Former SABC chief operations officer Hlaudi Motsoeneng believes the Johannesburg High Court decision, which saw him and nine other former executives dodge a R2.5m bullet, will empower SOE executives to take decisions.
The court ruled on Monday that former SABC boss Motsoeneng and other former executives will not be liable to repay almost R2.5m which was used to pay music legends in 2016.
The Special Investigating Unit (SIU) and the SABC had hauled the former executives, including Motsoeneng and former group CEO James Aguma, to the court in a bid to appeal against a decision of the Special Tribunal that the debt had prescribed.
Motsoeneng, who led the decision to pay music legends whose music has been used by the SABC during apartheid without due compensation being paid, told TimesLIVE Premium he was happy with the court's decision.
Had the court decided to make them personally liable, that would have hampered other executives' ability to make decisions, he said.
“Had the court decided that we have to repay the R2.4m ... then no decision was going to be taken at any state-owned entity as executives would be scared that they may have to repay monies in future,” said Motsoeneng.
The court found that to rule differently would offend against the Prescription Act and render it ineffective.
“In this case, the appellants [SABC and SIU] would therefore not be entitled to recover any monies, because the Opcom [SABC operations committee] decision would have been valid until set aside and with no retrospective effect,” the court ruled.
The court also found that it was “not suggested that any of the respondents personally benefited from the Mzansi Music Legends scheme. Nor is it suggested that the scheme was adopted in bad faith or for some ulterior purpose.”
“The Special Tribunal described the objectives of the scheme as ‘laudable and noble’ ... the fact of its unlawfulness notwithstanding,” the court found.
Motsoeneng also hailed this finding by the court, saying it illustrated that they had “acted in good faith and there was no personal gain”.
On Monday, Motsoeneng still stood by his decision, though the Special Tribunal set it aside in 2022, saying some of the music legends that benefited were in hospital and unable to take care of themselves.
For the sake of Botho [Ubuntu], the SABC should have used the money I raised which amounted to R5m to pay other music legends
— Hlaudi Motsoeneng
“I was trying to save their lives because a commission set up by [former] president Jacob Zuma to look into the issue of payment of royalties had decided that royalties would be paid from 2006, meaning that a majority of them were excluded,” Motsoeneng said.
He said he was unhappy at the time to see music legends that had been exploited by the SABC during apartheid still struggling and dying “as paupers”.
The funds used to pay the artists were not from the coffers of the SABC and he had merely “used the SABC as a vehicle to receive” the funds, Motsoeneng said.
“The SABC should have never pursued this matter [in the Special Tribunal] and for the sake of Botho [ubuntu], they should have used the money I raised which amounted to R5m to pay other legends,” Motsoeneng said.
The court found that the repayment relief could not be just and equitable.
“To order repayment, in this case, would be to create the possibility that state officials who expend money on the state’s behalf in good faith, with laudable aims and with no discernible motive for personal gain may be held personally liable for that money if their conduct is later found to have been unlawful,” the court found.
The court found it was well-established that state officials were generally immune from damages claims arising from negligent acts performed in their official capacities in good faith.
Motsoeneg and his executives' decision in 2016 led to the establishment of the Mzansi Music Legends scheme, which was partially implemented before it was frozen and abandoned after 53 musicians had been paid R50,000 each, in 2016 and 2017.
The SABC and the SIU got the Special Tribunal to set aside the controversial 2016 decision, but had also wanted to recover more than R2.4.m from Motsoeneng and the nine other executives.
The executives successfully argued before a full bench of the high court that the SABC was aware in 2017 that the decision to pay the musicians was irregular after receiving a report of a forensic investigation it had launched, but waited until January 2021 before instituting legal steps to recover the money.
The 53 music legends, among them Blondie Makhene, Abigail Kubeka, Mara Louw and the late Steve Kekana, were paid in recognition of their exploitation under apartheid when the SABC had used them without paying due royalties.
