The controversial decision taken by the SABC operations committee to pay 53 music legends R50,000 each was irregular and unlawful, but the Special Investigating Unit (SIU) cannot recoup the paid R2.4m because the recovery time has lapsed.
This was the judgment delivered by Special Tribunal judge Lebogang Modiba on Tuesday.
“It is declared that the decisions taken by the respondents on July 24 2016 and on September 5 2016 (the impugned decisions) to reward the musicians identified as music legends with an amount of R50,000 are declared irregular and unlawful,” said Modiba in her judgment.
Modiba, however, said the SIU could not recover the R2.4m since the time to recover the monies had lapsed as per the Prescription Act.
“However, it is not just and equitable to set aside the impugned decisions in respect of the 53 musicians that have been paid in terms of section 172(1)(b) of the Constitution.
“The payments were made more than five years ago. The loss the SABC incurred pursuant to the payments has been found to have prescribed,” said Modiba.
The SIU and the SABC brought an application before the tribunal to set aside the decision and recover the money paid to music legends, including Blondie Makhene, Abigail Kubeka, Marah Louw and the late Steve Kekana.
Modiba said there was no SABC policy that justified the payments.
“There is no policy within the SABC authorising the impugned decisions. Neither was the MPL [music legends project] authorised in terms of the SABC’s annual and operational plan for the relevant financial year(s).
“The board did not issue a resolution authorising the MPL. The identification of music legends who would benefit from the MPL was arbitrary as there was no approved criteria.
“Yet, SABC funds reserved for emergencies were used to fund the MLP. The SABC derived no benefit from the MLP. Thus, funds used to pay MLPs represent a loss to it the MPL had not been budgeted for. Contrary to representations by [former SABC chief operating officer Hlaudi] Motsoeneng, the SABC did not receive any funds from MultiChoice for the MLP,” said Mobiba.
She said the committee had breached the organisation’s internal policies and the Public Finance Management Act (PFMA) when they took the decision.
“...When they took the impugned decisions, the respondents failed to observe a high standard of professional ethics, efficient, economic and effective use of resources and accountable public administration as required in terms of section 195 of the Constitution.
“The other respondents failed as required in terms of s 57(1) of the PFMA to ensure the effective, efficient, economical and transparent use of financial and other resources within their area of responsibility. The respondents have also breached the provisions of the internal policies of the SABC cited earlier,” she said.
Motsoeneng on Tuesday said he was relieved that the committee members were not ordered to pay back the money spent on the music legends.
“I welcome the judgment but I disagree with the unlawfulness [part] of the decision. The judgment says there was no policy for local content. Everyone knows there was a policy when I introduced 90% [local content].
“That policy gave me all the powers to take decisions on local content. The decision [to pay music legends] was lawful. I am happy that we are not going to pay a single cent for the decision we took,” said Motsoeneng.
SIU spokesperson Kaizer Kganyago said the organisation welcomed the judgment.
“The judgment will serve as a consequence management to other public servants that they should follow procedure before taking decisions,” said Kganyago.
kokam@sowetan.co.za
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