Johannesburg - The Special Investigating Unit (SIU) has set its sights on several former SABC board members and executives who approved the R11.5 million success fee paid to the public broadcaster’s erstwhile chief operations officer Hlaudi Motsoeneng.
The corruption-busting unit wants former members of the SABC board's governance and nominations committee – ex-board chairperson Professor Mbulaheni Maguvhe, former deputy chairperson Leah Khumalo, Dr Ndivhoniswani Tshidzumba, former company secretary Theresa Geldenhuys and former acting chief financial officer Maleshane Raphela – to repay the millions.
Motsoeneng, a controversial figure during his time at the SABC, was paid just over R11.5m for his role in helping the public broadcaster secure an R1.2 billion deal with MultiChoice in August 2016, which saw the Randburg-based company get unlimited and exclusive access to the SABC’s archives.
The SIU has told the South Gauteng High Court that the SABC's delegation of authority framework only has powers of recommendation and is always subject to board approval and that Maguvhe, Tshidzumba, Khumalo, Geldenhuys and Raphela breached the framework’s provisions as well as the Public Finance Management Act.
Last week, South Gauteng High Court Judge Réan Strydom dismissed Maguvhe, Tshidzumba and Raphela’s bid to have the bar, preventing them from filing their pleas to be removed. Maguvhe, Tshidzumba and Raphela claimed that another court already found Motsoeneng to be liable to repay the same amount claimed from them to the SABC and that the matter then became moot.
The three also claimed that the SIU wanted them to repay the same amount which was paid to Motsoeneng and that the unit would not be entitled to execute against any party for more than what remains outstanding at the date of execution.
Judge Strydom found that their argument would only stand if the amount ordered to be paid by Motsoeneng was paid and that on the evidence before the court the amount was not paid, but instead he (Motsoeneng) applied for leave to appeal that order.
"The causes of action also differ. The claim against Motsoeneng was premised on an illegal decision which resulted in the receipt of payment to him. The claim against the applicants (Maguvhe, Tshidzumba and Raphela) is premised on a breach of their fiduciary duties to have made the decision for payment. The SIU was entitled to sue the applicants despite other proceedings which were pending against Motsoeneng,” the judge found.
On July 15, the high court dismissed Motsoeneng’s application for leave to appeal its December 2021 decision ordering him to repay the SABC R11.5m including 15.5% annual interest calculated from September 2016 within seven days. Motsoeneng said he was taking his fight against the SIU to the Supreme Court of Appeal.
The SIU was mandated to institute the proceedings against the implicated board members and executives in September 2017 and issued notices to bar them from filing pleas in July 2020 because they were not indicating their intention to oppose the matter.
They were barred in August 2020 for failing to file their pleas.
Judge Strydom found that their prospects of successfully raising their defences are slim and are outweighed by the lack of explanation for the long delay to uplift the bar, preventing them from filing their pleas.
"The summons was issued on March 26, 2020, which is more than two years ago, and this matter needs, in the interest of justice and the administration of justice, to be advanced to finalisation,” the judge declared.
The SIU would not say this week when its application to force the former board members and executives would be before the court.
Maguvhe could not be reached for comment this week but has previously claimed that the deal between the SABC and MultiChoice was entered before he was appointed the board’s deputy chairperson in September 2013.
Khumalo did not respond to requests for comment on Friday while Tshidzumba, Geldenhuys and Raphela also could not be reached for comment.