Sixteen months after Communications Minister Faith Muthambi made Hlaudi Motsoeneng the South African Broadcasting Corporation's (SABC’s) chief operating officer (COO), High Court Judge Dennis Davis on Friday set aside the appointment as unlawful and irrational.

Davis said in the judgment delivered in the Western Cape High Court that whatever the reasons for Muthambi’s “obvious preference” for Motsoeneng, her decision last year to appoint him in a permanent capacity was incongruent with legality.

In doing so, Davis embraced the recent ruling by the Supreme Court of Appeal which held that nobody could ignore the findings of the Public Protector in favour of that of a parallel investigation.

The chapter nine institution had directed the SABC to institute a disciplinary process against Motsoeneng for misrepresenting his qualifications, inflating his own salary and allegedly purging staff at the public broadcaster. In spite of this, Muthambi, in July 2014, confirmed his permanent appointment to the post.

The Democratic Alliance (DA) then went to court seeking a review of that decision, sparking a long legal wrangle which the party says should have implications for President Jacob Zuma because of similarities in the way he has sought to sidestep Public Protector Thuli Madonsela’s findings on the Nkandla scandal.

Davis awarded costs in the DA’s favour, ordering the SABC, the SABC board, the chairperson of the board, Muthambi and Motsoeneng to pay the costs of the application, including the fees of two counsel.

James Selfe, the chairperson of the DA’s federal executive, welcomed the ruling as “an opportunity to start getting the SABC back on track” and a rebuke to Muthambi, but added wryly that the broadcaster would probably waste more public money appealing it.

In his judgment, Davis noted that the authors of the Constitution had probably expected the official opposition to turn to Parliament as the appropriate forum to dispute Motsoeneng’s appointment.

“But lawfare, the use of law as a replacement for political warfare, has become commonplace in South Africa,” he remarked.

He said notwithstanding that this case could be considered “lawfare”, the nature of the DA’s arguments obliged the court to examine the legality of Muthambi’s decision, “only after which deference must be paid to the choice of a democratically elected minister”.

The DA had contended that her decision, made the morning of July 8 after a late-night recommendation by the board on the 7th, was irrational given Madonsela’s damning findings against Motsoeneng.

When hearing argument from the DA’s lawyer Anton Katz, Davis had expressed reluctance to wade into the issue of the powers of the Public Protector. However, his judgment notes that much of the argument before the SCA in another aspect of the same case — an urgent application by the DA to force the SABC to suspend Motsoeneng pending the outcome of the review — turned on precisely that issue.

Last year, before the matter went on appeal, Judge Ashton Schippers ruled in the Western Cape High Court that the findings of the Public Protector were not binding but that the decision by an organ of state to reject those findings may not in itself be irrational.

Schippers held that in this case Muthambi had acted irrationally by rejecting Madonsela’s findings. The SCA returned to the principle of the powers of the Public Protector and criticised the Schippers judgment, ruling that the only remedy for somebody who disagrees with a finding of the Public Protector was launching a court review.

Davis concluded: “The judgment of the SCA is clearly binding on me as a judge of the High Court. I should add that I embrace its findings with jurisprudential enthusiasm.

“Accordingly, on the basis of the law contained in the SCA judgment, it must follow that, as the Public Protector’s report was binding on the SABC and the minister, there can be no basis in which the minister can argue that a report, binding on her, could be ignored to such an extent that it would still be irrational to appoint Mr Motsoeneng to a permanent position of COO.”

However, Davis said he could not accede to the DA’s request that the court order the SABC to appoint a suitable person as COO within 60 days because the court could not determine the outcome of the disciplinary process to which Motsoeneng was now subject.

“Accordingly, if Mr Motsoeneng is acquitted of all the charges which are to be determined by a disciplinary tribunal, it was possible that he could then be considered for appointment as a permanent COO of the SABC.”

Motsoeneng initially opted to challenge the SCA’s order that he be suspended pending the disciplinary process but then went on voluntary leave of absence.