AFRICAN Content Movement (ACM) leader and ex-SABC chief operations officer Hlaudi Motsoeneng is taking his fight to keep the R11.5 million success fee for negotiating a R1.19 billion deal with MultiChoice to the Constitutional Court.
The Supreme Court of Appeal (SCA) this week dismissed Motsoeneng’s application for the reconsideration of the refusal of his petition for leave to appeal, which Acting Judge Jenine Khan’s December 2021 ruling requiring him to repay the R11.5m including interest.
Motsoeneng was paid the millions in two instalments in September 2016 following a decision of the SABC board’s governance and nominations committee a month earlier.
According to the Special Investigating Unit (SIU), which launched the application to force Motsoeneng to repay the success fee, there was no performance agreement between him and the SABC, and that other than performance bonuses his contract did not make any other provision for other rewards such as a success fee.
While his contract made provision for performance bonuses, it provided that annual performance bonuses are not guaranteed and may be granted at the board’s sole and absolute discretion taking into account, without limitation, the SABC’s performance and that of the chief operating officer measured against the key performance indicators and/or areas set out in the performance agreement.
The SCA found that Motsoeneng’s contemplated appeal had no reasonable prospects of success, as the application hardly meets the higher exceptional circumstances threshold.
The court found that the application was filed eight days late, which it found not to be excessive although it noted that on the merits, which must be weighed against the other factors, one cannot be as charitable to Motsoeneng.
”On that score, the scales are tipped firmly against condoning the default and reviving the appeal, thereby entitling us to refuse the indulgence of condonation,” reads the judgment written by Judge Visvanathan Ponnan.
In response to the judgment, Motsoeneng told the Sunday Independent that the war was not over as he was taking the matter to the Constitutional Court.
He said the SCA dismissed his case on technicalities.
“If they deal with the merits, there is no way the SABC and the SIU can win,” Motsoeneng added.
He defended the millions he received, stating that he got the money for “his project” – establishing SABC news channel, which is available on MultiChoice’s DStv platform.
”I was not the COO (chief operations officer) at the time, I was a group executive (cooperate affairs),” explained Motsoeneng.
The SIU said the SCA’s ruling declining to grant condonation to Motsoeneng for the lapsed special leave to appeal means Acting Judge Khan’s original order stands, and paves the way for the unit to continue with the processes to recover the R 11.5m success fee plus interest, as well as legal fees for clinching the MultiChoice deal.
Motsoeneng filed the appeal record late and the SCA registrar rejected this and this meant he must apply for condonation (of the filing of the record), which was granted, but he also filed his heads of argument late again and the appeal lapsed, according to the SIU.
Meanwhile, Motsoeneng’s ACM also contested this week’s national and provincial elections and expressed his confidence that his party would do well.
”The numbers will come up later, I depend on rural areas. I depend on Maluti-a-Phofung (local municipality in the Free State). My ward, where I vote, I'm number one on the provincial and regional ballot. The ANC took national [but] I'm number two,” he said.