The Special Tribunal judge hearing the application by the SABC for the recovery of money paid by its former executives to 53 music legends has expressed concern that the legends had not been joined in the application.
Judge Lebogang Modiba made this remark before hearing the application by the SABC and the Special Investigating Unit, which seek to declare that a decision made by former SABC COO Hlaudi Motsoeneng and nine other former executives to pay the music legends R50,000 be set aside.
The one-off payments of R50,000 were made to 53 music legends in 2016 for the role they played during the liberation struggle.
The SABC and Special Investigating Unit have approached the tribunal to recover this amount. They allege the money was not budgeted for and the payment did not comply with regulatory framework on procurement. It was also not in line with legislative prescripts including the Public Finance Management Act.
Among those who were paid were the late Steve Kekana, musician and actress Mara Louw, kwaito musician Arthur Mafokate and David Kramer.
Motsoeneng and the nine other former executives are opposing the application.
They are former acting CFO Audrey Raphela, former group executive for sport Solly Motsweni, former group executive for radio Leslie Ntloko, former group executive for TV Nomsa Piliso, former news and current affairs executive Simon Tebele, former executive of corporate affairs Bessie Tugwana, former general manager: commercial Tshifhiwa Mulaudzi, former general manager: operations Nompumeleleo Phasha and former group acting CEO James Aguma.
Modiba stood the matter down to allow the parties to read the papers filed out of time by two former executives at the SABC, Mulaudzi and Phasha, who are respondents in the application.
“There is an issue of concern I need to raise up front. It is of concern to me that the legends themselves who benefited from the payments were not joined to these proceedings,” Modiba said.
She said this was the issue some of the former executives took in their response to the application.
Modiba said she thought that the intervention application filed by the South African Music Legends Forum last week – whereby it wants the application by the SABC and SIU dismissed with costs – would cure the problem of non-joinder of the legends.
She said the intervention application did not seem to represent all the legends in their personal capacity.
“I am not satisfied that the intervening application represents these persons,” Modiba said.
Advocate for the SABC, Tshepo Sibeko SC, told Modiba that the music legends have no material interest in the matter because the course of action is against the decision taken by the former SABC executives to pay them.
“Some of them have passed on since the matter started. If that is the course of conduct that the tribunal wants adopted, I would take instruction in that regard and bring an application to join them” Sibeko said.
MacGregor Kufa, for Mulaudzi and Phasha, said the issue of issue of non-joinder was important and needed to be addressed.
He said if there was a finding that there was undue enrichment – and absent the presence before the tribunal of the legends who benefited – the SABC must go after the respondents who did not in any manner benefit from the payments.
“That is fatal and defective to the application absent those legends.”
Other respondents did not raise the issue of non-joinder and said should there be a need for the postponement, it should be borne by the SABC and the SIU.
The matter continues.