Madonsela bolstered as SABC loses appeal
THE Supreme Court of Appeal yesterday delivered a judgment that affirmed the powers of the office of the public protector.
It dismissed an appeal by South African Broadcasting Corporation (SABC) chief operating officer Hlaudi Motsoeneng against a High Court order that he be suspended and that disciplinary charges be brought against him.
In doing so, the court bolstered Thuli Madonsela’s office, indicating that her recommendations could be set aside only through a court review.
The SABC and Communications Minister Faith Muthambi said they were studying the judgment. Mr Motsoeneng’s attorney Zola Majavu said there was a possibility of an appeal to the Constitutional Court but that depended on how the minister and the SABC decided to proceed.
Ms Madonsela’s previous findings have been questioned by President Jacob Zuma — famously on the spending on his Nkandla home — by Parliament, and by the former CEO of the Passenger Rail Agency of SA.
The judgment also has a bearing on an application brought by the Economic Freedom Fighters (EFF) at the Constitutional Court on the Nkandla matter.
Constitutional law expert Pierre de Vos said the judgment was about the standing of the findings and the remedial action contained in the public protector’s reports.
The judgment stated: “It is well settled in our law that until a decision is set aside by a court in proceedings for judicial review, it exists in fact and it has legal consequences that cannot simply be overlooked.”
The SABC and Ms Muthambi ignored Ms Madonsela’s recommendations and appointed attorneys to “investigate the veracity of the findings and recommendations of the public protector”. It was “impermissible” for the SABC to have established a parallel process to that of the public protector, and it should have challenged it in a review, the court said.
Mr de Vos said the case was different to the EFF’s application to the Constitutional Court on Nkandla. However, if the Constitutional Court agreed with the principle set out by the judgment — and it may not — it meant that the way the Nkandla report was dealt with was wrong.
Executive secretary for the Council for the Advancement of the South African Constitution Lawson Naidoo said the judgment was a “step in the right direction” in clarifying the powers of the public protector.