By Rebecca Sibanda, Centre for Constitutional Rights
The Western Cape High Court has dismissed the South African Broadcasting Corporation’s (SABC) leave to appeal last year’s ruling against Hlaudi Motsoeneng in Democratic Alliance v South African Broadcasting Corporation and Others SOC Ltd; Democratic Alliance v Motsoeneng and Others.
In the aforementioned case, the same Court found Motsoeneng’s appointment to Group Executive of Corporate Affairs (GECA) to be unconstitutional and thus, unlawful and invalid. The Court also held that Motsoeneng should not occupy any position at the SABC. The Board was found guilty of ignoring the findings and remedial action prescribed by the erstwhile Public Protector, in the report “When Governance and Ethics Fail”.
This is another nail in the beleaguered Broadcaster’s management coffin, following legal action being taken against the SABC by the Independent Communications Authority of South Africa (ICASA) concerning the former’s failure to comply with the latter’s order to withdraw the ban on airing visuals of violent protests, which was implemented in May of 2016. The SABC stated that the ban had been a mere suggestion and had never actually been implemented, without giving a formal response ICASA. ICASA averred that despite numerous written demands to comply, the SABC failed to do so. The charge has since been escalated to the Police, to the Directorate for Priority Crime Investigation (DPCI).
The concerted effort on the part of the SABC to undermine the rulings of the Courts and other constitutionally-established institutions is concerning, as this represents the defiance of the Rule of Law, parliamentary oversight and constitutional supremacy. Questions have been raised in the past, regarding taxpayer funds being used to pay the costs for unsuccessful and often frivolous litigation by public entities. There have been calls to require state officials to pay for costs in their personal capacities for vexatious litigation, such as that of the SABC in recent times.
This application was based on the argument by the SABC that Motsoeneng’s appointment was not the exercise of public power but rather an internal one and thus, the courts did not have the authority to review said appointment. However, because of the kind of power Motsoeneng wielded as both Chief Operations Officer and GCEA, his appointment was undoubtedly an exercise of public power subject to review by the Judiciary – in much the same way the appointment of other public officials may be reviewed. The Western Cape High Court dismissed the application on the grounds that no reasonable prospects existed that another court would reach a different conclusion.
Furthermore, the ad hoc committee on the fitness of the SABC Board to hold office has concluded the first leg of its investigation. Its draft report, whilst lacking recommendations, is a scathing indictment of the Minister of Communications and suggests she acted unconstitutionally and overstepped her mandate by exercising undue influence in the workings of the SABC. Equally concerning is the Minister’s failure to hold the SABC accountable, as is demanded by her oversight role as the political head over the public entity. The Board was also painted as incompetent, thus allowing the unmitigated downward spiral of the Broadcaster’s affairs. The National Assembly has until 28 February to adopt a final report.
In the meantime, the Parliamentary Portfolio Committee on Communications has been ordered by the Speaker of the National Assembly to appoint the SABC Interim Board because, as it stands, the Broadcaster has none and this puts the already struggling entity in a perilous position. The above developments paint a dire picture for accountability in public enterprises, since the SABC has been allowed to function without oversight from its department head. The developments are also a welcome confirmation of the Rule of Law. They emphasise that no one individual can flout the law without consequence. The ruling of the Court signifies, optimistically, what may very well be a fresh start for an otherwise troubled entity. However, this will only be a new start if a new Board follows good governance principles, appoints new managers (without Hlaudi Motsoeneng) and if there is better political leadership by the present or new Minister of Communications.