George Hlaudi Motsoeneng v South African Broadcasting Corporation Soc Ltd and Others

George Hlaudi Motsoeneng was the former Chief Operating Officer of the South African Broadcasting Corporation (SABC) and a member of the SABC Pension Fund. His employment was terminated on 12 June 2017 following a disciplinary enquiry. In August-September 2016, Motsoeneng received a "success fee" payment of R11,508,549.12, purportedly approved by the SABC's Governance and Nominations Committee (GNC) on the basis that he had raised R1.19 billion for the SABC. After his dismissal, the SABC's audit department discovered this payment and alleged it was unlawful and unauthorized because: (1) the GNC had no authority to approve it; (2) there was no approved policy for success fees; (3) Board approval was not sought or obtained; (4) the payment was irregular and concealed from the Board; and (5) Motsoeneng himself was present at a Board meeting on 19 August 2016 where a similar proposal was rejected but failed to disclose the GNC's earlier decision. Before the Fund paid out Motsoeneng's pension benefit, the SABC sought an interdict restraining payment pending review proceedings. The High Court granted an interim interdict in January 2018 and ultimately set aside the success fee decision in December 2021, ordering Motsoeneng to repay the amount and directing the Pension Fund to deduct it from his pension if he failed to pay. Motsoeneng's application for leave to appeal was refused by both the High Court and two judges of the Supreme Court of Appeal. He then applied under s 17(2)(f) of the Superior Courts Act for the President of the SCA to refer the refusal to the full Court for reconsideration. The appeal lapsed when Motsoeneng failed to file his heads of argument timeously, necessitating an application for condonation.

• Whether exceptional circumstances existed to warrant the President of the Supreme Court of Appeal exercising discretion under s 17(2)(f) of the Superior Courts Act 10 of 2013 to refer the refusal of leave to appeal for reconsideration
• Whether condonation should be granted for the late filing of heads of argument that caused the appeal to lapse
• The proper interpretation and application of s 17(2)(f) of the Superior Courts Act, particularly the requirement of 'exceptional circumstances'
• The relationship between the test for leave to appeal, special leave to appeal, and the exceptional circumstances required under s 17(2)(f)

The application for condonation was dismissed with costs. The applicant was ordered to pay the costs incurred by the respondents in opposing the lapsed appeal. In both instances, costs were to include the costs of two counsel.

Section 17(2)(f) of the Superior Courts Act 10 of 2013 operates as a proviso that takes exceptional cases out of the general rule that decisions of two judges refusing leave to appeal are final. The existence of "exceptional circumstances" is a jurisdictional fact and prerequisite that must be established before the President of the Supreme Court of Appeal may exercise discretion to refer a refusal of leave to appeal to the full Court for reconsideration. "Exceptional circumstances" means something out of the ordinary, uncommon, rare or different - something excepted from the general rule. The threshold is higher than that for ordinary leave to appeal or special leave to appeal. The provision is not intended to afford disappointed litigants a further opportunity to re-argue matters already considered and rejected, but rather to prevent grave injustice where matters of importance may have been overlooked. Where arguments merely rehearse contentions already advanced, considered and rejected, and there are no reasonable prospects of success, no important legal question, no factual dispute requiring reconsideration, no manifest denial of justice, and no special public significance, exceptional circumstances are not established and the application must fail.

The Court commented that it was "somewhat surprisingly" that the Pension Fund filed several affidavits in opposition to the SABC's application and raised various preliminary procedural complaints, when it was open to the Fund to simply abide the decision of the court. This observation suggests the Court's view that the Fund's extensive opposition may have been unnecessary given its position as stakeholder rather than primary disputant. The Court also noted that the SABC's additional relief seeking a conditional declarator of unconstitutionality in respect of s 37D of the Pension Funds Act was "far from clear" in its purpose, though this was ultimately abandoned. The Court commended the earlier judgment of the Supreme Court of Appeal in South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others to readers, suggesting its relevance to understanding the broader context of governance issues at the SABC. The Court's detailed recitation of the findings of Maier-Frawley AJ and Khan AJ, while not strictly necessary for deciding the s 17(2)(f) application, reinforced the strength of the case against Motsoeneng and the thoroughness of the judicial consideration the matter had already received.

This case provides important clarification on the interpretation and application of s 17(2)(f) of the Superior Courts Act 10 of 2013. It emphasizes that the provision operates as a narrow exception to the finality of decisions refusing leave to appeal and requires true "exceptional circumstances" as a jurisdictional prerequisite. The judgment reinforces that s 17(2)(f) sets a higher threshold than both ordinary leave to appeal and special leave to appeal, and is not intended to give disappointed litigants another opportunity to re-argue their case. The decision confirms that exceptional circumstances must involve something beyond reasonable prospects of success or matters that would qualify for special leave - there must be some matter of importance that was possibly overlooked or a grave injustice will otherwise result. The case demonstrates the Court's strict approach to interpreting provisos and its commitment to finality in litigation, particularly where matters have been fully ventilated and carefully considered by lower courts. It also serves as a warning to litigants and legal practitioners to properly understand the nature of applications under s 17(2)(f) and not to misconceive them as ordinary appeals on the merits. The judgment is consistent with the Constitutional Court's guidance in Liesching II regarding the controlling or limiting nature of the exceptional circumstances requirement.