Matlou v South African Broadcasting Corporation and Others (70546/2019) [2020] ZAGPPHC 310 (7 June 2020)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO.

(2) OF INTEREST TO OTHER JUDGES: YES.

(3) REVISED.

CASE NO: 70546/2019

In the matter between:

MATSOBANE CHARLES MATLOU

Applicant

and

SOUTH AFRICAN BROADCASTING CORPORATION First Respondent

THLOLOE COMMISSIONS INQUIRY Second Respondent

JOE THLOLOE N.O

Third Respondent

STEPHEN TAWANA N.O Fourth Respondent

J U D G M E N T

DAVIS, J

[1] Introduction

1.1 The applicant in this application is an erstwhile provincial news editor of the South African Broadcasting Corporation Soc Ltd (“SABC”).

He features in a report of a Commission of Inquiry established to investigate “Interference in the Decision-making in the

Newsroom of the SABC” (“the Commission”). The Commission is also referred to in the papers as the “Thloloe

Commission”, after its chairperson, an eminent journalist.

1.2 This is a review application whereby the applicant seeks to have the report of the Commission reviewed and set aside.

[2] Background regarding the Commission:

2.1 Allegations of mismanagement of the SABC, but in particular, improper interference with editorial practices in its news reporting, have circulated for many years.

2.2 In 2014 the (then) Public Protector issued a report, Report No 23 of 2013/2014 titled “When Governance and Ethics Fail”. The report detailed irregularity in the appointment of Mr Hlaudi Motsoeneng who served as the acting Chief Operating Officer of the SABC from 2011 – 2013. The report also dealt with instances of interference in the SABC by a former Minister of Communication.

2.3 The initial failure by the SABC Board to implement the remedial action prescribed by the Public Protector lead to litigation, culminating in the decision reported as SABC v Democratic Alliance 2016(2) SA 522 (SCA). This was followed by litigation concerning the failure to uphold the highest standards of journalistic integrity,

which also culminated in an appeal, reported as Mvoko v SABC 2018(2) 291 (SCA).

2.4 This, in turn, lead to the establishment of the Commission on 31 May 2018.

[3] The Commission’s terms of reference:

The Commission’s terms of reference included the following:

3.1 To investigate the nature, prevalence, merits and veracity of all the allegations, grievances and/or complaints of editorial, political, business and commercial interference;

3.2 To establish whether there is evidence to substantiate the allegations made;

3.3 To review any or all submissions made before by any person in respect to any of the allegations, grievances and/or complaints lodged by the employees;

3.4 To make factual findings and conclusions based on evidence/testimony presented;

3.5 To play an inquisitorial role;

3.6 To interview all SABC employees and/or other persons mentioned in the allegations, grievances and/or complaints lodged by the employees.

3.7 To advise the SABC Board on what steps that need to be undertaken; and

3.8 To recommend appropriate corrective action.

[4] The findings of the Commission which feature the applicant:

4.1 The applicant features very little in the report, the findings and the recommendations of the Commission.

4.2 The Commission’s hearings spanned from 27 June 2018 until the issuing of the report on 25 February 2019. The “ambit and focus” of the report concerned the reign of Mr Motsoeneng and the actions of the erstwhile Minister of Communications, Ms Muthambi.

4.3 The report was ultimately made public by the SABC on 6 August 2019.

4.4 The first reference to the applicant contained in the report is only at paragraph 184 thereof. The context wherein the references to the applicant are made, starts from paragraphs 177 and 178 of the report. Therein the Chair of the Commission stated the following:

“Ntuli on Regional Editors

177 In my discussion with staff at the Mafikeng and Northern Cape Offices, I was informed that Motsoeneng appointed provincial editors who were not qualified for the job. It is important for this inquiry to investigate how the appointments were made and what impact they’ve had on the editorial standing of these offices.

178 She alleges that at least one of them catapulted from scale 40-something to scale 120 or 125 after he was made provincial editor”. (“40-something” should be “four-something” when one reads the record of Ntuli’s oral evidence).

4.5 The “Ntuli” to which reference is made, is Ms Busisiwe Ntuli who was the executive producer of “Special Assignment”, an investigative journalistic television programme. She had made written submissions to the Commission and had also orally testified before the Commission, from whence the above comments were extracted.

4.6 As aforementioned, the next reference to the applicant in the report is in paragraph 184 which reads as follows:

“184 The Commission looked at the personnel files of some of the people who were fingered. Nothando Maseko, Sebolelo Dithlakanyane, Hlaudi Motsoeneng and Charles Matlou”.

4.7 Nothing further is said about the applicant until paragraphs 192 and 193, which read as follows:

“Charles Matlou

192. All the recruitment processes were followed, except the verification. He was appointed without the verification of his qualifications. There were also outstanding documents.

193. It is not clear in the file if the verification was done in the end or whether the required documents were finally submitted”.

4.8 The only reference to the applicant in the Commission’s recommendations, appears in paragraph 273 (which is repeated in paragraph 5 of the recommendations contained in the executive summary of the report):

“273 Motsoeneng’s instructions to Human Resources to institute disciplinary hearings against employees or to dismiss, promote or appoint others must be reviewed. Also, Human Resources to do an audit of the appointments, promotions or sideways shifts of senior news management, particularly Nothando Maseko, Sebolelo Ditlhakanyane and Charles Matlou. Where the records are found to be incomplete and the gap is not explained, the promotion/appointment must be reversed and the position re-advertised, with the person currently occupying it being invited to reapply”.

4.9 So, to summarise, all that is said by the Commission in its report regarding the applicant, is that Ms Ntuli has alleged that Motsoeneng had appointed unqualified persons to the positions of provincial editor, sometimes by way of extraordinary promotions. The Commission had further determined that, in respect of the applicant, all the recruitment processes had been followed, expect that it could not be determined if his qualifications had been verified. Apparently there were also some documents outstanding.

4.10 The recommendations to the Board regarding audit processes to be followed in respect of appointments or promotions of senior news management personnel were made in general terms except insofar as three people were named, which included the applicant.

[5] The reviewability of the Commission’s report and recommendations:

5.1 Are the reports of commissions of inquiry and their recommendations reviewable? In the recent case of Corruption Watch and Another V Arms Procurement Commission and Others 2020 (2)SA 165 (GP), this court, presided over by three judges-president, after extensive and comparative investigation of the legal matrix applicable to this court’s powers of review when it comes to commissions of inquiry, found as follows (at [15]):

“While a court must not fail to take account of the purpose of a commission of enquiry and hence the wide discretion given to commissioners to investigate within the scope of their given terms of reference and to make findings and recommendations that they deem meet, the purpose of a commission, namely to restore public confidence in the situation which is investigated and hence in the process of government, dictates that it must operate within the framework of the principles of legality”.

5.2 Although the abovementioned finding was made in the context of a judicial commission of enquiry, I find no cogent reason why the principle of legality should not also find application in respect of the present commission. The Commission was instituted by a Parliamentary ad hoc committee as part of the exercise of oversight functions over a State owned entity. The exercise of these oversight functions constitute the exercise of public power and the work of the commission is simply an extension thereof. As such, it should also be bound by the doctrine of legality. To hold otherwise would offend against the values sourced in our Constitution. As Chaskalson P found in Pharmaceutical Manufacturers Association of SA: in re Ex parte President of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC) at [85]:

“It is a requirement of the rule of law that the exercise of public power by the Executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given … . It follows that in order to pass constitutional scrutiny the exercise of public power … must at least comply with this requirement. It is does not, it falls short of the standards demanded by our Constitution for such action”.

5.3 This principle was confirmed in Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) at [49] as follows:

“… it is by now axiomatic that the exercise of public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of the rule of law”.

5.4 Another reason why the inquiry by the commission constitutes executive rather than administrative action as contemplated in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), is that the recommendations made by a commission such as the present has no “direct external legal effect” as contemplated by PAJA. The commission takes no “decisions”. In the words of the respondents, the commission’s recommendations are “inchoate” until implemented by someone else, in this case the HR department when it conducts the recommended audit and the SABC when it acts on the findings of such an audit. In this regard, I find that the Commission is, both in its nature and composition, to be distinguished from the type of statutory internal boards of inquiry in terms of section 101 of the Defence Act 42 of 2002, the conduct of which has been found in Minister of Defence and Military Veterans and Another v Mamasedi 2018(2) SA 305(SCA) to constitute administrative action. I therefore conclude that the findings and recommendations of the

commission are subject to a “legality review” and not a “PAJA review”.

5.5 It is in this regard apposite to refer to the following foreign authorities quoted with approval in the Corruption Watch – case (supra): the first is Canada (Attorney General) v Canada (Commission of inquiry on the Blood system) [1997] 3 SCR 440 wherein it was found that the fact that a commission only stated findings of fact, expressed opinions and made recommendations did not mean that it may breach the principles of natural justice. The second is Re: Pergamon Press (Ltd) [1971] 1 ch 388 (CA) [1970] All ER 535 where Lord Denning held that although certain proceedings conducted by inspectors appointed by the Board of Trade were not judicial proceedings or even quasi–legal proceedings in that they decided or determined nothing, “… their report may lead to … consequences. I am clearly of the opinions that the inspectors must act fairly. This is a duty which rests on them, as on many other bodies …” .

5.6 It offends one’s sense of fairness if an investigator were to only listen to the version of a “complainant” without considering the version of the “accused” before making a finding or recommendation. It would lead to the manifestly “unfair” situation that a person suspected or accused of wrongdoing for the first time hears about it after a recommendation which may adversely affect him, has already been made. Were an investigator to proceed “unfairly”, that is to say to listen to only one version of the alleged facts, another danger might present itself. It is the danger that the investigation is then not “conducted with an open and enquiring mind”. See: Public Protector v Mail & Guardian Ltd and Others 2011 (4) SA 420 (SCA) at [21].

5.7 In order to proceed fairly, a commission of inquiry must therefore hear all sides to a story, not in the adversarial audi alterem partem context, but in the context of conducting the inquiry which it has been tasked to do with the proverbial enquiring mind, seeking to ascertain as complete as possible set of facts before reaching a conclusion or making a recommendation. It must of course also always act within its scope of reference. Conduct falling short of any of these requirements would not satisfy the legality test referred to above.

5.8 Having determined the possible grounds of review relevant to this application, it is also clear when one compares the extensive nature, scope and ambit of the Commission’s inquiry to the very limited extent that the applicant featured therein, that he could never be entitled to a review and setting aside of the whole report and all the Commission’s findings. The question to be decided can therefore only be whether the applicant is entitled to a review and setting aside of those limited portions of the Commission’s report and recommendations in which the applicant features.

[6] The review itself:

6.1 It is common cause that the contents of the paragraphs contained in the report wherein reference had been made to the applicant were based largely, if not almost exclusively, on the “complaints” raised by Ms Ntuli.

6.2 It is also common cause that while other implicated employees, such as Mr Motsoeneng and others, had been invited to address the Commission or to give evidence, the applicant had not similarly been invited. In fact, he was not even furnished with Ms Ntuli’s submissions so as to elicit his comments or contributions to the issues raised therein.

6.3 In the answering affidavit by Mr Thloloe the following explanation is furnished for this: “At that time, it was premature to invite the applicant to come and refute the allegations against him as his case was HR related and would fall squarely within the recommendations made to the First Respondent [the SABC]”.

6.4 As far as a justification goes, this explanation is unsustainable and in fact amounts to an admission of having proceeded “unfairly” as set out in paragraphs 5.6 and 5.7 above. In doing so, the commissioners breached the legality principles set out in these paragraphs, entitling the applicant to have the references to him specifically excised from the report and the recommendations. This does not mean that the recommendations regarding the conducting an “HR audit” in general terms should fall away. It only means that the report should not single the applicant out without having given him a “fair” opportunity of responding to the allegations “fingering” him (to use the Commission’s wording).

6.5 There are three other reasons why I find that the applicant is entitled to having references to him by name removed and they are briefly these: one of the terms of reference of the Commission requires it to interview all persons “mentioned in … allegations, grievances and/or complaints…”. The applicant was clearly a person “mentioned in allegations”, He was implicated by Ms Ntuli as a beneficiary of the improper conduct ascribed to Mr Motsoeneng. In the first instance, in not interviewing the applicant, not only was a requirement of the Commission’s terms of reference ignored, but secondly, the requirement of “keeping an open mind” was equally ignored. Thirdly, proceeding in this fashion also breached the term of reference referred to in paragraph 3.4 above, namely the requirement to establish facts as opposed to merely collating allegations.

6.6 In the event that I may have been mistaken in finding that the conduct of the Commission constituted executive action and insofar as it may constitute administrative action, then even more so would the applicant be entitled to the expunging of his name: he was not given prior notice of the possible adverse findings against him, he was not given any opportunity to be heard in respect of allegations made against him and he was not given any notice of the report or the recommendations mentioning him. The conduct was therefore both procedurally and substantively unfair and excluded relevant considerations. The applicant should then be granted relief in terms of sections 6(2)(c) and 6(2)(d)(iii) of PAJA.

[7] Relief to be granted:

7.1 I find that the references to the applicant by name in the report and the recommendations of the Commission should be removed therefrom. This does not mean that the recommendations in general terms regarding “HR audits” should be set aside. The remainder of the report and the recommendations wherein the applicant does not feature, should remain intact.

7.2 As to costs, the applicant was only successful to the limited extent mentioned above. Moreover, he failed to take the court into his confidence by disclosing what the true facts were regarding his appointment and qualifications. His attack against the report was also formulated in an unduly wide and almost scurrilous fashion, alleging bias and capriciousness without any real or substantive foundation. In the exercise of my discretion, I find that each party should pay its own costs.

[8] Order:

1. The report and recommendations of the Commission of Inquiry into Interference in the Decision-making in the Newsroom of the South African Broadcasting Corporation dated 25 February 2019, is hereby reviewed and set aside to the extent only that the references to the applicant by name be excised and deleted from paragraph 5 of the recommendations contained in the executive summary of the report as well as from paragraphs 184 and 273 of the report and that paragraphs 192 and 193 of the report be deemed to be deleted.

2. Each party shall pay its own costs.

electronically signed

N DAVIS

Judge of the High Court

Gauteng Division, Pretoria

Date of Hearing: 25 May 2020

Judgment delivered electronically: 7 June 2020

APPEARENCES:

For the Applicants:

Adv J M Hoffman

Attorney for Applicants:

Leslie Sedibe Incorporated

c/o Jacobson & Levy Incorporated, Pretoria

For the Respondents:

Adv. S S Jonase

Attorney for Respondents: Mothle Jooma Sabdia Incorporated,

Pretoria