Plot twist! Hlaudi Motsoeneng mounts whistleblower defence in disciplinary hearing

Former SABC COO Hlaudi Motsoeneng has tried to have his disciplinary hearing halted by alleging that comments made during an April media conference were “protected public disclosure” – a defence usually used by whistleblowers.

Motsoeneng is facing disciplinary charges over a media conference he held last month at which he criticised the interim SABC board for planning to scrap the 90% local music policy he had set up.

On Thursday morning his legal team argued that the hearing‚ being chaired by Advocate Nazeem Cassim‚ should rather be heard at the Commission for Conciliation‚ Mediation and Arbitration (CCMA).

• The heat's on Hlaudi: Former SABC chief to face the music after hearing refuses to throw him a lifelineControversial former SABC COO Hlaudi Motsoeneng might finally have to face the music after a last-minute bid to halt a disciplinary hearing failed last night.  

Advocate Andy Bester‚ arguing for Motsoeneng‚ told Cassim that he has no jurisdiction to chair the disciplinary hearing because the comments Motsoeneng is being charged with having made fall under protected disclosure.

"This whole process that you have been instructed to proceed with‚ will simply be before that person simply for the reason that the employee alleges that utterances are protected public disclosures‚" argued Bester.

"This is an allegation by an employee regarding the employer and therefore it should go to the arbitrator [and] I am informed that this referral has been lodged with the CCMA‚" he said.

• ‘Unemployable’ Hlaudi Motsoeneng could face the musicControversial former SABC COO Hlaudi Motsoeneng may finally face the music after a last minute bid to halt a disciplinary hearing failed on Wednesday night. 

Protected public disclosure is usually used as a defence in which employees say they were wrongfully charged or dismissed for exposing corruption.

The Protected Public Disclosure Act of 2000 was created to safeguard employees who expose criminal activity‚ or where unfair discrimination has taken place.

Advocate Anton Myburgh‚ representing the SABC‚ argued that there was no need for this matter to be referred to the CCMA.

"The disciplinary hearing relating to those charges is not a reprisal for making a protected disclosure and therefore in that sense‚ there is no reason for those charges to be dealt with by the CCMA.

• I’m ‘unemployable’‚ says Hlaudi in an attempt to halt disciplinary hearingSuspended SABC executive Hlaudi Motsoeneng wants to clear his name from damning findings contained in the Public Protector's report three years ago‚ claiming it has "stunted" his career progression. 

"There is absolutely no chance of Mr Motsoeneng to be able to convince a CCMA commissioner that this is a protected disclosure‚" said Myburgh.

In his ruling‚ Cassim said this application must fail and the disciplinary hearing must proceed.

"In my respective view‚ none of those allegations fall within paragraph B or C of the disclosure. I am not satisfied that the test of bona fides is contemplated in the inquiry before me‚ namely‚ as a result of an occupational detriment‚ that this employee is subjected to any disciplinary action.

• Hlaudi days ahead as Motsoeneng to appear before disciplinary hearingFormer SABC COO Hlaudi Motsoeneng will on Wednesday afternoon appear before a disciplinary hearing on comments he made at a media briefing last month. 

"In my view‚ this application must fail [and] I'm deliberately refraining from saying more than is necessary about bona fides because I don't want it to impact on the ultimate issues which I have to decide on credibility‚" added Cassim.

Motsoeneng is facing charges of bringing the SABC into disrepute following a lengthy and bizarre media conference he held in April.

In the media conference‚ he railed against the SABC board for planning to scrap the 90% local music policy he had implemented and also took a swipe at interim board member Krish Naidoo‚ whom he accused of "selling out".