OPINION: “The moment there was that concession there was really nothing left. What was there to defend after that concession? Everything was conceded there.”
A lawyer quoted in the Sunday Times of 14 February about the concession made by Jeremy Gauntlett, counsel for President Jacob Zuma, that the Public Protector’s findings were legally binding.
“There appears to be an anomaly between the public protector’s report and the findings of the disciplinary inquiry. Either the public protector got it wrong or the disciplinary hearing was a sham…. But we know the public protector’s reports are binding…. The question is, did the SABC comply with the report?” asked Mr [Pierre] de Vos.
DA seeks review of ‘sham’ SABC probe Business Day 12/2/2016
A significant theme and narrative in the weekend newspapers was the apparent feeling among President Jacob Zuma’s Nkandla imbongis that they had been ‘thrown under the bus’. They were not the only ones.
When Gauntlett, one of the country’s top advocates, acknowledged in the Constitutional Court on 9 February that Zuma breached the Constitution by defying the public protector’s injunction to contribute towards the costs of Nkandla, he brought to an end to two years of denial. He also blew a gaping hole through the SABC’s nefarious strategy to keep Hlaudi Motsoeneng in control of the state broadcaster.
When, through Gauntlett, Zuma admitted that the public protector’s findings are binding and that he would pay for ‘security features’ such as the teardrop-shaped ‘fire pool’ with a deep end and a shallow end, the cattle kraal and the chicken run, he also made it obligatory for the SABC to follow her findings and this included her insistence that Motsoeneng be held responsible for the various infractions detailed in her ‘When governance and ethics fail’ report… and that he too should #PayBackTheMoney.
It is the second anniversary of the report in which she stipulated that the financial losses sustained because of Motsoeneng’s conduct, be recovered from him.
“To ensure that any fruitless and wasteful expenditure that had been incurred as a result of irregular salary increments to Mr Motsoeneng, Ms Motsweni, Ms Khumalo and the freelancers, is recovered from the appropriate persons…”
In January last year, James Aguma, a chartered accountant, was appointed chief financial officer of the SABC. The previous year, while acting in that position, he told parliament that irregular expenditure of R3.3 billion had been incurred between 2012 and 2014 – all during the time when, de facto, Motsoeneng had been in control of the state broadcaster.
The public protector has ruled that part of that irregular expenditure were the radical increases in Motsoeneng’s salary – this while he presided over a totally dysfunctional organisation which, in its news dissemination, is seen to function purely as an ANC mouthpiece.
Promote and protect
If, although it seems unlikely, Aguma does try to recoup that money, he must not expect any help from communications minister Faith Muthambi who has done everything in her power to promote and protect Motsoeneng.
Last year, Motsoeneng received a salary increase of close on a million rand and when the Democratic Alliance sought clarity on this from Muthambi she refused to provide answers forcing the official opposition to submit a PAIA (Promotion of Access to Information Act) application.
SABC board member Hope Zinde had her membership of the board terminated on extremely dubious legal grounds after she complained to Muthambi about the enormously disruptive role that Motsoeneng was playing only to be told by Muthambi that she should support him because “… baba loves Hlaudi. He loves him so much. We must support him.”
Zinde, who along with two other board members, Ronnie Lubisi and Rachel Kalidass, had expressed reservations about Motsoeneng, subsequently received threatening letters from Muthambi and all were subsequently ousted from the board.
In May last year Zuraya Adhikarie and Nathi Mjemxawa of the parliamentary legal services office told parliament that the removal of Zinde, Lubisi and Kalidass was illegal. “Mjenxane said that the only legally valid removal of a SABC board member is by the president as the appointing authority and only after due inquiry in line with the provisions of the Broadcasting Act.”
Struck off the roll
This opinion was not heeded by Muthambi who chose, instead, to rely on the advice of her own lawyer, Daniel Mantsha, who, as later became apparent, had previously been struck off the roll …
Mantsha told the Portfolio Committee on Communications in June last year that Muthambi had no reason to reinstate Zinde, Lubisi and Kalidass because they had not complained about their removal from the board. This was simply not true but why let the truth stand in the way of a good purge particularly when the three had had the temerity to express concerns about a man who was ‘loved by baba’?
This was hardly the first time that Muthambi, using your money and mine, has hired counsel to provide findings with her desired outcome. When her appointment of Motsoeneng as permanent COO in July 2014 was queried, she said that a firm of attorneys, hired by her, had cleared him of any wrongdoing…
Talking of purges
And, talking of purges, one of the points made by Madonsela was that, with the full support of successive ANC-appointed SABC boards, Motsoeneng had ruthlessly driven out of the organisation anyone who had opposed him. The Public Protector cites 14 such examples which she said constituted ‘improper conduct, abuse of power and maladministration’ which unnecessarily cost the SABC R29 million in ‘avoidable legal fees, settlement awards and acting allowances for persons in suspension.’
So, when Aguma next appears in parliament, he will have had ample time to recoup the R29 million from Motsoeneng or at least to tell us what he has done in this regard.
The SABC will counter that at least it had heeded Madonsela’s injunction to subject Motsoeneng to a disciplinary hearing.
That ‘disciplinary hearing’, as constitutional law expert, Professor Pierre de Vos points out in one of the anchor quotes on this article, is devoid of credibility and, when one looks at its timeline, it is difficult to avoid the conclusion that it was rigged.
Here is how Don Makatile described it in the Sunday Independent and his article is worth reading because it succinctly sums up how devoid of juridical substance the disciplinary hearing was: ‘The only thing serious about the latest SABC disciplinary hearing against Hlaudi Motsoeneng – at which he was cleared of all wrongdoing – is that it was a joke. A very expensive joke concluded over copious rounds of fine coffee lattes and sumptuous lunches at a posh Sandton hotel.
‘It was a flawed process; a comedy of errors that culminated in a farce. Its decision was arrived at with the same alacrity as the “considered sobriety” of a kangaroo court where everything but the evidence before it mattered.’
On 14 October 2015, the SABC, having deliberately delayed for one year and eight months after Madonsela ordered that Motsoeneng be subjected to a disciplinary hearing, finally started the process by announcing that the hearing would start some two weeks later. What followed thereafter bordered on bizarre as the state broadcaster desperately sought to create a situation which would absolve Motsoeneng of all charges – which, in the end, it did. This involved repeated postponements, replacing the disciplinary hearing chairperson and, wait for this, no less than three replacements of the prosecutor!
James Selfe, chairperson of the DA’s federal executive, said his party would take the findings of the SABC’s disciplinary process on review “on the grounds that it makes a mockery of the Rule of Law, the Public Protector’s report and judge Dennis Davis’s judgement”.
Describing it as a ‘farcical stitch-up job’ he pointed out that it was truncated and that key witnesses did not testify.
Defending the indefensible
Selfe’s concern is echoed by constitutional law expert and political commentator, Shadrack Gutto, who in November last year said: “There can be no rational explanation why they are going to great lengths to defend Mr Motsoeneng. They are defending the indefensible.…”
In the end the SABC’s disciplinary hearing was justifiably seen as its equivalent of the Nkandla report by police minister Nathi Nhleko who is now widely derided as a stooge who sacrificed principle for political expediency.
In November last year Judge Dennis Davis ruled in the Cape High Court that Motsoeneng’s appointment was irrational and unlawful. He added that a bank would not even appoint “a deputy manager in its Kroonstad branch” with Motsoeneng’s antecedents
It seems unlikely that the Constitutional Court judges will now come to a different conclusion.
In its September 2104 issue, noseweek carried a significant article relating to the nine lives of Hlaudi Motsoeneng. Its headline was Daddy. The power that drives Motsoeneng’s rise. Its intro sentence posed the question that everyone is asking: South Africans are trying to ﬁgure out the secret hold Hlaudi Motsoeneng has on his position as chief operations ofﬁcer of the South African Broadcasting Corporation.
It came to two conclusions – firstly that, as demanded by Luthuli House, Motsoeneng had, like his predecessor Snuki Zikalala, turned the SABC into a state broadcaster and unashamed propaganda mouthpiece for the governing party.
The second conclusion was intriguing.
One SABC insider said the “key connection” was that Motsoeneng’s father was a “powerful spiritual leader”, with whom the president consulted in “spiritual and ancestral matters”.
In a merit-based society appointing someone with no tertiary education as COO of a multi-billion rand, taxpayer-funded parastatal on that basis would be unthinkable but noseweek’s conclusion at the time, given the concessions made by Gauntlett in the Constitutional Court on 9 February, was prescient.
If it is true that having a father who provides ancestral expertise to the President trumps all else, Motsoeneng has good reason — for now — to sleep easy.
There is one facet of this scandalous debacle, however, where Motsoeneng can rest assured and rest easy – the SABC will do everything in its power to ensure that he does not have to #Pay back the costs incurred in his relentless pursuit of legal exculpation.
No evidence has been provided that another ANC appointee to the SABC, former chairperson Ellen Tshababala, has paid a cent towards the considerable legal fees she must have incurred in a similar approach to retaining her position.
She too, if newspaper reports are correct, is much loved by Ubaba but eventually she threw in the towel and departed into the sunset on a quixotic but so far unsuccessful quest to find and appropriately punish the cur that so wantonly snarfed her homework.
Out of touch
The evidence at last week’s Concourt hearing must also raise doubt about the continued tenure of Muthambi as communications minister. She replaced the respected Yunis Carrim who was regarded as insufficiently compliant and has repeatedly shown herself to be out of touch with her party’s thinking on broadcast matters. After Muthambi lobbied for and then endorsed Motsoeneng’s permanent appoint as ment in July 2014, small business development minister Lindiwe Zulu said the ANC was surprised by the appointment.
Then, in September last year she denied in parliament that the SABC was in crisis only to be informed that, at the time, the ANC’s National General Council’s (NGC) contemporary discussion document on the SABC unequivocally stated that financial and organisational maladministration had created a series of crises that reflected ‘a lack of leadership, lack of accountability and poor management’ – all this on the watch of Hlaudi Motsoeneng.
When Snuki Zikalala, an Mbeki appointee, departed the SABC in April 2009, predictably playing the race card, the nation exulted.
I have little doubt that there will be a similar response from all our citizens when Motsoeneng eventually departs the SABC as a millionaire several times over because, as Makhudu Sefara pointed out with poignant anger, he insults the Struggle:
‘But when it is evident that Motsoeneng has transmogrified our national asset, a national key point, into a bad joke, we owe it to those people who died in battle, the Vuyisile Minis, the Solomon Mahlangus, the Chris Hanis, the Oliver Tambos, to correct this.’