The SABC on Thursday argued that Hlaudi Motsoeneng’s appointment was an internal arrangement and did not constitute an exercise of public power, and thus a court could not review it.
The public broadcaster was on Thursday applying to the Western Cape High Court for leave to appeal its earlier ruling on Motsoeneng’s appointment as group executive of corporate affairs.
The court ruled in December that his appointment was unlawful and that he could not hold any position at the broadcaster, unless a Public Protector’s 2014 report on his appointment as chief executive officer was overturned, or a new disciplinary inquiry cleared him.
Stephan du Toit, for the SABC, said the judgment set an important precedent.
“It would allow, in future, outsiders to interfere with the employment policies of any state department or any organ of state,” he said.
Du Toit said Motsoeneng’s appointment constituted an internal arrangement, and was within the chief executive officer’s managerial competence.
While the SABC was a public body, not all its decisions constituted an exercise of public power, he said.
“The public has no interest in the staffing of the SABC. The SABC’s employees are its employees, not employees of the State.”
Du Toit contested argument by Anton Katz, for the Democratic Alliance, that taxpayers’ money was at stake.
There was “evidence on paper” that only 3% of the SABC’s money came from government, and 85% from its commercial activities.
He felt it would be better for the Supreme Court of Appeal to make a definitive decision on what constituted the exercise of public power.
In reply, Katz said the floodgates regarding courts’ interference in the appointment of public servants were opened after a Constitutional Court judgment in 2012.
The court ruled that President Jacob Zuma’s appointment of former National Director of Public Prosecutions Menzi Simelane was invalid.
Du Toit countered that Simelane’s and Motsoeneng’s positions could not be compared.
Katz said, even if he was wrong, Motsoeneng’s position was not on the same level as that of a cleaner.
“This is one of those positions akin or analogous to the COO’s position. This appointment is clearly the exercise of public power.”
He said it would be difficult to argue that courts were not allowed to review decisions that involved corruption or nepotism.
Katz argued that the SABC’s acting group CEO James Aguma, and not the SABC board, should pay the costs of the application.
Du Toit said doing so would be unfair because there was no recklessness or acting in bad faith.
Judges Owen Rogers and Andre le Grange reserved judgment until next week. Le Grange said they would need a day or two to consider the arguments.