Former SABC head Hlaudi Motsoeneng has lost an appeal bid to retain the almost R12m pension payout from the national broadcaster, the Supreme Court of Appeal (SCA) said in a ruling that described the payout as “unlawful, unauthorised and unwarranted”.
The SCA ruled that previous court orders that Motsoeneng repay about R12m to the SABC could not be faulted, and dismissed his appeal bid.
Motsoeneng can approach the Constitutional Court.
The controversy dates back to 2016, when Motsoeneng was commended for apparently raising R1.19bn for the SABC. Subsequently, the governance committee approved a success fee, via a pension payout, of R11.5m to be paid in two instalments.
However, in 2017 an audit challenged his entitlement to this payout, leading to a reconstituted SABC board taking measures to withhold it.
The SABC found he was not entitled to this payout.
Despite resistance from the SABC Pension Fund, the high court granted a temporary interdict in 2018 halting the payout until the case was fully deliberated. The court highlighted the absence of requisite board approval and the potential financial jeopardy such payments could impose on the SABC.
It pointed to a deliberate concealment of the audit trail and the committee’s lack of authority to sanction the payment.
In 2021, the temporary interdict became final when acting high court judge Jenine Khan ordered Motsoeneng to repay the R11.5m, after finding the payout “invalid”. Motsoeneng’s subsequent appeals were denied, culminating in the SCA’s recent dismissal of his case.
‘Exceptional circumstances’
Writing for a unanimous court, SCA judge Nathan Ponnan said that both Motsoeneng and the SABC had mischaracterised the case. The key consideration for the SCA was whether there were “exceptional circumstances” for the SCA to overturn the finding of not only Khan’s judgment but that of two of its own judges, who dismissed Motsoeneng. This was due to his first appeal to the SCA being rejected by two SCA judges.
In terms of court procedure, Motsoeneng now had a “higher” threshold to meet, which Ponnan said was “exceptional circumstances”. This generally meant an aspect of such significance that a court would be wrong to not hear the case. This includes factors such as a key piece of evidence being overlooked or a severe misapplication of the law.
Counsel for both Motsoeneng and the SABC “appeared not to appreciate that the requirement of the existence of exceptional circumstances is a jurisdictional fact that had to first be met”, Ponnan wrote.
After going through the previous judgments against Motsoeneng, Ponnan concluded none of them “can be faulted”. This meant there was no exceptional circumstances warranting the overturning of the previous judgments.
Ponnan noted, for example, that Khan’s high court judgment was “detailed” and Motsoeneng had failed to show which aspect of the 65-page judgment warranted overturning.
“Given that there are no reasonable prospects of success in the contemplated appeal, much less special circumstances, [Motsoeneng’s] application hardly meets the higher ‘exceptional circumstances’ threshold set,” Ponnan concluded. “It must accordingly fail.”
He dismissed Motsoeneng’s case with costs.
As a result, the previous high court order for Motsoeneng to repay the R11.5m now stands. The only avenue Motsoeneng has left is an appeal to the Constitutional Court. If he does file an appeal, the order for repayment will be suspended until the Constitutional Court decides later this year.
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