I don’t owe SABC R11.5m, Hlaudi claims in court papers

Former SABC boss Hlaudi Motsoeneng has claimed he received R6.7m only instead of the R11.5m the public broadcaster is demanding from a success fee he was paid in 2016.

Motsoeneng, who will be back in the Johannesburg High Court tomorrow in an effort to overturn a court ruling, which found his success fee payment irregular and ordered that he repay the money, is arguing that the court erred in declaring his payment unlawful.

In court papers filed last week, Motsoeneng argued that even if it is found that his payment was irregular, the SABC is not entitled to recover R11.5m from him as he received R6.7m, with the balance of R4.7m paid directly to Sars by the public broadcaster.

“The applicant [Motsoeneng] demonstrated to the court that the actual amount of money that the SABC paid to him was R6,790,043.98, not R11,508,549.12. The SABC paid R4,718, 505.14 over to the SA Revenue Service [SARS] as tax, obviously irregularly if the payment of the success fee was unlawful,” Motsoeneng said in court papers filed to appeal the judgment.

The court had also ruled that if Motsoeneng did not pay the R11.5m with 15.5% interest, then the SABC Pension Fund was ordered to pay back the money to the SABC from funds due to the former SABC boss.

Motsoeneng argued that the SABC needed to approach SARS and amend its employer declaration in relation to him to claim back the R4.7m.

According to section 99(1)(a) of the Tax Administration Act 28 of 2011, the SABC had a period of three years to approach SARS and do adjustment to the original assessment and get back the R4,718,505.14. It seems that the SABC did not do so even though it was of the view that the success fee was irregular,” stated Motsoeneng.

Motsoeneng’s pension worth in excess of R10m has been withheld by the SABC Pension Fund pending the finalisation of this matter.

He argued that the court erred in ordering that he pay back R11.5m and also got it wrong when it ruled that the SABC’s governance and nominations committee, which developed policies to allow for his success fee to be paid had no mandate to do so.

“The court also failed to take into account that the SABC benefited from the applicant’s innovation to this day. Channel 404 still exists and it operates on the basis of the outside funding which the applicant secured from the private sector market,” he argued.

Motsoeneng also argued that by granting the SABC and SIU condonation for bringing the application late to court, the “court failed to take the delay into account in crafting a just and equitable remedy”.

He said the court effectively made the SABC benefit from the delay at his expense.

“This is a case where justice and equity demanded that, despite its nominal success, the SABC should not be allowed to benefit from having given the applicant false impression that it had the power to pay him a success fee and/or for delaying in instituting the review proceedings while the payment of the success fee was publicly known as far back as 2016,” argued Motsoeneng.

He is also challenging the 15.5% interest that the court has imposed on the money that was paid to him.

In December, the Johannesburg High Court gave Motsoeneng seven days to repay the public broadcaster R11.5m as it declared it invalid and set aside SABC’s decision taken in August 2016 to award him a success fee.

Judge Jenine Khan ordered that Motsoeneng repay the SABC the money with 15.5% interest per annum calculated from September 13 2016 within seven days from December 15 before he indicated that he would be appealing the judgment.

↯↯↯Read More On The Topic On TDPel Media ↯↯↯

»Share Your Opinion On TDPel Media«