Democratic Alliance v South African Broadcasting Corporation Limited and Others (12497/2014) [2014] ZAWCHC 161; 2015 (1) SA 551 (WCC) (24 October 2014)

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[2014] ZAWCHC 161
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Democratic Alliance v South African Broadcasting Corporation Limited and Others (12497/2014) [2014] ZAWCHC 161; 2015 (1) SA 551 (WCC) (24 October 2014)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: 12497/2014
DATE:
24 OCTOBER 2014
In
the matter between:
DEMOCRATIC
ALLIANCE
...................................................................................
Applicant
And
THE
SOUTH AFRICAN BROADCASTING
CORPORATION
LIMITED
..........................................................................
First
Respondent
THE
BOARD OF DIRECTORS OF THE
SOUTH
AFRICAN BROADCASTING
CORPORATION
LIMITED
.....................................................................
Second
Respondent
THE
CHAIRPERSON OF THE BOARD OF
DIRECTORS
OF THE SOUTH AFRICAN
BROADCASTING
CORPORATION LIMITED
.........................................
Third
Respondent
THE
MINISTER OF
COMMUNICATIONS
.............................................
Fourth
Respondent
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
.....................
Fifth
Respondent
SPEAKER
OF THE NATIONAL
ASSEMBLY
.............................................
Sixth
Respondent
THE
PORTFOLIO COMMITTEE FOR
COMMUNICATIONS
OF THE NATIONAL ASSEMBLY
.......................
Seventh
Respondent
HLAUDI
MOTSOENENG:THE CHIEF
OPERATIONS
OFFICER OF THE SOUTH AFRICAN
BROADCASTING
CORPORATION LIMITED
......................................
Eighth
Respondent
THE
PUBLIC
PROTECTOR
....................................................................
Ninth
Respondent
JUDGMENT: 24
OCTOBER 2014
Schippers
J:
[1]
This is an application for an urgent
interdict under Part A of the notice of motion. The applicant, the
Democratic Alliance (DA),
a political party, seeks an order that the
eighth respondent, Mr George Hlaudi Motsoeneng (“Motsoeneng”),
be immediately
suspended from his position as the Chief Operations
Officer (COO) of the South African Broadcasting Corporation Limited
(SABC),
pending (1) the finalisation of disciplinary proceedings to
be brought against him by the second respondent, the Board of the
SABC
(“the Board”); and (2) the determination of the
relief sought in Part B of the notice of motion.The DA also seeks an

order directing the Board to institute disciplinary proceedings
against Motsoeneng within five days of the date of the court’s

order; and to appoint a suitably qualified person as acting COO to
fill Motsoeneng’s position, pending the appointment of
a
suitably qualified permanent COO.
[2]
In Part B of the notice of motion, the DA
seeks inter alia, an order reviewing and setting aside two decisions.
The first is the
Board’s decision on 7 July 2014 to recommend
the appointment of Motsoeneng as COO; and the second, the Minister’s
decision
to approve that recommendation on 8 July 2014.
[3]
The first, second and third respondents
oppose the application. The fourth respondent, Ms Azwihangwisi F
Muthambi, the Minister
of Communications (“the Minister”),
also opposes the application.  So too, does Motsoeneng.
Where appropriate,
I shall refer to the first to fourth respondents
as, “the respondents.”  The fifth, sixth and seventh
respondents
have not opposed the application nor delivered answering
affidavits.  The ninth respondent, the Public Protector, has
filed
an affidavit in which she says that she neither supports nor
opposes the interdictory relief sought.  However, she asks the

court to assess the matter on the basis that her report dated 17
February 2014 is legally valid, binding and enforceable; and to

refrain from pronouncing on the correctness of her findings or the
remedial action contained in the report.  I revert to these

aspects below.
[4]
The founding affidavit states that the
basis for the relief sought in this application is the findings of
the Public Protector.
These findings are contained in a report
entitled, “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)” dated 17
February 2014 (“the Report”).
The
Public Protector’s report
[5]
It appears from the Report that the Public
Protector launched an investigation after she was approached by a
senior official of
the SABC concerning various corporate governance
failures in the management of the affairs of the SABC; financial
mismanagement;
and undue interference in the SABC by the former
Minister and the Department of Communications (“the
Department”).
Subsequently, a former senior executive and
several former employees of the SABC made similar complaints.
These included
the irregular appointment of Motsoeneng to the
position of Acting COO despite not having the required
qualifications; the purging
of staff by Motsoeneng which resulted in
an unprecedented escalation of the SABC’s salary bill; and
irregular salary increases
for officials including Motsoeneng, whose
salary was increased from R1.5 million to R2.4 million in a single
year.
[6]
After the complaints were analysed, the
following eight issues were investigated:  (1) whether
Motsoeneng’s appointment
and salary progression were irregular;
(2) whether Motsoeneng fraudulently misrepresented his qualifications
to the SABC, which
included a statement that he had passed matric
when applying for employment; (3) whether the appointment(s) and
salary progression
of Ms Sully Motsweni (“Motsweni”) were
irregular; (4) whether the appointment of Ms Gugu Duda (“Duda”)
as Chief Financial Officer (CFO) was irregular; (5) whether
Motsoeneng had purged senior officials at the SABC, resulting in
unnecessary
financial losses in court and the Commission for
Conciliation, Mediation and Arbitration (CCMA), and in other
settlements; (6)
whether Motsoeneng had irregularly increased the
salaries of various staff members, which in turn resulted in an
increase in excess
of R29 million in the SABC’s salary bill;
(7) whether there were systemic corporate governance failures at the
SABC and the
causes thereof; and (8) whether the Department and Ms
Pule, the former Minister of Communications, unduly interfered in the
affairs
of the SABC.
[7]
The investigation by the Public Protector
included research and analysis of the relevant laws and regulatory
prescripts; analysis
of correspondence and corporate documents; and
telephonic and face-to-face interviews with current and former
officials of the
SABC and the Department, erstwhile members of the
Board and the former Minister, Ms Pule.
[8]
The Report states that the Public Protector
conducts an enquiry into what happened, what should have happened and
whether the conduct
of the relevant officials amounts to improper
conduct, maladministration or an abuse of power.  The enquiry as
to what happened
is a factual one in which the office of the Public
Protector relies primarily on official documents such as memoranda
and minutes
and less on oral evidence.  The evidence is assessed
and a determination is made on a balance of probabilities.  In
determining
what should have happened, the Public Protector has
regard to the Constitution, legislation, applicable policies and
guidelines,
and related sector and international benchmarks.
[9]
The Public Protector considered the
submissions made by affected parties including members of the Board,
former employees of the
SABC and the complainants, after she issued
her provisional report on 15 November 2013. In preparing their
responses to the provisional
report, all the recipients implicated
including Motsoeneng, were assisted by their attorneys.
Motsoeneng was given a recording
of his interview with the Public
Protector and on 13 December 2013 he provided her with written
comments in response to her provisional
report.
[10]
The findings of the Public Protector
concerning the issues investigated may be summarised as follows:
(1)
Motsoeneng’s appointment and salary
progression were irregular, and constitute improper conduct and
maladministration. The
Board violated the SABC’s Articles of
Association dealing with appointments, by allowing Motsoeneng to act
without the requisite
qualifications and Board resolution, and
exceeding the capped salary allowance. The academic qualifications
and requirements for
appointment to the position of COO were tailored
to suit Motsoeneng. In his position as Group Executive Manager:
Stakeholder Relations,
he received three salary appraisals in one
year, raising his salary from R1.5 million to R2.4 million.  As
Acting COO, his
salary was irregularly increased from R122 961 to
R211 172 (a 63% increase), in violation of the SABC’s
personnel regulations.
The Public Protector says that
Motsoeneng presented the requests for these salary increases to new
incumbents who would have relied
on him for guidance on compliance
with corporate prescripts and ethics.
(2)
Motsoeneng fraudulently misrepresented his
qualifications to the SABC.  In his application form for
employment he stated that
he had passed standard 10 and filled in
made-up symbols for subjects, knowing that he did not complete
matric.  He promised
to furnish a matric certificate knowing
that he did not have one.  His conduct in relation to the matric
qualification has
been unethical since 1995, and is improper and a
dishonest act as contemplated in s 6(4) of the Public Protector Act.
Had
he not lied about his qualifications, Motsoeneng would never have
been appointed in 1995.  Neither would he have been appointed
to
the post of Executive Producer: Current Affairs in 2003.
Motsoeneng was appointed to several posts at the SABC, despite
not
having the requisite qualifications for such posts.  The
management of the SABC failed to exercise the necessary due diligence

to avoid the misrepresentation or act decisively when it was
discovered.  This constitutes improper conduct and
maladministration.
It is also concerning that Motsoeneng’s
employment file has disappeared.
(3)
The appointment(s) and salary progression
of Motsweni were done without following proper procedures and in
violation of the personnel
regulations; and constitute an abuse of
power and maladministration.  Motsweni was appointed to the
following positions between
30 June 2011 and June 2012: General
Manager: Compliance and Operation Stakeholder Relations and
Provinces; Head: Compliance and
Operations; and Acting Group
Executive: Risk and Governance.  Her salary was increased from
R960 500 to about R1.5 million
per year.
(4)
Duda’s appointment as CFO in February
2012 was irregular and unlawful, and involved improper conduct,
maladministration and
abuse of power.  The position was
advertised and interviews were conducted with shortlisted
applicants.  The Board made
a recommendation to Ms Pule, the
former Minister, that the successful candidate be appointed as CFO.
She declined to approve
that recommendation.  Duda did not apply
for the position.  Mr Phiri (“Phiri”), the Acting
Deputy Director-
General of the Department, and Motsoeneng,
orchestrated Duda’s appointment after the recruitment and
selection process had
been closed.  Motsoeneng admits that he
got Duda’s CV from Phiri and submitted it to the SABC.
Motsoeneng also
served on the panel which interviewed her.  Her
scores were simply added to those of the other shortlisted
candidates.
Despite obtaining the second lowest of the average
and total scores, Duda was appointed to the position of CFO.
(5)
Motsoeneng was involved in the termination
of the employment of several senior employees resulting in
unnecessary financial losses
to the SABC.  He directly initiated
the termination of the employment of Mr Bernard Koma (“Koma”),
Mr Hosia Jiyane
(“Jiyane”), Mr Motlenyane Diphoko
(“Diphoko”) and Mr Sello Thulo (“Thulo”), who
testified against
him in his disciplinary hearing in Bloemfontein.
Koma received a settlement award of 12 months’ salary at the
CCMA
on condition that he withdrew a civil case against the SABC
after spurious charges were brought against him.  Jiyane endured

a disciplinary process which dragged on for two years before he won
his case against the SABC.  Diphoko was reinstated pursuant
to a
CCMA ruling nearly three years after the SABC had terminated his
contract. This constitutes improper conduct, abuse of power
and
maladministration.  Given Motsoeneng’s involvement in most
of these cases and the history of conflict between him
and the
majority of the employees and former employees concerned, purging
cannot be ruled out.  However, recklessness in these
dismissals
was endemic.
(6)
Motsoeneng unilaterally increased the
salaries of Motsweni, Ms Thobekile Khumalo, a shop steward and
certain freelancers without
following Part IV of the SABC’s
personnel regulations. These irregular and rapid salary progressions
contributed to a R29
million increase in the SABC’s salary
bill.  Motsoeneng’s conduct was irregular, improper and
constitutes maladministration.
Between 1 July 2011 and 1 April
2012, Motsweni was appointed to three different positions.  She
did not apply for these positions,
and was neither shortlisted nor
interviewed.  During this period her salary increased from
R79 966 to R130 883 - a 63.7%
increase.  Motsoeneng was
involved in Motsweni’s appointments and she reported directly
to him.  Apart from this,
several former employees were paid
substantial amounts as labour dispute settlement awards or severance
packages, resulting in
unnecessary costs to the SABC.
(7)
All of the above findings are symptoms of
systemic corporate governance failures at the SABC in relation to
human resources and
financial management.  Motsoeneng was
allowed by successive boards of the SABC to operate above the law,
undermining amongst
others, the Group Chief Executive Officer (GCEO)
and causing the staff, particularly in the Human Resources (HR) and
Financial
Departments to engage in unlawful conduct.  The Board
failed to provide strategic oversight. The directors (mainly the
GCEO,
COO and CFO) did not provide the necessary support, information
and guidance to help the Board discharge its fiduciary
responsibilities.
By his own admission Motsoeneng caused the
Board to make irregular and unlawful decisions.  The corporate
governance structures
at the SABC were dysfunctional.  The Board
was dysfunctional and allowed its member, Dr Ngubane, in effect to
perform the
function of an executive chairperson by authorising
numerous salary increases for Motsoeneng.  However, when the
Public Protector
questioned the Chairperson and the Board about
Motsoeneng’s rapid salary increases to R2.4 million per year
and the increase
of R29 million in the SABC’s salary bill, they
expressed shock and ignorance at this state of affairs.
(8)
The allegation that the former Minister, Ms
Pule, and the Department unduly interfered in the affairs of the SABC
is substantiated.
The former Minister improperly rejected the
Board’s recommendation that the successful candidate be
appointed to the position
of CFO, and orchestrated the inclusion of
Duda’s CV.  Phiri acted unlawfully in submitting Duda’s
CV to Motsoeneng,
who arranged that she be interviewed as a single
candidate by the Board after the selection process for the position
of CFO had
already been concluded and a recommendation made.
The conduct of Phiri, Motsoeneng, the HR Department and the Board was
unlawful,
had a corrupting effect on human resource practices and
constitutes maladministration.
[11]
The appropriate remedial action to address
the Public Protector’s findings of maladministration as
envisaged in s 182(1)(c)
of the Constitution, are contained in
paragraphs 11.2 and 11.3 of the Report.The remedial action includes
the following:
(a)
The Minister of Communications (then Mr
Yunus Carrim) had to institute disciplinary proceedings against Phiri
for his role in the
irregular appointment of Duda as CFO of the SABC;
and take steps to fill the then long outstanding vacant position of
COO with
a suitably qualified person within 90 days of the date of
the Report.
(b)
The Board had to ensure that all monies
irregularly and unlawfully spent were recovered from the relevant
persons.
(c)
The Board also had to also ensure that
disciplinary action was taken against Motsoeneng for his dishonesty
relating to the misrepresentation
of his qualifications, abuse of
power and improper conduct in the appointments and salary increases
of Motsweni, and for his role
in purging senior staff members
resulting in numerous labour disputes and settlement awards against
the SABC.
(d)
Disciplinary action also had to be taken
against Ms Lulama Mokhobo (“Mokhobo”), the outgoing GCEO,
for her improper
conduct in approving the salary increases of
Motsoeneng.
(e)
Any fruitless and wasteful expenditure
incurred as a result of irregular salary increases to Motsoeneng,
Motsweni, Ms Khumalo, a
shop steward and freelancers, had to be
recovered from the relevant persons.
[12]
The Report concludes with the aspect of
monitoring.  In terms thereof the Minister and the Board had to
submit an implementation
plan indicating how the remedial action
would be implemented, within 30 days of the date of the Report.
The remedial action
had to be finalised within six months and a final
report had to be presented to the office of the Public Protector by
16 August
2014.
[13]
The Minister did not furnish an
implementation plan or take disciplinary steps against Phiri.
The Board did not take any disciplinary
action against Motsoeneng or
Mokhobo, and took no steps to recover any fruitless and wasteful
expenditure.  Instead, on 8
July 2014 Motsoeneng was permanently
appointed to the position of COO.
The
appointment of Motsoeneng permanently as COO
[14]
The founding affidavit states that the DA
was not privy to the details of the appointment of Motsoeneng, but
that those details
have been widely exposed in the press.  In
summary, these media reports state the following.  At a Board
meeting on the
night of 7 July 2014, the Minister held a private
discussion with the Chairperson at 19h00. After the Chairperson
emerged from
that discussion at about 21h00, she proposed to the
Board that it immediately appoint Motsoeneng as the permanent COO.
Five
of the 11 Board members did not support his appointment: two
abstained and three voted against it.  The remaining six Board

members voted in favour of the appointment.  The Board submitted
its recommendation to the Minister around 23h30 on 7 July
2014.
The next day, 8 July 2014, the Minister announced the appointment of
Motsoeneng as COO of the SABC.  At a press
briefing on 10 July
2014, the Minister stated that the Board had obtained the opinion of
an independent law firm (Mchunu Attorneys)
to investigate all the
issues raised by the Public Protector; and that she and the Board
were satisfied that the attorneys’
report cleared Motsoeneng of
any wrongdoing.  Neither the Board nor the Minister informed the
Public Protector that they were
going to appoint Motsoeneng
permanently. They did not follow an open and lawful process to
appoint a new COO. It appears that they
ignored the relevant legal
provisions when appointing Motsoeneng permanently.
[15]
The first to third respondents admit that
Motsoeneng was permanently appointed to the position of COO.
They say he was appointed
“in the interests of the SABC - to
achieve its stability going forward”; and that the above
allegations are based on
media reports and constitute hearsay
evidence, which they will deal with when they respond to Part B of
the notice of motion.
Surprisingly, the Minister also says that
the newspaper reports constitute inadmissible hearsay and an abuse of
court process.
[16]
But most of what is stated in the media
reports is not hearsay.  In her answering affidavit the Minister
herself admits that
the Chairperson invited her to attend the Board
meeting of 7 July 2014, to discuss the question of the appointment of
a permanent
COO and the Public Protector’s report; that she was
briefed by the Chairperson on the issues (although she denies that it

lasted for two hours); and that she attended the meeting after the
Board had concluded its deliberations and decided to appoint

Motsoeneng as the COO.  The Minister also admits that on 8 July
2014 she accepted the Board’s recommendation to appoint

Motsoeneng permanently (which included the report by Mchunu Attorneys
containing their advice on the findings and remedial action
of the
Public Protector); and that at the press briefing on 10 July 2014 she
stated that Mchunu Attorneys had cleared Motsoeneng
of any
wrongdoing.
[17]
As appears from her affidavit, the Public
Protector was not informed of the intention to appoint Motsoeneng
permanently to the position
of COO.  She says that the former
Minister, Mr. Yunus Carrim, undertook in Parliament to implement the
remedial action contained
in the Report (which did not happen).
The Chairperson informed the Public Protector in May 2014 that a
final recommendation
concerning the Report would be tabled at a Board
meeting during June 2014, after which the Board would be in a
position to approve
an implementation plan, which would be forwarded
to the Public Protector.That did not happen either.
[18]
It also appears from the answering papers
that, prior to Motsoeneng’s appointment on 8 July 2014, the
position of COO was
not advertised; no other candidate was given an
opportunity to apply for it; and the prescribed process to fill that
position was
not followed.  Indeed, the first to third
respondents contend that any alleged failure by the Board to follow
the process
for the appointment of the COO “does not preclude
the Minister, as representative of the 100% shareholder … to
take
all decisions at annual general meetings of the SABC, from
nevertheless appointing a COO.”
[19]
Having outlined the factual background to
this application, it is appropriate now to deal with two preliminary
points which the
respondents have raised.  The first is that the
DA lacks standing to claim interdictory relief; and the second, that
the matter
is not urgent.
Standing
[20]
In the founding affidavit it is stated that
the DA seeks the relief in Part A of the notice of motion to give
effect to the Report
and to vindicate the Office of the Public
Protector.  Counsel for the first to third respondents contended
that the DA can
only do so to the extent that the Public Protector
has made a specific finding or directed specific remedial action
which the DA
seeks to give effect to.  Inasmuch as the Public
Protector has not sought the immediate suspension of Motsoeneng and
the appointment
of a suitable acting COO in his place, so the
argument runs, the DA must prove standing in terms of the common law,
which it has
failed to do.
[21]
Counsel for the Minister submitted that the
DA has no legal standing on three grounds.  First, the remedial
action in the Report
does not include the immediate suspension of
Motsoeneng pending the outcome of disciplinary proceedings against
him.  The
DA is not entitled to rely on the Report in an attempt
to seek far more than the remedial action required.  Second, the
DA
is bound by the Public Protector’s stance that the remedial
action she requires in terms of s 182(1) of the Constitution is
not a
mere recommendation, and therefore binding until set aside by a
court.  Third, the nature of the interim relief sought
in Part A
of the notice of motion goes much wider than the need to restore the
status quo ante
(in terms of which Motsoeneng would resume his former position as
acting COO), pending the outcome of the proceedings to review
and set
aside Motsoeneng’s permanent appointment, referred to in Part
B.  The DA seeks an order that he should be removed
from that
office for the time being.
[22]
It is convenient to deal with the
respondents’ contentions upfront.  The fact that the
Report does not specifically include
the immediate suspension of
Motsoeneng pending the outcome of disciplinary proceedings against
him is not decisive of that issue.
Accepting that the DA has
standing and has established the requisites for the grant of an
interdict, the question is whether, on
the papers before this court,
prima facie
a case has been made out which warrants the institution of
disciplinary proceedings against Motsoeneng; and, if so, whether he

should be suspended pending the finalisation of those proceedings.
[23]
On
a proper reading of the relief sought in Part A of the notice of
motion, more specifically that disciplinary proceedings be instituted

against Motsoeneng, the claim is one for a final mandatory interdict.
Is trite that whether an interdict is final or interim depends
on its
effect upon the issue, not upon its form.
[1]
Thus the argument that the relief sought goes much wider than the
restoration of the
status
quo ante
is erroneous.
[24]
The
Constitutional Court has repeatedly stressed that a broad rather than
a narrow approach should be adopted to standing, also
in matters that
involve an infringement of rights other than those protected in the
Bill of Rights.
[2]
[25]
The founding affidavit states that the DA
is acting not only in its own interests - as a political party with
an interest in an
independent and functional public broadcaster - but
also in the interests of its members and the public.
[26]
The provisions of the Broadcasting Act 4 of
1999 (“the
Broadcasting Act&rdquo
;), make it clear that the
SABC exercises public power.
(a)
The
object of the
Broadcasting Act is
to establish a broadcasting policy
in the Republic in the public interest, which includes the
establishment of a strong and committed
public broadcasting service
which will serve the needs of the whole of South African society.
[3]
(b)
The
South African broadcasting system is owned and controlled by South
Africans, and serves to safeguard, enrich and strengthen
the
cultural, political, social and economic fabric of South Africa.
[4]
(c)
In
pursuit of its objects and in the exercise of its powers, the SABC
enjoys freedom of expression and journalistic, creative and

programming independence as enshrined in the Constitution.
[5]
Indeed, the provisions of the
Broadcasting Act must
be construed in a
manner which is consistent with these objectives.
[6]
(d)
The
members of the Board must, when viewed collectively, be persons who
are suited to serve on the Board by virtue of their qualifications,

expertise and experience; and must be persons who are committed to:
fairness, freedom of expression, the right of the public to
be
informed, openness and accountability on the part of those holding
public office, and the principles enunciated in the Charter
of the
SABC.
[7]
(e)
One
of the aims of the Charter is to ensure the application of the
principles of good corporate governance in all dealings by, and
in
respect and on behalf of the SABC.
[8]
The Charter also states that the goals which the Board has adopted to
guide it and the SABC in carrying out their public
broadcasting
mandate, include the creation of a financially sound corporation
built on a sustainable business model, and ensuring
that its assets
are used in an effective and efficient way in line with the
requirements of key legislation to which the SABC is
subject;
ensuring full compliance by the SABC with the
Broadcasting Act, the
Charter and other legislation applicable to the SABC; and putting in
place systems, policies and procedures to ensure improved
business
processes and good governance within the SABC.
[9]
The Board must always maintain the highest standard of
integrity, responsibility and accountability.
[10]
[27]
It
is of fundamental importance to our democracy that an institution
such as the SABC, acts in a manner consistent with constitutional

prescripts and within its powers as set out in the Act and the
Charter. A political party participating in Parliament necessarily

has an interest in ensuring that public power is exercised in
accordance with constitutional and legal prescripts, and that the

rule of law is upheld.
[11]
[28]
The DA claims standing on the basis of the
following constitutional and democratic concepts: respect for the
rule of law and the
principle of legality (that the Minister and the
Board acted unlawfully and unconstitutionally); the strengthening of
democracy
(that the respondents ignored the findings of the Public
Protector and the remedial action required); and public
accountability
and open governance (that there has been a culture of
poor corporate governance, abuse and impunity at the SABC).
[29]
In
my view the DA has standing on any of these grounds.
[12]
Its members can be expected to hold the party to the principles
contained in its constitution to promote the rule of law
and
accountable public administration, even if this involves
litigation.
[13]
[30]
Moreover, it is in the public interest that
the issues raised in Parts A and B of the notice of motion be
adjudicated. The
Broadcasting Act requires
fairness on the part of
members of the Board, openness and accountability and entrenches the
right of the public to be informed.
The Charter is aimed at good
corporate governance and requires the Board to maintain the highest
standards of integrity, responsibility
and accountability. In these
circumstances and given the facts of this case, I do not think it can
seriously be argued that the
DA is not acting in good faith in the
public interest.
[31]
Even
more closely analogous to this case is
Democratic
Alliance v President of the Republic of South Africa and Others
,
[14]
in which the DA challenged the President’s decision to appoint
Mr Menzi Simelane as the National Director of Public Prosecutions

(NDPP), essentially on the ground that Mr Simelane was not a fit and
proper person to be appointed as the NDPP, as contemplated
in
s 9(1)
of the
National Prosecuting Authority Act 32 of 1998
.  As in
that case, this application concerns matters of national and
constitutional importance, having regard to the fundamental

principles and objects of the
Broadcasting Act
- freedom of
expression and journalistic, creative and programming independence of
the SABC as enshrined in the Constitution. On
this basis also, it
cannot be gainsaid that the DA has standing.
[32]
For these reasons I hold that the DA has
standing to act in its own interests, those of its members as well as
in the public interest.
Urgency
[33]
It
is trite that in an application such as this, the applicant must set
out explicitly the circumstances which render the matter
urgent and
the reasons why it claims it could not be afforded substantial
redress at a hearing in due course.
[15]
[34]
The founding affidavit states that two
factors render this matter urgent.   The first is the
serious harm that Motsoeneng
has done to the SABC and which he will
continue to cause for as long as he occupies the position of COO.
The second is the
need to vindicate the constitutional role of the
Public Protector.
[35]
As regards the first factor, the DA says
that “the Public Protector’s damning findings about
Motsoeneng are unchallenged”;
he has wasted public money to
benefit himself and his friends and to attack his enemies; and he has
ignored legislation governing
the SABC to further his own ends.
Then it is said that if the SABC is to be put back on a path of
stability and independence,
it must start with Motsoeneng’s
suspension and the institution of disciplinary proceedings against
him.
[36]
As to the second factor, the DA contends
that the Board and the Minister have ignored the findings and
recommendations of the Public
Protector, and by appointing Motsoeneng
as COO they have undermined the dignity and effectiveness of the
Public Protector. The
DA also says that until her investigation was
concluded, it would have been premature to approach the court, as the
Public Protector
had given the Board and the Minister until 16 August
2014 to give effect to the remedial action; that they have
disregarded the
Report by appointing Motsoeneng permanently; and that
this litigation is the only effective means to remove him and give
effect
to the Public Protector’s findings.
[37]
The respondents’ argument that the
matter is not urgent may be summarised as follows. Motsoeneng has
been the Acting COO for
more than two years.  The DA has been in
possession of the Report since 17 February 2014 when it was made
public, and was
thus aware of the Public Protector’s findings
and the timelines within which she wanted the Board and the Minister
to give
effect to the remedial action contained in the Report - 16
August 2014.  Any urgency is self-created:  the Public
Protector
did not recommend that Motsoeneng be removed from his post,
but disciplined; the Board and the Minister have not ignored the
Public
Protector’s findings; there is no reason why the DA
waited until 16 July 2014 allegedly to save the SABC from the harm
caused
by Motsoeneng’s continued employment (this ground
existed since 17 February 2014); and the Public Protector has
acknowledged
the need for the organs of state in this litigation to
engage with one another in accordance with the principles of
cooperative
governance.
[38]
The interdict that Motsoeneng be
immediately suspended is sought pending the determination of the
application to review the Minister’s
decision on 8 July 2014 to
permanently appoint him as COO. It was obviously impossible to review
that decision before it was taken
on 8 July 2014. It was made public
at the Minister’s media briefing on 10 July 2014.
[39]
This application was launched on 16 July
2014.  Given its nature and the issues which must be decided,
this was not unreasonable.
[40]
It would have been premature to seek
Motsoeneng’s suspension before 16 August 2014, when the Board
and the Minister had to
submit a final report to the Public Protector
concerning the implementation of the remedial action referred to in
the Report. I
have no doubt that had the DA launched proceedings
before 16 August 2014 to implement the remedial action in the Report,
the respondents
would have objected that those proceedings were
premature, particularly in the light of the Board’s letters of
21 February,
18 March and 18 May 2014 to the Public Protector.
In those letters the Board indicated that it was reviewing the
Report;
that recommendations would be made regarding the remedial
action; and that an implementation plan would be approved by the
Board
and sent to the Public Protector.
[41]
No purpose would have been served had the
applicant waited until after 16 August 2014 to launch this
application. The Board and
the Minister, by their actions, had made
it clear that effect was not going to be given to the findings and
remedial action in
the Report.
[42]
Part of the remedial action was that the
former Minister, Mr Carrim, had to fill the vacant position of COO
with a suitably qualified
person within 90 days.  That deadline
came and went. On 17 June 2014 the DA put a question to the Minister
for written reply
in Parliament as to whether agreement had been
reached by the SABC as to when the post of COO would be advertised
and if not, why
not.  The Minister replied on 2 July 2014 that
no progress to reach a settlement had been made.  The DA could
not have
known at any stage that Motsoeneng would be appointed
(without any advertisement or interview for the post of COO) less
than a
week later.  The matter became urgent when his
appointment was announced on 10 July 2014.
[43]
Finally, when I heard the application on 19
August 2014, the papers were complete, heads of argument had been
filed, and the matter
was argued.  No purpose would therefore
have been served by issuing the customary order when an application
is not urgent
- striking the matter from the roll.  In any
event, the matter was urgent.
[44]
I am accordingly of the view that a proper
case for urgency has been made out.
[45]
Before considering the merits of the
matter, it is necessary to deal with a central issue in this
application - whether the findings
of the Public Protector are
binding and enforceable.  The Public Protector says that this
issue is relevant not only for this
application: it has broader and
significant implications for the working of our democracy and the
independence and effectiveness
of the institution.
Are
the findings of the Public Protector binding and enforceable?
[46]
The
starting point is the Constitution. The Public Protector is one of
six state institutions established to strengthen our constitutional

democracy.
[16]
These
institutions are independent, subject only to the Constitution and
the law; required to be impartial and exercise their
powers and
perform their functions without fear favour or prejudice; and are
accountable to the National Assembly.
[17]
[47]
The role of the Public Protector is set out
in the Constitution in these terms:
“
182.
Functions of Public Protector
– (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 the report
be kept confidential.”
[48]
In terms of
s 6(4)(b)
of the
Public
Protector Act 23 of 1994
, the Public Protector is competent inter
alia:
“
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, when necessary, any complainant
regarding appropriate remedies; or
(iii)
any other means that may be expedient in
the circumstances;”
[49]
Counsel for the Public Protector submitted
that on a proper construction of s 182(1)(c) of the Constitution and
s 6 the
Public Protector Act, the
findings and the remedial action of
the Public Protector in paragraphs 11 and 12 of the Report, are
binding and enforceable, unless
properly and successfully challenged
in review proceedings.  Any other construction, so it was
submitted, would render the
institution of the Public Protector
toothless.
[50]
In my view, these submissions are
incorrect.  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.
[18]
If it was 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.
[52]
The wide powers of investigation under s
182(1)(a) of the Constitution and
ss 6
–
8
of the
Public
Protector Act, and
the power to take remedial action in
s 182(1)(c)
,
illustrate both the flexibility and effectiveness with which the
institution can operate by comparison to more traditional
institutions
of dispute resolution, such as courts.  The
functions of the Public Protector include identifying instances of
maladministration
– a much looser and malleable concept than
strict legal tests applied by courts.  And a maladministration
test is more
relevant to the grievances of the complainant, and
offers the potential of real and relevant outcomes - as illustrated
by the facts
of this case.
[53]
The Public Protector’s investigative
role in addressing citizens’ complaints about public sector
administration means
that the complainant is not required to put
together a case against a public official or body.  The Public
Protector simply
investigates the complaint to determine whether it
is valid and requires redress.  This process has many procedural
and cost
advantages for the complainant, and gives effect to the
constitutional requirement that proportionate and accessible redress
mechanisms
are made available to citizens - hence the power to take
appropriate remedial action.
[54]
The Constitutional Court has described the
functions of the Public Protector as investigatory, and likened the
office to the institution
of the ombudsman:
“
The
purpose of the office of Public Protector is to ensure that there is
an effective public service which maintains a high standard
of
professional ethics.  NT 182(1) provides that the Public
Protector has the power
‘
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’.
NT
182(4) provides that the Public Protector must be ‘accessible
to all persons and communities’.  The Public Protector
is
an office modelled on the institution of the ombudsman, whose
function is to ensure that government officials carry out their
tasks
effectively, fairly and without corruption or prejudice. The NT
clearly envisages that members of the public aggrieved by
the conduct
of government officials should be able to lodge their complaints with
the Public Protector, who will investigate them
and take appropriate
remedial action.”
[19]
[55]
The Constitutional Court has said that the
office of the Public Protector is modelled on the institution of the
ombudsman.
This, I think, is significant for two reasons.
First, as in the case of ombudsmen who operate independently of the
executive
and public authority more generally, the Public Protector
is independent and subject only to the Constitution and the law.

Second, and in contrast to their investigatory powers, ombudsmen
ordinarily do not possess any powers of legal enforcement.
[56]
The
independence of ombudsmen (and the Public Protector) is evidenced by
their wide-ranging investigatory powers to summon witnesses
and
discover documents.  In
Mail
& Guardian
,
[20]
Nugent JA said that the mandate of the Public Protector is
investigatory, requiring proaction, and that the sweeping powers
given
to the Public Protector under the
Public Protector Act (to
discover information and call for explanations from any person; to
require any person to produce documents and appear for examination;

and to search for and seize documents) underscores that proactive
function.
[21]
Moreover, no
person or organ of state may interfere with the functioning of a
Chapter 9 institution such as the Public Protector.
[22]
[57]
In contrast to their investigatory powers,
ombudsmen ordinarily do not possess any powers of legal enforcement.
Indeed, the
power to make binding decisions is considered
antithetical to the institution - the key technique of the ombudsman
is one of intellectual
authority (making logically consistent and
defensible findings) and powers of persuasion.  It seems to me
that in principle,
the position of the Public Protector is no
different. In this regard, Bishop and Woolman say:
“
One
of the most common criticisms levelled against the Public Protector,
and ombudsmen generally, is that the institution lacks
the power to
make binding decisions. In truth, however, the ability of the Public
Protector to investigate and to report effectively
- without making
binding decisions - is the real measure of its strength.
Stephen Owen explains this apparent paradox as
follows:
“
Through
the application of reason, the results are infinitely more powerful
than through the application of coercion. While a coercive
process
may cause a reluctant change in a single decision or action, by
definition it creates a loser who will be unlikely to embrace
the
recommendations in future actions.  By contrast, where change
results from a reasoning process, it changes a way of thinking
and
the result endures to the benefit of potential complainants in the
future.”
[23]
[58]
The
Public Protector Act, in
keeping with the scheme of ss 181 and 182 of
the Constitution, contains no provision that the findings and
remedial action required
by the Public Protector are binding and
enforceable, as in the case of a court order. In cases where the
lawgiver intends that
the findings of a tribunal should be
enforceable, it says so. For example, an arbitration award by the
CCMA is final and binding
and may be enforced as if it were an order
of the Labour Court.
[24]
The
same applies to a decision of the Competition Commission.
[25]
[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.
[60]
The respondents accept - as they must -
that an organ of state cannot ignore the findings and remedial action
of the Public Protector.
That much is clear from s 181(3) of the
Constitution which provides that other organs of state, through
legislative and other measures,
must assist and protect the Chapter 9
institutions, to ensure their independence, impartiality, dignity and
effectiveness.
[61]
Counsel
for the first to third respondents however submitted that the
obligations imposed in terms of s 182(3) and (4), and the
principles
of cooperative government and intergovernmental relations contained
in s 41 of the Constitution, are sufficient to ensure
that the Public
Protector is not undermined. Then it was submitted that the Public
Protector is also entitled, as regards her findings
on a particular
investigation, to seek the intervention of the National Assembly to
which the Board and the Minister are accountable,
as contemplated in
s 8(2)(b)
of the
Public Protector Act.
[26
]
The Minister says that a request for intervention to the National
Assembly or its Portfolio Committee on Communications is an adequate

remedy and that the interdictory relief should be refused on this
ground alone.
[62]
The
respondents however are mistaken. The facts of this very case show
that the constitutional and statutory provisions upon which
they rely
are inadequate to ensure that the Public Protector is not undermined.
Furthermore, a request for intervention to the
National Assembly or
its Portfolio Committee is not a legal remedy which grants similar
protection as an interdict.
[27]
[63]
The respondents, in effect, have rejected
the Public Protector’s findings and remedial action, by not
convening a disciplinary
enquiry and appointing Motsoeneng
permanently as COO. Disregarding the findings and remedial action
subverts the Public Protector’s
powers under s 182 of the
Constitution. The powers of the Public Protector to investigate any
conduct in the public administration
and to take appropriate remedial
action, strengthens democracy by providing both the individual and
the wider society with the
assurance that the various institutions of
state can be called to account, should they fail to maintain expected
standards in carrying
out their functions or in their dealings with
the public.  In turn, the bond of trust between the citizen and
the state is
strengthened by promoting transparency in government and
other state institutions.
[64]
The critical role which the Public
Protector fulfils cannot be over- emphasised.  As was said in
Mail & Guardian
:
“
The
office of the Public Protector is an important institution.  It
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.  If
that
institution falters, or finds itself undermined, the nation loses an
indispensable constitutional guarantee.”
[28]
[65]
If the Public Protector does not have the
power to make binding decisions, how then is effect to be given to
the findings and remedial
action to address the maladministration
referred to in the Report, so as to ensure that the office of the
Public Protector is not
undermined?
[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
[29]
is instructive.  The case concerned a report of an ombudsman in
which she addressed the circumstances in which final salary
schemes
were wound up underfunded, and the role of government in that regard.
The ombudsman found that there had been maladministration
and
that the complainants had suffered injustice.  She made a number
of recommendations to remedy the injustice caused by

maladministration.  The Secretary of State for Work and Pensions
declined to accept any of the findings of maladministration
in the
report and rejected a number of the ombudsman’s
recommendations.  The claimants applied for judicial review.

They sought an order quashing the decision of the Secretary of State
rejecting the ombudsman’s findings and for the matter
to be
remitted to the Secretary for reconsideration.  The claimants
argued that the ombudsman’s findings of maladministration
were
binding on the Secretary of State, unless they were flawed or
unreasonable.  The Secretary of State submitted that he
was
entitled to reject the ombudsman’s findings on the basis of a
bona
fide
difference of view, unless that rejection is itself flawed or
unreasonable.
[67]
The court held that there was nothing in
the relevant legislation which in terms required the body whose
conduct was the subject
of an investigation, to accept the
ombudsman’s findings of maladministration.  The test to
determine whether the Secretary
of State’s rejection of the
ombudsman’s findings had to be quashed was not whether the
Secretary himself considered
that there had been maladministration,
but whether in the circumstances his rejection of the ombudsman’s
finding to that
effect was itself rational.
[68]
Sir John Chadwick put it thus:
“
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.  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.”
[30]
[69]
Elaborating on this conclusion, Sir John
Chadwick said:
“…
It
is not … a general rule that facts found in the course of a
statutory investigation can only be impugned on
Wednesbury
grounds: although, plainly, if the investigator can be shown to have
acted irrationally, that will be a powerful reason for rejecting
his
findings. The true rule … is that the party seeking to reject
the findings must himself avoid irrationality: the focus
of the court
must be on his decision to reject, rather than on the decision of the
fact finder.”
[31]
[70]
I am mindful that
Bradley
was a review of the Secretary of State’s decision to reject an
ombudsman’s findings, and the rule that the use of foreign
case
law requires circumspection.  But the principle in
Bradley
seems to me to find equal application in this case.
[71]
There
can be no question that a decision whether or not to accept the
findings or remedial action of the Public Protector constitutes
the
exercise of a public power.  Rationality is a minimum threshold
requirement applicable to the exercise of all public power
by members
of the executive and other functionaries.
[32]
It is a requirement of the principle of legality that decisions must
be rationally related to the purpose for which the power
was given,
otherwise they are in effect arbitrary.
[33]
For present purposes, it is unnecessary to decide whether or not a
decision to reject the findings and remedial action of
the Public
Protector constitutes administrative action as contemplated in the
Promotion of Administrative Justice Act 3 of 2000
.
[72]
Thus in a case where the Public Protector
makes findings and takes remedial action, the consequential steps to
be taken by the relevant
organ of state, in my view, are these:
(a)
The organ of state must properly consider
the findings and remedial action.  As the findings are not
binding and enforceable,
the organ of state must decide whether or
not the findings should be accepted and the remedial action
implemented.  That is
the purpose of the power.
(b)
The
process by which that decision is made and the decision itself, must
be rational,
[34]
having regard
to the underlying purpose of the Public Protector – to ensure
that government officials carry out their tasks
effectively, fairly
and without corruption or prejudice.
(c)
In
a case where a dispute arises because the organ of state decides not
to accept the findings or implement the remedial action,
it obviously
has to engage the Public Protector.  Contrary to the contention
by counsel for the first to third respondents,
such engagement, in my
view, does not take place pursuant to the provisions of s 41 of the
Constitution - the Public Protector
is not an organ of state
within
a sphere of government
as contemplated in s 41(1).
[35]
(It is thus hardly surprising that the
Intergovernmental Relations
Framework Act 13 of 2005
does not apply to the Public
Protector.
[36]
)
(d)
Ultimately
the relevant organ of state may apply for judicial review of the
Public Protector’s investigation and report.
[37]
[73]
It goes without saying that a decision by
an organ of state rejecting the findings and remedial action of the
Public Protector is
itself, capable of judicial review on
conventional public law grounds.
[74]
For these reasons I have come to the
conclusion that the findings of the Public Protector are not binding
and enforceable.
However, when an organ of state rejects those
findings or the remedial action, that decision itself must not be
irrational.
Are
the decisions to reject the findings and remedial action rational?
[75]
The Public Protector says that on more than
one occasion, the Board indicated that it was engaging with the
Report and sought extensions
in order to comply with it.  Those
extensions were granted.  By letter dated 18 May 2014, the Board
informed the Public
Protector that it would provide an implementation
plan after its meeting in June 2014. The Public Protector goes on to
say that
the only remedial action which the SABC has implemented, is
that the disciplinary action against Duda, the CFO, has been
completed.
[76]
The third respondent, in her answering
affidavit, states that in March 2014 the Board appointed a Committee
of Chairs to deal with
the Report and in turn, to report to the
Board.  According to the Committee’s terms of reference
that process should
have been completed by 10 March 2014.  The
third respondent says that various meetings were held by the various
Committees
which also held workshops to deal with the Report.
However, the Board has not placed before the court any report
or minutes
of these committees, or any facts to show why it rejected
the Public Protector’s findings of maladministration, improper
conduct and abuse of power on the part of Motsoeneng.
[77]
The reasons for the Board’s decision
are stated in the answering affidavit as follows:
“
The
Board decided to recommend the appointment of Mr Motsoeneng by the
Minister to the position of COO at its meeting on 7 July
2014.
It did so in order to secure the interests of the SABC, and in the
knowledge that there was no reasonable basis to
discipline him for
any misconduct.”
[78]
There are no grounds, let alone rational
grounds, for the Board’s decision to reject the Public
Protector’s findings
and remedial action.
[79]
The Minister’s answer to the findings
and remedial action in the Report in so far as they relate to
Motsoeneng is seemingly
confined to the finding that Motsoeneng had
lied about his qualifications when he was employed by the SABC.
She says that
she was concerned about this finding.  She raised
her concerns with the third respondent who provided her with the
transcript
of Motsoeneng’s interview with the Public
Protector.  After reading the transcript she was satisfied that
Motsoeneng
did not lie about the matric qualification.  The
Minister goes on to say that she was then satisfied that Motsoeneng
is competent
and has the necessary expertise to be appointed as COO,
having considered the further qualifications which he had obtained
throughout
his employment with the SABC, the experience he gained and
the fact that he acquitted himself of his duties exceptionally well
for almost three years when he was the Acting COO.
[80]
The Minister states that she had to take a
decision on the Board’s recommendation expeditiously because
the matter was urgent.
However, she does not set out any facts
or circumstances which rendered the matter urgent.  Instead, she
makes a general statement
that from documents submitted to her by the
Board together with its recommendation, she was satisfied that
Motsoeneng had performed
satisfactorily, and “brought financial
and corporate stability” to the SABC.  She says she
intends to “engage
the Public Protector on the findings, and
bring to her attention facts which were uncovered by Mchunu Attorneys
which could well
affect her findings.”  But not one of
these facts allegedly uncovered are disclosed, despite the fact that
the Minister
herself says that she will ensure that the findings of
Mchunu Attorneys are made available to the Public Protector.
The Minister
further states that she has prepared a response to the
Report to be submitted to the Public Protector by the due date (17
August
2014).  The Minister concludes that her decision to
appoint Motsoeneng is rational.
[81]
Nowhere in her affidavit does the Minister
state that she considered the other findings against Motsoeneng, more
specifically the
allegations in relation to abuse of power and
improper conduct on his part in the appointments and salary increases
of Motsweni,
or his role in purging senior staff members which
resulted in numerous labour disputes and settlement awards against
the SABC.
[82]
In the light of the Minister’s
reasons for permanently appointing Motsoeneng as the COO, the
question then arises whether,
in the circumstances, her decision to
reject the findings and remedial action of the Public Protector and
prefer her own view,
is rational. In my judgment, it is not.
[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.
[84]
The next question is whether the relief
sought – that Motsoeneng should face a disciplinary inquiry and
be suspended pending
its finalisation - is an appropriate remedy.
[85]
The
primary duty of courts is to the Constitution and the law, which they
must apply impartially and without fear, favour or prejudice.
[38]
Section 172(1) of the Constitution provides that when deciding a
constitutional matter within its power, a court must declare
that any
law or conduct that is inconsistent with the Constitution is invalid,
and may make any order that is just and equitable.
[39]
[86]
There
seems to be no significant difference between an order which is “just
and equitable” as contemplated in s 172(1)(b)
of the
Constitution the “appropriate relief” which a court may
grant under s 38 thereof.  In
Fose
,
[40]
Ackermann J opined that construed purposively, there was no material
difference between the concept “appropriate relief”
in s
7(4)(a) of the interim Constitution and an “appropriate and
just” remedy contained in the Canadian Charter of
Rights and
Freedoms:
“
It
can hardly be argued, in my view, that relief which was unjust to
others could, where other available relief meeting the complainant’s

needs did not suffer from this defect, be classified as appropriate.
In applying s 7(4)(a) the interests of both of the complainant

and society as a whole ought, as far as possible, to be served.”
[41]
[87]
Appropriate
relief in essence is a remedy which is required to protect and
enforce the Constitution.  And an appropriate remedy
means an
effective remedy, for without an effective remedy for a
constitutional breach, the values underlying a right entrenched
in
the Constitution cannot properly be upheld or enhanced.
[42]
Likewise, an order which is just and equitable is directed at
protecting and enforcing the Constitution.  In
Fourie
,
[43]
Sachs J held that the precise circumstances of each case must be
considered with a view to determining how best the values of the

Constitution can be promoted by an order that is just and equitable.
What is clear, however, is that courts have a duty to
provide
effective relief to those affected by a constitutional breach.
[88]
In the light of what is stated above and
the particular circumstances of this case, I consider that an
effective, just and equitable
order is one directing the Board to
institute disciplinary proceedings against Motsoeneng as contemplated
in paragraph 11.3.2.1
of the Report.
[89]
I come now to the suspension.  The
remedial action taken by the Public protector does not include
Motsoeneng’s suspension
pending a disciplinary enquiry.
However, part of the remedial action was that the Minister had to
take urgent steps to fill
the long outstanding vacant position of COO
with a suitably qualified incumbent within 90 days of the Report
(dated 17 February
2014) and to establish why GCEO’s cannot
function at the SABC and leave prematurely, causing operational and
financial strains.
[90]
The Minister and the Board were required to
submit an implementation plan indicating how the remedial action
would be implemented
within 30 days of 17 February 2014; and the
remedial action had to be finalised within six months.  As
already stated, that
did not happen.
[91]
In
Lewis
,
[44]
Lord Denning MR crispy formulated the rationale for the suspension of
an employee as a holding operation, as follows:
“
Very
often irregularities are disclosed in a government department or in a
business house; and a man may be suspended on full pay,
pending
enquiries.  Suspicion may rest on him; and so he is suspended
until he is cleared of it … . The suspension
in such a case is
merely done by way of good administration.  A situation has
arisen in which something must be done at once.
The work of the
department or office is being affected by rumours and suspicions.
The others will not trust the man.
In order to get back to
proper work the man is suspended.”
[45]
[92]
A suspension for good administration
applies
a fortiori
in this case.  In the words of the Public Protector:
“
The
essence of the allegations investigated was that there was systemic
corporate governance failure at the SABC at the core of
which was
expediency, acutely poor human resources management and a
dysfunctional Board, all of which was said to be primarily
due to
manipulative scheming by the SABC’s acting COO, who allegedly
lacked the requisite competencies for the post and manipulated,

primarily new Boards and GCEO’s to have his way and to purge
colleagues that stood in his way.”
[93]
Maladministration, improper conduct and
abuse of power on the part of Motsoeneng are recurring themes in the
Report.  It states
that the HR records of the SABC and his own
account show that Motsoeneng was involved in most of the irregular
terminations of
employment of several senior employees of the SABC in
which it lost millions of Rands due to substantive and procedural
injustices,
confirmed in findings of the CCMA and the courts.
Motsoeneng was allowed to operate above the law and caused staff to
engage
in unlawful conduct.  He improperly and irregularly
increased the salaries of various staff members.  He was one of
the
executive directors who failed to assist the Board in discharging
its fiduciary responsibilities effectively and by his own admission,

caused the Board to make irregular and unlawful decisions.  The
Public Protector says that Motsoeneng triggered his three
salary
increases in one fiscal year by presenting those requests to new
incumbents who would have legitimately relied on him for
guidance and
compliance with corporate prescripts and ethics; and he abused his
power and position to unduly benefit himself.
[94]
Despite all this, the current Board, the
Public Protector says, “appears to have blindly sprung to Mr
Motsoeneng’s defence”
and “at times …
appeared more defensive on his behalf” than Motsoeneng himself.
[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.
[98]
In reaching this conclusion I have taken
into account the reasons advanced in Motsoeneng’s affidavit as
to why he should not
be suspended. They are these.  The Board is
responsible for exercising disciplinary powers over directors and
employees of
the SABC, which is regulated by labour law.  A
suspension would breach the rules of natural justice in that
Motsoeneng would
not be given an opportunity to respond to the
proposed suspension.  A suspension carries negative personal and
social consequences
affecting an employee’s dignity and
reputation.  It would create an impression in the eyes of the
public that Motsoeneng
is guilty even before disciplinary proceedings
are instituted.  A suspension would violate the rule of
separation of powers,
as the court would usurp the power to remove a
member of the Board, reserved to the executive and the legislature in
the
Broadcasting Act.  Similar
reasons have been advanced by the
first to third respondents.
[99]
In
my opinion, these reasons do not bear scrutiny.  The separation
of powers argument fails for two reasons.  First, I
have found
that the decision of the Board and the Minister to reject the Public
Protector’s findings and remedial action
was irrational.
As was held in
Democratic
Alliance v President of the RSA
,
[46]
it is difficult to conceive how the rule of separation of powers can
be said to be undermined by the rationality enquiry.
It has
nothing to do with whether a decision is a rational.  Either the
decision is rational or it is not.
Second,
the rule of separation of powers cannot be used to avoid the
obligation of a court to provide appropriate relief that is
just and
equitable to a litigant who successfully raises a constitutional
complaint.
[47]
[100]
As regards the rules of natural justice,
the particular circumstances of this case warrant the suspension of
Motsoeneng pending
a disciplinary enquiry.  It is unlikely that
the respondents would even consider suspending him.  The papers
show that
the Board voted to remove him from the position of Acting
COO in 2012, but that decision was reversed by a new Board, appointed

after the members of the Board who took the removal decision, had
resigned.  When the Public Protector required disciplinary

action to be taken against Motsoeneng, and that the position of
Acting COO be filled, the Board and the Minister appointed him

permanently to the post of COO.
[101]
Finally, it is simply wrong that
Motsoeneng’s suspension would create a public perception that
he already is guilty of misconduct.
Any prejudice that he might
suffer will be significantly contained in that he will suffer no loss
of remuneration, and the suspension
is for a limited period.
A
disciplinary enquiry is in any event justified
[102]
Aside from the constitutional breach by the
Board and the Minister referred to above, there is on the papers
before the court a
prima facie
case which warrants the institution of disciplinary proceedings
against Motsoeneng.
[103]
The
DA seeks a final interdict that the Board institute disciplinary
proceedings against Motsoeneng.  The requisites for a
final
interdict are settled law.  The applicant must establish a clear
right; an injury committed or reasonably apprehended;
and the absence
of protection by any other ordinary remedy.
[48]
[104]
Whether
the applicant has a right is a matter of substantive law.  Whether
that right is clear is a matter of evidence.
[49]
The founding affidavit states that the rights which the DA asserts in
its own and the public interest, are these: compliance
with the rule
of law and the principle of legality; the statutory right conferred
by the
Broadcasting Act that
members of the Board must be persons who
are: (1) suited to serve on the Board by virtue of their
qualifications expertise and
experience; and (2) committed to
fairness, freedom of expression, the right of the public to be
informed and openness and accountability;
and the right to ensure
compliance by the SABC with the
Broadcasting Act and
the Charter, and
the Board’s obligation to ensure good governance within the
SABC.  These statutory rights are rooted
in Chapter II of the
Broadcasting Act, which
states that the South African broadcasting
system is owned and controlled by South Africans.
[105]
As to the second requirement - an injury
committed - the papers show that
prima
facie
, there is a case of irregular and
improper conduct, maladministration and abuse of power on the part of
Motsoeneng, which calls
for an answer.
[106]
But before dealing with this issue, two
preliminary points are required to be made at the outset.  The
first is obvious: I
make no findings on whether or not Motsoeneng is
guilty of improper conduct, maladministration or abuse of power.
That is
the function of the disciplinary tribunal.  The second
is that I do not pronounce upon the correctness or otherwise of the

facts put up by the first to third respondents in support of their
contention that the Public Protector’s findings have no
merit.
I refer to those facts merely because they underscore the conclusion
that there is a
prima facie
case justifying the institution of disciplinary proceedings against
Motsoeneng.
[107]
I turn now to consider the allegations
against Motsoeneng.  His role in the suspension of Ms Lorraine
Francois, (“Francois”)
an internal auditor, which
resulted in a labour dispute and settlement award against the SABC,
has not been explained.  The
office of the Public Protector
interviewed Francois and analysed documents relating to labour
disputes involving the SABC, including
CCMA arbitration awards and
settlements.  In 2012 SizweNtsaluba-Gobodo (SNG) auditors
reviewed the SABC’s corporate
governance practices and issued a
damning report that corporate governance structures within the SABC
were dysfunctional.
On 1 November 2012 Francois wrote to the
Board with a request that it consider the SNG report.
Motsoeneng refused to release
the report because it implicated
several Board members.  He threatened to get rid of Francois if
she released it.  On
6 November 2012 the Chairperson of the
Board handed Francois a letter of suspension with no reasons.
Francois, who was suspended
for months, successfully challenged her
suspension in the CCMA and was reinstated. According to Motsoeneng’s
comments to
the interim report of the Public Protector, the
remuneration package of Francois was R1.7 million per year.
[108]
The third respondent’s answer to the
suspension of Francois is simply that her employment was not
terminated by the SABC.
She says, “The Public Protector
reported in error on this matter.”
[109]
Regarding the allegations that Motsoeneng
was involved in the suspension of numerous employees, which
constitutes improper conduct,
abuse of power and maladministration,
the Report states inter alia, the following:
(a)
Koma informed the Public Protector’s
investigation team that he was suspended and charged by Motsoeneng
with spurious offences
relating to the purchase of 20 Mercedes-Benz
vehicles from Debis Fleet Management.  The investigation team
met with Koma and
his case is included in the letters of suspension
and termination furnished to the Public Protector. He was paid an
undisclosed
amount in settlement by the SABC.  The first to
third respondents do not deal with Motsoeneng’s role in Koma’s

suspension.  They simply say that “a dispute involving
this employee was settled” on the advice of the General

Manager: Group Employee Relations, and that the former GCEO, Mokhobo,
approved the settlement.  Motsoeneng says that Koma
resigned on
21 November 2011.
(b)
Diphoko, who testified against Motsoeneng
in his disciplinary hearing, was reinstated after a CCMA ruling
nearly three years after
the SABC had terminated his contract.
Neither the first to third respondents nor Motsoeneng have dealt with
these allegations.
(c)
On 15 March 2013 Mr Thabiso Lesala
(“Lesala”), the former Group Executive HR, informed the
investigation team that he
reported directly to Motsoeneng who in
turn, supposedly reported to the former GCEO, Mokhobo.  However,
Motsoeneng did as
he pleased without being reined in by Mokhobo.
For example, she would sign salary increases for Motsoeneng despite
the lack
of motivation and justification for those increases by HR.
Lesala says he resigned because of this constant abuse of HR
policies.
Subsequently he lodged a claim of constructive
dismissal at the CCMA.  On 31 January 2013 he entered into a
settlement agreement
with the SABC and was paid the sum of R2
million.  The first to third respondents’ explanation for
this is that “Mokhobo
agreed to settle the dispute amicably.”
Motsoeneng denies that Lesala was purged and says that he “accepted
a
pay-out of what was legally due to him and left.”
[110]
As regards the allegations of abuse of
power and improper conduct in the appointments and salary increases
of Motsweni, the following
is stated in the Report:
(a)
On 27 June 2011 Motsweni was offered and
accepted a position in the office of the Group Executive: Stakeholder
Relations and Provinces,
occupied by Motsoeneng, at a remuneration
package of R960 500 per year.
(b)
Eight months later, on 1 February 2012, the
SABC appointed Motsweni as Head: Monitoring, Compliance and Operation
Service at a package
of some R1.5 million per year.  This
position was also within the office of the COO, occupied by
Motsoeneng.
(c)
During the period 1 July 2011 to 1 April
2012, Motsweni was appointed to three different positions without
applying for them, being
shortlisted or attending interviews.
In all these positions Motsweni reported directly to Motsoeneng.
(d)
The positions were not advertised.
Indeed, the SABC could not provide any proof of this.  It is
clear that the SABC’s
recruitment policy was not followed.
(e)
Between 1 July 2011 and 1 April 2012,
Motsoeneng approved Motsweni’s total monthly cost to the SABC,
which increased from
R79 966 to R130 883 – by 63.7%.
(f)
Motsoeneng’s explanation to the
Public Protector is this.  He had identified a need for a
position similar to Motsweni’s
for the whole of the SABC
largely because of an increased focus by auditors on compliance
matters identified by the Auditor General.
He thought it would
be a duplication to appoint another person to strengthen compliance
and monitoring.  He then elevated
Motsweni’s entire
division to his office, to deal with compliance corporate-wide.
Motsweni’s appointments to
the posts of General Manager:
Compliance and Operations, and General Manager: Finance, were urgent
and the HR division had applied
for approval of deviations from the
recruitment policy.  Although he motivated Motsweni’s
salary increases, HR division
had supported them and they were
approved by the GCEO.
(g)
But the former GCEO, Mokhobo, says that
Motsoeneng regularly increased Motsweni’s salary as a reward.
She writes Motsoeneng’s
emails, prepares documents for him,
explains what is contained in documents, writes his responses and
generally does everything
for Motsoeneng.
[111]
The first to third respondents’
answer to all of this is simply that Motsweni was appointed at the
time when the SABC was
required to implement the findings of the
Auditor General.  Then it is said that “the issue was
handled in accordance
with proper recruitment policies of the SABC
and where deviations were necessary these were properly sought and
approved.”
A memorandum dated 22 June 2011 for permission
to deviate from the recruitment policy in respect of only one
position to which
Motsweni was appointed (General Manager: Compliance
and Provincial Operations), is annexed to the answering affidavit.
The
relevant provisions read as follows:
“
2.
BACKGROUND
There
is an urgent need for the two roles of General Manager: Compliance &
Provincial Operations and General Manager: Finance,
respectively
within Stakeholder Relations and Provinces Division.
3.
MOTIVATION
The
recruitment policy requires that all positions should be advertised,
either internally or externally before being filled. These
provisions
are not suitable for the current situation based on the urgency.
An exception is therefore required based on the
seniority of the
positions.”
[112]
Thus a number of aspects regarding the
alleged abuse of power and improper conduct by Motsoeneng in the
appointments and salary
increases of Motsweni, remain unexplained.
The Board’s explanation is essentially the same as that
proffered by Motsoeneng
in his answer to the Public Protector’s
interim report - which she rejected.
[113]
The allegations concerning Motsoeneng’s
dishonesty in relation to the misrepresentation of his
qualifications, may be outlined
as follows:
(a)
Motsoeneng misrepresented to the SABC that
he had passed standard 10 in his application for employment in 1995,
when he knew that
he failed matric.  In the application form
Motsoeneng stated that he had completed five subjects.  He
admitted that the
symbols which he filled in on the form were false.
He said he did this because Ms Marie Swanepoel (“Swanepoel”),

an HR administrator, told him to “put anything” in the
form concerning the symbols.  As regards the certificate
itself,
the form states that it is “outstanding”, thus giving the
impression that there is indeed a matric certificate
which would be
submitted in due course.
(b)
By letter dated 12 October 1999, a HR
consultant of the SABC asked Motsoeneng to hand in a copy of his
matric certificate. In another
letter dated 4 May 2000, Mr. Paul Tati
(“Tati”), also a HR consultant, informed Motsoeneng that
numerous reminders
had been sent to him to produce his matric
certificate, and insisted that it be submitted by no later than 12
May 2000. Tati also
drew Motsoeneng’s attention to the fact
that in 1995 he had indicated on his application for employment that
his highest
standard passed was standard 10. Motsoeneng acknowledged
receipt of the letter of 4 May 2000. He indicated that he was not in
possession
of the matric certificate and would provide it as soon as
he received it. He never did.
(c)
The former GCEO, Mokhobo, states that in
August 2003 the Group Internal Audit unit of the SABC investigated
the allegation that
Motsoeneng had misrepresented that he had passed
matric in 1991. It found that when Motsoeneng applied for the post of
Executive
Producer at Lesedi FM in 2003, the requirements for that
post were a degree or diploma in Journalism, and eight years’
experience
in the production of radio current affairs programmes,
three years of which had to be in a managerial role. Motsoeneng did
not
meet any of these requirements. Despite this, he was appointed to
the position.
(d)
In its findings dated 11 September 2003 the
Group Internal Audit unit states that Motsoeneng received a rating of
2 out of 5 for
qualifications, even though he does not have a matric
certificate, or a degree or diploma. It recommended that management
institute
action against Motsoeneng for misrepresenting his
qualifications.
(e)
The recommendation by the Group Internal
Audit unit was never implemented by the SABC.
(f)
Despite the finding of the Group Internal
Audit unit, on 5 April 2012 Dr Ngubane, the former Chairperson of the
Board, informed
the Public Protector in writing that the SABC could
find no evidence that Motsoeneng had misrepresented his
qualifications - which
the Public Protector says is astounding. A
former member of the Board, Advocate Mahlati, informed the Public
Protector that when
she tried to ascertain during Board meetings
whether Motsoeneng had lied about his qualifications, she was
suppressed by the Chairperson,
with the support of the majority of
Board members.
(g)
On 30 January 2012 the “Sunday
Independent” newspaper published an article in which it was
stated that Motsoeneng had
been fingered by an SABC internal audit
probe as having lied about having a matric certificate when he
applied for a position several
years ago. Motsoeneng lodged a
complaint against the newspaper with the Ombudsman of the Press
Council. The complaint was dismissed.
The Ombudsman found that the
Sunday Independent was justified in stating that Motsoeneng had lied
about having a matric certificate.
Motsoeneng lodged an appeal
to the Press Council of South Africa.  The Appeals Panel
dismissed the appeal and found that Motsoeneng
had lied about having
passed standard 10, in his application form for employment.
(h)
In his CV submitted for the position of
Executive Producer: Current Affairs at Lesedi FM, Motsoeneng stated
that he had been appointed
as Head of Communications of the
Department of Tourism and Economic Affairs in the Northern Cape. That
was not true and thus a
misrepresentation of what he had
accomplished. Motsoeneng had only been employed by the SABC.
[114]
In summary, Motsoeneng’s answer to
the allegations concerning the misrepresentation of his
qualifications is this.  He
says he was wrong in recording false
information in his application form.  Swanepoel had indicated
that he should fill in
“ten” under the heading, highest
standard passed; and that he should complete the form as best he
could when he told
her that he could not remember which subjects he
had passed or the symbols obtained.  He was “head-hunted”
by
amongst others, Mr Alwyn Kloppers (“Kloppers”), the
then Managing Editor of SABC’s Radio News.  He did not

mislead the SABC.  Kloppers knew that Motsoeneng had not passed
matric but did not regard this as a barrier to his appointment.

Kloppers has confirmed this in an affidavit.  According to
Moetsoeneng, Kloppers ensured that he completed a course in radio

journalism under the auspices of the Thompson Foundation (between 6
and 17 February 1995), which in the view of Kloppers, would
“have
bridged that shortcoming” - Motsoeneng’s not having
passed standard 10.
[115]
Motsoeneng himself says that throughout his
upward mobility in the SABC, at no point was he required to submit
any proof of his
academic qualifications.  As to the
recommendation by the Group Internal Audit unit that action be taken
against Motsoeneng
for misrepresenting his qualifications, he says
that the Head of the unit advised him that “no wrongdoing had
been found”;
and that despite his request, he had not been
furnished with a copy of the relevant report.
[116]
On the alleged misrepresentation of
Motsoeneng’s qualifications, the first to third respondents
rely on essentially the same
explanation which he gave to the Public
Protector in answer to her interim report, summarised above.
They say that the Board
has found no basis to charge Motsoeneng with
fraud or dishonesty regarding his qualifications in 1995 or at any
point in his employment
with the SABC.
[117]
The first to third respondents do not deal
at all with the recommendation by the Group Internal Audit unit that
action be taken
against Motsoeneng; or the misrepresentation of his
qualifications when applying for the position of Executive Producer:
Current
Affairs at Lesedi FM.
[118]
It follows that the first to third
respondents’ contention that on the facts, no case has been
made out that there is a justifiable
reason to believe that
Motsoeneng has engaged in serious misconduct, is unsound.
[119]
What all of this shows, is that the second
requirement for the grant of an interdict that Motsoeneng be
subjected to a disciplinary
inquiry, has been met.
[120]
As
regards the third requirement, the alternative remedy must be
adequate in the circumstances; be ordinary and reasonable; be a
legal
remedy; and grant the applicant similar protection.
[50]
[121]
Counsel
for the Minister contended that the DA should have pursued
alternative statutory remedies in the
Broadcasting Act and
the
articles of the SABC, in terms of which an executive director may be
suspended or removed from office.  More specifically,
it was
contended that
s 15(1)(a)
of the
Broadcasting Act confers
a
discretion on the Minister to remove an executive director on account
of misconduct or incompetence, when the National Assembly
has passed
a resolution which calls for the removal of that director.
Section 15A(2)
provides that the Minister may suspend an executive
director from office only after the National Assembly has initiated
proceedings
for the removal of that director.
[51]
[122]
As already stated, the alleged alternative
remedy is inadequate and does not grant similar protection as an
interdict. In addition,
there are two jurisdictional requirements
before a member of the Board may be removed from office by the
National Assembly under
section 15(1)(a)
of the
Broadcasting Act.
First
, it must hold an inquiry into misconduct. Second, the National
Assembly must adopt a resolution to remove the member.This is
unlikely
to happen given the response of the Board and the Minister
to the findings and remedial action of the Public Protector.
Moreover,
despite an undertaking in Parliament by the former
Minister, Mr. Carrim, that the remedial action in the Report would be
implemented,
that did not happen.
[123]
The DA has met the requisites for the grant
of a final interdict and on this basis also, Motsoeneng should be
subjected to a disciplinary
enquiry, and be suspended pending that
inquiry.
[124]
The remaining relief sought may be dealt
with briefly.  An order that Motsoeneng be suspended pending the
determination of
the review proceedings in Part B of the notice of
motion would have no practical effect.  It is trite that an
interim interdict
is designed to preserve or restore the
status
quo
pending the final determination of
the rights of the parties. The interdict, if granted, would result in
a restoration of the
status quo ante
:
Motsoeneng would be the Acting COO.
[125]
An order by this court directing the Board
to appoint a suitably qualified person as the Acting COO is
inappropriate. There seems
to be no reason why an acting COO should
not be appointed by the Board in the interim, as happened in the case
of Motsoeneng when
that position became vacant.
[126]
Finally, there is the question of costs.
There is no reason why costs should not follow the result.
[127]
I make the following order:
(1)
The Board of the South African Broadcasting
Corporation Limited (SABC) shall, within fourteen (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 paragraph 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
paragraph (1) above shall be completed within a period of sixty (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
(5) 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 paragraph (1), and for the
period referred to in paragraph
(3) above, the eighth respondent
shall be suspended from the position of COO of the SABC, on full pay.
(5)
The first, second, third, and fourth
respondents shall pay the costs of this application jointly and
severally, the one paying,
the others to be absolved. Such costs
shall include the costs of two counsel.
SCHIPPERS
J
Applicant’s
counsel : Advocates A Katz SC, M Bishop and
N
Mayosi
Applicant’s
attorneys : Minde Shapiro Smith Attorneys
First
to third respondents’ counsel : Advocates M Maenetje SC and H
Rajah
First
to third respondents’ attorney : Mchunu Attorneys
Fourth
respondent’s counsel : Advocates V Maleka SC and K Pillay
Fourth
respondent’s attorney : State Attorney
Eighth
respondent’s counsel : Advocates N Arendse SC and S Fergus
Eighth
respondent’s attorney : Majavu Incorporated
Ninth
respondent’s counsel : Advocates E Labuschagne SC and
N
Rajab-Budlender
Ninth
respondent’s attorney : Adams & Adams Attorneys
[1]
See
Joubert et al (eds)
The
Law of South Africa
(2
nd
ed 2008) Vol 11 p 418 para 401 and the authorities
there
collected.
[2]
Albutt
v Centre for the Study of Violence and Reconciliation, and Others
2010
(3) SA 293
(CC) para 33;
Freedom
Under Law v Acting Chairperson: Judicial Service Commission, and
Others
2011
(3) SA 549
(SCA) paras 19 and 20.
[3]
Section
2(l)
of the
Broadcasting Act.
[4]
The
preamble to Chapter II and
section 3(1)
of the
Broadcasting Act.
[5
]
Section
6(3)
of the
Broadcasting Act.
[6
]
Section
1(2)
of the
Broadcasting Act.
>
[7]
Section
13(4)
of the
Broadcasting Act.
[8
]
Clauses
2 and 3.2 of the Charter.
[9]
Clauses
7.3.5 and 7.3.9 of the Charter.
[10]
Clause
8.19 of the Charter.
[11]
Democratic
Alliance and Others v Acting National Director of Public
Prosecutions and Others
2012
(3)
SA 486
(SCA) paras 44 and 45.
[12]
Justice
Alliance of South Africa v President of the Republic of South Africa
and Others
2011 (5) SA
388
(CC) para 17.
[13]
DA
v NDPP
n 11 para 45.
[14]
2013
(1) SA 248 (CC).
[15]
Rule
6(12)(b) of the Uniform Rules of Court.
[16]
Section
181 (1) of the Constitution.
[17]
Section
181 (2) and (5) of the Constitution.
[18]
Section
165(5) of the Constitution reads:
“
An
order or decision issued by a court binds all persons to whom and
organs of state to which it applies."
[19]
In
re: Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996,
1996
(4) SA 744
(CC) para 161.
[20]
Public
Protector v Mail & Guardian Ltd and Others
2011 (4) SA 420 (SCA).
[21]
Mail
& Guardian
n 20 paras 9-11.
[22]
Section
181(4) of the Constitution.
[23]
Woolman
et
al
(eds)
Constitutional
Law of South Africa
(2
nd
ed 2012) Vol 2 p 24A-3.
[24]
Section
143(1)
of the
Labour Relations Act 66 of 1995
reads:
“
An
arbitration award issued by a commissioner is final and binding and
it may be enforced as if it were an order of the Labour
Court,
unless it is an advisory arbitration award."
[25]
Section
64 (1) of the Competition Act provides that "any decision,
judgment or order of the Competition Commission, Competition

Tribunal or Competition Appeal Court may be served, executed and
enforced as if it were an order of the High Court."
[26]
Section
8(2)(b)
of the
Public Protector Act reads
as follows:
“
The
Public Protector shall, at any time, submit a report to the National
Assembly on the findings of a particular investigation
if-
(i)
he or she deems it necessary;
(ii)
he or she deems it in the public interest;
(iii)
it requires urgent attention of, or
intervention by, the National Assembly;
(iv)
he or she is requested to do so by the
Speaker of the National Assembly;
(v)
he or she is requested to do so by the
Chairperson of the National Council of Provinces.
[27]
Cape
Town Municipality v Abdulla
1974 (4) SA 428
(C) at 440H-441A.
[28]
Mail
& Guardian
n 20 para 6.
[29]
R
(on the application of Bradley and others) v Secretary of State for
Work and Pensions
[2008] 3 All ER 1116
, CA.
[30]
Bradley
n 29 para 51.
[31]
Bradley
n
29 para 71.  See also
R
(on the application of Equitable Members Action Group) v HM Treasury
and others
[2009] All ER (D) 163
para 66.
[32]
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 90.
[33]
Pharmaceutical
n
32 para 85.
[34]
Democractic
Alliance v President of the RSA
n 14 para 34.
[35]
Section
41(1)(h)(vi) of the Constitution provides inter alia that all
spheres of government and all organs of state within each
sphere
must cooperate with one another in mutual trust and good faith by
avoiding legal proceedings against one another.
[36]
Section
2(2)(e)
of the
Intergovernmental Relations Framework Act provides
that the Act does not apply to any institution established by
Chapter 9 of the Constitution.
[37]
In
Mail
& Guardian
n 20, the SCA held that an investigation and report of the Public
Protector is subject to review by a court, for example, where
the
investigation is not conducted with an open and enquiring mind (para
21).
[38]
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002
(5) SA 721
(CC) para 99.
[39]
Section
172 (1) (a) and (b) of the Constitution.
[40]
Fose
v Minister of Safety and Security
1997 (3) SA 786 (CC).
[41]
Fose
n 40 para 38.
[42]
Fose
n 40 paras 19 and 69.
[43]
Minister
of Home Affairs and Another v Fourie and Another (Doctors for Life
International and Others,
Amicus
Curiae
);
Lesbian and Gay Equality Project and Others v Minister of Home
Affairs and Others
[2005] ZACC 19
;
2006 (1) SA 524
(CC) para 135.
[44]
Lewis
v Heffer and others
[1978] 3 All ER 354 (CA).
[45]
Lewis
n 44 at 364c-e.
[46]
Note
14 para 44.
[47]
Fourie
n 43 para 170, per O'Regan J.
[48]
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[49]
LAWSA
n 1 Vol 11 p 415 para 397.
[50]
LAWSA
n 1 Vol 11 p 416 para 399.
[51]
Section
15(1)(a)
of the
Broadcasting Act reads
:
“
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;”