South Africa’s Supreme Court of Appeal has today upheld the findings of the Public Prosecutor in her report ‘When Governance and Ethics Fail‘
Some of the key excerpts from this judgement are:
- On 7 July 2014, instead of implementing the Public Protector’s remedial action and without notice to her, the SABC Board resolved that Mr Motsoeneng be appointed the permanent COO of the SABC. This was accepted by the new Minister, Ms Faith Muthambi, who approved and formally announced his appointment the next day.
- Both the Board and the Minister acted as they did without reference to the Public Protector. In the light of the damning findings of the Public Protector in relation to Mr Motsoeneng and the clear requirements for the appointment of the COO, his appointment to that position was irrational and unlawful.
- Appointing Motsoeneng in a permanent position would have been unlawful and irrational even if all the correct procedures had been followed.
- At no point did the Board or the Minister explain to the Public Protector why they were ignoring her findings and appointing Motsoeneng in a permanent position.
- The conduct of the board and the minister in rejecting the findings and remedial action of the Public Protector was arbitrary and irrational and, consequently, constitutionally unlawful. They have not provided cogent reasons to justify their rejection of the findings by the Public Protector of dishonesty, maladministration, improper conduct and abuse of power on the part of Motsoeneng.
- The independence, impartiality and effectiveness of the Public Protector are vital to ensuring accountable and responsible government.
- The office of the Public Protector provides ‘ … what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation.’
- Our Constitution sets high standards for the exercise of public power by State institutions and officials. However, those standards are not always lived up to, and it would be nailve to assume that organs of State and public officials, found by the Public Protector to have been guilty of corruption and malfeasance in public office, will meekly accept her findings and implement her remedial measures. That is not how guilty bureaucrats in society generally respond.
The Public Protector is plainly better suited to determine issues of maladministration within the SABC than the SABC itself.
It is clear that the SABC adopted an intransigent approach to the remedial action and the Minister followed suit Moreover, on the evidence, the claim that they were intent on engaging the Public Protector rings hollow.
SABC is a public broadcaster that millions of South Africans rely on for news and information about their country and the world at large and for as long as it remains dysfunctional, it will be unable to fulfilits statutory mandate.
A full copy of the judgement is available below.