The ruling comes as a vindication for Madonsela after a 2014 Western Cape High Court judgment in the same case provided government with apparent leverage to overrule her reports, notably on the Nkandla controversy. Thus the SCA upheld Judge Ashton Schippers’s ruling regarding Motsoeneng, but criticised his pronouncement on the powers of the chapter nine institution as potentially confusing.
Schippers had held that its findings were not binding in the absolute, but could not be ignored without cogent argument. However, earlier this year he granted the SABC and Motsoeneng leave to appeal against his judgment, noting that he believed they stood little chance of success but that it was important for democracy that the higher court settle the debate over the status of the office of the Public Protector.
In doing so, the SCA said that it viewed the term watchdog as an appropriate metaphor for the office and added “this watchdog should not be muzzled”. It said that the only route for those who disagreed with the findings of the Public Protector, was filing a review application.
The SCA added that a person or a body that disagreed with a ruling of the Public Protector may not embark on a parallel investigation and decide that the outcome of that trumps the findings made by the protector.
This is what the government did with Madonsela’s report “Secure in Comfort” which found that President Jacob Zuma had unduly benefited from the multi-million rand security upgrade to his private, rural home in Nkandla and ordered that he repay the state for luxuries included in the project.
Parliament instead endorsed a report by Police Minister Nathi Nhleko which dismissed Madonsela as not qualified to decide on issues of security and absolved Zuma from any liability.
Regarding Motsoeneng, the court said that given his position at the public broadcaster, the disciplinary process risked being compromised if he remained in his position while it unfolded.