Legalbrief | your legal news hub Monday 27 September 2021

SABC board defies Public Protector

The SABC lurched into another crisis yesterday following its board's decision - raising constitutional issues by apparently acting on the instruction of the executive in defiance of a damning report by the Public Protector - to approve the permanent appointment of controversial as chief operations officer, notes Legalbrief.

A Mail & Guardian report suggests Communications Minister Faith Muthambi was instrumental in arranging the appointment, and a Business Day report, quoting an unnamed board member, says the appointment was not supported by five of 11 board members present at a hastily convened meeting on Monday. Business Day quoted the board member as saying chair Zandile Tshabalala insisted on Motsoeneng's appointment as 'he could do the job and had justified expectations', having acted in that capacity for a long time. Five board members reportedly objected, saying the post had to be advertised. The SABC's memorandum of incorporation stipulated that 'the board shall advertise or employ any other executive search mechanism to source potential candidates' for the position of CEO, chief financial officer and chief operations officer. It states that the board should conduct interviews and compile a short list of at least three preferred, suitable candidates. According to Business Day, the unnamed board member said some board members were now considering resigning. If they do, the board will again be in danger of not having a quorum, threatening stability at the broadcaster, which the report says urgently needs to sort out acute financial, personnel and management problems. Full Business Day report (subscription needed)

The labour principle of 'legitimate expectation' played a role in Motsoeneng's appointment, according to a Mail & Guardian report quoting an unnamed source. It says the decision came after Tshabalala informed the board about a letter from Motsoeneng's lawyers in which they argued he had the 'legitimate expectation' that he be appointed permanently. The M&G; says the meeting, held between 7pm and 11pm on Monday night, was called by Muthambi, who waited in Tshabalala's office as board members deliberated. 'The chairperson read out a letter from Hlaudi's lawyers demanding the appointment on 'legitimate expectation' grounds because he has been acting for too long,' the source is quoted as saying. Another twist in the saga, says the report, is the speed with which the Communications Minister managed to resolve a seven-year dispute between the SABC, the Ministry and former SABC executive and sports administrator Mvuzo Mbebe, who interdicted the broadcaster from filling the position on a permanent basis. Mbebe's claim is that he was promised the job of chief operations officer by the late former Communications Minister Ivy Matsepe-Casaburri, who died in 2009. It is understood that Mbebe was recommended for the position in 2007 but was never appointed. He has on several occasions prevented the broadcaster from appointing a person to the post permanently. In 2009, he was granted an interdict against the appointment of a new chief operations officer, making it impossible for the post to be taken up on a permanent basis. Muthambi on Friday told Parliament how difficult it was going to be to appoint a permanent chief operations officer - one of the recommendations of the Public Protector - because of the interdict. 'The SABC didn't appeal the matter. That means the remedial action recommended by the Public Protector in 11.22, if we are to implement it, we would be in contempt of court,' said Muthambi, before assuring the MPs that she would make sure the matter gets resolved. However, the M&G; says that according to its source, Muthambi arrived at Monday's meeting with 'a note of a resolution of the Mbebe matter and insisted that the board appoint the COO there and then'. 'She called the board meeting but sat in the chairperson's office and directed proceedings (from there) until they gave her the letter of appointment before leaving,' the source is quoted as saying Full Mail & Guardian report

A Business Day editorial describes the decision as a direct challenge by the executive to a constitutionally-mandated institution - the office of the Public Protector - and therefore a challenge to the authority of the Constitution itself. The editorial notes that when Madonsela's recommendation that Motsoeneng be replaced within 90 days to allow the SABC to regain a degree of stability and ensure it had competent people in key positions was allowed to pass, the conventional wisdom was that it was a result of the election and formation of a new government and the appointment of a new Minister, rather than wilful resistance. 'But it is now clear that the second Zuma administration is as intent on exerting political control over theoretically impartial state institutions as the first...' The editorial goes on: 'Madonsela has the power to take remedial action in the event of her recommendations being ignored, and we would urge her to do so as soon as the Minister and board have explained themselves to her. A first step might be for her to approach the relevant parliamentary committee to exercise its oversight role by calling the Minister before it to explain her rationale for ignoring the recommendations. If that is also fobbed off, Madonsela should approach President directly to instruct Muthambi to comply. Failure on his part to act on the Public Protector's recommendations without exceptionally reasons would again show wanton disregard for Madonsela's office and be a step towards constitutional crisis.' Full Business Day editorial (subscription needed)

Surprise, shock and concern for journalists working at the public broadcaster were the main themes of those who reacted to the appointment yesterday. A BDlive report says Motsoeneng's appointment flies in the face of a recommendation by the Public Protector that the SABC fill the 'long-outstanding vacant post' of chief operations officer with a qualified permanent appointment. In a damning report earlier this year, Madonsela criticised Motsoeneng for fraudulently misrepresenting his qualifications, including claiming that he had passed matric, when he applied for employment. Madonsela also found that Motsoeneng had irregularly raised the salaries of various staff members, increasing the salary bill by R29m. The Public Protector also found that he had received three 'irregular' salary increases, taking his salary from R1.5m to R2m a year. Full BDlive report

Madonsela expressed her surprise at the appointment, notes a report in The Citizen. 'I don't know what to make of it. I'm still waiting for a response from the SABC and from the Minister; until then I'm not in a position to understand what has just happened.' After a previous request for extra time, the SABC board was given until 17 August to respond to Madonsela's report. Yesterday, Madonsela said she had had no response from either the Communications Department or the SABC. She noted, though, that in addition to investigating 'any alleged or suspected improper conduct', she had the power to take appropriate remedial action. 'I'm not too concerned about what has happened. Of course the actors involved have done what they thought they needed to do. My way forward is to call them to my office to come and explain themselves and then I'll take it from there.' Madonsela said one possible option was for her to approach Parliament to debate the matter. The DA said Motsoeneng's permanent appointment meant he could continue his 'reign of terror' at the national broadcaster. 'We can expect more surveillance and purging of SABC staff, more clampdowns on editorial independence and more 'happy news' that reflects positively on the governing party,' DA MP said. The Media Workers Association of SA said the SABC needed to ensure its sustainability. 'The SABC needs a credible exit strategy from its persistent circumstances characterised by diminished public confidence, widening trust-deficit and compromised business competitiveness,' general secretary Tuwani Gumani said. 'Strengthening the SABC in terms of its independence from commercial, political and cultural influences is vital.' Full report in The Citizen DA statement

The SA National Editors' Forum (Sanef) hope the appointment will not result in Motsoeneng interfering with the editorial freedom of journalists, notes an SABC News report. 'Sanef remains concerned by some of the views that he has expressed that seek to jeopardise freedom of expression. We certainly do not agree with his editorial stunts, and we hope that whatever competencies the SABC has seen in him, those competencies must be confined perhaps to the managerial areas where he is deemed suitable by the SABC,' says Sanef chairperson Mpumelelo Mkhabela. The Broadcast, Electronic Media and Allied Workers Union (Bemawu) claims that proper recruitment procedures were not followed in the appointment process. Behawu President Hannes du Buisson says the appointment should be reversed. 'We are obviously shocked by the appointment, particularly the fact that no recruitment procedure was followed'. He added the Minister made it clear in November 2013 that the position of the COO would be advertised and everyone would be free to apply, but that had not happened.'We have already filed a dispute with the SABC to challenge the unprocedural appointment.' The Communications Workers Union (CWU) supported Motsoeneng, saying his appointment was long overdue. 'We are supporting the decision because we are of the view that ... this appointment has been done by people who applied their minds accordingly for the benefit of the SABC,' CWU president Cecil Mokhantso is quoted as saying. Full SABC News report See also a report in Die Burger

The EFF says either the Minister is weak or she intentionally misled the public about restoring confidence in the leadership of SABC. In a statement on the Politicsweb site, it says: 'Motsoeneng's appointment is a reward for being a faithful servant. He is being rewarded for turning the SABC into a state broadcaster that worships and serves the interests of the ruling party.' The EFF added it would take the issue to court. 'This is indeed a sad day in the fight against corruption; for Minister Muthambi has condoned lies and fraud in the promotion of Hlaudi Motshoeneng,' its statement reads. Statement on Politicsweb site

Madonsela's report was not related to Motsoeneng's appointment, according to the SABC. The Public Protector has nothing to do with this,' SABC spokesperson Kaizer Kganyago is quoted as saying in a report in The Citizen. 'The two are not together... I don't know how the two are related.' Kganyago said any attempt to draw inferences about Motsoeneng's appointment from the report were subjective. 'You read what you want to read.' He said Madonsela's report stipulated only that the COO position had to be filled; not who should fill it. Full report in The Citizen