Advocate tears into Hlaudi Motsoeneng over musicians’ ‘unlawful’ payments

The Special Investigating Unit’s (SIU’s) case against former SABC chief operations officer (COO), Hlaudi Motsoeneng and others got underway at the Special Tribunal on Monday.

The Special Tribunal is hearing the SIU and SABC’s review application, with the two parties seeking to recover R2.5 million that Motsoeneng and former executives paid some musicians in royalties in 2016.

At the time, 53 music legends such as Abigail Kubeka, Blondie Makhene, Mara Louw and the late Steve Kekana were paid a once-off R50,000.

While both the SIU and SABC want the amount paid back, the applicants also want the Tribunal to declare the decision for the payments invalid and set aside.

No policy

Representing the applicants, advocate Jabu Motepe said during Monday’s virtual proceedings that the SABC’s Operations Committee, chaired by Motsoeneng and the executives, took the decision to approve the payments to the musicians unlawfully as there was no policy.

“We say in this case, the irregularity is very clear, and in fact if one analyses carefully what the first respondent says [is that] look the decision I took was in line with what Section 2 of the Broadcasting Act says which is to promote cultural issues and all that.

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“We say this is wrong because that clause specifically says the SABC must come up with a policy to enhance this cultural [issues], but that’s what they did here. The development of a policy is one, but to make a decision upon which the SABC had to pay is another so there was no policy,” he said.

Motepe also argued that the committee’s decision to pay the musicians was not in a business plan which required expenditure clarity.

“The operation committee [says] it approved the decision when it did not even have a business case in front of it. In terms of the delegation of authority framework, they ought to have had a business case before deciding on this matter,” he said.

No business plan

The committee, Motepe indicated, was required to make a three-year business plan – containing information of operational plans – and submit it to the SABC’s executive committee (Exco).

“The payment for the legends is not part of this three-year business plan that would have been approved.”

The advocate also pointed out that Motsoeneng’s claims that he sourced funds from the private sector, such as MultiChoice, to be able to pay the musicians was false.

“Mr Motsoeneng says he raised monies from private sources and [it seems like the committee] took a decision on the basis that private funding is coming along, but evidence shows that it not true. All the monies that were paid was internal from the SABC. None of the decision makers evaluated all those facts… they simply approved,” he added.

He said Motsoeneng decided to award 180 musicians – which later increased to 215 – with R50,000 each, costing a total of R10.7 million.

Motepe further stated: “That is inapplicable because what we are dealing with here is not operational expenses. The business case makes it clear that it is a once-off gratuity payment to the legends so that it could not have been said to be linked to operation of the SABC.”

According to the advocate, the committee had no independent decision making powers, especially where finances are involved, as it is only allowed to approve to the threshold of up to R50,000.

READ MORE: Hlaudi Motsoeneng to appeal ‘outlandish’ R11 million pay back ruling

He added that there was no budget for the payments.

“Now in this case as I have indicated there was no policy, the matter was not budgeted for, it is not a matter that falls within operations, it is not in the business plan, and yet the operations committee proceeded to make the decision and we say that is wrong in law.”

Concluding with his submissions, Motepe said all members of the operations committee must be held liable, and that the applicants seek full recovery of the funds.