A full bench of the high court granted important orders, set out below, in very complex matters concerning the abuse of public power and unlawful appointments.  In particular it was declared that, unless and until the negative findings against Mr Motsoeneng in the Public Protector’s report are reviewed and set aside, or unless and until Mr Motsoeneng is exonerated from the said negative findings by way of a valid disciplinary hearing, Mr Motsoeneng may not hold any position at all in the SABC.  Costs orders were made against two individuals to ensure that the money did not come out of the ‘public purse’.

Democratic Alliance v SABC; Democratic Alliance v Motsoeneng (3104/2016; 18107/16) [2016] ZAWCHC 188 (12 December 2016) per Rogers J with Le Grange J concurring.

Conclusion and order

[224]   I would thus make the following order in Case 3104/16 (the disciplinary application):

(a)   It is declared that, in the respects identified in paras 192, 193, 194 and 195(i) and (ii) of this judgment, the first and second respondents (the ‘SABC’ and ‘board’ respectively) conducted themselves unlawfully and in breach of sections 181(3) and 182(1)(c) of the Constitution by failing to respect and implement the findings and remedial action of the Public Protector in her report of 14 February 2014 entitled When Governance and Ethics Fail (‘the Public Protector’s report’).

(b)   It is declared that the disciplinary proceedings instituted against the fifth respondent (‘Motsoeneng’) on or about 12 October 2015, including the ruling of the sixth respondent on 12 December 2015 (‘the old disciplinary proceedings’), are inconsistent with the Constitution and invalid.

(c)   The old disciplinary proceedings are reviewed and set aside.

(d)   The SABC is directed to commence disciplinary proceedings against Motsoeneng inter alia for his dishonesty relating to the misrepresentation of his qualifications, abuse of power and improper conduct in the appointments and salary increments of Ms Sully Motsweni, and for his role in the purging of senior staff members resulting in numerous labour disputes and settlement awards against the SABC (‘the new disciplinary proceedings’).

(e)   Subject to para (f) below, the new disciplinary proceedings shall be:

  • commenced by a new initiator, through the delivery to Motsoeneng of a letter setting out the disciplinary charges, within two weeks of his or her appointment, such appointment to be made by the board within two weeks of its becoming quorate;
  • presided over by a new chairperson, who shall be an independent person appointed by the board; and
  • completed within two months from date of commencement.

(f)   It is recorded that, with a view to enabling the new disciplinary proceedings to commence prior to the board’s becoming quorate, the SABC, Motsoeneng and the Public Protector have agreed on the identity of a person to chair the disciplinary enquiry and have proposed certain names as the initiator. If the court appoints the disciplinary chairperson and initiator in accordance with these proposals, a decision on which is deferred due to the temporary unavailability of Le Grange J and which will thus be dealt with in a supplementary order, the new disciplinary proceedings shall be commenced by the appointed initiator within two weeks of the court’s supplementary order and be completed within two months of commencement

(g)   If the new disciplinary proceedings are not completed within the two-month limit mentioned above, the following directions shall apply:

  • The chairperson of the board, or in the event of there being no such chairperson the Group Chief Executive Officer or Acting Group Chief Executive Office, shall, by no later than the date on which the said period expires, deliver an affidavit to this court explaining why the proceedings have not been completed and stating when they are likely to be completed.
  • The applicant shall be entitled, within five calendar days of delivery of the said affidavit, to deliver an affidavit in response thereto.

(h)   The new disciplinary proceedings shall

  • be open to the public; and
  • the media shall be entitled to record and report on the proceedings,

subject to such reasonable restrictions as the chairperson of the disciplinary hearing may impose, taking into account inter alia the right to freedom of expression, open justice and the principles of openness, accountability and responsiveness, fairness to Motsoeneng and fairness to witnesses.

(i)   The SABC shall pay the applicant’s costs on an unopposed basis, including those attendant on the employment of two counsel.

(j)   Save as aforesaid, no order as to costs is made.

[225)   I would make the following order in case 18107/16 (the CA application):

(a)   In regard to the application brought by the first respondent (‘Motsoeneng’) for the striking out of matter from the founding affidavit, para 9 and the third sentence of para 166 of the founding affidavit are struck are out. Save as aforesaid, the striking-out application is dismissed.

(b)   Motsoeneng’s application to stay the main case is dismissed with costs.

(c)   It is declared that, unless and until the negative findings against Motsoeneng in the Public Protector’s report are reviewed and set aside, or unless and until Motsoeneng is exonerated from the said negative findings by way of a valid disciplinary hearing, Motsoeneng may not hold any position at all in the second respondent (‘SABC’).

(d)   It is declared that the decision of the eighth respondent (‘Aguma’), taken on or about 22 September 2016, to employ Motsoeneng as the SABC’s General Executive: Corporate Affairs, is inconsistent with the Constitution, unlawful and invalid, and the said decision is reviewed and set aside.

(e)   It is declared that the decision of the third respondent (the remaining members of the board as at September 2016) to appoint the fourteenth respondent (‘Tugwana’) as the Acting Chief Operating Officer (‘COO’) is inconsistent with the Constitution, unlawful and invalid, and the said decision is reviewed and set aside.

(f)   Decisions taken and acts performed by Tugwana in her purported capacity as Acting COO prior to the date of this order are not invalid merely because of the invalidity of her appointment.

(g)   It is declared that, in the respect identified in para 195(iii) of this judgment, the SABC through Aguma has violated its constitutional obligation in terms of s 181(3) of the Constitution to assist and protect the Public Protector and to ensure her dignity and effectiveness.

(h)   It is declared that the board of the SABC has been inquorate since 14 September 2016 and remains inquorate.

(i)   Motsoeneng and Aguma in his personal capacity are directed, jointly and severally, to pay the applicant’s costs. To the extent that the applicant is unable to recover the said costs from Aguma, the applicant shall be entitled to recover same from the SABC.

(j)   The seventeenth respondent (the Minister of Communications in her said capacity) is directed to pay the applicant’s costs occasioned by her opposition, her liability to any relevant extent being joint and several with that of Motsoeneng and Aguma.

(k)   It is recorded that the applications by the Decolonisation Foundation and the Musicians Associations of South Africa to be admitted as amici curiae were dismissed on 23 November 2016. The said two parties are directed to pay the applicant’s costs occasioned by their respective applications to be admitted as amici.

(l)   All costs in terms of this order shall include the costs attendant on the employment of two counsel.