Hlaudi Motsoeneng writes Open Letter to his critics

Hlaudi Motsoeneng, the controversial former SABC Chief Operating Officer (COO) now Group Executive for Corporate Affairs has written an open letter singling out the ANC’s Chief Whip Jackson Mthembu and the Minister in the Presidency Jeff Radebe.

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by Hlaudi Motsoeneng, SABC Group Executive for Corporate Affairs

Ordinarily I have a fairly thick skin and a high tolerance level for criticisms which comes naturally with the work I do for the SABC. My bold and uncompromising steps in driving transformation in the broadcasting industry has attracted detractors and supporters alike. I am writing to register my strenuous objections to the unfounded attacks on my Section 23 constitutional rights to fair labour practices perpetrated by politicians of all hues. I obtained my employment at the SABC through hard work, dedication and qualifications. I successfully completed the Leadership Development Programme, Gordon Institute of Business Science (GIBS): NQF Level 7, the National Certificate in Generic Management, (Prodigy): NQF Level 5 – Higher Certificate and the Thompson Foundation Certificate in Radio Journalism; Analysis of Contemporary Social Issues (University of Witwatersrand). I have played many leadership roles as Board Member for the SABC, SABC Foundation and Local Organising Committee (AFCON). I also serve as a member of the Regenesys Business School Advisory Council. Regarding transformation I pioneered the empowerment of local musicians and artists by introducing the 90% local music initiative on all the SABC Radio Stations, as well as 80% local content across all SABC Television Channels. I have engaged academia and have presented lectures on Leadership and Transformation in Business Schools, for example University of Witwatersrand, Regenesys and University of Limpopo. Parts of my public lectures were incorporated in the curriculum as a Professional Certificate in Government Communications and Marketing by the Wits School of Governance. Those fuelled by the malignancy of bigotry have ignored all these higher achievements and wealth of experience and have focused on the untruth that I lied about my matric certificate. I was cleared at a Disciplinary Hearing where it was established beyond doubt that I didn’t lie about the existence of my matric certificate.

Against this background, the announcements by the DA, Minister Jeff Radebe and ANC Chief Whip Hon. Mthembu about my return to my position as SABC group executive for corporate affairs would not warrant a response from me. But exceptional circumstances demand a response – their pronouncements are legally unsound, demonstrably false and malicious, they have a direct adverse impact on my constitutionally guaranteed rights to equality, dignity and fair employment practices, they are defamatory and have far-reaching consequences for the SABC and for me as a citizen. It is patently unfair, mischievous, and disingenuous for politicians to undermine court rulings through legally suspect interpretation which violate the constitutional principle of legality, and challenges the constitutionally assigned judicial authority of our courts.

Members of our society have been thrown into a frenzy of speculationabout court rulings which the DA and some politicians have not bothered to read or understand. First is the explicit Schippers judgment whichrequires no further interpretation. There the DA applied for an urgent interdict and sought to have me immediately suspended from my previous position as the Chief Operations Officer (COO) of the SABC pending the finalisation of disciplinary proceedings to be brought against me by the Board of the SABC. Judge Schippers granted the order expressly ruled: “I make no findings on whether or not Motsoeneng is guilty of improper conduct, maladministration or abuse of power. That is the function of the disciplinary tribunal.” Schippers ordered the SABC to institute disciplinary proceedings against me. Most importantly, the judge specified what charges were to be included in the charge sheet. He also ordered that an independent person preside over the disciplinary proceedings. The SABC subsequently complied fully with the letter and spirit of Judge Schippers’s judgment by convening a disciplinary tribunal over which independent Advocate Edeling SC presided. The proceedings were open to the public, witnesses testified under oath and I was found not guilty of all charges against me. It is an outrageous act for Hon. Mthembu and Minister Radebe to mislead the public by implying that there is an adverse court judgment against me. They concocted their own phantom judgment and falsely impute words to our judges in a manner that impugns our judiciary.

The second court judgment against the SABC and Minister Muthambirelates to my appointment as permanent COO in July 2014. The DA applied for my appointment to be set aside because disciplinary proceedings had not been completed against me. Judge Davis in the Western Cape High Court declared my appointment as COO while there was an outstanding disciplinary proceeding to be “irrational” and unlawful. Most importantly Judge Davis stated “…. As indicated earlier, this case is not about Mr Motsoeneng. Mr Maenetje, …on behalf of first to third respondent, submitted in his careful argument that there is no basis by which this court could determine the outcome of this disciplinary hearing. Accordingly, if Mr Motsoeneng is acquitted of all of the charges which are to be determined by a disciplinary tribunal, it was possible that he could then be considered for appointment as a permanent COO of the SABC. In other words, it would be “a bridge too far” to grant the applicant relief within the terms sought, namely to direct the Board to recommend the appointment of suitably qualified COO within 60 days of the order of this court and hence ignore the outcome of the disciplinary process.” (Paragraph 52). Contrary to the contrived assertions by the politicians and sections of the reactionary media, the judge expressly ruled that “this case is not about Mr. Motsoeneng” and refused to preempt the disciplinary proceedings. Judge Davis unambiguously ruled that the outcome of the disciplinary proceedings could not be ignored when it came to the permanent appointment of a COO of the SABC – if I were acquitted of all charges I would qualify for consideration. That is something my detractors cannot live with!

Judge Davis also remarked at para. 53: “Much has been made by respondents of Mr Motsoeneng’s achievements at the SABC and his ‘unique’ ability to be the COO of the SABC. If it is properly shown that none of the allegations made against him are sustainable, it would be unfair and, hence premature at this stage, to preclude him from such consideration. In summary, it is preferable to allow the relevant disciplinary proceedings to run its course and to reflect this finding in the order.” One wonders what legal yardstick Minister Radebe or Hon. Mthembu are using to arrive at their outlandish misreading of this very clear court ruling. Even worse, their contrived misreading deliberately ignored Judge Davis’ scrupulous observance of the rules of fairness and due process. They have substituted the carefully reasoned court judgment with their prejudiced pronouncements. Such politically-driven public vilification campaign and unlawful removal from my employment will be vigorously resisted and challenged in court if need be.

All fair-minded observers know that no court in South Africa has ever ruled that I am not appointable as COO or unqualified for senior executive positions at the SABC. All extant court judgments ordered that disciplinary tribunal must be convened to adjudicate the raft of allegations levelled against me. The SABC complied and in December 2015 I was cleared of all charges against me after an internal disciplinary hearing ordered by the courts. Both Minister Radebe and Hon Mthembu have relied on an alleged “SCA judgment” for their attacks on the SABC and violation of my constitutional rights. In September 2016, The SCA dismissed SABC and Minister Muthambis’ application for leave to appeal Judge Davis’ ruling that my permanent appointment as COO should be set aside. The laconic SCA order reads: “The application for leave to appeal is dismissed with costs on the grounds that there is no reasonable prospect of success in an appeal and there is no other compelling reason why it should be heard.” This reaffirms Judge Davis’ ruling in its entirety.

Hon Mthembu and Minister Radebe have opted to ignore the court judgments and the disciplinary ruling in which I was acquitted in their calculated tactic to subject me to torture of public condemnation. For a member of parliament, Hon Mthembu has made an alarming and very embarrassing claim which betrays his ignorance of basic labour law. He claims I am a “non-employee” of the SABC and purports to rely on court judgments for his outlandish statements. Every shop steward know the basic rule that an employer may not take an adverse action against an employee because the employee has been acquitted of all charges at a disciplinary hearing. Further, it is perverse to insist that such acquittal renders the employee ineligible for continued employment in any capacity with the SABC. The public expects a trained lawyer and former Justice Minister to familiarize himself with these abecedarian principles of labour and administrative law.

The extant court judgments are clear and unambiguous – they need no interpretations but full compliance. The SABC has complied with the order for a disciplinary process and I was acquitted. In any event, no rational person can claim that the SCA decision upholding a Davis ruling that my permanent appointment as Chief Operations Officer (COO) before a disciplinary hearing was unlawful would automatically preclude me from employment as Group Executive for Corporate Affairs, a position I previously held. Unfortunately politicians such as Hon. Mthembu have created a quandary for the SABC – they urged the broadcaster’s board to abide by the SCA ruling but assiduously avoid the wording of the exact ruling relied upon. They pay lip service to the constitutional principle of legality while at the same time advising SABC to commit unlawful acts and ignore verdicts of disciplinary tribunals separately ordered by two judges. They pontificate about the need to avoid challenging the constitutionally assigned judicial authority of our courts but conceal that they are deliberately ignoring and undermining the extant judgments. The undeniable fact is that the disciplinary tribunal which cleared me was a direct outcome of two court judgments now confirmed by the SCA. The SABC may not flout the court orders or succumb to political pressure. The rule of law which binds the SABC is not the rule of the political mob – politicians, coupled with the reactionary media and anti-transformation NGOs may not pressure independent public institutions to ignore verdicts simply because they dislike them.

It is not debatable that I have championed transformation in and out of the SABC in an attempt to create equity; I have radically implemented gender equality in the EXCO. In addition to promote equity I have ensured that freelancers contracts of employment are extended from one year to three years. Freelancers who work over 40 hours a week have been given permanent employment. I’ve enforced the supply of local of content by emerging production houses & more importantly those owned my persons with disabilities’ ill continue to drive the transformation of supply of IT infrastructure to bring black suppliers in the fold. I have also advocated for all languages to be treated equally on all the SABC platforms. I’m aware that my efforts towards transformation are not appreciated by many outside the organisation who selfishly continue benefiting from these ever green supply arrangements”