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[2015] ZASCA 156
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South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others (393/2015) [2015] ZASCA 156; [2015] 4 All SA 719 (SCA); 2016 (2) SA 522 (SCA) (8 October 2015)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 393/2015
DATE:
08 OCTOBER 2015
Reportable
In
the matter between:
THE
SOUTH AFRICAN BROADCASTING
CORPORATION SOC
LIMITED
.......................................................................
FIRST
APPELLANT
THE
MINISTER OF
COMMUNICATIONS
................................................
SECOND
APPELLANT
HLAUDI
MOTSOENENG: THE CHIEF OPERATING
OFFICER OF THE SOUTH AFRICAN
BROADCASTING
CORPORATION SOC
LIMITED
.....................................................................
THIRD
APPELLANT
And
DEMOCRATIC
ALLIANCE
............................................................................
FIRST
RESPONDENT
THE
BOARD OF DIRECTORS OF THE SOUTH AFRICAN
BROADCASTING CORPORATION
SOC LIMITED
.............................
SECOND
RESPONDENT
THE
CHAIRPERSON OF THE BOARD OF DIRECTORS
OF THE SOUTH AFRICAN
BROADCASTING
CORPORATION SOC
LIMITED
..................................................................
THIRD
RESPONDENT
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
.............
FOURTH
RESPONDENT
SPEAKER
OF THE NATIONAL
ASSEMBLY
..............................................
FIFTH
RESPONDENT
THE
PORTFOLIO COMMITTEE FOR COMMUNICATIONS
OF THE NATIONAL
ASSEMBLY
..................................................................
SIXTH
RESPONDENT
THE
PUBLIC
PROTECTOR
...................................................................
SEVENTH
RESPONDENT
And
CORRUPTION
WATCH
..........................................................................................
AMICUS
CURIAE
Neutral
Citation:
SABC v DA
(393/2015)
[2015] ZASCA 156
(8 October 2015).
Coram:
Mpati P, Navsa, Ponnan, Swain and Dambuza
JJA
Heard:
18 September 2015
Delivered:
8 October 2015
Summary:
Remedial action by Public Protector –
has legal effect – absent review – cannot be ignored by
State and public
institutions – discussion of constitutional
and legislative scheme regulating powers of Public Protector –
order suspending
Chief Operating Officer of the South African
Broadcasting Corporation – held not to offend against
separation of powers doctrine
– reiteration of caveat against
piecemeal litigation.
ORDER
On
appeal from
: Western Cape Division of
the High Court, Cape Town (Schippers J sitting as court of first
instance), judgment reported
sub nom
Democratic Alliance v South African
Broadcasting Corporation Ltd & others
2015 (1) SA 551
(WCC).
The
appeal is dismissed with costs including the costs attendant upon the
employment of two counsel.
JUDGMENT
Navsa
and Ponnan JJA (Mpati P, Swain and Dambuza JJA concurring):
[1]
‘
Sed
quis custodiet ipsos custodes?
’
[1]
In posing that question, the Roman Poet Juvenal (
Satura
VI
lines 347-8) was suggesting that wives could not be trusted and that
keeping them under guard was no solution because guards could
not
themselves be trusted. Leonid Hurwicz, in accepting the Nobel Prize
in Economic Sciences, stated: ‘Yes, it would be absurd
that a
guardian should need a guard.’
[2]
[2]
In constitutional democracies, public administrators and State
institutions are guardians of the public weal.
[3]
In South Africa that principle applies to administration in every
sphere of government, organs of State and public enterprises.
[4]
Section 41 of the Constitution requires all spheres of government and
all organs of State to, amongst other things, ‘secure
the
wellbeing of the people of the Republic’, to ‘provide
effective, transparent, accountable and coherent government’,
to ‘respect the constitutional status, institutions, powers and
functions of government in the other spheres’ and not
to
exercise their powers and functions in a manner that encroaches upon
the institutional integrity of government in another sphere.
Significantly, s 41 of the Constitution dictates that all spheres of
government and all organs of State must co-operate with one
another
and must assist and support one another. They are required to
co-ordinate their actions, to adhere to agreed procedures
and to
avoid legal proceedings against one another. In constitutional States
there are checks and balances to ensure that when
any sphere of
government behaves aberrantly, measures can be implemented and steps
taken to ensure compliance with constitutional
prescripts. In our
country, the office of the Public Protector, like the Ombud in
comparable jurisdictions, is one important defence
against
maladministration and corruption. Bishop and Woolman state the
following:
[5]
‘
The
Public Protector’s brief, as initially adumbrated in the
Interim Constitution, and as now determined by the Final Constitution
and the Public Protector Act . . . is to watch the watchers
and to guarantee that the government discharges its responsibilities
without fear, favour or prejudice.’ (Footnotes omitted.)
[3]
In modern democratic constitutional States, in order to ensure
governmental accountability, it has become necessary for the
guards
to require a guard. And in terms of our constitutional scheme, it is
the Public Protector who guards the guards. That fundamental
tenet
lies at the heart of this appeal, in which we consider the Public
Protector’s powers and examine the constitutional
and
legislative architecture to determine how State institutions and
officials are required to deal with remedial action taken
by the
Public Protector.
[4]
The litigation culminating in the present appeal arose, so it is
alleged, because of the failure by the first appellant, the
South
African Broadcasting Corporation (the SABC), a national public
broadcaster, regulated by the Broadcasting Act 4 of 1999 (the
BA) and
the second appellant, the Minister of Communications (the Minister),
to implement remedial action directed by the Public
Protector, a
Chapter Nine institution established by s 181(1)
(a)
of the
Constitution, in a damning report compiled by her. At the outset it
is necessary to record that the State, in terms of s 8A(2)
of
the BA, is the sole shareholder in the SABC. Section 3(1) of the BA
provides, inter alia, that the South African broadcasting
system:
‘
(a)
serves to safeguard, enrich and strengthen the cultural, political,
social and economic fabric of South Africa;
(b)
operates in the public interest and strengthens
the spiritual and moral fibre of society;
.
. .’
[5]
Between November 2011 and February 2012 the Public Protector received
complaints from three former employees of the SABC. Those
complaints
in essence related to the alleged irregular appointment of the third
appellant, Mr Hlaudi Motsoeneng, as the Acting
Chief Operations
Officer (the Acting COO) as well as systemic maladministration
relating, inter alia, to human resources, financial
management,
governance failure and the irregular interference by the then
Minister of Communications,
[6]
Ms Dina Pule, in the affairs of the SABC. On 17 February 2014 and
following upon a fairly detailed investigation of those allegations,
the Public Protector released a report relating to her investigation
entitled ‘When Governance and Ethics Fail’.
[7]
[6]
The Public Protector concluded that there were ‘pathological
corporate governance deficiencies at the SABC’ and
that Mr
Motsoeneng had been allowed ‘by successive [b]oards to operate
above the law’. Her key findings in respect
of Mr Motsoeneng,
who she singled out for particularly scathing criticism, were that:
(i)
his appointment as Acting COO was irregular;
(ii)
the former Chairperson of the SABC Board, Dr Ben Ngubane, had acted
irregularly when he ordered that the qualification requirements
for
the appointment to the position of COO be altered to suit Mr
Motsoeneng’s circumstances;
(iii)
his salary progression from R1.5 million to R2.4 million in one
fiscal year was irregular;
(iv)
he had abused his power and position to unduly benefit himself;
(v)
he had fraudulently misrepresented, when completing his job
application form in 1995 and thereafter in 2003 when applying for
the
post of Executive Producer: Current Affairs, that he had
matriculated;
(vi)
he had been appointed to several posts at the SABC despite not having
the appropriate qualifications for those posts;
(vii)
he was responsible, as part of the SABC management, for the irregular
appointment of the SABC’s Chief Financial Officer;
(viii)
he was involved in the irregular termination of the employment of
several senior staff members resulting in a substantial
loss to the
SABC;
(viiii)
he had unilaterally and irregularly increased the salaries of various
staff members which resulted in a salary bill escalation
of R29
million.
Moreover,
the Public Protector found that the Department of Communications and
the then Minister Pule, aided and abetted by Mr Motsoeneng,
had
unduly interfered in the affairs of the SABC. Such conduct, so she
stated, ‘was unlawful and had a corrupting effect
on the SABC
Human Resources’ practices’ and ‘was grossly
improper and constitutes maladministration’.
[7]
As regards the Minister, the Public Protector, purportedly in terms
of s 182 of the Constitution, directed the following to
the Minister
of Communications at the time of the report, Mr Yunus Carrim (who had
since replaced Ms Dina Pule):
‘
11.2
The current Minister of the Department of communications: Hon. Yunus
Carrim
11.2.1.
To institute disciplinary proceedings against Mr Themba Phiri in
respect of his conduct with regard to his role in the irregular
appointment of Ms Duda as the SABC CFO.
11.2.2.
To take urgent steps to fill the long outstanding vacant position of
the Chief Operations Officer with a suitably qualified
permanent
incumbent within 90 days of this report and to establish why GCEO’s
cannot function at the SABC and leave prematurely,
causing
operational and financial strains.
11.2.3.
To define the role and authority of the COO in relation to the GCEO
and ensure that overlaps in authority are identified
and eliminated.
11.2.4.
To expedite finalization of all pending disciplinary proceedings
against the suspended CFO, Ms Duda within 60 days of this
report.’
[8]
The Public Protector directed the Board of the SABC to ensure that:
(i)
all monies are recovered which were irregularly expended through
unlawful and improper actions from the appropriate persons;
(ii)
appropriate disciplinary action was taken against Mr Motsoeneng for
his dishonesty relating to the misrepresentation of his
qualifications, abuse of power and improper conduct in the
appointments and salary increments of certain staff and for his role
in the purging of senior staff members resulting in numerous labour
disputes and settlement awards against the SABC;
(iii)
any fruitless and wasteful expenditure that had been incurred as a
result of irregular salary increments to Mr Motsoeneng
is recovered
from him.
The
Public Protector also required each of the Minister and the SABC
Board to submit an implementation plan within 30 days indicating
how
the remedial action would be implemented and for all such actions to
be finalised within six months.
[9]
On 7 July 2014, instead of implementing the Public Protector’s
remedial action and without notice to her, the SABC Board
resolved
that Mr Motsoeneng be appointed the permanent COO of the SABC. This
was accepted by the new Minister (who had by that
stage replaced Mr
Yunus Carrim), Ms Faith Muthambi, who approved and formally announced
his appointment the next day. Both the
Board and the Minister acted
as they did without reference to the Public Protector. Aggrieved, the
Democratic Alliance (DA), the
official opposition political party in
the National Assembly, applied to the Western Cape Division of the
High Court, Cape Town
(the High Court), to first suspend and then set
aside Mr Motsoeneng’s appointment. It contended that in the
light of the
damning findings of the Public Protector in relation to
Mr Motsoeneng and the clear requirements for the appointment of the
COO,
his appointment to that position was irrational and unlawful.
[10]
The application was brought in two parts. Part A was an urgent
application seeking, inter alia, the following relief:
‘
2.
Directing that the Seventh Respondent (“Motsoeneng”) is
suspended with immediate effect from his position as Chief
Operating
Officer (“COO”) of the First Respondent (“SABC”),
and shall remain suspended at least until the
finalization of the
disciplinary proceedings to be brought against him in terms of para 3
and the determination of the review relief
sought in Part B;
3.
Directing the Second Respondent (“the Board”) to
institute disciplinary proceedings against Motsoeneng within five
(5)
days of the date of this court’s order;
4.
Directing the Board, within five (5) days of the date of this court’s
order, to appoint a suitably qualified person as
acting COO to fill
the position pending the appointment of a suitably qualified
permanent COO;
5.
Ordering that the members of the Board who voted in favour of the
appointment of Motsoeneng as COO, and the Fourth Respondent
(“the
Minister”) in their personal capacities pay the Applicant’s
costs on an attorney and client scale;
.
. . . ’
[11]
Part B sought relief as follows:
‘
7.
Reviewing and setting aside the decision taken by the Board, on or
about 7 July 2014, to recommend the appointment of Motsoeneng
as COO;
8.
Reviewing and setting aside the decision taken by the Minister, on or
about 7 July 2014, to approve the recommendation made by
the Board to
appoint Motsoeneng as COO;
9.
Directing the Board to recommend the appointment of, and the Minister
to appoint, a suitably qualified COO within 60 days of
the date of
the court’s order;
10.
Directing that, if the Board and/or the Minister fail to comply with
the terms of paragraph 9, the Third Respondent (“the
Chairperson”), and the Minister, shall file affidavits within
70 days of the date of this court’s order giving reasons
why
all the members of the Board and the Minister should not be held in
contempt of court;
11.
Declaring that, the decisions to recommend and appoint Motsoeneng as
COO before responding to the report of the Ninth Respondent
[the
Public Protector] dated 17 February 2014 and titled ‘
When
Governance and Ethics Fail’,
the Board and the Minister
respectively were inconsistent with the Constitution, particularly
section 181(3) of the Constitution,
and invalid;
12.
Ordering that the members of the Board who voted in favour of the
appointment of Motsoeneng as COO, and the Minister in their
personal
capacities pay the Applicant’s costs on an attorney and client
scale;
.
. . .’
[12]
The application cited the SABC, the Board of Directors of the SABC
and the Chairperson of the Board of Directors of the SABC
(collectively referred to as the SABC) as the first to third
respondents. The Minister of Communications, the President of the
Republic of South Africa, the Speaker of the National Assembly, the
Portfolio Committee for Communications of the National Assembly,
Mr
Motsoeneng and the Public Protector were cited as the fourth to ninth
respondents respectively. No relief was sought against
the President,
the Speaker and the Portfolio Committee. They accordingly took no
part in the proceedings either in this court or
the one below. The
SABC opposed the application as did the Minister and Mr Motsoeneng.
We turn presently to the role played by
the Public Protector in the
preceding litigation and the present appeal.
[13]
In support of the application, Mr James Selfe, the chairperson of the
Federal Executive of the DA, relying principally on the
Public
Protector’s report, stated in the founding affidavit:
‘
34.
First
, the
Public Protector concluded that Motsoeneng had
lied
about his qualifications
when applying
for the COO position, and when applying for his earlier positions at
the SABC. Motsoeneng lied about having obtained
a matric certificate
and made up imaginary grades on his application form. It appears that
the SABC Board may have been aware of
this misrepresentation and
appointed Motsoeneng nonetheless. As the Public Protector notes,
Motsoeneng’s attempt to rely
on this connivance only
exacerbates his crime as he showed no remorse for his unethical
conduct. The lie was necessary as a matric
was a minimum requirement
for the position (as it had been for his earlier positions). The
Public Protector described this as fraudulent.
35.
Importantly, Motsoeneng admitted in his interview that he had lied in
his application form. In addition, his fraudulent misrepresentation
was known to the SABC from at least 2003 when a Group Internal Audit
into the allegation that found he had indeed misrepresented
himself
by stating that he passed matric in 1991. The audit recommended that
action should be instituted against Motsoeneng for
his
misrepresentation. This did not occur.
.
. .
51.
Appointing Motsoeneng in a permanent position would have been
unlawful and irrational even if all the correct procedures had
been
followed. However, not only did the Board and the Minister appoint an
admitted fraudster who had single-handedly cost the
SABC tens of
millions of rand and completely undermined public confidence and good
corporate governance, it completely ignored
the relevant legal
provisions when it did so.
52.
The DA was not privy to the details of the appointment of Motsoeneng,
but those details have been widely exposed in the press.
I rely on
several of those media reports for the facts contained [in this]
section. I attach several of them as annexures . . .
. Rather than
refer to the media reports for each allegation, I tell the sordid
story with reference to all the media reports together
as the source.
Except where I note otherwise, none of the key allegations have been
denied by the Board or the Minister.
53.
One of the obstacles to filling the post of COO – and part of
the reason Motsoeneng served in an acting capacity for so
long –
was that Mr Mvuzo Mbebe had obtained an interdict preventing the post
from being filled on a permanent basis. Mbebe
had been recommended as
COO in 2007 by the Board, but his recommendation was overturned when
a new chairperson – Ms Khanyi
Mkhonza – took office. The
interdict prevented the Board from permanently filling the post
pending Mbebe’s review of
the Board’s reversal.
54.
This matter was close to being resolved by the previous Minister, Mr
[Yunus] Carrim. It appears that the matter may have been
finally
settled by the current Minister [Ms Faith Muthambi] sometime in early
July. The Minister arrived at a Board meeting on
7 July 2014 in
possession of a note of settlement of the Mbebe dispute. If valid
this would open the way for the appointing a new
COO. However, Mbebe
had denied that there has been a final settlement.
55.
Even if the matter had been settled, it would merely start the
process of advertising, shortlisting and interviewing candidates.
That process had not yet started because it was believed Mbebe’s
interdict prevented any fresh appointment. In addition,
the question
of filling the new post of the COO was not on the agenda of the 7
July Board meeting.
56.
However, it appears that when the Minister arrived at the SABC at
19:00 on 7 July 2014, she entered into a private conference
with the
Chairperson. When the Chairperson emerged from that conference at
about 21:00, she proposed to the Board that it immediately
appoint
Motsoeneng as the permanent COO.
57.
It appears that, in addition to the fact that the Mbebe issue had
been resolved, the Chairperson informed the Board that it
was
necessary to appoint Motsoeneng because of a threat from his lawyers.
Motsoeneng’s attorneys had written stating that
he was entitled
to be appointed based on a “legitimate expectation”, as
he had been acting in the position for so long.
The Chairperson
relied on this document, and his assertion that Motsoeneng was
performing well in his position to justify the appointment.
The
Chairperson also read out a letter from Motsoeneng that one Board
member described “saying what a great person he is.
In the
letter, Hlaudi attributes all the success of the SABC to himself . .
. like there is no one else working there”.
58.
Understandably, several board members objected. They claimed that the
proper process – which, as I explain below, requires
that the
position be advertised, candidates shortlisted and interviewed –
had not been followed. It is unclear whether they
also raised the
Public Protector’s Report. Five of the eleven board members did
not support his appointment: two abstained
(Prof Bongani Khumalo and
Vusumuzi Mavuso) and three voted against (Ronnie Lubisi, Krish Naidoo
and Rachel Kalidass). The remaining
six board members voted in favour
(The Chairperson, Prof Mbulaheni, Obert Maghuve, Nomvuyo Mhlakaza,
Ndivhoniswani Tshidzumba,
Leah Khumalo and Hope Zinde).
59.
After resolving to appoint Motsoeneng, the Board passed its
recommendation on to the Minister for her approval at around 23:30
on
7 July 2014. The Minister informed the Board that she would “apply
her mind” to the issue. She applied it extremely
quickly as,
the next day, 8 July 2014, she announced the appointment of
Motsoeneng.
60.
At no point did the Board or the Minister explain to the Public
Protector why they were ignoring her findings and appointing
Motsoeneng in a permanent position. Indeed, when responding to
queries about how Motsoeneng could possibly be appointed in light
of
the PP Report, the SABC’s spokesperson Kaizer Kganyago replied:
“The Public Protector has nothing to do with [the
permanent
appointment of Motsoeneng]. The two are not together . . . I don’t
know how the two are related.”
61.
However, at a press briefing on 10 July 2014, the Minister indicated
that the SABC Board had obtained the opinion of an independent
law
firm “to investigate all the issues raised by the Public
Protector”. The Minister stated that she and the Board
were
“satisfied that the report . . . cleared Mr Motsoeneng of any
wrongdoing”. The Minister provided no details about
the
contents of the law firm’s report.’ (Emphasis in
original, formatting altered slightly.)
[14]
In opposing the application, both Ms Tshabalala, the then Chairperson
of the SABC Board and Minister Muthambi denied that the
Public
Protector’s findings and remedial action had been ignored or
that Mr Motsoeneng’s permanent appointment was
irregular. In
that regard the former said:
‘
49.
Reasonably soon after receipt of the Public Protector’s Report,
and in addition to internal considerations of the Public
Protector’s
Report and its findings and recommendations, the Board procured the
services of Mchunu Attorneys, a firm of attorneys,
to assist it in
considering and investigating the veracity of the findings and
recommendations by the Public Protector, as well
as to assist the
Board and management to respond to the Public Protector. Mchunu
Attorneys reviewed the Public Protector’s
Report and
investigated its findings and recommendations for purposes of
advising the Board. Mchunu Attorneys prepared a report
in respect of
its task and gave advice to the Board.’
[15]
Ms Tshabalala did not annex a copy of the report from the firm of
attorneys to her affidavit, stating that it was privileged.
She added
that the Board did not disregard the report of the Public Protector.
According to her, a Committee of Chairs had been
established to deal
with it. She asserted that the Board had been in constant
communication with the Public Protector regarding
her implementation
plan and the Board’s difficulties therewith. And later on in
her affidavit, she stated quite emphatically:
‘
125.2.
I deny what may be defamatory statements that Mr Motsoeneng is a
fraudster as alleged in paragraph 51 [of the founding affidavit],
based on the findings of the Public Protector,
which
have been demonstrated to be false in this regard.
125.3
The allegations contained in paragraphs 53 to 64 [of the founding
affidavit] are based on media reports. They
constitute hearsay
evidence. Once the review record has been filed, reliable evidence
will be before the Court and the Board will
deal with the allegations
in full in response to Part B of the notice of motion.
Suffice to
state that the allegations are denied to the extent that they suggest
that the appointment of Mr Motsoeneng is unlawful
and irrational. . .
125.4.
The Minister was empowered to accept the recommendation of the Board
and to appoint Mr Motsoeneng as the COO of the
SABC. Any alleged
failure by the Board to follow procedures set out in the Articles of
Association did not preclude the 100% shareholder,
empowered under
the
Broadcasting Act read
with the Articles of Association to appoint
a COO, to approve the appointment of Mr Motsoeneng. The legal basis
for this contention,
as well as the relevant facts, will be fully set
out in the answering affidavit to Part B of the notice of motion. The
outcome
of Part A does not depend on this. I am advised and
respectfully submit that this is not a case of an applicant seeking
interim
relief that is linked directly to the final relief sought –
as in Part A (allegedly interim) and Part B of the notice of motion
(final).’ (Our emphasis.)
[16]
In opposing the DA’s application the Minister stated in her
answering affidavit:
‘
14.
[At the meeting with the chairperson of the Board on 7 July 2014] I
then raised my concerns with the Chairperson of the board
of the
[SABC] who then provided to me the transcript of the interview
between the Public Protector and [Mr Motsoeneng]. After reading
such
transcript, I was satisfied that the [Mr Motsoeneng] did not lie to
the first respondent about the Matric qualification. I
was then
satisfied that the [Mr Motsoeneng] is competent and has the necessary
expertise to be appointed as the Chief Operations
Officer.
15.
I considered in that regard the further qualifications which [Mr
Motsoeneng] had obtained throughout his employment with the
[SABC]
which are mentioned in the report of Mchunu Attorneys. I also
considered the fact that [Mr Motsoeneng] had gained the necessary
experience and acquitted himself exceptionally well for a period of
almost three years when he was acting as the Chief Operations
Officer.
.
. .
33.2
The report of Mchunu Attorneys shows that the [SABC Board] has not
ignored the findings of the Public Protector. That report
shows that
the [SABC Board] sought advice on how to deal with that report. Based
on the advice it received the [SABC Board] considered
it appropriate
to conclude that the [Mr Motsoeneng] did not mislead the [SABC] about
his qualifications.
.
. .
41.4
However, I intend to engage the Public Protector on her findings, and
bring to her attention facts which were uncovered by
Mchunu Attorneys
which could well affect her findings.
42.
I have already indicated that I intend to engage the Public Protector
in the light of facts which were established by Mchunu
Attorneys, in
their investigation. I have prepared the response of my office to the
Public Protector of which such report will
reach the Public
Protector’s office in time, I will also meet the portfolio
committee on communications on the 26 August
2014 to take them
through my reply to the Public Protector.
43.1
Once again, I point out that the findings contained in the report of
the Public Protector should be considered in the light
of the report
by Mchunu Attorneys and the transcript of the interview between [the]
Public Protector and [Mr Motsoeneng], which
I meant to believe that
the [SABC] will bring it to the attention of this court.’
.
. .
45.2.
I have been advised that the [DA] is not entitled to rely on
newspaper reports referred in this paragraph. I object to the
admissibility of annexure[s] . . . on the grounds that they
constitute inadmissible hearsay evidence.
.
. .
46.3.
I deny that I arrived at the board meeting of the 7 July 2014 with a
so called note of settlement on Mbebe’s matter.
It is further
not true that I had a two hours meeting with the [SABC Board
Chairperson] upon my arrival to the said board meeting.
As a matter
of protocol it is the duty of the [SABC Board Chairperson] to give me
a brief of the issues.
.
. .
47.1.
I admit that I was present at the offices of the [SABC] on 7 July
2014. I went to those offices upon the invitation of the
chair of the
[SABC].
47.2.
I only entered the meeting room after the [SABC Board] had concluded
deliberations as per invitation of its chair.
47.3.
I did not propose to the [SABC Board] that its members should appoint
[Mr Motsoeneng] in a permanent capacity or in any capacity
at all. I
could not have done so, having regard to the independence of the
[SABC Board], and the decision-making process that must
be followed
in making such appointments.
.
. .
50.2.
I informed the chair of the [SABC Board] that I can only act upon the
decision of the [SABC Board] once I received a recommendation
from
the [SABC Board] which motivated its decision to recommend the
appointment of the [Mr Motsoeneng].
50.3.
On 8 July 2014 I received recommendation from the [SABC Board],
together with several documents, including the report of Mchunu
Attorneys which deal with their advice on the findings and remedial
action of the Public Protector.
50.4.
I did consider that recommendation and supporting documents, and
thereafter decided to accept the recommendation on 8 July
2014.
50.5.
I considered it my duty to make the decision on the recommendation of
the [SABC Board] as expeditiously as was possible because
the matter
was urgent, and I had the constitutional duty to make a decision on
that recommendation diligently and without delay.
.
. .
51.3.
I will continue to engage the Public Protector on her findings and
remedial action relating to [Mr Motsoeneg]. I will, in
that regard,
make available to her the findings of Mchunu Attorneys, and ask her
to consider whether that report impacts on her
findings, and if so,
to what extent.’
[17]
After initially intimating that she would abide the decision of the
High Court, the Public Protector felt constrained to file
an
affidavit with that court because, as she put it:
‘
No
relief is sought by the Applicant against me. Nor do any of the
Respondents seek to launch a counter-application to review the
Report
and set aside my findings contained therein. Therefore, when I
originally received the application, I did not file a notice
of
intention to oppose the application. However, when I read the
answering affidavits filed on behalf of the First – Third
Respondents [the SABC, the SABC Board, and the SABC Board
Chairperson] and the Eighth Respondents [Mr Motsoeneng], it became
clear
that the main thrust of their case was to discredit the Public
Protector’s reports and the findings and remedial action taken
therein. The First – Third and Eighth Respondents seek to do
this in circumstances where no Respondent had brought a
counter-application
to review and set aside the Report and its
contents. Moreover, the answering affidavits filed by those
Respondents are replete
with inaccuracies with respect to the Report
and its contents. It therefore became clear to me, that I need to
place certain facts
and considerations before this Court in an effort
to assist the Court in its adjudication of this matter and in order
to clarify
the role of the Public Protector and the status of the
findings and remedial action taken in my Report.’
[18]
The Public Protector expressed the view that the principles of
co-operative governance contemplated in the Constitution required
the
Minister and the SABC to have submitted an implementation plan to
her, which they had failed to do. She therefore suggested
that she
was obliged to ventilate the issues in the current proceedings,
rather than through co-operative governance processes.
According to
the Public Protector, Mr Yunus Carrim, undertook in Parliament to
implement the remedial action. However, this was
not done. Also the
Board of the SABC, on more than one occasion, had indicated that it
was engaging with the report and sought
extensions from her in order
to comply. The extensions were granted and notwithstanding
indications by the Chairperson of the Board
that the report was being
given due consideration and that an implementation plan would be
furnished, her remedial action was ignored.
[19]
The court below (Schippers J), formulated the primary question for
adjudication as follows: Are the findings of the Public
Protector
binding and enforceable? He examined the relevant provisions of the
Constitution and the Public Protector Act 23 of 1994
(the Act) and
reasoned:
‘
50.
. . . The powers and functions of the Public Protector are not
adjudicative. Unlike courts, the Public Protector does not hear
and
determine causes. The Report itself states that in the enquiry as to
what happened the Public Protector relies primarily on
official
documents such as memoranda and minutes, and less on oral evidence.
In the enquiry as to what should have happened the
Public Protector
assesses the conduct in question in the light of the standards laid
down in the Constitution, legislation, and
policies and guidelines.
51.
Further, unlike an order or decision of a court, a finding by the
Public Protector is not binding on persons and organs of State.
[8]
If it were intended that the findings of the Public Protector should
be binding and enforceable, the Constitution would have said
so.
Instead, the power to take remedial action in s 182(1)
(c)
of the Constitution is inextricably linked to the Public Protector’s
investigatory powers in s 182(1)
(a)
.
Having regard to the plain wording and context of s 182(1), the power
to take appropriate remedial action, in my view, means no
more than
that the Public Protector may take steps to redress improper or
prejudicial conduct. But that is not to say that the
findings of the
Public Protector are binding and enforceable, or that the institution
is ineffective without such powers.’
Then,
somewhat contradictorily, he stated:
‘
59.
However, the fact that the findings of and remedial action taken by
the Public Protector are not binding decisions does not
mean that
these findings and remedial action are mere recommendations, which an
organ of State may accept or reject.’
[9]
[20]
Schippers J concluded:
‘
74.
For these reasons I have come to the conclusion that the findings of
the Public Protector are not binding and enforceable.
[10]
However, when an organ of State rejects those findings or the
remedial action, that decision itself must not be irrational.’
He
thus proceeded to consider whether the decision by the SABC to
recommend - and the Minister’s decision to appoint - Mr
Motsoeneng as the permanent COO was rational. On that score the
learned judge held:
‘
83.
The conduct of the board and the minister in rejecting the findings
and remedial action of the Public Protector was arbitrary
and
irrational and, consequently, constitutionally unlawful. They have
not provided cogent reasons to justify their rejection of
the
findings by the Public Protector of dishonesty, maladministration,
improper conduct and abuse of power on the part of Motsoeneng.’
[21]
The learned judge accordingly issued the following order:
‘
1.
The Board of the South African Broadcasting Corporation Ltd (SABC)
shall, within 14 calendar days of the date of this order,
commence,
by way of serving on him a notice of charges, disciplinary
proceedings against the eighth respondent, the chief operations
officer (COO), Mr George Hlaudi Motsoeneng, for his alleged
dishonesty relating to the alleged misrepresentation of his
qualifications,
abuse of power and improper conduct in the
appointments and salary increases of Ms Sully Motsweni; and for his
role in the alleged
suspension and dismissal of senior members of
staff, resulting in numerous labour disputes and settlement awards
against the SABC,
referred to in para 11.3.2.1 of the report of the
Public Protector dated 17 February 2014.
2.
An independent person shall preside over the disciplinary
proceedings.
3.
The disciplinary proceedings referred to in para 1 above shall be
completed within a period of 60 calendar days after they have
been
commenced. If the proceedings are not completed within that time, the
chairperson of the board of the SABC shall deliver an
affidavit to
this court:
(a)
explaining why the proceedings have not been completed; and
(b)
stating when they are likely to be completed. The applicant shall be
entitled, within five calendar days of delivery of the
affidavit by
the Chairperson, to deliver an answering affidavit.
4.
Pending the finalisation of the disciplinary proceedings referred to
in para 1, and for the period referred to in para 3 above,
the eighth
respondent shall be suspended on full pay’.
[22]
With the leave of the court below, the SABC, as the first appellant,
the Minister, as the second, and Mr Motsoeneng, as the
third, appeal
to this court against the judgment of the court below. The DA opposes
the appeal. The Public Protector instructed
counsel to file heads of
argument and address us from the bar on the status and effect of her
findings and remedial action. Corruption
Watch, a civil society
organisation, who was granted leave by the President of this court to
intervene as an amicus curiae in the
appeal, endorses the Public
Protector’s contention that on a proper interpretation of s 182
of the Constitution, read with
the Act, she has the power to take
remedial action which cannot be ignored by organs of State.
[23]
For a proper understanding, it is necessary to contextualise the
position and purpose of the Public Protector within our
Constitutional
framework, and to consider her powers. As our
interpretation differs from that of the court below, it is necessary
that we
do so in some detail. South Africa’s Chapter Nine
institutions were established as independent watchdogs to strengthen
constitutional democracy in the Republic. Section 181(1) of the
Constitution lists the institutions supporting constitutional
democracy as:
‘
.
. .
(a)
The Public Protector.
(b)
The South African Human Rights
Commission.
(c)
The Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic
Communities.
(d)
The Commissioner for Gender Equality.
(e)
The Auditor-General.
(f)
The Electoral Commission.’
[24]
Section 181(2) of the Constitution states that ‘[t]hese
institutions are independent, and subject only to the Constitution
and the law’. For their part, ‘they must be impartial and
must exercise their powers and perform their functions without
fear,
favour or prejudice’. Section 181(3) imposes a positive
obligation on other organs of State, who ‘through legislative
and other measures, must assist and protect these institutions’
to ensure their ‘independence, impartiality, dignity
and
effectiveness’. Section 181(4) specifically prohibits any
‘person or organ of the State’ from interfering
with the
functioning of these institutions. However, our Constitution does
attempt to strike a balance between their independence,
on the one
hand, and accountability, on the other. To that end, s 181(5)
provides that: ‘[t]hese institutions are accountable
to the
National Assembly, and must report on their activities and the
performance of their functions to the Assembly at least once
a year.’
But as the Constitutional Court pointed out in
Independent
Electoral Commission v Langeberg Municipality
[2001]
ZACC 23
;
2001 (3) SA 925
(CC) para 27: the Constitution, in effect,
describes Chapter Nine institutions as State institutions that
strengthen constitutional
democracy; Chapter Nine institutions are
independent and subject only to the Constitution and the law; it is
‘a contradiction
in terms to regard an independent institution
as part of a sphere of government that is functionally interdependent
and interrelated
in relation to all other spheres of government’;
and independence cannot exist in the air and it is thus clear that
independence
is intended to refer to independence from the
government.
[25]
Thus even though these institutions perform their functions in terms
of national legislation they are not organs of State within
the
national sphere of government. Nor are they subject to national
executive control. Accordingly, they should be, and must manifestly
be seen to be, outside government.
[11]
In
New
National
Party
v
Government
of
the
Republic
of
South
Africa
&
others
[1999] ZACC 5
;
1999 (3) SA 191
(CC) para 98 and 99, it was stated by
Langa DP, writing in a separate concurring majority judgment:
‘
In
dealing with the independence of the [Independent Electoral]
Commission, it is necessary to make a distinction between two
factors,
both of which, in my view, are relevant to “independence”.
The first is “financial independence”. This implies
the
ability to have access to funds reasonably required to enable the
Commission to discharge the functions it is obliged to perform
under
the Constitution and the Electoral Commission Act. This does not mean
that it can set its own budget. Parliament does that.
What it does
mean, however, is that Parliament must consider what is reasonably
required by the Commission and deal with requests
for funding
rationally, in the light of other national interests. It is for
Parliament, and not the Executive arm of Government,
to provide for
funding reasonably sufficient to enable the Commission to carry out
its constitutional mandate. The Commission must,
accordingly, be
afforded an adequate opportunity to defend its budgetary requirements
before Parliament or its relevant committees.
The
second factor, “administrative independence”, implies
that there will be [no] control over those matters directly
connected
with the functions which the Commission has to perform under the
Constitution and the Act. The Executive must provide
the assistance
that the Commission requires “to ensure (its) independence,
impartiality, dignity and effectiveness”.’
Langa
DP was elaborating there on the independence of the Independent
Electoral Commission but those considerations apply with equal
force
to the office of the Public Protector.
[26]
The Public Protector, which is the first on the list of Chapter Nine
institutions, has its historical roots in the institution
of the
Swedish Parliamentary Ombud.
[12]
That office was established with the adoption of the Swedish
Constitution Act of 1809 and is said to have been a response to the
King’s authoritarian rule. The task assigned to the Swedish
Ombud, which had been conceived as far back as 1713, was to ensure
that public officials acted in accordance with the law and discharged
their duties satisfactorily in other respects.
[13]
If the Ombud found this not to be the case he was empowered to
institute legal proceedings for dereliction of duty.
[14]
Like similar institutions around the globe,
[15]
the purpose of the office of the Public Protector is to ensure that
there is an effective public service which maintains a high
standard
of professional ethics and that government officials carry out their
tasks effectively, fairly and without corruption
or prejudice.
[16]
The term ‘
Defenser
del Pueblo’
employed in Spain and some South American countries translates into
‘Public Defender’. This emphasises ‘the protection
of the people’ and ‘the public good’.
[17]
[27]
When the office of an Ombud or Public Protector in the new
constitutional dispensation was first mooted in this country, the
African National Congress, the current ruling political party in
Parliament, in a document entitled ‘Ready to Govern: Policy
Guidelines on a Democratic South Africa’,
[18]
said
the following:
‘
The
ANC proposes that a full-time independent office of the Ombud should
be created with wide powers to investigate complaints against
members
of the public service and other holders of public office and to
investigate allegations of corruption, abuse of their powers,
rudeness and maladministration. The Ombud shall have the power to
provide adequate remedies. He shall be appointed by and answerable
to
Parliament.’
This
predated the adoption of our Interim Constitution.
[28]
The most significant constitutional provision is s 182, which reads:
‘
(1)
The Public Protector has the power, as regulated by national
legislation –
(a)
to investigate any conduct in State
affairs, or in the public administration in any sphere of government,
that is alleged or suspected
to be improper or to result in any
impropriety or prejudice;
(b)
to report on that conduct; and
(c)
to take appropriate remedial action.
(2)
The Public Protector has the additional powers and functions
prescribed by national legislation.
(3)
The Public Protector may not investigate court decisions.
(4)
The Public Protector must be accessible to all persons and
communities.
(5)
Any report issued by the Public Protector must be open to the public
unless exceptional circumstances, to be determined in terms
of
national legislation, require that a report be kept confidential.’
[29]
The independence, impartiality and effectiveness of the Public
Protector are vital to ensuring accountable and responsible
government. The office inherently entails investigation of sensitive
and potentially embarrassing affairs of government.
[19]
In terms of s 182(2) of the Constitution the Public Protector also
‘has the additional powers and functions’ prescribed
by
national legislation. The national legislation that is referred to in
s 182 is the Act, which makes it clear that, while the
functions of
the Public Protector include those that are ordinarily associated
with an ombudsman, they also go much beyond that.
[20]
The office of the Public Protector provides ‘. . . what
will often be a last defence against bureaucratic
oppression, and
against corruption and malfeasance in public office that are capable
of insidiously destroying the nation.’
[21]
It follows that in fulfilling its constitutional mandate that office
will have to act with courage and vigilance.
[22]
[30]
Sections 193 and 194 of the Constitution provide for the appointment
and removal of the Public Protector. The Public Protector
is
appointed by the President on the recommendation of the National
Assembly. The National Assembly must recommend persons: (i)
nominated
by a committee of the Assembly proportionally composed of members of
all political parties represented in the Assembly;
and (ii) approved
by the Assembly by a resolution adopted with a supporting vote of at
least 60 per cent of the members of
the Assembly. In addition to
being a South African citizen and a fit and proper person,
[23]
the Public Protector must have at least ten years’ relevant
experience or be a judge of the High Court.
[24]
This obviously suggests that the incumbent must be someone who is
beyond reproach, a person of stature and suitably qualified.
Section
183 of the Constitution provides for a non-renewable tenure of seven
years. The Public Protector may be removed from office
only on: (a)
the ground of misconduct, incapacity or incompetence; (b) a finding
to that effect by a committee of the National
Assembly; and (c) the
adoption by the Assembly of a resolution calling for her removal from
office. A resolution of the National
Assembly concerning the removal
of the Public Protector from office must be adopted with a supporting
vote of at least two thirds
of the members of the Assembly. Upon the
adoption of such a resolution the President must remove the Public
Protector from office.
The Public Protector is thus well protected
and a high threshold is set for her removal. Significantly, in the
First
Certification Judgment
,
the Constitutional Court found that the provisions in the Interim
Constitution governing the removal of the Public Protector from
office
did
not pass constitutional muster
.
[25]
[31]
The predecessors of the Public Protector are the Advocate-General and
the Ombudsman. The office of the Ombudsman, like the
Advocate-General
that came before it, had the power under the (now repealed) Ombudsman
Act 118 of 1979 to investigate reports of
maladministration, but not
to take remedial action directly. In other words, the Legislature
expressly limited the Ombudsman’s
remedial powers. She had to
refer her findings to other institutions for remedial action.
[26]
The office of the Public Protector was established by s 110 of the
Interim Constitution.
Section
112 of the Interim Constitution, which set out the powers and
functions of the Public Protector, echoing the Ombudsman Act
and the
Attorney-General Act 92 of 1992 before it, merely stated that it was
competent for the Public Protector, pursuant to an
investigation:
‘
. . . to
endeavour, in his or her sole discretion, to resolve any dispute or
rectify any act or omission by –
(i)
mediation, conciliation or negotiation;
(ii)
advising, where necessary, any complainant regarding appropriate
remedies; or
(iii)
any other means that may be expedient in the circumstances.’
[32]
It is necessary to have regard to the relevant provisions of the Act
to see how action by the Public Protector is triggered
as well as to
examine the range of statutory measures available to that office. But
before we do that it is worth noting the material
parts of the
Preamble to the Act:
‘
Whereas
sections 181 to 183 of the Constitution of the Republic of South
Africa, 1996 (Act 108 of 1996),
[
[27]
]
provide for the establishment of the office of Public Protector and
that the Public Protector has the power, as regulated by national
legislation, to investigate any conduct in State affairs, or in the
public administration in any sphere of government, that is
alleged or
suspected to be improper or to have resulted in any impropriety or
prejudice, to report on that conduct and to take
appropriate remedial
action, in order to strengthen and support constitutional democracy
in the Republic; . . . .’
[33]
Importantly, s 6 of the Act is entitled ‘Reporting matters to
and
additional
powers
of Public Protector’. Section 6(1) provides that any person
may, in any matter over which the Public Protector has jurisdiction,
report a complaint to that office. The Public Protector, may, in
terms of s 6(3), refuse to investigate a matter reported, if the
person ostensibly prejudiced is a State official or employee and that
person has not exhausted remedies conferred in terms of the
provisions of the Public Service Act, 1994
[28]
or if the affected person has not taken all reasonable steps to
exhaust available legal remedies.
[34]
Section 6(4)
(a)
of the Act deals with the Public Protector’s
additional competencies and provides that she is entitled to act on
her own
initiative. It provides:
‘
The
Public Protector shall, be competent-
(a)
To investigate, on his or her own
initiative or on receipt of a complaint, any alleged–
(i)
maladministration in connection with the
affairs of government at any level;
(ii)
abuse or unjustifiable exercise of power or
unfair, capricious, discourteous or other improper conduct or undue
delay by a person
performing a public function;
(iii)
improper or dishonest act, or omission or
offences referred to in Part 1 to 4, or section 17, 20 or 21…of
Chapter 2 of the
Prevention and Combating of Corrupt Activities Act,
2004
with respect to public money;
(iv)
improper or unlawful enrichment, or receipt
of any improper advantage, or promise of such enrichment or
advantage, by a person as
a result of an act or omission in the
public administration or in connection with the affairs of government
at any level or of
a person performing a public function, or;
(v)
act or omission by a person in the employ
of government at any level, or a person performing a public function,
which results in
unlawful or improper prejudice to any other person’.
[35]
Section 6(4)
(b)
of the Act gives the Public Protector resort
to what might, in broad terms, be described as alternative dispute
resolution measures.
It provides that the Public Protector
shall be competent:
‘
(b)
to endeavour, in his or her sole discretion, to resolve any dispute
or rectify any act or omission by
–
(i)
mediation, or conciliation or negotiation;
(ii)
advising, where necessary, any complainant
regarding appropriate remedies; or
(iii)
any other means that may be expedient in
the circumstances
’
.
[36]
Section 6(4)
(c)
(i) states that if the Public Protector is of
the opinion that the facts presented to her disclose the commission
of an offence
she is entitled to refer it to the authority charged
with prosecutions. Section 6(4)
(c)
(ii) provides that if the
Public Protector deems it advisable she may refer:
‘
. . . any
matter which has a bearing on an investigation, to the appropriate
public body or authority affected by
it or to make an appropriate
recommendation regarding the redress of the prejudice resulting
therefrom or make any other appropriate
recommendation he or she
deems expedient to the affected public body or authority.’
[37]
Section 6(5)
(a)
of
the Act is especially pertinent to this matter. It provides that the
Public Protector has the same powers referred to in s 6(4)
set out
above in relation to the affairs of an institution in which the State
is the majority or controlling shareholder or in
relation to any
public entity as defined in s 1 of the Public Finance Management Act
1 of 1999 (the PFMA). This subsection of course
encompasses the SABC.
[38]
Section 7 of the Act gives the Public Protector extensive powers of
investigation. She is entitled to subpoena persons and
require them
to give evidence. Persons being investigated have the right to be
heard. Section 7A gives the Public Protector search
and seizure
powers.
[39]
Section 8(1) of the Act provides:
‘
The
Public Protector may, subject to the provisions of subsection (3), in
the manner he or she deems fit, make known to any person
any finding,
point of view or recommendation in respect of a matter investigated
by him or her.’
Section
8(3) reads as follows:
‘
The
findings of an investigation by the Public Protector shall, when he
or she deems it fit but as soon as possible, be made available
to the
complainant and to any person implicated thereby.’
[40]
Section 11 of the Act makes it an offence for anyone to interfere
with the functioning of the office of the Public Protector
‘as
contemplated in section 181(4) of the Constitution’.
[29]
[41]
As can be seen Parliament took very seriously its constitutional
mandate to legislate the additional powers of the Public
Protector.
In that regard, conscious of the importance of the office, the
Legislature was thorough and thoughtful.
[42]
Subsections 6(4)
(b)
,
(c)
and
(d)
of the Act, which was enacted pursuant to the Interim Constitution,
appear to mirror the language of s 112(1)
(b)
of the Interim Constitution.
[30]
The Final Constitution, however, in a significant shift in language,
conferred an express further power on the Public Protector.
Instead
of empowering the Public Protector to ‘endeavour’ to
resolve a dispute, or ‘rectify any act or omission’
by
simply ‘advising’ a complainant of an appropriate remedy
as under the Interim Constitution, the Final Constitution
empowers
the Public Protector to ‘take appropriate remedial action’.
[31]
Significantly, the Constitution itself directly confers powers on the
Public Protector. Section 182(1) confers the power on the
Public
Protector to: (a) investigate; (b) report
;
and
(c) take appropriate remedial action. Those powers are complementary.
If, of course, a complaint, or an investigation on her own
initiative
yields no indication of maladministration or corruption there will be
no need to take remedial steps or utilise any
of the other measures
available to her. Once the Public Protector establishes State
misconduct, however, she has the vast array
of measures available to
her as provided in the Constitution and the Act.
[43]
Before us, all counsel accepted that the powers conferred on the
Public Protector in terms of s 182(1)
(c)
of the Constitution far exceeded those of similar institutions in
comparable jurisdictions. There was, however, a faint suggestion
by
counsel on behalf of the Minister, that the powers of the Public
Protector ought rightly to be sourced from the Act, being the
legislation envisaged by the Constitution rather than from the
Constitution itself. The problem with that suggestion is that the
Constitution is the primary source and it stipulates and refers to
‘additional’ powers to be prescribed by national
legislation.
[32]
The
proposition on behalf of the Minister is contrary to the
constitutional and legislative scheme outlined above and would have
the effect of the tail wagging the dog.
[44]
Our Constitution sets high standards for the exercise of public power
by State institutions and officials.
[33]
However, those standards are not always lived up to, and it would be
naïve to assume that organs of State and public officials,
found
by the Public Protector to have been guilty of corruption and
malfeasance in public office, will meekly accept her findings
and
implement her remedial measures. That is not how guilty bureaucrats
in society generally respond. The objective of policing
State
officials to guard against corruption and malfeasance in public
office forms part of the constitutional imperative to combat
corruption. The Constitutional Court in
Glenister
v President of the Republic of South Africa & others
[2011]
ZACC 6
;
2011 (3) SA 347
(CC) noted (paras 176 and 177):
‘
Endemic
corruption threatens the injunction that government must be
accountable, responsive and open; that public administration
must not
only be held to account, but must also be governed by high standards
of ethics, efficiency and must use public resources
in an economic
and effective manner. As it serves the public, it must seek to
advance development and service to the public. In
relation to public
finance, the Constitution demands budgetary and expenditure processes
underpinned by openness, accountability
and effective financial
management of the economy. Similar requirements apply to public
procurement, when organs of State contract
for goods and
services. . .
. . . Section
7(2) [of the Constitution] casts an especial duty upon the State. It
requires the State to “respect,
protect, promote and fulfil the
rights in the Bill of Rights.” It is incontestable that
corruption undermines the rights
in the Bill of Rights, and imperils
democracy. To combat it requires an integrated and comprehensive
response. The State’s
obligation to “respect, protect,
promote and fulfil’ the rights in the Bill of Rights thus
inevitably, in the modern
State, creates a duty to create efficient
anti-corruption mechanisms.”’ (Footnotes omitted.)
The
Public Protector, in her answering affidavit, expressed concern that:
‘
This
matter represents yet another example of what would appear to have
become a trend amongst politicians and organs of State to
simply
disregard reports issued and remedial actions taken by the Public
Protector’.
[45]
Two considerations appear to have weighed with the High Court in its
conclusion that the findings of the Public Protector were
not
‘binding and enforceable’. First, it appears to have
compared the powers of the Public Protector with that of a
court and,
second, it relied on a judgment of the
English
Court of Appeal in
R (on the application
of Bradley & others) v Secretary of State for Work and Pensions
[2008] EWCA Civ 36
;
[2009] QB 114
(CA).
Regarding the first consideration, it is so that section 165(5) of
the Constitution provides: ‘An order or decision
by
a court
binds all persons to whom and
organs of state to which it applies’ (our emphasis). But a
court is an inaccurate comparator
and the phrase ‘binding and
enforceable’ is terminologically inapt and in this context
conduces to confusion. For,
it is well settled in our law that until
a decision is set aside by a court in proceedings for judicial review
it exists in fact
and it has legal consequences that cannot simply be
overlooked (
Oudekraal Estates (Pty) Ltd
v City of Cape Town & others
[2004]
ZASCA 48
;
2004 (6) SA 222
(SCA) para 26). It was submitted, however,
that that principle applies only to the decision of an administrative
functionary or
body, which the Public Protector is not. It suffices
for present purposes to state that if such a principle finds
application to
the decisions of an administrative functionary then,
given the unique position that the Public Protector occupies in our
constitutional
order, it must apply with at least equal or perhaps
even greater force to the decisions finally arrived at by that
institution.
After all, the rationale for the principle in the
administrative law context (namely, that the proper functioning of a
modern State
would be considerably compromised if an administrative
act could be given effect to or ignored depending upon the view the
subject
takes of the validity of the act in question (
Oudekraal
para 26)), would at least apply as much
to the institution of the Public Protector and to the conclusions
contained in her published
reports.
[46]
Regarding the second consideration,
Bradley
held as follows (para 51):
‘
It
follows that, unless compelled by authority to hold otherwise, I
would conclude that . . . the Secretary of State,
acting
rationally, is entitled to reject the finding of maladministration
and prefer his own view. But, as I shall explain, it
is not enough
that the Secretary of State has reached his own view on rational
grounds: it is necessary that his decision to reject
the Ombudsman’s
findings in favour of his own view is, itself, not irrational having
regard to the legislative intention
which underlies the 1967 Act [the
Parliamentary Commissioner Act]. To put the point another way, it is
not enough for a Minister
who decides to reject the Ombudsman’s
finding of maladministration simply to assert that he had a choice:
he must have a
reason for rejecting a finding which the Ombudsman has
made after an investigation under the powers conferred by the Act.’
With
reference to
Bradley
, Schippers J held:
‘
66.
It seems to me that before rejecting the findings or remedial action
of the Public Protector, the relevant organ of State must
have cogent
reasons for doing so, that is for reasons other than merely a
preference for its own view. In this regard,
Bradley
is instructive.’ (Footnote omitted.)
Bradley
does not in any way assist in the interpretation
of our Public Protector’s constitutional power ‘to take
appropriate
remedial action’. It concerned a different
institution with different powers, namely, the powers of the
Parliamentary Commissioner
under the Parliamentary Commissioner Act,
1967, who undertakes investigations at the request of Members of
Parliament. She does
not have any remedial powers. Section 10 of the
Parliamentary Commissioner Act merely requires her to report on her
investigation
to the Member of Parliament who laid the complaint, the
Department of State against whom the complaint was laid and, if any
injustice
has been done, to the Houses of Parliament. The function of
the Parliamentary Commissioner appears, in other words, to be
confined
to a reporting function, which is merely one of the
functions of our Public Protector, and is specified under s 182(1)
(b)
of the Constitution. The Parliamentary Commissioner does not have any
equivalent of our Public Protector’s power to ‘take
appropriate remedial action’.
Bradley
is consequently not of any assistance in the interpretation and
understanding of our Public Protector’s remedial powers.
Schippers J’s reliance on
Bradley
was therefore misplaced.
[47]
Here, there is no suggestion that the Public Protector exceeded her
powers or that she acted corruptly. Nor have any of the
other
traditional 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.
[34]
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 of the Public Protector. Nor was it for the Minister to
prefer the Mchunu report to that
of the Public Protector. It
bears noting that the Public Protector is plainly better suited to
determine issues of maladministration
within the SABC than the SABC
itself. That, after all, is why the office of the Public Protector
exists. The Public Protector is
independent and impartial. Mchunu
Attorneys, who had already represented the SABC during the course of
the Public Protector’s
investigation, was not. The Public
Protector conducted a detailed investigation in which she interviewed
all the relevant role
players, considered all relevant documents, and
gave all affected parties an opportunity to comment on her
provisional report.
Only after following that process, did she make
her findings and take remedial action. That cannot simply be
displaced by the SABC’s
own internal investigation. Thus,
absent a review, once the Public Protector had finally spoken, the
SABC was obliged to implement
her findings and remedial measures.
[48]
Both the Minister and the SABC complain that they were still intent
on engaging with the Public Protector about her report.
But, once she
has finally spoken, following upon a full investigation, where those
affected have been afforded a proper hearing,
as happened here, there
should have been compliance. However, as the Public Protector pointed
out in her affidavit ‘[t]he
deadline for compliance . . . is 17
August 2014. At the time of filing this affidavit, on 14 August 2014,
no compliance has been
effected.’
[35]
In addition, as pointed out in paras 14 and 16 above, it is clear
that the SABC adopted an intransigent approach to the remedial
action
and the Minister followed suit. Moreover, on the evidence, the claim
that they were intent on engaging the Public Protector
rings hollow.
The permanent appointment of Mr Motsoeneng as the COO in the face of
the extremely serious findings made by the Public
Protector against
him is inconsistent with that claim. It appears to be undisputed
that: (i) the position of COO was not formally
advertised and,
accordingly, no other candidates were considered for what, after all,
was a very senior position at a public broadcaster;
(ii) the filling
of that position did not appear on the agenda for the meeting at
which the decision of the Board to recommend
the appointment was
taken; and (iii) no interviews were held, not even with the single
candidate that the Board chose to recommend.
All of that despite the
SABC’s own Articles of Association that required the Board to
interview other candidates and prepare
a shortlist. What is more is
that Mr Motsoeneng’s appointment appears to have taken place in
the face of an interdict granted
in Mr Mbebe’s favour. It thus
appears that despite the Public Protector’s damning findings,
both the SABC and Minister
were dead set on Mr Motsoeneng’s
appointment and had no genuine intention of engaging with the Public
Protector.
[49]
It is important to emphasise that this case is about a public
broadcaster that millions of South Africans rely on for news
and
information about their country and the world at large and for as
long as it remains dysfunctional, it will be unable to fulfil
its
statutory mandate.
[36]
The
public interest should thus be its overarching theme and objective.
Sadly, that has not always been the case. Its Board has
had to be
dissolved more than once and its financial position was once so
parlous that a loan of R1 billion, which was guaranteed
by the
National Treasury, had to be raised to rescue it. Here as well, the
public interest appears not to have weighed with the
Board of the
SABC. The Public Protector observes in her report:
‘
. . . I
found it rather discouraging that the current SABC Board appears to
have blindly sprung to Mr Motsoeneng’s
defence on matters that
preceded it and which, in my considered view, require a Board that is
serious about ethical governance
to raise questions with him.’
That
approach by the Board appears to have carried through in this
litigation. By way of example, the Public Protector pointed
out
in her report that:
‘
. . . Mr
Motsoeneng admitted, during his recorded interview, that he had
falsified his matric qualifications’.
She
added that:
‘
Mr
Motsoeneng indicated that he had passed Standard 10 (“matric”)
in 1991 at the age of 23 years and indicated five
(5) symbols he had
purported to have obtained in this regard.’
In
his written response to the Public Protector’s provisional
report, Mr Motsoeneng accepted that the information furnished
on the
form when he first sought employment at the SABC ‘was clearly
inaccurate’ and that his assertion that he had
passed standard
ten was ‘inaccurate and false’. That notwithstanding, Ms
Tshabalala, who had been appointed Chairperson
of the SABC Board
shortly before the application was launched in the court below
stated: ‘The objective facts contradict
the finding by the
Public Protector that Mr Motsoeneng misrepresented his qualifications
. . .’ and ‘the findings of
the Public Protector . . .
have been demonstrated to be false in this regard’.
Likewise, the Minister’s assertion
that after reading the
transcript of the interview between the Public Protector and Mr
Motsoeneng she was satisfied that he did
not ‘lie to the [SABC]
about the matric qualification’ can hardly withstand scrutiny.
[50]
The following parts of a transcript of the interview conducted on 19
July 2013 by the Public Protector with Mr Motsoeneng,
concerning his
matric qualification, appear to support that part of the Public
Protector’s report referred to in the preceding
paragraph:
‘
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 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 go 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 it
is 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.’
This
explanation by Mr Motsoeneng is muddled and unclear. Even after the
passage of a considerable period of time and sufficient
opportunity
for reflection on his part, it does reveal an alarming lack of
insight. He appears not to fully appreciate that this
was an admitted
deliberate falsehood and that in that sense his explanation lacks
contrition and honesty. But his explanation evidently
satisfied both
the Board and the Minister that he did not lie about his matric
qualification. It is not clear how they could have
come to that
conclusion because it is not in dispute that: (a) he did not have a
matric qualification; and (b) when he first sought
employment with
the SABC he misrepresented that he did. It matters not, as he
suggests in seeking to justify his behaviour, that
certain persons at
the SABC might have known that he did not in fact have a matric. That
others may have known the truth simply
makes them complicit in the
lie. It does not excuse his lie. Mr Motsoeneng’s more recent
lack of candour and contrition is
also cause for concern. He does not
furnish a confirmatory affidavit from Ms Swanepoel. In his answering
affidavit Mr Motsoeneng
states ‘I have been unable to trace
Swanepoel again’. But it would seem that she did depose to an
affidavit in which
she disputes his version. That affidavit, for some
inexplicable reason, does not form part of the appeal record. In his
judgment
on the application for leave to appeal, Schippers J records:
‘
25.
The need to implement the order is further strengthened by the
evidence disclosed in the affidavit of Ms Mari Swanepoel, which
she
made in this application. Mr Motsoeneng’s evidence in this
court is that when he applied for a job at the SABC, he told
Ms
Swanepoel that he had attempted but not passed standard 10, but that
she had indicated that he should fill in “10”
under the
heading, “highest standard passed.” Then he said he was
unable to trace Ms Swanepoel again.
26.
Ms Swanepoel refutes this evidence. She says that she made it clear
to Mr Motsoeneng that he must not fill in a qualification
which he
had not yet finished; that he would have to provide an original
certificate to prove whatever he filled in on the application
form;
and that after he had completed the form she repeatedly contacted Mr
Motsoeneng to produce his matric certificate which he
promised to do,
but never did. Ms Swanepoel says that she also repeatedly followed up
Mr Motsoeneng’s failure to produce
a matric certificate with
her superiors, including Mr Paul Tati. It will be recalled that Mr
Tati insisted that Mr Motsoeneng produce
his matric certificate by no
later than 12 May 2000. Mr Motsoeneng replied that he would furnish
the certificate as soon as he
received it.
27.
Ms Swanepoel left the SABC in 2006. In late 2012 Mr Motsoeneng
telephoned her. He told her that the SABC was trying to fire
him and
he wanted to keep his job. He said that his attorneys wanted her to
make an affidavit about his matric certificate and
the form he had
completed. He indicated to Ms Swanepoel that she should say that he
had told her that he did not have matric when
he filled in the form.
She refused. She also told Mr Motsoeneng that she did not wish to
speak to him as she had a sexual harassment
suit pending against the
SABC at the time. He knew about the case and asked what she wanted
from the SABC. She said she wanted
R2 million in compensation. Mr
Motsoeneng, then the Acting COO, replied, in Ms Swanepoel’s
words that, “he could organise
for the SABC to pay me the
R2 million, if I was willing to depose to the affidavit about
the certificate.” She again
refused. Ms Swanepoel says that for
some four weeks thereafter Mr Motsoeneng phoned her repeatedly, but
she generally ignored his
calls. On the occasions that she did
answer, Mr Motsoeneng asked her if they could meet just to talk or if
his attorney could speak
to her about the matter. She replied that
she would talk to him but that she would not lie in an affidavit for
him.’ (Footnotes
omitted.)
[51]
There is yet a further context in which the public interest does not
appear to have been well served. The affidavits filed
on behalf of
the Minister and the SABC treat with disdain the allegation that Mr
Motsoeneng’s appointment was irrational
and unlawful because
those allegations are pieced together from media reports and thus
constitute hearsay evidence. But that may
well be to misconceive the
position, because, as Nugent JA, albeit in a different context, put
it in
Mail & Guardian
(above) (para 26), ‘[a] newspaper that publishes a series of
articles on matters of great public concern can only be seriously
damaged by a finding that much of what was published is not correct
or cannot be substantiated.’ Moreover, it is no
less important for the public as it is for the court to be
reassured that there has been no impropriety in public life. There
is
no justification for saying to either that they must simply accept
that there has not been conduct of that kind. The Minister
and
chairperson of SABC Board are senior public office bearers, whose
function it is to inspire confidence that all is well in
public life.
In those circumstances we think it is unfortunate that they should
have chosen to respond to the evidence as they
did. Unlike the DA,
they were present and intimately involved in what had transpired. In
those circumstances they owed not just
the court but also their
fellow citizens an explanation. In our view the overriding
public interest obliged them to make
full and frank disclosure rather
than shield themselves from scrutiny by resorting to technical points
in opposition. After
all, the information pertaining to Mr
Motsoeneng’s appointment was peculiarly within their knowledge.
[52]
The Public Protector cannot realise the constitutional purpose of her
office if other organs of State may second-guess her
findings and
ignore her recommendations. Section 182(1)
(c)
must accordingly be taken to mean what it says. The Public Protector
may take remedial action herself. She may determine the remedy
and
direct its implementation. It follows that the language, history and
purpose of s 182(1)
(c)
make it clear that the Constitution intends for the Public Protector
to have the power to provide an effective remedy for State
misconduct, which includes the power to determine the remedy and
direct its implementation. All counsel before us rightly accepted
that the Public Protector’s report, findings and remedial
measures could not be ignored.
[53]
To sum up, the office of the Public Protector, like all Chapter Nine
institutions, is a venerable one. Our constitutional compact
demands
that remedial action taken by the Public Protector should not be
ignored. State institutions are obliged to heed the principles
of
co-operative governance as prescribed by s 41 of the Constitution.
Any affected person or institution aggrieved by a finding,
decision
or action taken by the Public Protector might, in appropriate
circumstances, challenge that by way of a review application.
Absent
a review application, however, such person is not entitled to simply
ignore the findings, decision or remedial action taken
by the Public
Protector. Moreover, an individual or body affected by any finding,
decision or remedial action taken by the Public
Protector is not
entitled to embark on a parallel investigation process to that of the
Public Protector, and adopt the position
that the outcome of that
parallel process trumps the findings, decision or remedial action
taken by the Public Protector. A mere
power of recommendation of the
kind suggested by the High Court appears to be more consistent with
the language of the Interim
Constitution and is neither fitting nor
effective, denudes the office of the Public Protector of any
meaningful content, and defeats
its purpose. The effect of the High
Court’s judgment is that, if the organ of State or State
official concerned simply ignores
the Public Protector’s
remedial measures, it would fall to a private litigant or the Public
Protector herself to institute
court proceedings to vindicate her
office. Before us, all the parties were agreed that a useful metaphor
for the Public Protector
was that of a watchdog. As is evident from
what is set out above, this watchdog should not be muzzled.
[54]
After lengthy debate in this court all counsel were agreed that the
Public Protector’s directive that Mr Motsoeneng be
subjected to
a disciplinary enquiry must be respected and consequently had to be
implemented. Counsel on behalf of Mr Motsoeneng
insisted that he was
eager to clear his name through that process and thus welcomed it.
For all the aforesaid reasons it was rightly
conceded that the order
by the court below that disciplinary proceedings should be instituted
was unassailable.
[55]
What occupied a greater part of the debate in this court was an
attack on the correctness of the order of the High Court suspending
Mr Motsoeneng. It was submitted on behalf of all three appellants
that in her determination of an appropriate remedy as contemplated
by
s 182(1)
(c)
of the Constitution, the Public Protector had not
seen fit to order Mr Motsoeneng’s suspension. Accordingly, so
the submission
went, it was not competent for Schippers J to do so.
It is so that in ordering the SABC to commence disciplinary
proceedings against
Mr Motsoeneng, the High Court primarily sought to
vindicate the Public Protector. But sight cannot be lost of the fact
that matters
did not end with the report of the Public Protector. The
Public Protector observed quite correctly in her report that the
Board
‘appears to have blindly sprung to Motsoeneng’s
defence’ and ‘at times . . . appeared more defensive on
his behalf’ than Mr Motsoeneng himself. In earlier
correspondence with Ms Tshabalala, the Public Protector observed:
‘
. . . unlike
the outgoing Board, Mr Hlaudi Motsoeneng and the GCEO, you appear to
deny any governance failure on
the part of the erstwhile Board. Even
more concerning, is how the Board whose role is to guide the SABC’s
ethical conduct
reacts to my intended findings regarding Mr Hlaudi
Motsoeneng’s dishonesty’.
We
know how the Board reacted to the Public Protector’s findings:
In the face of her serious findings of dishonesty, abuse
of power and
maladministration against Mr Motsoeneng, the SABC purported to
recommend him for appointment as the permanent COO.
And the Minister,
on the strength of that recommendation, purported to appoint him.
[56]
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.’
[37]
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 dishonesty 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.
[57]
The principal attack on the suspension order on behalf of both the
Minister and the SABC was that such an order had the effect
of
offending the separation of powers doctrine. In that regard reliance
was placed on
National Treasury & others v Opposition to Urban
Tolling Alliance & others
[2012] ZACC 18
;
2012 (6) SA 223
(CC) (
OUTA
), para 71 in which the Constitutional Court stated:
’
71.
The high court does not mention a word about the submission of the
government applicants on separations of powers. As a result
we do not
have the benefit of its attitude to the submissions. It is equally
unclear whether the high court had considered the
submissions at all.
Before granting interdictory relief pending a review a court must, in
the absence of mala fides, fraud or corruption,
examine carefully
whether its order will trespass upon the terrain of another arm of
government in a manner inconsistent with the
doctrine of separation
of powers. That would ordinarily be so, if, as in the present case, a
state functionary is restrained from
exercising statutory or
constitutionally authorised powers. In that event, a court should
caution itself not to stall the exercise
unless a compelling case has
been made out for a temporary interdict. Even so, it should be done
only in the clearest of cases.
This is so because in the ordinary
course valid law must be given effect to or implemented, except when
the resultant harm and
balance of convenience warrant otherwise.
’
[58]
It was submitted that the power to remove the COO was one vested in
the President and that it was not competent for a court
to usurp that
function. We were referred to s 15 of the BA which deals with the
removal from office of a ‘member’.
In s 1 of the BA,
a ‘member’ is defined to include executive members of the
SABC Board, which in turn includes
the COO, in terms of s 12
(b)
.
Section
15(1) of the BA provides:
‘
(1)
The appointing body –
(a)
may remove a member from office on account of
misconduct or inability to perform his or her duties efficiently
after due inquiry
and upon recommendation by the Board; or
(b)
must remove a member from office after a finding
to that effect by a committee of the National Assembly and the
adoption by the
National Assembly of a resolution calling for that
member’s removal from office in terms of section of 15A.’
The
appointing body in terms of s 1 read with s 13 of the BA is the
President acting on the advice of the National Assembly. The
submission on behalf of the Minister and the SABC was that it was for
the President to suspend or remove permanently and not for
a court to
direct a suspension.
[59]
In the present case the Minister and the SABC both erred in their
approach to the task that confronted them. In this regard
it is
important to emphasise that the Constitution requires that public
power vested in the Executive and other functionaries be
exercised in
an objectively rational manner.
[38]
The exercise of public power must therefore comply with
the Constitution, which is the supreme law, and the principle of
legality, which is part of that law. The principle of legality, which
is an incident of the rule of law, is one of the constitutional
controls through which the exercise of public power is regulated by
the Constitution. It entails that both the Legislature and
the
Executive are constrained by the principle that they may exercise no
power and perform no function beyond that conferred
upon them by
law. In this sense the Constitution entrenches the principle of
legality and provides the foundation for the control
of public
power.
[39]
Thus, although the
common law remains relevant to this process,
[40]
the nature and characterisation of the public power exercised,
namely, whether executive or administrative, matters less now than
it
did under the common law, pre-Constitution.
[41]
As Nugent JA pointed out in
Minister
of Home Affairs & others v Scalabrini Centre & others
[2013]
ZASCA 134
;
2013 (6) SA 421
(SCA)
,
para
61:
‘
Professor
Hoexter has observed that the doctrine [of legality] is in the
process of evolution, and will continue to evolve —
“
quite
possibly to the extent that it eventually encompasses all the grounds
of review associated with regular administrative law.
Meanwhile, the
principle fairly easily covers all the grounds ordinarily associated
with authority, jurisdiction and abuse of discretion:
. . .
Here at least, the principle of legality is a mirror image of
administrative law. It is administrative law under another
name.”’
(Footnote omitted.)
As
this court has previously explained:
‘
To
ensure a functional, accountable constitutional democracy, the
drafters of our Constitution placed limits on the exercise of
power.
Institutions and office bearers must work within the law and must
be accountable. Put simply, ours is a government
of laws and not of
men or women.’
[42]
[60]
The question, whether the Minister and the SABC have to give effect
to remedial action by the Public Protector is one eminently
for a
court to decide. In any event, according to the Public Protector, the
Executive through Minister Carrim had undertaken in
Parliament to
give effect to the remedial action taken by her. In that regard the
Portfolio Committee on Communications held a
meeting on 18 February
2014, with the purpose of allowing the Minister and Deputy Minister
of Communications to present a progress
report on the commitments
made to the Portfolio Committee covering the period November 2013 to
January 2014. The Parliamentary
Monitoring Group’s report
of this meeting records the then Minister Carrim as suggesting that:
‘
. . .
if it was legally tenable:
-
he would commit to giving a report, by end March [2014], or at least
prior to the election
-
if necessary, there could be teleconferences arranged to discuss the
matter
-
whatever the [Department of Communication] and Ministry must
legally do, they would
-
an exit report would be written telling the incoming executive to
proceed with whatever was outstanding’. (Our emphasis.)
What
is more, is that on 4 July 2014, the new Minister, Ms Faith Muthambi,
appeared before a joint sitting of the Portfolio Committees
on
Communications, and on Telecommunications and Postal Services, and
the Parliamentary Monitoring Group’s report of this
meeting
records that:
‘
Minister
Muthambi said the SABC matters were not new, and she was paying
urgent attention to ensuring that SABC served the interests
of the
nation as a whole. SABC would submit a report to her, on issues
raised by the Public Protector, on 28 July 2014. She was
equally
upset with some of the matters at SABC and this was in the public
domain.
SABC must comply with the Public
Protector’s recommendations.
Human resource issues raised by the Public Protector were also being
addressed.’ (Our emphasis.)
The
SABC and the Minister appear to have vacillated between resisting the
Public Protector’s remedial action and undertaking
to comply
therewith. Unlike in
OUTA
,
here the Minister and the SABC were afforded every opportunity to
discharge their constitutional duty. In fact, they were directed
to
do so by the Public Protector. They declined to do so because, as we
have shown, they misconceived the import of the Public
Protector’s
powers and acted irrationally in their response to it. This is thus a
case of both the SABC and the Minister
failing to understand the
effect of the Public Protector’s remedial action as well as
failing in their obligation to the
SABC and the country at large.
That is a matter pre-eminently for a court.
[61]
In light of the Public Protector’s findings and the events
subsequent to her report, the High Court was rightly concerned
that
Mr Motsoeneng should not continue to be in office with serious
allegations concerning maladministration and the integrity
of the
SABC hanging over him. The High Court approached the enquiry thus:
‘
95.
The allegations of misconduct against Motsoeneng are serious. He is
the COO of the SABC. He is an executive member of the Board.
He has
virtually unlimited authority over his subordinates and access to all
the documentation in relation to the charges of misconduct
that will
be preferred against him. Given the nature of the allegations and the
persons involved, referred to in the report, Motsoeneng’s
fellow Board members and his subordinates would have to be
interviewed, and documents produced.
96.
What this shows is that unless he is suspended, Motsoeneng poses a
real risk not only to the integrity of the investigation
concerning
the allegations of his misconduct, but to the disciplinary enquiry
itself. It is untenable that he should remain in
office while
disciplinary proceedings are brought against him.
97.
In these circumstances, and in the light of the allegations of abuse
of power in the Report, in my opinion there can be no doubt
that it
is just and equitable that Motsoeneng should be suspended, pending
finalisation of disciplinary proceedings to be brought
against him.
Good administration of the SABC, and openness and accountability,
demand his suspension.’
The
approach of the High Court cannot be faulted.
[62]
In addition, in arriving at its conclusion that a suspension was
appropriate, the high court exercised a narrow discretion.
The test
for interference in a discretion of that sort is that formulated in
Ex
parte Neethling & others
1951
(4) SA 331 (A)
at
335C-F
.
Here
it has not been shown that Schippers J exercised his discretion
capriciously or upon a wrong principle or upon any other
ground
justifying interference. See also
Ferris
& another v Firstrand Bank Ltd
[2013]
ZACC 46
;
2014 (3) SA 39
(CC) para 28.
[63]
Further, it bears noting that a judicial decision is only appealable
if it has the following
three
attributes: first, it must be final in effect and not
susceptible of alteration by the court of first instance; second,
it
must be definitive of the rights of the parties; and third, it must
have the effect of disposing of at least a substantial portion
of the
relief claimed (see
Zweni
v Minister of Law and Order
[1992]
ZASCA 197
;
1993 (1) SA 523
(A) at 532I - 533B, cited with approval by
the Constitutional Court in
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC) para 49).
T
he
suspension of Mr Motsoeneng pending finalisation of his disciplinary
proceedings, appears to have neither the second nor third
of the
required attributes. That would be enough to disqualify it as an
appealable decision, because the first attribute –
assuming it
to be present – cannot on its own confer appealability. Mr
Motsoeneng has been suspended pending finalisation
of his
disciplinary proceedings. That does not, one would imagine, in and of
itself dispose of even a portion of the relief
claimed. It is
thus also distinctly questionable at this stage whether the order
suspending Mr Motsoeneng will have any final effect.
[43]
The facts of this case thus distinguish it from those dealt with by
the Constitutional Court in
OUTA.
[64]
As the excerpts from the affidavits of both the Minister and Ms
Tshabalala show, they express themselves in strong language.
Both
appear to have already exonerated Mr Motsoeneng of any wrongdoing.
For it seems to be inconsistent to promote a person to
one of the
most senior positions 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.
The appeal against the
suspension order must therefore also fail.
[65]
One further aspect requires further brief consideration. As set out
earlier in this judgment, relief was sought in two parts.
Schippers J
rightly held that on a proper construction of the relief sought in
Part A of the notice of motion, namely that disciplinary
proceedings
be instituted, the claim was one for final relief. The suspension
order, as outlined above, is an interim order pending
the outcome of
review proceedings. We were informed by counsel on behalf of all the
parties that the contemplated review application
has been allocated a
preferential date and will be heard during the first week of October
2015.
[66]
At the outset of the hearing of the appeal, we were occupied with
some debate as to whether it was desirable that this court
consider
the appeal in respect of Part A at this stage given that: (a) the
proceedings in the High Court are un-terminated inasmuch
as Part B
has yet to be determined by the High Court; and (b) entertaining the
appeal now would result in a proliferation of piecemeal
hearings and
appeals. See
Walhaus & others v
Additional Magistrate, Johannesburg & another
1959 (3) SA 113
(A) at 119H-120C. In
Guardian
National Insurance Co Ltd v Searle NO
[1999] ZASCA 3
;
1999 (3) SA 296
(SCA) at 301A-C, the following was
stated:
‘
As
previous decisions of this Court indicate, there are still sound
grounds for a basic approach which avoids the piecemeal appellate
disposal of the issues in litigation. It is unnecessarily expensive
and generally it is desirable, for obvious reasons, that such
issues
be resolved by the same Court and at one and the same time.’
[67]
In
Consolidated News Agencies (Pty) Ltd (in liquidation) v Mobile
Telephone Networks (Pty) Ltd & another
[2009] ZASCA 130
;
2010
(3) SA 382
(SCA), this court said the following (paras 89 and 90):
’
89.
Before concluding we are constrained to make the comments that
follow. Piecemeal litigation is not to be encouraged. Sometimes
it is
desirable to have a single issue decided separately, either by way of
a stated case or otherwise. If a decision on a discrete
issue
disposes of a major part of a case, or will in some way lead to
expedition, it might well be desirable to have that issue
decided
first.
90.
This court has warned that in many cases, once properly considered,
issues initially thought to be discrete are found to be
inextricably
linked. And even where the issues are discrete, the expeditious
disposal of the litigation is often best served by
ventilating all
the issues at one hearing. A trial court must be satisfied that it is
convenient and proper to try an issue separately.’
(Footnotes
omitted.)
[68]
The course followed by the litigants and the court below will no
doubt result in protracted and cross-cutting litigation. So,
for
example, this judgment might be appealed to the Constitutional Court.
The review application, if decided in favour of the DA,
might result
in Mr Motsoeneng no longer holding office, but that judgment might
also be appealed, first to this court and then
to the Constitutional
Court. It might well have been in the interest of justice for the
review application to have been heard expeditiously
with that
decision being determinative, either at High Court level or,
ultimately, one of the appellate courts. The manner in which
the
matter was dealt with will lead to protraction and all the while the
institution will have to endure the uncertainty that will
follow.
[69]
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 us to consider, at least on a prima facie
basis, as was done by the court below,
matters 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 nor have we
pre-empted any decision that the High Court might in due course be
called upon to make, including
those that relate to relevant
Ministerial decisions and their proper classification.
[44]
[70]
It follows for all of the aforesaid reasons that the appeal must
fail.
The
appeal is accordingly dismissed with costs including the costs
attendant upon the employment of two counsel.
M S Navsa
Judge of Appeal
V
M Ponnan
Judge
of Appeal
Appearances:
For First
Appellant: N H Maenetje SC (with him H Rajah)
Instructed
by: Mchunu Attorneys, Cape Town
Bokwa
Attorneys, Bloemfontein
For
Second Appellant: V Maleka SC (with him K Pillay)
Instructed
by: State Attorney, Cape Town
State
Attorney, Bloemfontein
For
Third Appellant: N M Arendse SC (with him S Fergus)
Instructed
by: Majavu Inc, Johannesburg
Rampai
Attorneys, Bloemfontein
For
First Respondent: A Katz SC (with him N Mayosi and M Bishop)
Instructed
by: Minde Schapiro & Smith, Cape Town
Symington
& de Kok, Bloemfontein
For
Seventh Respondent: G Marcus SC (with him E Labuschagne SC and N
Rajab-Budlender)
Instructed
by: Adams & Adams, Pretoria
Honey
Attorneys, Bloemfontein
For
Amicus Curiae: C Steinberg (with her L Kelly) (Heads of argument
prepared by W Trengove SC and C Steinberg and L Kelly)
Instructed
by: Cliffe Dekker Hofmeyr, Johannesburg
Matsepes
Inc, Bloemfontein
[1]
‘
But
who will guard the guards themselves?’
[2]
Leonid
Hurwicz ‘But who will guard the guardians?’ Nobel Prize
Lecture delivered on 8 December 2007, available at
http://www.nobelprize.org/nobel_prizes/economic-sciences/laureates/2007/hurwicz
_lecture.pdf
,
accessed on 1 October 2015.
[3]
So,
for example s 195(1) of the Constitution provides:
‘
Public
administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following
principles:
(a)
A high standard of professional ethics
must be promoted and maintained.
(b)
Efficient, economic and effective use
of resources must be promoted.
(c)
Public administration must be
development-oriented.
(d)
Services must be provided impartially,
fairly, equitably and without bias.
(e)
People’s needs must be responded
to, and the public must be encouraged to participate in
policy-making.
(f)
Public administration must be
accountable.
(g)
Transparency must be fostered by
providing the public with timely, accessible and accurate
information.
(h)
Good human-resource management and
career-development practices, to maximise human potential, must be
cultivated.
(i)
Public administration must be broadly
representative of the South African People, with employment and
personnel management practices
based on ability, objectivity,
fairness, and the need to redress the imbalances of the past to
achieve broad representation.’
[4]
Section
195(2) of the Constitution reads:
‘
The
above principles [see footnote 3 above] apply to –
(a)
administration in every sphere of
government;
(b)
organs of State; and
(c)
public enterprises.’
[5]
See
the chapter entitled ‘Public Protector’ by Michael
Bishop and Stuart Woolman, in Stuart Woolman and Michael Bishop
(eds)
Constitutional
Law of South Africa
2
ed
(Service 6, 2014), at 24A-2.
[6]
The
Minister of Communications is the Minister charged with the
administration of the
Broadcasting Act.
[7
]
Public
Protector’s Report No 23 of 2013/2014. The full title of
the Report, filed by the Public Protector in terms
of s 182(1)
(b)
of the Constitution and
s 8(1)
of the
Public Protector Act,
reads
: ‘A report on an investigation into allegations of
maladministration, systemic corporate governance deficiencies, abuse
of power and the irregular appointment of Mr Hlaudi Motsoeneng by
the South African Broadcasting Corporation (SABC).’
The
Public Protector borrowed from a former member of the SABC Board,
who had stated: ‘When governance and ethics fail,
you get a
dysfunctional organization. Sadly those in charge cannot see that
their situation is abnormal. That has been the case
at the SABC for
a long time . . . ’ A copy of the report is available at:
http://www.pprotect.org/library/investigation_report/2013-14/SABC%20FINAL%
20REPORT%2017%20FEBRUARY%202014.pdf
,
accessed 1 October 2015.
[8]
And
in a footnote, the court below refers to section 165(5) of the
Constitution, which reads:
‘
An
order or decision issued by a court binds all persons to whom and
organs of State to which it applies.’
[9]
Note
that where we have quoted from other judgments, we have omitted the
square brackets around the relevant paragraph numbers
so as to avoid
confusion.
[10]
We
note that some support for the approach of Schippers J is to be
found in Bishop & Woolman (
op
cit
),
who opine that one of the most common criticisms levelled at the
Public Protector or ombudsmen generally is that the institution
lacks the power to make ‘binding decisions’. According
to them, the real strength of the office lies in the power
to
investigate and report effectively. In this regard they refer (at
24A-3) to the following from Stephen Owen (S Owen 'The Ombudsman:
Essential Elements and Common Challenges' in Linda C Reif (ed)
The
International Ombudsman Anthology
(1999) at 51, 54–5):
‘
Through
the application of reason the results are infinitely more powerful
than through the application of coercion. While a coercive
approach
may cause a reluctant change in a single decision or action, by
definition it creates a loser who will be unlikely to
accommodate
the recommendations in future actions. By contrast when change
results from a reasoning process it changes a way
of thinking and
the result endures for the benefit of potential complainants in the
future.’
[11]
See
also
Independent
Electoral Commission v Langeberg Municipality
para
31.
[12]
See
Ex
Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa,
1996
[1996]
ZACC 26
;
1996 (4) SA 744
(CC) (the
First
Certification Judgment
)
para 161.
[13]
See
The Swedish Parliamentary Ombudsman ‘History’, available
at
http://www.jo.se/en/About-JO/History/
,
accessed 5 October 2015.
[14]
See
also Stig Jagerskiöld ‘The Swedish Ombudsman’
(1961) 109
University
of Pennsylvania Law Review
1077 for a general historical background of the Swedish ombudsman.
[15]
Finland,
Denmark, Norway, New Zealand, Spain and countries in South America
are the examples provided by Bishop & Woolman
(op cit) at 24A-1.
[16]
First
Certification Judgment
para
161.
[17]
See
Bishop & Woolman (
op
cit
)
at 24A-1.
[18]
‘
Ready
to Govern: ANC policy guidelines for a democratic South Africa’,
as adopted at the African National Congress’
National
Conference, and dated 31 May 1992. A copy of this policy paper
is available at:
http://www.anc.org.za/show.php?id=227
,
accessed 1 October 2015.
[19]
First
Certification Judgment
para
163
.
[20]
See
Public
Protector v Mail & Guardian Ltd & others
[2011]
ZASCA 108
;
2011 (4) SA 420
(SCA) para 9.
[21]
Public
Protector v Mail & Guardian
para
6.
[22]
See
Public
Protector v Mail & Guardian
para 8.
[23]
See
section 193(1) of the Constitution and s 1A of the Act.
[24]
See
s 1A(3) of the Act.
[25]
See
the
First
Certification Judgment
para
163.
[26]
Section
5(4) provided that the Ombudsman could, whether or not he or she
held an inquiry, and at any time before, during or after
such
inquiry:
‘
(a)
if he is of the opinion that the facts disclose the commission of an
offence by any person, bring the matter to the notice of
the
relevant authority charged with prosecutions;
(b)
if he deems it advisable, refer any matter which
has a bearing on mismanagement to the institution, body, association
or organization
affected by it or make an appropriate recommendation
regarding the redress of the prejudice referred to in section
4(1)
(d)
or make any other recommendation which he deems expedient to the
institution, body, association or organisation concerned.’
[27]
Note
that the Act came into force during the time of the Interim
Constitution, and the reference here to the Final Constitution
is as
a result of an amendment to the Act by the
Public Protector
Amendment Act 113 of 1998
.
[28]
Public
Service Act, 1994 (Proclamation 103 of 1994, published in
GG
15791,
3 June 1994).
[29]
It
will be recalled that that section of the Constitution provides that
no person or institution of State may interfere with the
functioning
of a Chapter Nine institution.
[30]
The
Interim Constitution was enacted on 25 January 1994. The
Public
Protector Act was
enacted on 16 November 1994.
[31]
See,
in this regard, the
Public Protector Amendment Act 113 of 1998
. The
Public Protector Act was
also later amended by the
Public Protector
Amendment Act 22 of 2003
. However, the Public Protector
Amendment Acts did not amend
s 6(4)
at all.
[32]
In
this regard, see the title on ‘Constitutional Law: Government
Structures’ in 5(3)
Lawsa
2 ed replacement volume by D W Freedman, para 265.
[33]
The
Constitution’s founding values include accountability,
responsiveness and openness in government (s 1
(d)
).
Section 7(2) obliges the State to respect, protect, promote and
fulfil the rights in the Bill of Rights. Section 33(1) requires
administrative action to be lawful, reasonable and procedurally
fair. Section 41 requires all organs of State to respect and
co-operate with one another and inter alia to ‘provide
effective, transparent, accountable and coherent government for
the
Republic as a whole’. Section 195 requires all organs of State
and public officials to adhere to high standards of
ethical and
professional conduct.
[34]
It
is unclear on what basis the SABC asserts privilege in respect of
the Mchunu report. First, the report appears to have been
procured
by the SABC with the aim of investigating and assessing the veracity
of the Public Protector’s findings.
Thus notwithstanding
the fact that the relationship between Mchunu Attorneys and the SABC
appears facially at least to have been
that of an attorney and
client, it is doubtful whether, properly construed, the Mchunu
Report is in the nature of a communication
between an attorney and
client in respect of which privilege from disclosure can rightly be
asserted. Second, the Mchunu report
was furnished by the SABC to the
Minister, who in turn stated in her answering affidavit: ‘I
will ensure that the findings
of Mchunu Attorneys are made available
to the Public Protector for her consideration’. It is
contradictory to assert
privilege and then at the same time to offer
to make it available to another party.
[35]
From
the explanation of the Public Protector, it seems that she had given
a number of extensions to the deadline originally specified
in her
report, and so at the time that she deposed to the affidavit on 14
August 2014, the extended deadline was 17 August 2014.
And
although she deposed to the affidavit before the deadline had
arrived, she took the view that the actions of the SABC and
the
Minister made it clear that they were in any event not going to meet
it.
[36]
In
terms of
s
6(4) of the BA, the SABC must:
‘
encourage
the development of South African expression by providing, in South
African official languages, a wide range of programming
that –
(a)
reflects South African attitudes, opinions,
ideas, values and artistic creativity;
(b)
displays South African talent in education and
entertainment programmes;
(c)
offers a plurality of views and a variety of
news, information and analysis from a South African point of view;
(d)
advances the national and public interest.
[37]
Public
Protector v Mail & Guardian
(above)
para 3.
[38]
Pharmaceutical
Manufacturers Association of SA & another: In re ex parte
President of the Republic of South Africa & others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 89.
[39]
See
Affordable
Medicines Trust & others v Minister of Health & others
[2005] ZACC 3
;
2006 (3) SA 247
(CC)
para
49;
Fedsure
Life Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
[1998]
ZASCA 14
;
1999 (1) SA 374
(CC) para 58.
[40]
See
MEC
for Environmental Affairs and Development Planning v Clairison’s
CC
[2013] ZASCA 82
;
2013 (6) SA 235
(SCA) para 19.
[41]
Democratic
Alliance & others v Acting National Director of Public
Prosecutions & others
[2012]
ZASCA 15
;
2012 (3) SA 486
(SCA) para 29.
[42]
Democratic
Alliance v President of the Republic of South Africa & others
[2011]
ZASCA 241
;
2012 (1) SA 417
(SCA) para 66.
[43]
See,
inter alia,
African
Wanderers Football Club (Pty) Ltd v Wanderers Football Club
1977
(2) SA 38
(A) 47C–D;
Cronshaw
& another v Fidelity Guards Holdings Pty Ltd
[1996]
ZASCA 38
;
1996 (3) SA 686
(A); and
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
para 49, where the above two cases are cited with approval.
[44]
See
in this regard
Minister
of Defence and Military Veterans v Motau & others
[2014] ZACC 18
;
2014 (5) SA 69
(CC).