Democratic Alliance v Motsoeneng and Others (18107/16) [2017] ZAWCHC 5 (7 February 2017)

Democratic Alliance v Motsoeneng and Others (18107/16) [2017] ZAWCHC 5 (7 February 2017)

The court found that the SABC's decision to appoint Motsoeneng as GECA was indeed an exercise of public power and therefore subject to legality review. The arguments advanced by the SABC did not demonstrate reasonable prospects that another court would reach a different conclusion. The court's analysis was supported by Constitutional Court judgments, particularly Khumalo, which confirmed that such appointments by public bodies are reviewable. The challenge to the authority of Ncube Incorporated Attorneys was dismissed, as sufficient evidence of authority was provided. The personal costs order against Mr Aguma was justified and not made arbitrarily or capriciously, and there were no...

Citation
[2017] ZAWCHC 5
Parties
Applicant: Democratic Alliance; Respondent: George Hlaudi Motsoeneng; Respondent: South African Broadcasting Corporation SOC Ltd (SABC); Respondent: Board of Directors of the SABC; Respondent: Acting Group Chief Executive Officer of the SABC; Respondent: Public Protector; Respondent: Mbulaheni Maguvhe; Respondent: Leah Thabisile Khumalo; Respondent: James Aguma; Respondent: Audrey Raphela; Respondent: Nomvuyo Memory Mhlakaza; Respondent: Ndivhoniswani Tshidzumba; Respondent: Vusi Mavuso; Respondent: Krish Naidoo; Respondent: Bessie Tugwana; Respondent: Chairperson of the Portfolio Committee for Communications of the National Assembly; Respondent: Speaker of the National Assembly; Respondent: Minister of Communications; Respondent: Azvihangwisi Faith Muthambi; Respondent: President of the Republic of South Africa; Respondent: African National Congress; Respondent: Thandeka Gqubule; Respondent: Foeta Krige; Respondent: Suna Venter; Respondent: Busisiwe Ntuli; Respondent: Krivani Pillay; Respondent: Jacques Steenkamp; Respondent: Lukhanyo Calata; Respondent: Vuyo Mvoko; Respondent: SOS Support Public Broadcasting Coalition; Respondent: Media Monitoring Africa; Respondent: Helen Suzman Foundation; Respondent: Freedom of Expression Institute; Respondent: South African National Editors Forum; Respondent: Right2Know Campaign; Respondent: Broadcasting, Electronic, Media & Allied Workers Union
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 February 2017
Case Number
18107/16
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Review
Outcome
Applications for leave to appeal by the SABC and Mr Aguma are dismissed with costs, including costs of two counsel.
Judges
Le Grange, Rogers
Legal Topics
Principle of Legality, Public Power Exercise, Costs Orders, Review of Administrative Action, Authority of Legal Representatives
Administrative Law Constitutional Law Principle of Legality Public Power Exercise Costs Orders Review of Administrative Action Authority of Legal Representatives

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Parties

Democratic Alliance

Applicant

George Hlaudi Motsoeneng

Respondent

South African Broadcasting Corporation SOC Ltd (SABC)

Respondent

Board of Directors of the SABC

Respondent

Acting Group Chief Executive Officer of the SABC

Respondent

Public Protector

Respondent

Mbulaheni Maguvhe

Respondent

Leah Thabisile Khumalo

Respondent

James Aguma

Respondent

Audrey Raphela

Respondent

Nomvuyo Memory Mhlakaza

Respondent

Ndivhoniswani Tshidzumba

Respondent

Vusi Mavuso

Respondent

Krish Naidoo

Respondent

Bessie Tugwana

Respondent

Chairperson of the Portfolio Committee for Communications of the National Assembly

Respondent

Speaker of the National Assembly

Respondent

Minister of Communications

Respondent

Azvihangwisi Faith Muthambi

Respondent

President of the Republic of South Africa

Respondent

African National Congress

Respondent

Thandeka Gqubule

Respondent

Foeta Krige

Respondent

Suna Venter

Respondent

Busisiwe Ntuli

Respondent

Krivani Pillay

Respondent

Jacques Steenkamp

Respondent

Lukhanyo Calata

Respondent

Vuyo Mvoko

Respondent

SOS Support Public Broadcasting Coalition

Respondent

Media Monitoring Africa

Respondent

Helen Suzman Foundation

Respondent

Freedom of Expression Institute

Respondent

South African National Editors Forum

Respondent

Right2Know Campaign

Respondent

Broadcasting, Electronic, Media & Allied Workers Union

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment on Review

Legal Issues

  1. 1 Whether the decision to appoint Motsoeneng as GECA constituted the exercise of public power and was susceptible to legality review.
  2. 2 Whether the SABC's application for leave to appeal had reasonable prospects of success.
  3. 3 Whether the costs order against Mr Aguma personally was justified.

Ratio Decidendi

The court found that the SABC's decision to appoint Motsoeneng as GECA was indeed an exercise of public power and therefore subject to legality review. The arguments advanced by the SABC did not demonstrate reasonable prospects that another court would reach a different conclusion. The court's analysis was supported by Constitutional Court judgments, particularly Khumalo, which confirmed that such appointments by public bodies are reviewable. The challenge to the authority of Ncube Incorporated Attorneys was dismissed, as sufficient evidence of authority was provided. The personal costs order against Mr Aguma was justified and not made arbitrarily or capriciously, and there were no...

Court Disposition

Applications for leave to appeal by the SABC and Mr Aguma are dismissed with costs, including costs of two counsel.

Orders

  • The application by the second respondent (the SABC) for leave to appeal is dismissed with costs including those attendant on the employment of two counsel.
  • The application by the eighth respondent (Mr Aguma) for leave to appeal is dismissed with costs including those attendant on the employment of two counsel.