Africa-Press – South-Africa. Judge Lebogang Modiba has reserved judgment in the case against the SABC’s former chief operating officer, Hlaudi Motsoeneng, and nine former executives, in which the public broadcaster seeks to recover R2.5 million paid to “music legends”.
On Monday, the Special Tribunal was told there was undue delay in bringing the case to court, and therefore, it should be dismissed.
Advocate MacGregor Kufa, representing two of the respondents, former general manager of commercial Tshifhiwa Mulaudzi and former general manager for operations Nompumelelo Phasha, said: “The application falls flat on its stomach and should be dismissed.”
The SABC and Special Investigating Unit (SIU) had jointly instituted legal proceedings with the tribunal to recover the money paid to “music legends”.
The broadcaster wants the Tribunal to review and set aside the decision, taken on 26 July 2016 by Motsoeneng and the executives, to “unlawfully award” an amount of R50 000 each to 180 musicians which later increased to 215.
It also wants the respondents to repay the money in their personal capacity.
But Kufa said this case should not have “seen a single light of this Tribunal at all”.
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“We say that SABC and SIU are not ordinary litigants. They are organs of state; they are there to protect and assist the courts in protecting the Constitution. They have not done so,” he told the Tribunal.
Kufa said the decision to pay the music legends was made five years ago, and the SABC could have taken action against the legends.
Still, they “folded” their arms and waited to institute proceedings before the Tribunal, he added.
Kufa also accused the SIU of failing to explain why it delayed taking the case to court, saying the respondents were now “forced” to answer to something that had happened five years ago.
Motsoeneng is the first respondent in the case.
Other respondents are former acting chief financial officer Audrey Raphela, former group executive for sports Solly Motsweni, former group executive for radio Leslie Ntloko, former group executive for television Nomsa Philiso, former group executive for news and current affairs Simon Tebele, the former executive of corporate affairs, Bessie Tugwana, and former acting group CEO James Aguma.
On Monday, advocate Steven Budlender SC, representing Tugwana, said his client could not be held personally liable.
He added there was prejudice against his client because of the delay.
Budlender said Tugwana understood Motsoeneng intended to get private funding for the legends, so it could not be said his client acted in a “corrupt, fraudulent, reckless or grossly negligent manner”.
“The question that should be asked is, ‘have they [the SIU and SABC] proved on the facts that my client was guilty of bad faith or gross negligence?’ My lady, not remotely.
“She didn’t attend the group exco meeting. She merely attended the [operations committee] meeting which she understood that Mr Motsoeneng intended to raise funds with private funders. There is no claim against my client because her liability has not been established.”
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Advocate Nikiwe Nyathi for Motsoeneng said the decision that was made was rational, adding the SIU and SABC failed to make a case why they delayed bringing the application before the Tribunal or court.
Nyathi told the Tribunal his client had already stated the SABC board was aware and endorsed the project.
However, the SIU denied the allegations without providing an affidavit explaining its reasons.
Earlier, the SIU argued Motsoeneng had said he had raised money from private sources, including MultiChoice.
But the evidence “shows that is not true. We have a letter from MultiChoice, we have affidavits from people from finance that there were never private funds. All the monies that were paid are from the SABC. None of the decision-makers evaluated all those things. They simply approved”, it argued.
Responding, Nyathi accused the SIU of failing to provide the SABC’s audited financial statements, adding it did not prove the payments came from the SABC and not private funders.
“They do not even attempt to provide this information,” she said.
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