Hlaudi Motsoeneng. Picture: MARTIN RHODES
Hlaudi Motsoeneng. Picture: MARTIN RHODES

CAPE TOWN — The Western Cape High Court on Friday ordered that South African Broadcasting Corporation (SABC) chief operating officer Hlaudi Motsoeneng be suspended on full pay pending the finalisation of disciplinary proceedings against him.

Handing down judgment on Friday Judge Ashton Schippers said that the allegations of misconduct against Mr Motsoeneng were serious and it was untenable that he remain in office while disciplinary proceedings were brought against him.

"Good administration of the SABC, and openness and accountability, demand his suspension," Judge Schippers said.

Mr Motsoeneng has survived several attempts to remove him from his position. The High Court in August heard an urgent application brought by the Democratic Alliance (DA) challenging Mr Motsoeneng’s permanent appointment as the chief operating officer of the public broadcaster. The DA said that he was an "admitted liar and fraud".

Mr Motsoeneng, who enjoys support from Communications Minister Faith Muthambi and SABC board chairwoman Zandile Tshabalala, was appointed to the position despite a damning report by Public Protector Thuli Madonsela, which found that he had fraudulently misrepresented his qualifications, purged senior staff and irregularly granted salary increases to himself and certain staff members. The public protector recommended that he be disciplined.

As she confirmed Mr Motsoeneng’s appointment earlier this year, Ms Muthambi said an independent legal firm had cleared him of any wrongdoing.

In his judgment on Friday Judge Schippers said that the Public Protector Act contained no provision that the findings and remedial action required by the public protector were binding and enforceable, as in the case of a court order.

"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," he said.

"Disregarding the findings and remedial action subverts the public protector’s powers under (section) 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," Judge Schippers said.

He said that although he had come to a conclusion that the findings of the public protector were not binding and enforceable, when an organ of state rejected those findings or the remedial action, that decision itself should not be irrational.

"I consider that an effective, just and equitable order is one directing the (SABC) board to institute disciplinary proceedings against Mr Motsoeneng".

Judge Schippers ordered that an independent person should preside over the disciplinary proceedings, which should be completed within 60 days of having commenced.

"The allegations of misconduct against Mr Motsoeneng are serious. He is the chief operating officer of the SABC.... He has virtually unlimited authority over subordinates and access to all documents in relation to charges of misconduct that will be preferred against him ... what this shows is that unless Mr Motsoeneng is suspended, he poses a real risk not only to the integrity of the investigation concerning the allegations of misconduct, but to the disciplinary inquiry itself," Judge Schippers noted in his judgment.

The DA said it was "delighted" by the order that Mr Motsoeneng be suspended.

"The judgment is a resounding victory for every person who values our constitutional democracy and independent public broadcasting," DA MP and communications spokesman Gavin Davis said.

Mr Davis said the judgment on Friday was the first part of the DA’s application in the matter. The second part was the DA’s review application to have Mr Motsoeneng’s appointment declared invalid on the grounds that it was irrational and unlawful.

Mr Motsoeneng’s lawyer, Zola Majavu, on Friday expressed disappointment at the judgment and indicated that they would lodge an appeal.

"I must hasten to say we respect the judge’s decision, (but) I hold very firm instruction to bring an application for leave to appeal ... we have reason to believe that there are a number of issues that are ‘appealable’," Mr Majavu said.

"In terms of the court order, the SABC had been directed to commence disciplinary proceedings against Mr Motsoeneng ... he has 14 days to receive the charge sheet from the SABC and that is when the suspension will kick (in) but it is interesting because the employer believes he did nothing wrong so we are heading for interesting legal gymnastics," Mr Majavu said.