Understanding the Powers of the Public Protector in South Africa

This well-publicised case highlights some serious concerns in the way that state-owned entities work (or don’t work, as the case may be). And highlights once again how important and, indeed, indispensable, our courts and the all-important Constitution are in upholding the law and ensuring justice is served in South Africa. In the matter of South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others (2015) 4 All SA 719 (SCA) the court was asked to consider the powers of the Office of the Public Protector.

In February 2014 the Public Report released her report on the SABC. More specifically, with respect to its Acting Chief Operating Officer, Motsoeneng. This rather scathing report contained the following findings:

• Motsoeneng’s appointment was irregular;
• He had fraudulently misrepresented his education qualifications (he claimed he had a matric, which he did not);
• his salary was irregular. Particularly the way his R1,5million p.a. remuneration had escalated to R2,4million in the space of one year;
• the way in which he used his position to benefit himself and certain others, such as radically, and unilaterally, adjusting employees’ salaries, constituted a gross abuse of his powers.

Accordingly, the Public Protector directed that Motsoeneng be subject to disciplinary proceedings.

And so it was that in July 2014 the SABC announced the permanent appointment of Motsoeneng as its Chief Operating Officer. It is not surprising, then, that the SABC was subjected to a barrage of criticism for their flagrant disregard of the Public Protector’s findings.

Let us take a step back for a moment. Picture the scenario. A multi-million Rand company appoints someone as their CEO. This is their chief, their leader, the head-honcho, the guy appointed to drive the company forward, to grow and make a profit, to increase the value of the company for the shareholders, encourage and develop staff, ensure customer satisfaction. It transpires, however, that this guy lied about his qualifications on his CV to get the job. Then, no sooner is he ensconced in his new position, he goes about securing increases to his already inflated salary. As in, his salary miraculously doubles with little regard for whether the increase has any correlation to the performance of the company. On the matter of performance, the company, it seems, is performing as well as he is – ie. it’s not. And to get what he wants he makes sure that he surrounds himself with a few well-placed cronies willing to do his bidding as long as he signs off on their equally outrageous increases. Now, contemplate what would happen if this all became public knowledge. Doubtlessly this chap would be out on his ear before you could say “disciplinary”. And he’d call himself lucky to escape criminal prosecution.

Clearly the government works according to different rules.

The SABC’s justification for ignoring the Public Protector’s report was that in light of her “suggestions” they had employed a firm of attorneys to investigate her report. The attorneys reported that all was well. Which is not surprising. That is, after all, the outcome that they were paid to deliver. The DA took issue with the SABC’s stance on the matter, and approached the court for an order suspending Motsoeneng and ordering the SABC to start disciplinary proceedings against him.

The Supreme Court of Appeal held that Motsoeneng was indeed to be suspended, and disciplinary proceedings were to be commenced against him. Of greater importance and relevance to the South African public, however, was their finding on the importance and strength of reports issued by the Public Protector. The court held that the office of the Public Protector is established in terms of the South African Constitution, the highest law of our land. Accordingly, remedial action mandated by the Public Protector should not be ignored. That is not to say that the Public Protector’s reports are untouchable: anyone aggrieved by the findings can take it on review. But failing an application for review, the findings must be taken seriously, and the recommendations must be implemented.

The SABC (and anyone else aggrieved by the Public Protector’s findings) cannot simply launch a parallel investigation, decide which findings are more favourable to them, and pronounce that their preferred report holds more weight than the Public Protector’s report – for no reason other than the fact that it makes them look better.

Mr President, are you listening?

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.