The SABC’s group executive for Corporate Affairs, Hlaudi Motsoeneng, has on Wednesday, argued that he has suffered prejudice because he had to hastily prepare for an application brought against him in the Western Cape High Court.
Advocate Andy Bester, for Motsoeneng, told the court that his client had been placed in a prejudicial position by the Democratic Alliance (DA) “by design or otherwise”.
Judge Andre le Grange and Judge Owen Rogers are hearing an application brought by the DA to have the outcomes of Motsoeneng’s disciplinary hearing set aside, and his position declared invalid.
The Chairperson of the DA’s Federal Executive, James Selfe, said in a statement on Wednesday that the court must remove Motsoeneng from his position “until and only if the Public Protector report is set aside”.
The 2014 report found, among other things, that he had lied about his matric qualifications, and had given himself irregular salary increases. It also recommended remedial action that included that the SABC hold a disciplinary hearing against him.
Earlier on Wednesday, Advocate Anton Katz, for the DA, described Motsoeneng’s disciplinary hearing as a “charade”, a “sham” and “farcical”.
“If the court comes to the decision that it was a sham, why should the taxpayer pay for a charade?”
Katz said Motsoeneng had approved the chairperson of his own disciplinary hearing: “There were nine people on the board, including Motsoeneng himself.”
But, Bester said Motsoeneng “denies all grandiose accusations that he was the mastermind behind his own disciplinary”.
Bester said that while the DA argued that there was good reason for him to pay costs of the application, “because of some grand conspiracy”, that argument would not suffice.
He said while the DA has been “hammering on about legality” it itself has broken the rules.
“As it stands, the application has still not been served on Motsoeneng. Its an important aspect. The DA says its water under the bridge, let’s get on with it”.
Bester told the court that his client had been forced to hastily prepare for this matter “for no good reason”.
He said the application was served at the SABC’s Cape Town offices, despite the DA being fully aware that Motsoeneng is based in Johannesburg.
The papers were accepted by someone else, and apparently only given to Motsoeneng weeks later.
Rogers pointed out that the SABC had released a press release on the day the papers were served in October.
But, Bester said: “Yes, but that’s the SABC. Motsoeneng ultimately made sure he got the papers”.
Bester said the DA was the only relevant party in this jurisdiction (the Western Cape High Court), all the others are in Gauteng.
He argued that this had resulted in “truncated periods” for preparation.
“Its about him being entitled to a fair hearing,” he said.
“Not only does he stand to lose his employment, he is persona non grata in the public sector.”
Bester also said there was nothing to back up the DA’s claims that Motsoeneng is “large and in charge at the SABC”.
Katz earlier painted a different picture. He told the court that Motsoeneng remains in the very same office he occupied as Chief Operating Officer of the public broadcaster.
“The only conclusion this court can come to is that it was a charade, and an attempt to comply that failed miserably,” Katz said.
“This is Alice in Wonderland stuff,” which subverts the constitution, previous judgments and the Public Protectors report Katz told the court.
Katz said the evidence was “devastating” with R28 million wasted in one year alone: “That is our money.”
In the main application, Katz said they sought to have Motsoeneng removed from the SABC: “We say he can’t be there at all.”
“Far reaching cases call for far reaching remedy,” Katz said.
“This is a battle about legality, not about getting votes in the next election. When it comes to the principle of legality, the courts are obliged to enter the arena.”
In September, it was determined that Motsoeneng could not be COO, but later that month he was given a new five year contract as head of corporate affairs.
Katz said it was a new contract with his old salary and while he sounded like a “stuck record”, he had been in court for two and a half years.
“When you tell a lie, you must be careful that the lie is consistent. The entire bang shoot is a lie. You are talking about Alice in Wonderland.”
Advocate Etienne Labuschagne, for the Public Protector, said her position was that “neither the minister nor the SABC complied with the public protector’s remedial action”.
The public protector’s 2014 report found, among other things, that Motsoeneng was dishonest and was responsible for maladministration at the broadcaster.
“The starting point is the finding. What are the implications of non compliance in this case? The question really is what is the consequence in law, for the SABC, the board and the minister for not having complied?”
He said while the SABC had sought to review the Public Protector’s report, the SABC still needed to comply with remedial action, even where the review is still pending.
“They may do so under protest, but they can’t ignore it,” he said.
He argued that they acted unconstitutionally and said the public protector had expressed her view that the “SABC has essentially sabotaged that disciplinary process”.
“She has found him to be a dishonest employee who has been a toxic failure for corporate governance. He should not be in a position of authority until the review is finalised. He should not be in a position of authority where honesty and integrity are required.”
Motsoeneng was present at court proceedings where he at times appeared to be falling asleep. He also stifled his laughter when referred to as toxic. Towards the end of proceedings on Wednesday afternoon, he yawned widely.
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