Protecting the Public Protector

On 8 October 2015, the Supreme Court of Appeal handed down judgment in the matter between the SABC and others versus the Democratic Alliance and others. The matter concerned the appointment of Mr Hlaudi Motsoeneng as COO of the SABC, in the face of directions from the Public Protector that he be subjected to disciplinary action, and that wasteful expenditure be recovered from him.

In the High Court, the learned judge found that the Public Protector’s findings were not binding and enforceable, but that the organ of state subject to them could only reject them on a rational basis. In this instance, the rejection of the directions was arbitrary and irrational, and the SABC was bound to implement the directions.

The SABC and Mr Motsoeneng appealed this judgment to the Supreme Court of Appeal (SCA), before which the Public Protector (PP) and a friend of the court (Corruption Watch) also made submissions.

The SCA considered the powers of the PP as set out in the Constitution and legislation, and concluded that the very purpose of her office would not be achievable if organs of state were free to second-guess and ignore her recommendations. Organs of state owed her office co-operation, in accordance with the duties upon them to engage in co-operative governance. In the absence of a review application made to the court to set aside the PP’s directions, they had to be implemented.

The appeal was dismissed with costs.

The full judgment is now available online, and may be read at:

http://www.saflii.org/za/cases/ZASCA/2015/156.pdf

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