Madonsela’s report on Motsoeneng is binding – lawyer

2014-08-20 19:00

The remedial action Public Protector Thuli Madonsela set out in her report on SABC COO Hlaudi Motsoeneng is binding.

Etienne Labuschagne, for Madonsela, today told the Western Cape High Court that it had been assumed the remedial action was no more than a recommendation and that an organ of state could act in conflict with it.

“That, in our submission, would sound the death knell for the effectiveness of the office of the public protector,” he said.

Madonsela’s submissions as a respondent were being heard during the DA’s urgent application to have Motsoeneng suspended pending a review of the decision to permanently appoint him.

The political party has asked the court to immediately suspend him because he was a “toxic influence”. It believed his permanent appointment was fraught with irrationality and unlawful processes.

Labuschagne said there was a recent “pernicious” tendency by organs of state and government to avert complying with Madonsela’s remedial action, either by appointing a task team to procure a report with a different conclusion, or to obtain another opinion from a law firm.

If organs of state did not abide by their constitutional obligation to enforce the remedial action, it constituted interference with the Chapter Nine institution and amounted to an offence in the Public Protector Act.

“The single most powerful weapon in the hands of the public protector that strengthens our democracy is the power to take remedial action ... we would urge your lordship to find that her power to take remedial action is an authentic constitutional power.”

This power could not be watered down but, at best, regulated, said Labuschagne.

The court was not bound by Madonsela’s findings and was in a position to dictate its own remedial action to be followed.

Lawyers for Motsoeneng, the SABC board and Communications Minister Faith Muthambi had argued that Madonsela’s report offered proposals or recommendations.

They further argued the DA was “jumping the gun” and undermining the rule of law because Madonsela, Muthambi and the board were still in talks.

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