Former SABC chief operating officer Hlaudi Motsoeneng believes he has found a legal loophole to get a fair hearing at the Constitutional Court following a string of defeats at lower courts, including the Supreme Court of Appeal (SCA) in Bloemfontein, Free State.
This week, Motsoeneng filed an application asking the apex court to allow him to place another affidavit before it, arguing that a dramatic shift in how the SCA interprets reconsideration applications has fundamentally altered the legal landscape in his long-running battle with the South African Broadcasting Corporation (SABC) and the Special Investigating Unit (SIU).
Motsoeneng’s affidavit refers to a 4 Seasons Logistics CC v Kgotse judgment delivered on February 4, which he argues marks a decisive break from earlier SCA authority by holding that the requirement for “exceptional circumstances” in reconsideration applications under section 17(2)(f) of the Superior Courts Act is not a jurisdictional fact to be determined by the reconsideration court itself, but a discretion that primarily lies with the president of the SCA.
In September last year, the Constitutional Court refused him leave to appeal a January 19, 2023 decision of the SCA, which had dismissed, with costs, his challenge of the order to repay money paid to him by the SABC.
That SCA ruling stemmed from a judgment of the Gauteng Local Division of the High Court in Johannesburg, which declared unlawful and invalid the SABC board’s August 2016 decision to pay Motsoeneng R11.5-million as a “success fee” for his role in securing a MultiChoice deal. The High Court ordered Motsoeneng to repay the money, plus interest, placing his total liability at about R18-million.
However, Motsoeneng believes he earned the money. He told Sunday World that his intervention helped create SABC News Channel 404.
“I raised that money specifically for channel 404. If that money is unlawful, then the same applies to the channel, as SABC does not have a licence to own it.
“If I must lose my money, the SABC must also lose that channel,” said Motsoeneng.
The SIU has since recovered R6 476 515.21 from Motsoeneng’s pension benefits. At the time, the unit welcomed the Constitutional Court’s refusal to hear his appeal, saying it cleared the way for the state to pursue the outstanding balance.
In its 4 Seasons judgment, the SCA ruled that earlier judgments, including Motsoeneng v SABC, wrongly imposed an additional procedural barrier that was “plainly at odds” with the wording and purpose of the statute and formally overruled those dicta, reshaping how reconsideration applications must be approached going forward.
Mosoeneng’s view is that this development makes it imperative for the Constitutional Court to hear him again. He said the February 4 SCA ruling in 4 Seasons Logistics CC v Kgotse directly undermines the legal reasoning that was used to block his reconsideration application under section 17(2)(f) of the Superior Courts Act.
He insists that his march to the Constitutional Court was not a strategic choice but a consequence of what he now says was a flawed precedent.
Motsoeneng claims that if the law had been interpreted as it is now, the SCA should have handled his case. “If 4 Seasons is later upheld to have been correctly decided, the logical conclusion is that it would not have necessitated my present applications which are pending before this court.”
He warns that refusing to engage with the implications of the new SCA judgment would cause him severe prejudice.
The SIU has told Sunday World they were not aware of Motsoeneng’s new affidavit but expressed their nonchalance about it. “We will raise it with our attorneys of record for advice,” said SIU spokesperson Kaizer Kganyago.
“However, considering the fact that Mr Motsoeneng was not successful in his previous two attempts brought to the Constitutional Court, we struggle to see how a Supreme Court of Appeal judgment, which is a court lower than the Constitutional Court, could alter the position.”
SABC spokesperson Mmoni Ngubane confirmed that the public broadcaster is aware of Motsoeneng’s latest court application, but would not comment.
