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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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