South African Broadcasting Corporation SOC Ltd and Others v Democratic Alliance and Others

• Jurisdiction: South Africa
• Judge: Mpati P, Navsa JA, Ponnan JA, Swain JA and Dambuza JA
• Judgment Date: 08 October 2015
• Citation: 2016 (2) SA 522 (SCA)
• Docket Number: 393/2015 [2015] ZASCA 156
• Hearing Date: 18 September 2015
• Counsel: NH Maenetje SC (with H Rajah) for the first appellant. V Maleka SC (with K Pillay) for the second appellant. N Arendse SC (with S Fergus) for the third appellant. A Katz SC (with N Mayosi and M Bishop) for the first respondent. G Marcus SC (with E Labuschagne SC and N Rajab-Budlender) for the seventh respondent. C Steinberg (with L Kelly) for the amicus curiae. Heads of argument prepared with W Trengove SC.
• Court: Supreme Court of Appeal

Navsa JA and Ponnan JA (Mpati P, Swain JA and Dambuza JA concurring): C

[1] 'Sed quis custodiet ipsos custodes?' [1] In posing that question the Roman poet Juvenal (Satura VI lines 347 – 8) was suggesting that wives could not be trusted and that keeping them under guard was no solution because guards could not themselves be trusted. Leonid Hurwicz, in D accepting the Nobel Prize in Economic Sciences, stated: 'Yes, it would be absurd that a guardian should need a guard.' [2]

[2] In constitutional democracies, public administrators and state institutions are guardians of the public weal. [3] In South Africa that principle applies to administration in every sphere of government, organs of state E

Navsa JA and Ponnan JA (Mpati P, Swain JA and Dambuza JA concurring)

A and public enterprises. [4] Section 41 of the Constitution requires all spheres of government and all organs of state to, amongst other things, 'secure the wellbeing of the people of the Republic', to 'provide effective, transparent, accountable and coherent government', to 'respect the constitutional status, institutions, powers and functions of government B in the other spheres' and not to exercise their powers and functions in a manner that encroaches upon the institutional integrity of government in another sphere. Significantly, s 41 of the Constitution dictates that all spheres of government and all organs of state must co-operate with one another and must assist and support one another. They are required to C co-ordinate their actions, to adhere to agreed procedures and to avoid legal proceedings against one another. In constitutional states there are checks and balances to ensure that when any sphere of government behaves aberrantly, measures can be implemented and steps taken to ensure compliance with constitutional prescripts. In our country the office of the Public Protector, like the ombud in comparable jurisdictions, D is one important defence against maladministration and corruption. Bishop & Woolman state the following: [5]

'The Public Protector's brief, as initially adumbrated in the Interim Constitution, and as now determined by the Final Constitution and the Public Protector Act . . . is to watch the watchers and to guarantee that E the government discharges its responsibilities without fear, favour or prejudice.' [Footnotes omitted.]

[3] In modern democratic constitutional states, in order to ensure governmental accountability, it has become necessary for the guards to require a guard. And in terms of our constitutional scheme, it is the F Public Protector who guards the guards. That fundamental tenet lies at the heart of this appeal, in which we consider the Public Protector's powers and examine the constitutional and legislative architecture to determine how state institutions and officials are required to deal with remedial action taken by the Public Protector.

G [4] The litigation culminating in the present appeal arose, so it is alleged, because of the failure by the first appellant, the South African Broadcasting Corporation (the SABC), a national public broadcaster, regulated by the Broadcasting Act 4 of 1999 (the BA), and the second appellant, the Minister of Communications (the Minister), to implement remedial H action directed by the Public Protector, a ch 9 institution established by s 181(1)(a) of the Constitution, in a damning report compiled by her. At the outset it is necessary to record that the state, in terms of s 8A(2)

Navsa JA and Ponnan JA (Mpati P, Swain JA and Dambuza JA concurring)

of the BA, is the sole shareholder in the SABC. Section 3(1) of the BA A provides inter alia that the South African broadcasting system —

'(a)

serves to safeguard, enrich and strengthen the cultural, political, social and economic fabric of South Africa;

(b)

operates in the public interest and strengthens the spiritual and moral fibre of society; . . .'. B

[5] Between November 2011 and February 2012 the Public Protector received complaints from three former employees of the SABC. Those complaints in essence related to the alleged irregular appointment of the third appellant, Mr Hlaudi Motsoeneng, as the Acting Chief Operations Officer (the Acting COO), as well as systemic maladministration relating C inter alia to human resources, financial management, governance failure and the irregular interference by the then Minister of Communications, [6] Ms Dina Pule, in the affairs of the SABC. On 17 February 2014 and following upon a fairly detailed investigation of those allegations, the Public Protector released a report relating to her investigation entitled 'When Governance and Ethics Fail'. [7] D

[6] The Public Protector concluded that there were 'pathological corporate governance deficiencies at the SABC' and that Mr Motsoeneng had been allowed 'by successive (b)oards to operate above the law'. Her key findings in respect of Mr Motsoeneng, whom she singled out for particularly scathing criticism, were that: E

(i)

his appointment as Acting COO was irregular;

(ii)

the former Chairperson of the SABC board, Dr Ben Ngubane, had acted irregularly when he ordered that the qualification requirements for the appointment to the position of COO be altered to suit Mr Motsoeneng's circumstances;

(iii)

his salary progression from R1,5 million to R2,4 million in one F fiscal year was irregular;

(iv)

he had abused his power and position to unduly benefit himself;

(v)

he had fraudulently misrepresented, when completing his job- application form in 1995 and thereafter in 2003 when applying for the post of Executive Producer: Current Affairs, that he had matriculated; G

Navsa JA and Ponnan JA (Mpati P, Swain JA and Dambuza JA concurring)

(vi)

A he had been appointed to several posts at the SABC, despite not having the appropriate qualifications for those posts;

(vii)

he was responsible, as part of the SABC management, for the irregular appointment of the SABC's Chief Financial Officer;

(viii)

he was involved in the irregular termination of the employment of several senior staff members, resulting in a substantial loss to the B SABC;

(ix)

he had unilaterally and irregularly increased the salaries of various staff members, which resulted in a salary-bill escalation of R29 million.

C Moreover, the Public Protector found that the Department of Communications and the then Minister Pule, aided and abetted by Mr Motsoeneng, had unduly interfered in the affairs of the SABC. Such conduct, so she stated, 'was unlawful and had a corrupting effect on the SABC Human Resources practices' and 'was grossly improper and constitutes maladministration'.

D [7] As regards the Minister, the Public Protector, purportedly in terms of s 182 of the Constitution, directed the following to the Minister of Communications at the time of the report, Mr Yunus Carrim (who had since replaced Ms Dina Pule):

'11.2

E The current Minister of the Department of communications: Hon Yunus Carrim

11.2.1

To institute disciplinary proceedings against Mr Themba Phiri in respect of his conduct with regard to his role in the irregular appointment of Ms Duda as the SABC CFO.

11.2.2

To take urgent steps to fill the long outstanding vacant F position of the Chief Operations Officer with a suitably qualified permanent incumbent within 90 days of this report and to establish why GCEO's cannot function at the SABC and leave prematurely, causing operational and financial strains.

11.2.3

To define the role and authority of the COO in relation to the GCEO and ensure that overlaps in authority are identified G and eliminated.

11.2.4

To expedite finalization of all pending disciplinary proceedings against the suspended CFO, Ms Duda within 60 days of this report.'

H [8] The Public Protector directed the board of the SABC to ensure that:

(i)

all moneys are recovered which were irregularly expended through unlawful and improper actions from the appropriate persons;

(ii)

appropriate disciplinary action was taken against Mr Motsoeneng for his dishonesty relating to the misrepresentation of his qualifications, I abuse of power and improper conduct in the appointments and salary increments of certain staff and for his role in the purging of senior staff members, resulting in numerous labour disputes and settlement awards against the SABC;

(iii)

any fruitless and wasteful expenditure that had been incurred as a result of irregular salary increments to Mr Motsoeneng is recovered J from him.

Navsa JA and Ponnan JA (Mpati P, Swain JA and Dambuza JA concurring)

The Public Protector also required each of the Minister and the SABC A board to submit an implementation plan within 30 days indicating how the remedial action would be implemented and for all such actions to be finalised within six months.

[9] On 7 July 2014, instead of implementing the Public Protector's remedial action and without notice to her, the SABC board resolved that B Mr Motsoeneng be appointed the permanent COO of the SABC. This was accepted by the new Minister (who had by that stage replaced Mr Yunus Carrim), Ms Faith Muthambi, who approved and formally announced his appointment the next day. Both the board and the Minister acted as they did without reference to the Public Protector. Aggrieved, the C Democratic Alliance (DA), the official opposition political party in the National Assembly, applied to the Western Cape Division of the High Court, Cape Town (the High Court), to first suspend and then set aside Mr Motsoeneng's appointment. It contended that in the light of the damning findings of the Public Protector in relation to Mr Motsoeneng and the clear requirements for the appointment of the COO, his appointment D to that position was irrational and unlawful.

[10] The...