IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: 3104/2016

In the matter between:
DEMOCRATIC ALLIANCE

Applicant

and

SOUTH AFRICAN BROADCASTING CORPORATION

SOC LTD
THE BOARD OF DIRECTORS OF THE SABC
THE CHAIRPERSON OF THE BOARD OF
DIRECTORS OF THE SABC

First Respondent
Second Respondent

Third Respondent

MINISTER OF COMMUNICATIONS

Fourth Respondent

GEORGE HLAUDI MOTSOENENG

Fifth Respondent

WJ EDELING N.O.

Sixth respondent

THUMISO PRINCE PHALANE NO

THE PUBLIC PROTECTOR

Seventh Respondent
Eighth Respondent

HEADS OF ARGUMENT OF FIRST TO THIRD RESPONDENTS IN THE STAY

APPLICATION BROUGHT ON THEIR BEHALF

Page 2
TABLE OF CONTENTS

INTRODUCTION .............................................................................................................. 3
THE APPLICABLE TEST THIS IS NOT A POSTPONEMENT APPLICATION ............... 4
THE STAY SHOULD BE GRANTED................................................................................. 5
Prima facie right to review ................................................................................................. 6
The decision of the Public Protector .................................................................................. 6
The first ground of review ................................................................................................ 10
The second ground of review .......................................................................................... 15
The third ground of review .............................................................................................. 18
Delay .............................................................................................................................. 19
Summation prima facie right......................................................................................... 20
Direct link between the two cases ................................................................................... 20
The relief sought in the DA application ............................................................................ 20
The link between the two cases ...................................................................................... 21
The prayer relating to the order of the Supreme Court of Appeal .................................... 25
Summation it would be appropriate to stay the DA application ..................................... 27
Balance of convenience favours the SABC ..................................................................... 27
CONCLUSION ................................................................................................................ 30
ORDER SOUGHT ........................................................................................................... 31

Page 3
INTRODUCTION

The Democratic Alliance (the DA) has brought an application for wide-ranging
relief that stems from a report published by the Public Protector on 17 February
2014 (the Public Protectors report) that considered various allegations of
alleged corporate governance failures at the first respondent (the SABC).

After the DA launched its application, the SABC brought an application seeking
an order staying the DAs application pending the finalisation of a review of the
Public Protectors report. A few days after launching the stay application, the
SABC launched its review in the Gauteng Division of the High Court, sitting in
Pretoria.

The SABC submits that the issues arising in the DAs application will be
materially affected if the Pretoria High Court upholds the SABCs review
application. It would therefore not be in the interests of justice for this Court to
determine the DAs application now, while the SABCs review application is
pending. Rather, it is the SABCs submission that the most convenient and
equitable way forward is for the SABCs review application to be ventilated first,
and for the DAs application to be considered in the light of the order made by
the Pretoria High Court in that review.

Page 4
THE APPLICABLE TEST THIS IS NOT A POSTPONEMENT APPLICATION

It is important to emphasise, at the outset, that this application is not a

postponement application. There are similarities between the approaches
followed by our courts when approaching postponement applications and stay
applications, but the emphasis is different.

In stay applications, the following principles are applicable:

5.1

In Southern Metropolitan Substructure v Thompson1 and Township

Management Consultants (Pty) Ltd v Simmons2 it was established that

the relief which the respondent is seeking [ie, a stay

application] is a matter vesting in the judicial discretion of this
Court to be exercised inter alia with due regard to the parties'
conflicting rights and interests and the incidence of
convenience and prejudice.
5.2

In the case of stay applications that are brought pending the finalisation
of a review, it has been held that an applicant must show:

5.3

5.2.1

a prima facie right to review; and

5.2.2

that the balance of convenience favours the applicant.3

In Spier Properties,4 this Court said the following:

Southern Metropolitan Substructure v Thompson 1997 (2) SA 799 (W) at 805

Township Management Consultants (Pty) Ltd v Simmons 1991 (3) SA 456 (W) at 460

Southern Metropolitan Substructure v Thompson (supra) at 805

Spier Properties (Pty) Ltd v Chairman, Wine and Spirit Board 1999 (3) SA 832 (C) at 840

Page 5
As appears from the judgment of Nicholas J in Fisheries E
Development Corporation of SA Ltd v Jorgensen and Another;
Fisheries Development Corporation of SA Ltd v AWJ
Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W) at
1340, a stay can be granted by the Court in the exercise of its
inherent discretion to avoid injustice and inequality but in this
enquiry Courts do not act on abstract ideas of justice and
equity. They must act on principle. Accordingly, where there
is such an application for a stay on the grounds of prejudice,
such prejudice and harm must not be 'problematical,
hypothetical and speculative' (at 1341).

It is submitted that, in the light of what has been said above, the proper
approach to be adopted to this application is for this Court to assess the
following:

6.1

First, it should satisfy itself that the review brought by the SABC raises
triable issues.

6.2

Secondly, if it does, it should consider whether the issues raised in the

review will have an impact on the decision to be made in the DAs
application.

6.3

Thirdly, if they do, it would ordinarily stay the DAs application unless
the DA (or any of the other parties) could point to prejudice that militates
against staying the DAs application.

THE STAY SHOULD BE GRANTED

It is submitted that, based on the approach summarised in paragraph 6 above,

the stay application ought to be granted. We deal with each of the three factors
below.

Page 6
Prima facie right to review

There are three elements to the review brought by the SABC:

8.1

First, the SABC argues that the approach adopted by the Public
Protector was bad in law because it hamstrung the ability of the SABC
to conduct a full disciplinary enquiry into the conduct of Mr Motsoeneng.

8.2

Secondly, the SABC argues that the Public Protector misdirected

herself in regard to one of the complaints, by considering it despite the
fact that the facts underpinning it arose more than two years before the
complaint was made.

8.3

Thirdly, the SABC impugns the factual findings made by the Public
Protector.

The decision of the Public Protector

The decision of the Public Protector that is the subject of the SABCs review
was the following:

9.1

In her report, the Public Protector investigated, and made findings on,
the following eight issues, which had been raised in complaints made to
her:

9.1.1

Whether the alleged appointment and salary progression of Mr

Motsoeneng, who at the time was the Acting COO of the

Page 7
SABC and who is now the COO, were irregular and
accordingly

constitute

improper

conduct

and

maladministration.

9.1.2

Whether Mr Motsoeneng fraudulently misrepresented his

qualifications to the SABC, including stating that he had
passed matric when applying for employment.

9.1.3

Whether the alleged appointment(s) and salary progression of

Ms Sully Motsweni (another employee of the SABC) were
irregular and accordingly constitute improper conduct and
maladministration.

9.1.4

Whether the alleged appointment of Ms Gugu Duda as Chief

Financial Officer (CFO) was irregular and accordingly
constitutes improper conduct and maladministration.

9.1.5

Whether Mr Motsoeneng purged senior officials at the SABC

resulting in

unnecessary financial losses arising from

proceedings in the Commission for Conciliation Mediation and

Arbitration (CCMA), court and other settlements and,
accordingly, financial mismanagement and if this constitutes
improper conduct and maladministration.

9.1.6

Whether Mr Motsoeneng irregularly increased the salaries of

various staff members, including a shop steward, resulting in a
salary bill increase in excess of R29 million and if this

Page 8
amounted to financial mismanagement and accordingly
improper conduct and maladministration.

9.1.7

Whether there were systemic corporate governance failures at

the SABC and the causes of them.

9.1.8

Whether

the

Department

and

former

Minister

of

Communications unduly interfered in the affairs of the SABC,

giving unlawful orders to the SABC Board and staff and if the
said acts constitute improper conduct and maladministration.5

9.2

The Public Protector made a series of factual findings that had the
effect of upholding all of the complaints that had been made to her. The
SABC seeks to review and set aside all of her findings, except for the
finding against the Minister summarised in paragraph 9.1.8 above.

9.3

As a result of the findings that she made, the Public Protector ordered
the following relief, requiring the SABC board to ensure that:

9.3.1

All monies are recovered which were irregularly spent through

unlawful and improper actions from the appropriate persons.

9.3.2

Appropriate disciplinary action is taken against the following:

9.3.2.1

Mr Motsoeneng for his dishonesty relating to the

misrepresentation of his qualifications, abuse of
power and improper conduct in the appointments

Page 9
and salary increments of Ms Sully Motsweni, and
for his role in the purging of senior staff members
resulting

in

numerous

labour

disputes

and

settlement awards against the SABC; and

9.3.2.2

Ms Lulama Mokhobo, the outgoing General Chief

Executive Officer (GCEO) for her improper
conduct in the approval of the salary increment of
Mr Motsoeneng.

9.3.3

Any fruitless and wasteful expenditure that had been incurred

as a result of irregular salary increments to Mr Motsoeneng,
Ms Motsweni, Ms Khumalo, a shop steward and the
freelancers, is recovered from the appropriate persons.

9.3.4

In future, there is strict and collective responsibility by the

SABC Board members through working as a collective and not
against each other, in compliance with the relevant legislation,
policies and prescripts that govern the National Broadcaster.

9.3.5

A public apology is made to Ms P Ntombela-Nzimande, Ms C

Mampane (the complainants) and all its former employees
who had suffered prejudice owing to the SABC management
and Boards maladministration involving failure to handle the

SABC review at para 12

Page 10
administration of its affairs in accordance with the laws,
corporate policies and principles of corporate governance.

9.3.6

All their HR processes pertaining to creation of new posts,

appointments and salary scales and progressions are
reviewed to avoid a recurrence of what happened.

9.3.7

The roles and relationship of the SABC Board and COO are
defined, particularly in relation to the role of a relationship with
the GCEO to avoid the paralysis and premature exit of
GCEOs while adhering to established principles of corporate
governance.6

The first ground of review

10

The Public Protector made a series of factual findings in respect of the issues
summarised in paragraph 9.1 above. As a result of the factual findings that she
made, the Public Protector made the orders summarised in paragraph 9.3
above. In its review, the SABC argues that there were two possible approaches
that the Public Protector could have taken when making her decision:

10.1

First, her decision could have left the SABC at large to institute
disciplinary proceedings against Mr Motsoeneng in which the merits of
the charges against him were ventilated and, in the event that a finding

Public Protectors report at para 11.2.3

Page 11
of guilt was made in respect of some or all of the charges, an
appropriate sanction was determined.

10.2

Secondly, she could have made wide-reaching factual findings in

respect of Mr Motsoenengs conduct, and, since those factual findings
are final, any disciplinary proceedings instituted against Mr Motsoeneng
could only consider the question of sanction.7

11

The SABC seeks to review the decision of the Public Protector reflected in her
report because it gives effect to the second of these two options:8

11.1

It argues that the relationship between Mr Motsoeneng and the SABC is

self-evidently an employee-employer relationship.

11.2

It argues further that, in the labour-law context, both Mr Motsoeneng

and the SABC have various rights. Mr Motsoeneng has the right to have
any accusations of misconduct that have been levelled against him
ventilated in disciplinary proceedings against him.9 The SABC has the
right to exercise a wide discretion, within the recognised bounds of
labour law, to investigate any such allegations and take appropriate
disciplinary action if that becomes necessary.10

SABC review at paragraph 32

SABC review at paragraph 33

See, for example, Ramotsepane v Barmot Truck Hire [2002] JOL 9936 (LAC) at para 86

10

Harding v Petzetakis Africa (Pty) Ltd [2011] JOL 27893 (LC) at para 79

Page 12
11.3

It relies on the decision of the Constitutional Court in EFF v Speaker of

the National Assembly,11 which emphasised that the appropriateness of
any remedy ordered by the Public Protector would be dependent on the
particular factual and legal context. It submits that, in the context of
employment law, it would be inappropriate for the Public Protector to
make findings and rulings that have the effect of limiting the rights
mentioned in paragraph 11.2 above. But that is precisely what she did.

11.4

The Public Protector was, of course, perfectly entitled to investigate the

issues mentioned in paragraph 9.1 above. But, having done so, she
ought to have made an order that allowed the SABC to conduct its own
investigations of the issues highlighted in the report and to institute full
disciplinary proceedings in the event that this was considered to be the
appropriate response to the investigations.

12

It is submitted that the EFF judgment supports the arguments advanced by the
SABC. In that case, the Constitutional Court held the following:

12.1

The Protector Protector is empowered to take appropriate remedial

action. The words "take appropriate remedial action" point to a realistic
expectation that binding and enforceable remedial steps might
frequently be the route open to the Public Protector to take.12

11

Economic Freedom Fighters v Speaker of the National Assembly 2016 JDR 0578 (CC)

12

EFF (supra) at paragraph 67. Emphasis added.

Page 13
12.2

[W]hat legal effect the appropriate remedial action has in a particular

case, depends on the nature of the issues under investigation and the
findings made. As common sense and section 6 of the Public Protector
Act suggest, mediation, conciliation or negotiation may at times be the
way to go. Advice considered appropriate to secure a suitable remedy
might,

occasionally,

be

the

only

real

option.

And

so

might

recommending litigation or a referral of the matter to the relevant public

authority or any other suitable recommendation, as the case might be.
The legal effect of these remedial measures may simply be that those to
whom they are directed are to consider them properly, with due regard
to their nature, context and language, to determine what course to
follow.13

12.3

It needs to be restated that, it is the nature of the issue under

investigation, the findings made and the particular kind of remedial
action taken, based on the demands of the time, that would determine
the legal effect it has on the person, body or institution it is addressed
to.14

12.4

[T]he Public Protector's power to take appropriate remedial action is

wide but certainly not unfettered. Moreover, the remedial action is
always open to judicial scrutiny. It is also not inflexible in its application,
but situational. What remedial action to take in a particular case, will be

13

EFF (supra) at para 69

14

EFF (supra) at para 70

Page 14
informed by the subject-matter of investigation and the type of findings
made.15

12.5

Only when it is appropriate and practicable to effectively remedy or

undo the complaint would a legally binding remedial action be taken.16

12.6

Also informed by the appropriateness of the remedial measure to deal

properly with the subject-matter of investigation, and in line with the
findings made would a non-binding recommendation be made or
measure be taken.17

12.7

Whether a particular action taken or measure employed by the Public

Protector in terms of her constitutionally allocated remedial power is
binding or not or what its legal effect is, would be a matter of
interpretation aided by context, nature and language.18

13

It is submitted that, based on the decision of the Constitutional Court

summarised above, and understood in the light of the position in labour law,
there is a reasonable prospect that the review Court will find that the Public
Protectors decision falls to be set aside to the extent that it prevents the SABC
from ventilating all of the factual matters arising from the complaint directed at
Mr Motsoeneng in disciplinary proceedings to be instituted against him.

15

EFF (supra) at para 71

16

EFF (supra) at para 70(f)

17

EFF (supra) at para 70(g)

18

EFF (supra) at para 70(h)

Page 15
The second ground of review

14

Section 6(9) of the Public Protector Act 23 of 1994 provides that [e]xcept
where the Public Protector in special circumstances, within his or her discretion,
so permits, a complaint or matter referred to the Public Protector shall not be
entertained unless it is reported to the Public Protector within two years from
the occurrence of the incident or matter concerned.

15

The complaint relating to whether Mr Motsoeneng fraudulently misrepresented

his qualifications to the SABC, including stating that he had passed matric
when applying for employment, arose more than two years before the
complaint was made.

16

In its review, the SABC argues that section 6(9) establishes a default position
that the Public Protector may not entertain a complaint unless it is referred to
her within two years of the occurrence of the incident that is the subject of the
investigation. But, the Public Protector may exercise her discretion to entertain
the matter, even if the two-year rule has not been complied with, if there are
special circumstances. This entails that, when a complaint is referred to the
Public Protector more than two years after the alleged event occurred, she
must apply her mind to the question whether special circumstances warrant the
consideration of the complaint.19

19

SABC review at paragraph 39

Page 16
17

The Public Protector said the following about section 6(9) of the Public
Protector Act in her report:

17.1

A correct interpretation of that provision suggests that it is an

empowering rather than limiting clause. It empowers the Public
Protector as an Ombudsman to say no if she or he deems it fit. This is
an essential part of the independent of the Public Protector. 20 The
SABC points out in its review that this is an incorrect interpretation of
section 6(9). The provision empowers the Public Protector to say yes
(not no), but only if special circumstances warrant it.21

17.2

The allegation regarding Mr Motsoeneng not having the correct

qualifications was though old, a continuous problem as he continued to
rise and allegedly continued to harass and purge those that raised this
as a concern.22

17.3

In any event, even if such matters could be successfully argued to be

older than 2 years, it is my discretion to determine if it would be a
worthwhile investment in good governance to investigate. In the case of
the SABC, which has been reported widely regarding alleged corporate
governance failure, primarily involving human resources and financial
mismanagement, I would be remiss in my duties as Public Protector, if I

20

Public Protector report at paragraph 3.3.5

21

SABC review at para 40.1

22

Public Protector report at paragraph 3.3.6

Page 17
chose to look the other way in the face of complaints being lodged with
my office.23

18

In its review, the SABC argues that the decision of the Public Protector to
entertain the complaint about Mr Motsoenengs qualifications falls to be
reviewed and set aside because:

18.1

The Public Protector approached the enquiry in the wrong way she
started by assuming that she was empowered to consider the complaint
even though it was more than two years old, and that she then retained
a discretion to refuse to consider it. The position is the opposite and this
error clearly influenced the manner in which the Public Protector
exercised her discretion whether to consider the complaint.

18.2

There was a separate complaint relating to Mr Motsoenengs

appointment as Acting COO (see paragraph 9.1.1 above).

18.3

It was therefore incorrect for the Public Protector to find that the
complaint about Mr Motsoenengs qualifications when he joined the
SABC was a continuous problem.

18.4

To the extent that the Public Protector exercised her discretion at all on
the question whether special circumstances suggested that she should
consider the complaint even though it was more than two years old, her
reasoning in doing so is summarised in paragraph 17.3 above. It is

23

Public Protector report at para 3.3.7

Page 18
submitted that the reasoning given there is self-evidently circular
because each and every complaint to the Public Protector that falls
within her jurisdiction raises issues of profound importance. If that alone
constituted a special circumstance as envisaged by section 6(9) of the
Public Protector Act, then all complaints that are more than two years
old could be entertained. It is quite clear from the wording of section
6(9) that something special, which goes beyond the duty of the Public
Protector to investigate maladministration, is required. The SABC
therefore argues that the decision of the Public Protector is therefore
reviewable.24

19

It is submitted that the arguments raised by the SABC in its second ground of
review stand a reasonable prospect of being accepted by the review court.

The third ground of review

20

On the third category of review grounds (see paragraph 8.3 above):

20.1

The SABC has made clear in its founding affidavit in the review that it
awaits receipt of the record before formulating its fact-based grounds of
review.

20.2

In Afrisun Mpumalanga (Pty) Ltd25 the court said the following:

24

SABC review at para 41

25

Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T) at 628-9

Page 19
'The object of review proceedings in terms of rule 53 is to
enable an aggrieved party to get quick relief where his rights
or interests are prejudiced by wrongful administrative action
and the furnishing of the record of the proceedings is an
important element in the review proceedings: see Jockey Club
of South Africa v Forbes 1993 (1) SA 649 (A) at 660D I; S v
Baleka and Others 1986 (1) SA 361 (T) H at 397I 398A.
The applicant should not be deprived of the benefit of this
procedural right unless there is clear justification therefor: see
Crown Cork & Seal Co Inc and Another v Rheem South Africa
(Pty) Ltd and Others 1980 (3) SA 1093 (W) at 1095F H.'
20.3

It is well-accepted that an applicant for review is entitled to have access

to the review record in all cases, and regardless of the nature of its
grounds of review in the founding affidavit.26 Put differently, even if an
applicant is unable to substantiate its grounds of review in detail in its
founding affidavit, it is entitled to receive the record and supplement its
case thereafter.

20.4

The SABC submits that, until it has been furnished with the review
record, it is not possible to assess the prospects of success of its factual
grounds of review. It is submitted that it would not be appropriate in the
circumstances for this Court to find that the SABC has no prospects of
success in this regard.

Delay

21

The main focus of the parties (especially the Public Protector), when arguing
against the granting of the stay application, is on delay. They suggest that the

26

Fizik Investments (Pty) Ltd t/a Umkhombe Security Services v Nelson Mandela Metropolitan
University 2009 (5) SA 441 (SE) at para 71. See also Jockey Club of SA v Forbes 1993 (1) SA
649 (SCA) at 660

Page 20
SABCs review cannot succeed because of its delay in bringing it. But the
SABC has brought a condonation application in its review. It is well-accepted
that condonation in review applications turns largely on the prospects of
success and prejudice to other parties.27 The prospects of success cannot be
determined against the SABC before the record has been provided and a
supplementary affidavit filed. And none of the parties has yet filed an answering
affidavit in the SABC review pointing to any prejudice. It is therefore submitted
that the delay by the SABC in launching its review does not serve to undermine
the SABCs prospects of success at this stage.

Summation prima facie right

22

It is submitted that, in the light of everything said above, this Court should find
that the SABCs review raises triable issues and that it has a prima facie right to
succeed on review.

Direct link between the two cases

23

It is submitted that, for the reasons given below, any decision that this Court
might make in the DAs application will be materially affected if the SABCs
review succeeds.

The relief sought in the DA application

27

Camps Bay Rate Payers and Residents Association v Harrison [2010] 2 All SA 519 (SCA) at
para 54

Page 21
24

The DA seeks wide-ranging relief in its application. It may, however,

conveniently be grouped into five parts:

24.1

There is the relief aimed at declaring certain conduct of the SABC to be

unlawful, flowing from the findings made by the Public Protector in her
report.28

24.2

There is the relief aimed at reviewing and setting aside the disciplinary
enquiry conducted in respect of Mr Motsoeneng in October 2015.29

24.3

There is the relief that is directed to ensuring that only the question of
sanction is ventilated at fresh disciplinary proceedings to be held
against Mr Motsoeneng.30

24.4

There is the relief that is ancillary to the relief summarised in

paragraphs 24.2 and 24.3 above, which is aimed at establishing the
process that is to be followed in fresh disciplinary proceedings in
respect of Mr Motsoeneng.31

24.5

There is the relief aimed at ensuring that Mr Motsoeneng is suspended

pending the finalisation of the fresh disciplinary proceedings envisaged
by prayers 6 to 9 of the notice of motion.32

The link between the two cases

28

Prayers 1, 2 and 4 of the notice of motion

29

Prayer 5 of the notice of motion

30

Prayer 6 of the notice of motion

Page 22
25

The SABCs review of the Public Protectors report will have a material impact
on the relief sought in the DAs application. In particular:

25.1

Prayer 1 of the DAs application is based squarely on the notion that the
SABC did not properly implement the Public Protectors findings and
remedial action. If the Public Protectors report is set aside, prayer 1 will
fall away.

25.2

Prayer 2 is based on the alleged non-compliance by the SABC with the

decision of the Supreme Court of Appeal in SABC and others v
Democratic Alliance 2016 (2) SA 522 (SCA).

25.3

Prayer 3 is of no concern to the SABC because it relates to the conduct

of the fourth respondent (ie, the Minister).

25.4

Prayers 4 and 5 are based on the alleged deficiency of the disciplinary

enquiry held against Mr Motsoeneng in October 2015. Although the DA
raises various grounds for impugning the disciplinary enquiry, it makes it
quite clear in its founding affidavit that prayers 4 and 5 are directed
towards giving effect to those orders [ie, the various court orders] and
the remedial action of the public protector.33 So, if the Public
Protectors report is set aside, the underlying basis of this prayer will be
dramatically altered. Instead of arguing that the disciplinary enquiry
must be declared to have been unlawful because it did not do justice to

31

Prayers 7 to 9 of the notice of motion

32

Prayer 10 of the notice of motion

33

DA Application at para 95, pg 51

Page 23
what was required by the Public Protector, the DA will have to establish
a self-standing entitlement to impugn the legality of the disciplinary
proceedings. It is self-evident that the entire paradigm in which prayers
4 and 5 will be considered will dramatically be altered.

25.5

Prayer 6 is directed at ensuring that only the question of sanction is

ventilated at fresh disciplinary proceedings to be held against Mr
Motsoeneng. As shown above, one of the main grounds of review
raised by the SABC relates to the appropriateness of the Public
Protectors decision to the extent that it leaves only the question of
sanction to be determined in disciplinary proceedings against Mr
Motsoeneng. Therefore, the outcome of this prayer will differ markedly,
depending on whether the review is upheld or not.

25.6

Prayers 7 to 9 are directed towards the details of the disciplinary

enquiry that the DA argues ought to be convened. It may be that,
standing alone, the details envisaged by those prayers do not relate
directly to the question whether the Public Protectors report remains in
place. However, the question whether this Court should order the
holding of a fresh disciplinary enquiry is based, in large part, on the
Public Protectors report (as shown in paragraph 25.4 above). It makes
no sense, therefore, for the ancillary relief envisaged by prayers 7 to 9
to be considered in isolation of the underlying legal issues raised by
prayers 4 and 5 of the notice of motion.

25.7

Prayer 10 relates to the suspension of Mr Motsoeneng. If the Public

Protectors report is set aside, then there will be no basis for Mr

Page 24
Motsoeneng to be suspended. It follows that prayer 10 should only be
ventilated once the review is finalised.

26

It may be seen from the discussion above that all of the relief sought by the DA
is based squarely on the legitimacy, and binding status, of the Public
Protectors report. In those circumstances, it would be inimical to the interests
of justice for the DAs application to be ventilated while the SABCs review of
the Public Protectors report is pending.

27

As shown above, it will be argued by the SABC in its review that it was wrong
for the Public Protector to leave open only the issue of sanction; she ought to
have made a ruling that preserved the right of the SABC to ventilate all of the
factual disputes relevant to the conduct of Mr Motsoeneng in fresh proceedings.

27.1

It is clear that, if the SABCs argument in this regard is to succeed, then

there are two possibilities. Either the review court will also set aside the
factual findings of the Public Protector, in which case the whole basis
for prayers 5 to 9 of the notice of motion will fall away. Or, the review
court will uphold the SABCs point of law (about the scope of the Public
Protectors decision) and the scope of any future disciplinary enquiry will
differ significantly from what the DA proposes. Indeed, the whole basis
of prayer 6 of the DAs notice of motion will fall away because there the
DA asks for an order that the disciplinary enquiry have the purpose of
determining the appropriate sanction and disciplinary enquiry to be
taken against Mr Motsoeneng. If the SABCs review succeeds on the

Page 25
basis discussed here, then there will be no basis for the granting of
prayer 6.

27.2

It may therefore be seen from the discussion above that, with the
exception of prayer 2 of the notice of motion (which is addressed
below), the outcome of the relief sought by the DA will be determined by
the outcome of the review brought by the SABC. In those
circumstances, it would be in the interests of justice for the DAs
application to be stayed until the review is finalised.

The prayer relating to the order of the Supreme Court of Appeal

28

The question is whether prayer 2 of the notice of motion stands on a different

footing to the rest of the prayers discussed above.

29

The Supreme Court of Appeal made the following findings which are relevant to
the present application:

29.1

If the SABC were aggrieved by any aspect of the Public Protectors

report, its remedy was to challenge that by way of a review. 34

29.2

[A]bsent a review, once the Public Protector had finally spoken, the
SABC was obliged to implement her findings and remedial measures.35

34

SABC v DA (supra) at para 47

35

SABC v DA (supra) at para 47

Page 26
29.3

Any affected person or institution aggrieved by a finding, decision or

action

taken

by

the

Public

Protector

might,

in

appropriate

circumstances, challenge that by way of a review application. Absent a

review application, however, such person is not entitled to simply ignore
the findings, decision or remedial action taken by the Public
Protector.36

30

It would be open to this Court, in assessing prayer 2 of the DAs application, to

look only at the order of the Supreme Court of Appeal in the SABC case and
then decide whether the SABC failed to comply with it. However, the premise of
the entire Supreme Court of Appeal judgment was that the Public Protectors
report had not been set aside on review (which is emphasised by the extracts
that are summarised in paragraph 29 above). In this regard, it is important to
have regard to the order which was made by Schippers J in this Court, which
was confirmed on appeal by the Supreme Court of Appeal in the SABC appeal.
It appears in paragraph 21 of the Supreme Court of Appeal judgment. The relief
is largely repeated in the DAs application it relates to the convening of a new
disciplinary enquiry (and ancillary relief along the lines of prayer 7 of the DAs
notice of motion). It is quite clearly based squarely on the fact that the Public
Protectors report had not, at that stage, been the subject of a review.

31

Even if this Court is not with the SABC on this score, and takes the view that
prayer 2 is entirely self-standing, it would remain in the interests of justice for

36

SABC v DA (supra) at para 53

Page 27
the stay application to be granted. The overwhelming majority of the relief
sought by the DAs application will be materially affected by the outcome of the
SABCs review. Therefore, it would be a waste of judicial resources, and
constitute the inappropriate piecemeal ventilation of the DAs application, for
prayer 2 to be considered in isolation of the rest of the application.

Summation it would be appropriate to stay the DA application

32

It is submitted that, based on what has been said above, the outcome of the
DAs application will be materially affected by the outcome of the SABCs
review. The position does not apply in reverse. It is therefore submitted that this
Court court should stay the DAs application pending the finalisation of the
SABCs review.

Balance of convenience favours the SABC

33

Once an applicant for a stay like the SABC demonstrates first, that the pending
review raises triable issues and, secondly, that those issues impact on the
present application, the prejudice to the applicant for the stay if it is not granted
is self-evident. It is then for the party resisting the stay to establish prejudice
that militates against the stay the onus in this sense then shifts to the DA. In
its stay application, the SABC alleges that it will be severely prejudiced if the
stay application is not granted. Since, as demonstrated in detail above, much of
the relief sought by the DA would be profoundly affected if the Public
Protectors report is set aside, it argues that it would be grossly unfair for the

Page 28
DAs application to be considered while the review is pending.37 This is clearly
the case unless and until the SABCs review succeeds, this Court would be
obliged to proceed in the DAs application that the Public Protectors report is
valid until set aside. Everything contained in the report would have to be
accepted as correct. Quite clearly, this would make a profound difference to the
prospects of success of the DAs application.

34

The SABC argues, further, that the DA will suffer no prejudice if the stay
application is granted:

34.1

There have been several litigious disputes arising from the Public
Protectors report and the SABCs response to it.

34.2

The report itself was published over two years ago. In the light of all of
these facts, there can be no prejudice if the DAs application awaits the
outcome of the SABCs review.

34.3

Furthermore, it is in the interests of all of the parties, including the DA,

for the review to be finalised before the DAs application is heard. It is
an approach that is most conducive to the orderly future conduct of the
disputes relating to the Public Protectors report.38

37

SABC Stay Application at para 24, pg 16

38

SABC Stay application at para 25, pg 17

Page 29
35

The DA has filed an answering affidavit in the SABCs stay application. In its
answering affidavit, it argues that it will suffer prejudice if the stay application is
granted. But, it is submitted that it has failed to establish this:

35.1

The DA argues that granting the stay will allow the SABC to evade the
consequences of the SCAs order in SABC v DA (supra). It also argues
that granting the stay will allow the SABC to vacillate unlawfully in
response to the Public Protectors report.39 The DA also argues that the
public interest will be prejudiced because the DA and the public will be
deprived of effective relief in terms of the SCAs order.40

35.2

However, it is submitted that this reasoning is circular. The SABC is

perfectly entitled to pursue its legal rights. Once the review has been
finally determined, the scope of the Public Protectors findings and
remedial action (should any remain standing), will determine the relief, if
any, to which the DA is entitled in its application. Even if the DA is
correct about the implications of the SCAs order, it cannot be forgotten
that it has sought 10 prayers for relief, the majority of which would be
materially affected by the outcome of the SABCs review. What the DA
appears to have overlooked is that the SABCs stay application is based
on the notion that it would not be convenient for the DAs application to
be determined piecemeal.41 Convenience and the efficient use of

39

DA Answering Affidavit at para 34, pg 44

40

DA Answering Affidavit at para 35, pg 44

41

See Consolidated News Agencies (Pty) Ltd (in Liquidation) v Mobile Telephone Networks (Pty)
Ltd and Another 2010 (3) SA 382 (SCA) at paras 89 and 90; Minister of Home Affairs and
Another v Fourie and Another (Doctors for Life International and Others as Amici Curiae);
Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1)

Page 30
judicial resources, coupled with the prejudice that the SABC will suffer if
it is required to respond to the DA application before the review is
finalised, militate against the hearing of the DA application now.

36

In the circumstances, it is submitted that the balance of convenience clearly

favours the SABC.

CONCLUSION

37

It is submitted that the discussion above establishes that:

37.1

The SABC has launched a review that has reasonable prospects of

success.

37.2

If the SABCs review succeeds, it will have a material impact on the

outcome of the DAs application.

37.3

Because of these considerations, and because the balance of

convenience strongly favours the SABC, it is submitted that a proper
case has been made out for the SABCs stay application to be granted.

SA 524 (CC) at para 42; Hassim v Commissioner, South African Revenue Service 2003 (2) SA
246 (SCA) at para 10; Guardian National Insurance Co Ltd v Searle NO 1999 (3) SA 296 (SCA)
at 301B-D

Page 31
38

The Public Protector has opposed the granting of the stay application,42 and
should accordingly be liable for the SABCs costs jointly and severally with the
DA.43

ORDER SOUGHT

39

The SABC accordingly moves for an order:

39.1

staying the DAs application pending the finalisation of the SABCs

review of the Public Protectors report; and

39.2

that the DA and Public Protector pay the SABCs costs in the stay
application.

A. RAFIK BHANA S.C.

ADRIAN FRIEDMAN
Counsel for the SABC
Chambers, Sandton
30 May 2016

42

See Public Protectors Answering Affidavit at para 29

43

Chairman of the Board of the Sanlam Pensionfoends v Registrar of Pension Funds 2007 (3) SA
41 (T) at para 50