the Minister had read these
reports prior thereto but without careful and deliberate
examination
of all of these issues pertinently raised in the Public Protector’s
report, it is difficult to see how, within
significantly less than 24
hours, the Minister had concluded rationally that the appointment
should be made and that no further
investigation was requested. In
her own affidavit, to which I have made reference, she said she
remained concerned about Mr Motsoeneng’s
qualifications but
must have satisfied herself by way of studying the competing versions
within but a few hours.
[49] This conclusion is merely part of
an overall finding which indicates that the decision to appoint Mr
Motsoeneng, when there
was a manifest need for a transparent and
accountable public institution such as the SABC to exhaustively
examine all of the disputes
raised about his integrity and
qualifications, cannot be considered as a rational decision.
[50] In Pharmaceutical Manufacturers
Association SA: In Re Ex Parte President of the Republic of South
Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at 85 Chaskalson P (as he then was)
said:
‘It is a requirement of the rule
of law that the exercise of public powers by the Executive and other
functionaries should
not be arbitrary. Decisions must be rationally
related to the purpose for which the power was given, otherwise they
are in effect
arbitrary and inconsistent with this requirement. It
follows that in order to pass constitutional scrutiny the exercise of
public
power by the Executive and other functionaries must, at least,
comply with this requirement. If it does not, it falls short of the

standards demanded by our Constitution for such action.’
See also Albutt v Centre for the Study
of Violence and Reconciliation
2010 (3) SA 293
(CC) in which the
court found that the rule of law and the very principle of legality
requires a rational relationship between
the exercise of public power
and the objectives sought to be achieved. If the objective sought to
be achieved was to appoint a
COO, who met the needs of the
Broadcasting Act and
the Charter then the means which the Minister
adopted in this case, for all these reasons outlined above, cannot be
concluded to
be rational.
Conclusion
[51] By the time this case was argued,
this Court had the benefit of the SCA judgment. Even if the approach
adopted by the Schippers
J must still be considered to be the law,
given the appeal against the SCA judgment, I can take cognisance of
the fact that the
only appeal lodged before the Constitutional Court
relates to the requesting of the suspension of Mr Motsoeneng, pending
the outcome
of a disciplinary procedure. This is evident from the
notice of leave to appeal which was handed up to me by counsel for Mr
Motsoeneng.
The narrow basis of this appeal itself reveals the
untenable implications of a finding which dismisses this application.
Mr
Motsoeneng is now the subject of disciplinary proceedings, yet I
am asked to hold, notwithstanding this process, that the Minister

acted rationally in making a decision which amounted to a conversion
from acting COO, during which time Mr Motsoeneng’s performance

and conduct has prompted this disciplinary action, to appoint him as
permanent COO.
[52] There is a further implication
which follows therefrom. As indicated earlier, this case is not
about Mr Motsoeneng. Mr Maenetje,
who appeared together with Ms
Rajah on behalf of first to third respondent, submitted in his
careful argument that there is no
basis by which this court could
determine the outcome of this disciplinary hearing. Accordingly, if
Mr Motsoeneng is acquitted
of all of the charges which are to be
determined by a disciplinary tribunal, it was possible that he could
then be considered for
appointment as a permanent COO of the SABC.
In other words, it would be “a bridge too far” to grant
the applicant
relief within the terms sought, namely to direct the
Board to recommend the appointment of suitably qualified COO within
60 days
of the order of this court and hence ignore the outcome of
the disciplinary process.
[53] Much has been made by respondents
of Mr Motsoeneng’s achievements at the SABC and his ‘unique’
ability to
be the COO of the SABC. If it is properly shown that
none of the allegations made against him are sustainable, it would be
unfair
and, hence premature at this stage, to preclude him from such
consideration. In summary, it is preferable to allow the relevant

disciplinary proceedings to run its course and to reflect this
finding in the order. Hence, I agree with Mr Maenetje that this
is
the prudent course of action. Accordingly I propose to tailor the
order which is to be granted accordingly.
[54] To return to the relevant law: if
the SCA’s approach to the legal status of the report of the
Public Protector is the
law to be applied to this dispute, then it
must follow from this finding alone that the Minister has acted
irrationally and, more
generally, unlawfully. She would have ignored
a binding set of findings which required immediate remedial
attention. Whatever
the Minister’s assessment of Mr Motsoeneng
and hence her obvious preference for him, her decision, on either of
the two legal
foundations, is incongruent with legality. If the
alternative approach to the law is applied, the facts, as set out in
the papers
and summarised in this judgment, justify a similar
conclusion about irrationality for the reasons set out above.
The order
[55] For the reasons set out above the
following order is made:
1. The decision taken by the fourth
respondent on or about 08 July 2014 to approve the recommendation
made by the first and second
respondent to appoint the eighth
respondent as the Chief Operating Officer of the first respondent is
hereby reviewed and set aside.
2. The first, second, third respondent,
fourth respondent and the eighth respondent are ordered to pay the
costs of this application,
including the costs of two counsel,
jointly and severally, the one to pay the others to be absolved.
DAVIS J