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SABC chief op­er­at­ing of­fi­cer Hlaudi Mot­soe­neng will at­tempt to hang on to his po­si­tion by ar­gu­ing in court next month that the courts should have no say in what hap­pens to him. Mot­soe­neng’s lawyers will ar­gue that the prin­ci­ple of the sep­a­ra­tion of pow­ers de­mands that the ju­di­ciary should never be al­lowed to usurp the pow­ers of the ex­ec­u­tive, no mat­ter what the al­le­ga­tions of in­com­pe­tence or mal­ad­min­is­tra­tion might be.

This is one of the ar­gu­ments he will ad­vance in a month to try to con­vince the Supreme Court of Ap­peal (SCA) to over­turn the Western Cape High Court judg­ment or­der­ing that he be im­me­di­ately sus­pended and dis­ci­plined.

The case, which will see Mot­soe­neng take on the DA and Public Pro­tec­tor Thuli Madon­sela be­fore some of the SCA’s tough­est judges, will be key in an­swer­ing the ques­tion of whether Madon­sela’s find­ings are bind­ing or not.

It is also likely to have an im­pact on other lit­i­ga­tion in which Pres­i­dent Ja­cob Zuma is be­ing asked to com­ply with the Public Pro­tec­tor’s find­ing that he pay back a per­cent­age of the R246 mil­lion that has been spent on se­cu­rity up­grades at his Nkandla home.

The SCA ap­peal comes af­ter Judge An­ton Schip­pers in Oc­to­ber or­dered Mot­soe­neng to be sus­pended pend­ing the out­come of a dis­ci­plinary in­quiry.

This is in line with a find­ing made by Madon­sela in a re­port ti­tled When gov­er­nance and ethics fail, in which she de­ter­mined that the SABC board should take dis­ci­plinary steps against Mot­soe­neng for his dis­hon­esty re­gard­ing his ma­tric cer­tifi­cate, im­proper con­duct in re­la­tion to staff ap­point­ments and for purg­ing se­nior em­ploy­ees at the public broad­caster.

In Mot­soe­neng’s heads of ar­gu­ment, his lawyers ar­gue that, “the or­der that Mot­soe­neng be sum­mar­ily sus­pended pend­ing the out­come of dis­ci­plinary pro­ceed­ings against him amounts to an in­fringe­ment of the sep­a­ra­tion of pow­ers doc­trine, which pre­cludes the courts from im­per­mis­si­bly as­sum­ing the func­tions that fall within the do­main of the ex­ec­u­tive.

“No mat­ter the level of al­leged in­com­pe­tence or mal­ad­min­is­tra­tion, es­pe­cially al­le­ga­tions that are not proven, the sep­a­ra­tion of pow­ers de­mands that the pow­ers of con­sti­tu­tion­ally and leg­isla­tively or­dained or­gans of state must not be usurped.”

Mot­soe­neng has also ar­gued that the DA does not have the stand­ing to en­force the find­ings of the Public Pro­tec­tor and that Madon­sela’s re­port amounts to noth­ing more than hearsay ev­i­dence.

But in her heads of ar­gu­ment, Madon­sela has rung an alarm bell about the state of con­sti­tu­tion­al­ism in South Africa.

She says the way her re­ports are be­ing dis­cred­ited with­out be­ing re­viewed “con­trib­utes to a cul­ture of un­der­min­ing the ef­fec­tive­ness and in­de­pen­dence of the Public Pro­tec­tor”.

“The con­cept of con­sti­tu­tion­al­ism re­quires an ap­pre­ci­a­tion by state and in­di­vid­u­als that the Con­sti­tu­tion and the rule of law limit the pow­ers of gov­ern­ment and pro­vide av­enues for the en­force­ment of such lim­i­ta­tion. This pro­tects cit­i­zens from ar­bi­trary rule.”

Madon­sela has also ap­pealed against Schip­pers’ rul­ing that her find­ings are not bind­ing on or­gans of state, but that they had to have ra­tio­nal rea­sons for ig­nor­ing them.

She has also ar­gued that the Con­sti­tu­tion de­ter­mines that she has the power to “take re­me­dial ac­tion” and she is em­pow­ered to “make find­ings which are more than sim­ply rec­om­men­da­tions and which are bind­ing on the sub­ject of the in­ves­ti­ga­tion”.

Madon­sela ar­gues that the ef­fect of Schip­pers’ judg­ment places an onus on her to prove that ev­ery one of her de­ci­sions is ra­tio­nal, rather than com­pelling the rel­e­vant sub­ject to take it to court.

In its heads of ar­gu­ment, the DA ar­gues that the SABC and Com­mu­ni­ca­tions Min­is­ter Faith Muthambi have “in­ex­pli­ca­bly placed the in­ter­est of Mot­soe­neng above the in­ter­est of the SABC”.

“It is telling that none of the ap­pel­lants tackle the heart of the mat­ter. They do not at­tempt to de­fend their dis­re­gard for the Public Pro­tec­tor.

“In­stead, they hide be­hind is­sues of sep­a­ra­tion of pow­ers, stand­ing and fair­ness. None of these con­tentions has merit.”

The case is on the court roll for Septem­ber 18 and will be heard by a full bench of the SCA, in­clud­ing judge pres­i­dent Lex Mpati and act­ing deputy judge pres­i­dent Ma­homed Navsa.

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Thuli Madon­sela

Hlaudi Mot­soe­neng

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