About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 46
|
|
Democratic Alliance v South African Broadcasting Corporation SOC Ltd and Others (12497/2014) [2015] ZAWCHC 46 (23 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: 12497/2014
DATE:
23 APRIL 2015
In
the matter between:
DEMOCRATIC
ALLIANCE
...................................................................................................
Applicant
And
THE
SOUTH AFRICAN BROADCASTING
CORPORATION
SOC
LTD
........................................................................................
First
Respondent
THE
BOARD OF DIRECTORS OF THE
SOUTH
AFRICAN BROADCASTING
CORPORATION
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:
APPLICATION FOR LEAVE TO APPEAL
23
APRIL 2015
Schippers
J:
[1]
There
are two applications which must be decided. The first is an
application for leave to appeal to the Supreme Court of
Appeal (SCA)
against the whole of the judgment handed down and order made by this
court on 24 October 2014,
[1]
by
the first, fourth, eighth and ninth respondents. The second is
an application in terms of s 18 of the Superior Courts
Act 10 of 2013
(“the Act”), that the order of 24 October 2014 be
implemented pending the outcome of the appeal process.
The
application for leave to appeal
[2]
Section
17(1) of the Act provides that leave to appeal may be granted only
inter alia, where the court is of the opinion that the
appeal has a
reasonable prospect of success or there is some other compelling
reason why the appeal should be heard.
[2]
[3]
The first respondent (“the SABC”)
and the eighth respondent (“Mr Motsoeneng”) contend that
the court erred
in finding that the matter was urgent and that the
applicant has standing. In my view there is no reasonable
prospect of
success on these grounds, for the reasons advanced in
paragraphs 20-44 of the judgment. The remaining grounds of appeal
broadly
are that the court erred: (a) in holding that the SABC and
the fourth respondent (“the Minister”) had rejected the
Public Protector’s findings and remedial action by appointing
Mr Motsoeneng as the Chief Operations Officer (COO) of the SABC,
without any rational basis for doing so; (b) in finding that there is
a
prima facie
case justifying the institution of disciplinary proceedings against
Mr Motsoeneng; (c) in violating the doctrine of separation
of powers
by ordering the SABC to institute disciplinary proceedings against Mr
Motsoeneng and directing that he be suspended pending
those
proceedings; and (d) in holding that s 41 of the Constitution and
ss
15(1)
and
15A
of the
Broadcasting Act 4 of 1999
do not constitute
adequate alternative remedies. In my opinion, these grounds of appeal
likewise have no prospect of success, for
the reasons set out in
paragraphs 61-63; 72 and 75-123 of the judgment.
[4]
However, I consider that leave to appeal
should be granted because there are other compelling reasons why an
appeal should be heard.
[5]
This
court held that the findings of the Public Protector are not binding
and enforceable, for the reasons set out in the judgment.
[3]
It found that before rejecting the findings or remedial action of the
Public Protector, an organ of state must have cogent reasons
for
doing so.
[4]
The court
determined the consequential steps which should be taken by an organ
of state in a case where the Public Protector
makes findings and
takes remedial action as contemplated in s 182(1) of the
Constitution.
[5]
[6]
These are important questions of law
involving the interpretation and application of the provisions of the
Constitution, which warrant
a definitive judgment by the SCA for the
following reasons.
(a)
First, a definitive judgment in relation to
the Public Protector’s powers and the legal effect of the
remedial action taken
by the Public Protector is critical to the
effective functioning of our democracy.
(b)
Second, the lack of clarity regarding the
binding effect of the findings of and remedial action taken by the
Public Protector has
a significant effect on both organs of state and
ordinary South Africans. The latter look to the office of the
Public Protector
for protection against the abuse of public power.
In her affidavit the Public Protector says that most of the work done
by
her office involves ordinary people trying to give effect to their
constitutional rights. If the impression is created that
reporting misconduct in state affairs, public administration or in
any sphere of government to the Public Protector can have no
material
effect, the office of the Public Protector will be fundamentally and
irreparably undermined. A decision of the SCA is
therefore crucial in
this regard.
(c)
Third, clarity and certainty as to the
nature and extent of the Public Protector’s powers will provide
much-needed guidance
for future holders of that office and organs of
state in the exercise of their constitutional obligations; and will
protect and
guarantee the integrity of the office of the Public
Protector.
[7]
For these reasons, I am of the opinion that
leave to appeal the order to the SCA should be granted to the first,
fourth and eighth
respondents.
[8]
As regards leave to appeal sought by the
Public Protector, the notice of appeal states the following:
“
Those
portions of the judgment appealed against are those which constitute
findings affecting the ninth respondent, alternatively
rulings of law
determining the rights and powers of the ninth respondent, i.e. para
49 to 74 of the judgment.”
[9]
There
is no order made against the Public Protector. She has not
noted an appeal against any part of the order. It is trite
that an
appeal cannot be noted against the reasons for a judgment but only
against the substantive order made by a court.
[6]
[10]
Although there is no order against the
Public Protector, the nature and ambit of her powers under the
Constitution have been determined
in the judgment. The determination
has been made in circumstances where the Public Protector: was a
party to the proceedings; was
represented by senior and junior
counsel; and contended that her findings and remedial action are
binding and enforceable, unless
properly and successfully challenged
in review proceedings.
[11]
The holding that the findings and remedial
action of the Public Protector are not binding and enforceable
directly affects and determines
the powers of the Public Protector
and impacts on the functioning of the institution.
[12]
In
her affidavit in the application for leave to appeal the Public
Protector contends that the court erred inter alia in relying
on
Bradley
;
[7]
in its interpretation of s 182(1)(c) of the Constitution; and in
formulating a test which has no basis in either the Constitution
or
the
Public Protector Act 23 of 1994
.
[13]
These
plainly are disputes which can be resolved by the application of law
decided before a court, as contemplated in s 34 of the
Constitution.
[8]
It
appears however that an application of the rule that an appeal can be
noted only against a substantive order would oust
s 34. It
would also be inconsistent with s 7(2) of the Constitution which
provides that the judiciary must protect and
promote the Bill of
Rights,
[9]
as well as s 8(1)
which states that the Bill of Rights applies to all law and binds the
judiciary.
[10]
[14]
Section
8(3) of the Constitution provides the mechanism for the creation of a
rule where previously neither an express rule of common
law nor a
provision of legislation gave adequate expression to the demands of a
specific constitutional right.
[11]
Section 8(3) has been utilised both directly under s 8(1) and
indirectly under s 39(2) of the Constitution,
[12]
and reinforces a court’s inherent power to create rules and
remedies where the Bill of Rights so demands.
[13]
[15]
However, the question whether the Bill of
Rights demands the creation of a new rule to develop or replace the
principle that an
appeal can be noted only against a substantive
order, has neither been raised nor argued in this application. In
these circumstances,
I do not think it appropriate to decide this
question. That said, the Public Protector, as a party with a direct
and substantial
interest in this matter, might very well be permitted
to present oral argument at the hearing of the appeal before the SCA.
[16]
In the circumstances I have no alternative
but to refuse the application for leave to appeal by the ninth
respondent.
The
application for the implementation of the order
[17]
The suspension of an order pending an
appeal is regulated by s 18 of the Act. The relevant provisions
read as follows:
“
18.
Suspension of decision pending appeal.
– (1) Subject to subsections (2) and (3), and unless the court
under exceptional circumstances orders otherwise, the operation
and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision of
the application or appeal.
(2)
…
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise,
in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court so orders.”
[18]
The jurisdictional requirements for an
order giving effect to a judgment pending an appeal are these: (a)
there must be exceptional
circumstances before an order which is the
subject of an application for leave to appeal may be put into
operation and executed;
and (b) the party seeking to give effect to
the order, in addition must show on a balance of probabilities that
it will suffer
irreparable harm if the order is not put into
operation and executed, and that the other party will not suffer
irreparable harm
if it is.
[19]
I have carefully considered the submissions
by the SABC, the Minister and Mr Motsoeneng as to why the order
should not be implemented.
I have come to the conclusion that the
circumstances of this case are out of the ordinary and thus
exceptional, and that the order
should be implemented in the public
interest, for the reasons set out in the judgment and those advanced
below.
[20]
If this case were only about the
relationship between an employer and employee, the circumstances
might well be different. But this
is no ordinary case. It involves
the national broadcaster. It is a public institution owned and
controlled by South Africans, and
performing duties to the public. As
stated in the judgment, it is of fundamental importance to our
democracy that the SABC acts
in a manner consistent with
constitutional prescripts and within its powers as set out in the
law. And the provisions of
the
Broadcasting Act 4 of 1999
demand that persons who serve on the board of the SABC be committed
to openness and accountability and the principles enunciated
in the
charter of the SABC. One of these principles is that the board
must always maintain the highest standards of integrity,
responsibility and accountability.
[21]
The founding affidavit in this application
cites a further example of a lack of integrity and accountability by
a member of the
board of the SABC. The former chairperson of
the SABC, Ms Zandile Ellen Tshabalala was called to account to the
Parliamentary
Portfolio Committee on Communications, for
misrepresenting her qualifications. As also stated in the
founding affidavit,
despite the Committee’s repeated requests
to Ms Tshabalala simply to provide her certificate, or to admit that
she was not
truthful, she approached this court to shield her from
having to prove her qualifications. It is a known fact that Ms
Tshabalala
resigned after the Portfolio Committee found her guilty of
two charges of misconduct relating to allegations that she
misrepresented
her qualifications to Parliament and that she lied
under oath when she said in an affidavit that her qualifications had
been stolen
during a burglary at her home.
[22]
In the answering affidavit in this
application, Ms Tshabalala however denies the truthfulness of the
allegations concerning her
qualifications. She also denies that
she sought to avoid having to prove her qualifications. She says that
the reasons for
the Public Protector’s findings that Mr
Motsoeneng should face a disciplinary inquiry are not supported by
the objective
facts, and that the SABC’s decision not to launch
disciplinary proceedings is founded on cogent reasons.
[23]
This underscores what appears from the
Public Protector’s report - there has been a culture of
dishonesty, impunity and abuse
of power at the SABC, and is a further
reason why the order should be implemented in the public interest.
[24]
Apart from this, the case is extraordinary
because it involves the office of the Public Protector and the
confidence of the public
in that institution. The Public
Protector conducted an investigation pursuant to complaints by
employees of the SABC of systemic
maladministration, improper conduct
and abuse of power at the SABC. The Public Protector found that
these complaints had
merit and that disciplinary action should be
taken against Mr Motsoeneng for his dishonesty relating to the
misrepresentation of
his qualifications, abuse of power and improper
conduct. The SABC and the Minister effectively ignored this and
appointed
Mr Motsoeneng permanently to the position of COO.
[25]
The need to implement the order is further
strengthened by the evidence disclosed in the affidavit of Ms Mari
Swanepoel, which she
made in this application. Mr Motsoeneng’s
evidence in this court is that when he applied for a job at the SABC,
he told Ms
Swanepoel that he had attempted but not passed standard
10, but that she had indicated that he should fill in “10”
under the heading, “highest standard passed.” Then
he said that he was unable to trace Ms Swanepoel again.
[26]
Ms.
Swanepoel refutes this evidence. She says that she made it
clear to Mr Motsoeneng that he must not fill in a qualification
which
he had not yet finished; that he would have to provide an original
certificate to prove whatever he filled in on the application
form;
and that after he had completed the form she repeatedly contacted Mr
Motsoeneng to produce his matric certificate which he
promised to do,
but never did. Ms Swanepoel says that she also repeatedly followed up
Mr Motsoeneng’s failure to produce
a matric certificate with
her superiors, including Mr Paul Tati. It will be recalled that Mr
Tati insisted that Mr Motsoeneng produce
his matric certificate by no
later than 12 May 2000. Mr Motsoeneng replied that he would furnish
the certificate as soon as he
received it.
[14]
[27]
Ms Swanepoel left the SABC in 2006. In late
2012 Mr Motsoeneng telephoned her. He told her that the SABC was
trying to fire him
and he wanted to keep his job. He said that his
attorneys wanted her to make an affidavit about his matric
certificate and the
form he had completed. He indicated to Ms
Swanepoel that she should say that he had told her that he did not
have matric when he
filled in the form. She refused. She also told Mr
Motsoeneng that she did not wish to speak to him as she had a sexual
harassment
suit pending against the SABC at the time. He knew about
the case and asked what she wanted from the SABC. She said she wanted
R2 million in compensation. Mr Motsoeneng, then the Acting COO,
replied, in Ms Swanepoel’s words that, “
he
could organise for the SABC to pay me the R2 million, if I was
willing to depose to the affidavit about the certificate
.”
She again refused. Ms Swanepoel says that for some four weeks
thereafter Mr Motsoeneng phoned her repeatedly, but she generally
ignored his calls. On the occasions that she did answer, Mr
Motsoeneng asked her if they could meet just to talk or if his
attorneys
could speak to her about the matter. She replied that she
would talk to him but that she would not lie in an affidavit for him.
[28]
In the answering affidavit Mr Motsoeneng
states that he knew that he does not have a matric certificate and
that he disclosed that
fact to Ms Swanepoel. He does not deny that he
contacted her in late 2012. He says that his statement that he was
unable to trace
Ms Swanepoel, must be understood to mean that he
could not make contact with her for the purpose of obtaining an
affidavit from
her. Then he says that she agreed to make an affidavit
confirming what she had said in a letter dated 5 September 2000. But
that
letter does not say that Ms Swanepoel knew that Mr Motsoeneng
did not pass matric or that she told him what to fill in on the
application
form when he applied for a job with the SABC. Mr
Motsoeneng also states that he did not get the affidavit from Ms
Swanepoel. The
reason he suggests is that she wanted a settlement of
her sexual harassment case, as he put it, she “
was
concerned only with her own matter.
”
[29]
As to the settlement of Ms Swaneopoel’s
case against the SABC, the answering affidavit states that in March
2014 Ms Swanepoel’s
claim was settled in an amount which is
subject to a confidentiality clause. Mr Motsoeneng denies that he
attempted to bribe Ms
Swanepoel.
[30]
These facts merely underscore the point
there is a
prima facie
case which justifies the institution of disciplinary proceedings
against Mr Motsoeneng. Again, I must stress that I make
no
findings as to whether or not Mr Motsoeneng is guilty of improper
conduct.
[31]
Ms Tshabalala however says that the serious
allegations by Ms Swanepoel require further investigation before they
can be accepted
as forming a basis for disciplinary action against Mr
Motsoeneng.
[32]
Ms Tshabalala misses the point. The
allegations concerning Mr Motsoeneng’s qualifications and what
Ms Swanepoel is alleged
to have done when Mr Motsoeneng completed the
relevant application form, are not new. Neither are the allegations
relating to his
qualifications confined to a misrepresentation
concerning a matric certificate. The matter was investigated by the
Public Protector
who found that disciplinary action should be taken
against Mr Motsoeneng inter alia for misrepresenting his
qualifications. In
May 2014 the SABC informed the Public Protector
that it would furnish her with an implementation plan concerning her
report. It
failed to do so. Instead, Mr Motsoeneng was appointed
permanently to the position of COO, without reference to the Public
Protector
and without following the prescribed procedures to fill
that position. These facts are not in dispute.
[33]
It is common cause that the appeal process
might take a considerable period of time and that a suspension of the
order will mean
that Mr. Motsoeneng will remain in the position of
COO whilst the appeal process runs its course. And the
disregard of the
Public Protector’s findings and remedial
action by the SABC and the Minister will remain un-remedied. In my
view, this state
of affairs also constitutes irreparable harm to the
public interest.
[34]
By contrast, Mr Motsoeneng will not suffer
irreparable prejudice. As stated in the judgment, any prejudice
that he might suffer
will be significantly contained - he will suffer
no loss of remuneration and the suspension is for a limited period.
And
he may be found not guilty on the allegations of misconduct that
have been hanging over him for years. Such a result could only
serve
the interests of Mr Motsoeneng, as well as those of the SABC.
[35]
Finally, I do not accept that the SABC will
suffer irreparable harm if disciplinary proceedings are brought
against Mr Motsoeneng.
The harm that the SABC has suffered is
apparent from the report of the Public Protector, which states:
“
All
of the above findings are symptomatic of pathological corporate
governance deficiencies at the SABC, including failure by the
SABC
Board to provide strategic oversight to the National broadcaster as
provided for in the SABC Board Charter and King III Report…
Mr
Motsoeneng has been allowed by successive Boards to operate above the
law, undermining the GCEO among others, and causing the
staff,
particularly in the Human Resources and Financial Departments to
engage in unlawful conduct.”
[36]
For the above reasons, I am of the view
that the applicant has made out a proper case that SABC and the
public will suffer irreparable
prejudice unless the order is put into
operation.
[37]
I make the following order:
(a)
Leave to appeal to the Supreme Court of
Appeal, against the whole of the order contained in paragraph 127 of
the judgment of this
court handed down on 24 October 2014, is granted
to the first, fourth and eighth respondents.
(b)
The costs of the application for leave to
appeal shall be costs in the appeal.
(c)
The application by the ninth respondent for
leave to appeal to the Supreme Court of Appeal is refused. There is
no order as to costs.
(d)
The order of this court contained in
paragraph 127(1)–(4) of the judgment handed down on 24 October
2014 shall operate and
be executed, pending the outcome of the appeal
to the Supreme Court of Appeal.
(e)
The costs of the application to implement
the order of 24 October 2014 shall be paid by the first, fourth and
eighth respondents
jointly and severally, the one paying the others
to be absolved. Such costs shall include the costs of two counsel.
SCHIPPERS
J
[1]
Democratic
Alliance v South African Broadcasting Corporation Ltd and Others
2015 (1) SA 551 (WCC)
[2]
Section
17(1)(a)
of the
Superior Courts Act 10 of 2013
.
[3]
DA
v SABC
n 1 paras 46-74.
[4]
DA
v SABC
n 1 para 66.
[5]
DA
v SABC
n 1 para 72
[6]
Western
Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd
1948 (3) SA 353
(A) at
355;
Cape Empowerment Trust Ltd v Fisher
Hoffman Sithole
2013 (5) SA 183
(SCA)
para 39.
[7]
R
(on the application of Bradley and Others) v Secretary of State for
Work and Pensions
[2008]
3 All ER 1116 (CA).
[8]
Section
34 of the Constitution reads:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum."
[9]
Section
7(2) of the Constitution reads:
“
The
state must respect, protect, promote and fulfil the rights in the
Bill of Rights."
[10]
Section
8(1) of the Constitution reads:
“
The
Bill of Rights applies to all law and binds the legislature, the
executive, the judiciary and all other organs of state."
[11]
Section
8(3) of the Constitution reads inter alia as follows:
“
In
applying the provisions of the Bill of Rights to natural and
juristic persons in terms of subsection ( 2), a court –
(a)
in order to give effect to a right in a
bill, must apply or if necessary develop, the common law to the
extent that legislation
does not give effect to that right;”
[12]
Section
39 (2) of the Constitution reads:
“
When
interpreting any legislation and when developing the common law and
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights."
[13]
Woolman
et al (eds)
Constitutional
Law of South Africa
(2
nd
ed 2012) vol 2 p 31-75.
[14]
DA
v SABC
n
1 para 113(b).