The investigation was conducted by the Public Protector and published in the report entitled ‘When Governance and Ethics Fail’. The Report found that by misrepresenting his qualifications, Mr Motsoeneng had operated above the law, that his appointment was indeed irregular and that his salary progression from R1.5 million to R2.4 million in one fiscal year was ludicrous. Furthermore, the Minister of Communications then had aided Mr Motsoeneng by unduly interfering with the operations of the SABC.
The Public Protector provided remedial action in her report which the SABC failed to implement in due time and without reason. The SABC further went on to appoint Mr Motsoeneng as permanent COO (from his previous position of interim COO). Following these events, the Democratic Alliance approached the High Court requesting suspension and the setting aside of the appointment as irrational and unlawful, along with disciplinary action by the SABC. In making its decision the High Court inquired whether the findings of the Public Protector are binding and enforceable.
In answering this, the High Court considered the provisions that establish the office of the Public Protector in the Constitution, as well as the Public Protector Act. These provide that the office does not serve an adjudicative function and its findings are not binding on either organs of state or individuals. Whilst the aforementioned is true, the High Court held that it does not render the Public Protector ineffective. The fact that the Public Protector makes recommendations does not mean that organs of state may simply accept or reject them. Any rejection must be accompanied by cogent reasoning for so doing, otherwise the rejection is unconstitutional and irrational. The High Court then ordered disciplinary action with regard to Mr Motsoeneng, as well as his suspension.
The principle of cooperative governance is an important tenet of the Constitution and underscores the functioning of all Chapter 9 institutions in relation to organs of state. In constitutional democracies such as South Africa, public administration and state institutions are the guardians of the public. Section 41 of the Constitution outlines this principle and provides that organs of state must secure the wellbeing of the people of the Republic and that they must cooperate with, assist and support one another. This is inclusive of Chapter 9 institutions. The office of the Public Protector is important in guarding against maladministration and corruption. Its role is essentially to watch the watchers, as well as to guarantee that the government discharges its responsibilities without fear, favour or prejudice. The failure of the SABC as an organ of state, along with the Minister of Communications’ failure to implement the recommended remedial action, directly contravenes the principle of cooperative government.
The powers of the Public Protector are found in section 182 of the Constitution and are echoed and expounded upon in section 6 of the Public Protector Act. These powers point to the independence of the office, which covers both financial and administrative independence. Section 11 of the Act makes it an offence to interfere with the functioning of the office of the Public Protector, as contemplated in section 181(4) of the Constitution.
Considering all the above, the Constitution sets high standards for the exercise of public power by state institutions and officials. These are not always met and as put by the SCA, “it would be naïve 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.” The SABC submitted that they consulted with attorneys concerning the findings of the Public Protector as a reason for the failure to implement the remedial action. When addressing this, the SCA held that it is impermissible to establish a parallel process to that already taken by the Public Protector and then use said process to assert privilege. Moreover, the Public Protector is better suited to investigate the SABC than the very attorneys that represent the SABC.
The appropriate avenue to take was for the SABC to seek administrative review, not seek the assistance of their attorneys. In the same breath, the SABC claimed they intended to comply with the recommendations but proceeded to appoint Mr Motsoeneng. This is indicative of the fact that there was no genuine intention to engage with the Public Protector’s Office. The SCA highlighted that the Office of the Public Protector cannot realise its constitutional mandate if other organs may second guess her findings and ignore her recommendations. The language of section 182 makes it clear that the point of the Public Protector’s Office is to provide effective remedies. In order for such effectiveness, her remedial action and other findings cannot be ignored.
The SCA ordered disciplinary action for Mr Motsoeneng, as did the High Court. The bone of contention for the Appellants was the suspension of the COO pending the outcome of the disciplinary action and this was because the Public Protector had not seen fit to suspend him. Furthermore, according to the Appellants, the order for suspension infringed the principle of separation of powers since the power to remove a COO was vested in the President and a court cannot usurp that power. The Court in this regard held that any power, be it executive or otherwise, must be exercised in an objectively rational manner. This requires compliance with the law and the Constitution as the supreme law of the land.
The Court used the principle of legality, which is an incidence of the Rule of Law, as a constitutional control of all exercise of public power. This principle states that the Executive and the Legislature cannot exercise any power beyond that which is conferred upon them by law. In light of the Public Protector’s findings and the reasoning above, the SCA agreed with the High Court that Mr Motsoeneng should not be in office whilst there were serious allegations of maladministration hanging over him. The SCA therefore dismissed the appeal.
With the trend there seems to exist in terms of disregarding the recommendations of the Public Protector and her office, this judgment is a victory for constitutional supremacy and the recommendations of Chapter 9 institutions. They are necessary for accountability and transparency for the public. While the Appellants may take the matter further on appeal, the SCA nonetheless provided some much-needed clarity on the powers of Public Protector. The decision makes it clear that the remedial action recommended by the Public Protector is not just a mere suggestion where there is impropriety, but carries weight and is not to be disregarded lightly. This has obvious implications for other high-profile matters involving maladministration by public officials and where the Public Protector has made adverse findings against such officials.
By Rebecca Sibanda: Intern; Centre for Constitutional Rights