The SABC and SIU were ordered to pay the legal fees of Motsoeneng and Bessie Tugwana in respect of the court finding that the SABC’s claim had been prescribed.
The SABC and the Special Investigating Unit (SIU) have suffered a major blow in their quest to recoup R2.42 million from ex-COO Hlaudi Motsoeneng and nine other members of SABC’s executive and operating committees.
The Gauteng High Court in Johannesburg found that, among others, Motsoeneng and his former colleagues had “not personally benefited” from the Mzansi Music Legends scheme and neither was it suggested that the scheme was adopted in bad faith or for some ulterior purpose.
The SABC and SIU were ordered to pay the legal fees of Motsoeneng and Bessie Tugwana in respect of the court finding that the SABC’s claim had been prescribed.
Motsoeneng, Tugwana, Audrey Raphela, Sully Motsweni, Leslie Ntloko, Nomsa Philiso, Simon Tebele, Tshifila Mulaudzi, Nompumelelo Phasha and James Aguma were accused by the SABC and SIU of having played a role in adopting and implementing the scheme, and that they all to some extent were responsible for its unlawfulness.
The SIU investigated the approval of the scheme adopted by the SABC on July 24 and September 5 2016. It entailed paying a once-off gratuity of R50 000 to individuals identified as having achieved “legendary” status, and who had, for reasons of past racially discriminatory practice, not been accorded the kind of financial rewards for their work that successful artists could expect on Wednesday, irrespective of their race.
The scheme – which paid R50 000 to 53 music legends before its ceasing – turned out to have been unlawfully adopted and implemented and was subsequently frozen and ultimately abandoned.
Having concluded that the Mzansi Music Legends scheme had been unlawfully adopted and implemented, the SABC and the SIU applied to the Special Tribunal to review and set the scheme aside, according to the court judgment.
This had to be done because the implementation of the scheme constituted ‘administrative action’, within the meaning of section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
“The SABC was accordingly not entitled to simply mothball the scheme and disavow any entitlements the unpaid ‘music legends’ might have acquired under it...The respondents contended that they had no knowledge of the unlawfulness of the scheme, and that such knowledge could only have been acquired after they had left the SABC and an interim board had ordered the forensic investigation that unearthed the scheme and established its unlawfulness. The Special Tribunal agreed with these contentions and held that the SABC acquired knowledge of the unlawfulness of the scheme in August 2017, when the forensic investigation was ordered. That, the Special Tribunal held, is when the repayment claim fell due. Since an ordinary debt prescribes after three years, the repayment claim prescribed, at the latest, at the end of August 2020, several months before the self-review was instituted. On this basis, the Special Tribunal held that the repayment claim had prescribed,” the judgment read.
Judge Stuart Wilson said many of the respondents disputed the extent of their involvement in the conception of the scheme.
“Some say that they had little to do with it, and that they were not present at the meeting at which it was finally adopted. The Special Tribunal specifically refrained from setting aside the payments that had already been made under the scheme at the time it declared the scheme unlawful.
“In these circumstances, I do not think that the repayment relief can be just and equitable. “To order repayment in this case would be to create the possibility that state officials who expend money on the state’s behalf in good faith, with laudable aims and with no discernible motive for personal gain may be held personally liable for that money if their conduct is later found to have been unlawful. It is well-established that state officials are generally immune from damages claims arising from negligent acts performed in their official capacities in good faith.”
Reacting to the outcome, Motsoeneng said he did not regret giving money to the artists.
If given the opportunity, he would do it again to transform the artists’ lives, he said. He added he was particularly proud that the funds went to “noble causes”.
What was more important for him, was that he had played his role in making sure that the SABC was transformed, he said.
Motsoeneng emphasised that the funds paid to the artists, and which opened a can of worms for him and other SABC executives, was not SABC money, as alleged by the SIU.
He claimed there was a witch-hunt against him.
He said the legal action taken by the SABC and SIU was a political ploy.
SABC’s acting Group Executive for Corporate Affairs and Marketing, Mmoni Seapolelo, said: “The SABC has noted the judgment and is studying it.”
SIU spokesperson Kaizer Kganyago said they are also “still studying the judgment”.
* Additional reporting Sipho Jack
Cape Times