IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG
CASE NO. J1343/16
In the matter between:
SOLIDARITY

First Applicant

FOETA KRIGE

Second Applicant

SUNA VENTER

Third Applicant

KRIVANI PILLAY

Fourth Applicant

JACQUES STEENKAMP

Fifth Applicant

and
SOUTH AFRICAN BROADCASTING CORPORATION (SOC)

RESPONDENTS ANSWERING AFFIDAVIT

I the undersigned,
MALOLO SIMON TEBELE
state under oath as follows:

Respondent

1.

1.1

The facts contained herein are, unless the context indicates otherwise,
within my personal knowledge and are to the best of my belief both true
and correct.

1.2

I am a male Acting Group Executive: News and Current Affairs employed

as such by the respondent.

1.3

I depose to this affidavit on behalf of the respondent and in opposition of

the application.

1.4

Where I make submissions of a legal nature I do so on the advice of the

legal representatives of the respondent.

2.

By reason of the short period within which the respondent is required to answer,
it will not be possible to deal adequately with all the allegations made in the
applicants founding and supplementary papers and such failure should not be
construed as an admission of any of such allegations and/or contentions. The
answering affidavit will essentially be limited to those facts that will support the

legal argument that will be raised in opposition of this application on behalf of

the respondent.

3.

Initially this urgent application was instituted for the relief set out in paragraphs 1,
2, 3 and 4 of the amended notice of motion as well as an order of costs against
the respondent. Subsequent to the dismissal of the second to fifth respondents
(the employees) on 18 July 2015, prayer 1A and 5 were inserted in the notice
of motion (the underlined paragraphs of the amended notice of motion).

4.

BRIEF BACKGROUND

Before setting out the legal points and the basis of opposing this application, I
deem it appropriate to set out the following concise sequence of events in this
matter:

4.1

Except for the fifth applicant, second to fourth applicants operate at

radio stations as described in paragraphs 7 to 9 of the original founding
affidavit of the applicants. Consequently, the prevention of broadcasting

visuals relating to burning of public institutions does not directly affect

them. In this regard, I refer to the media announcement of 26 May 2016,
the so called editorial decision.

4.2

During June 2016, the second and third applicants were suspended from
employment. Soon thereafter disciplinary proceedings were instituted
against the second to fourth applicants relating to the violation of their
employment contracts. The disciplinary proceedings were scheduled for
08 July 2016 on which date they were postponed.

4.3

On 11 July 2016, the employees were served with notices in terms of

schedule 8 item 4 of the Labour Relations Act no. 66 of 1995 (the LRA). It
must be noted that the allegations contained in those schedule 8 notices
related to acts of misconduct that were committed after the disciplinary
proceedings had been instituted against them.

4.4

In essence the notices alleged that their subsequent conduct constitutes

contravention of paragraph 2(d) of the Regulations as they have made
comments or published articles in the media in relation to their terms and
conditions of employment while they were in the service of the SABC
without prior consent of the Group Chief Executive. The Regulations of the

SABC are incorporated in to the contract of the employees by virtue of

paragraph 6.3.7 of such contract of employment.

4.5

The notices also required the employees concerned to state their case in
response to the allegations with the assistance of representatives or
lawyers not later than the end of business on Friday 15 July 2016. Instead of
responding to the allegations contained in such notices, the employees
submitted a letter through their attorneys on 15 July 2016 (the last date in
terms of the notices) in which they indicated that they had lodged an
application for direct access in the Constitutional Court and that they
would also lodge an urgent application in the Labour Court to interdict
the disciplinary proceedings against them pending the outcome of the
Constitutional Court application and that they considered it inappropriate
to respond to the charge sheets.

4.6

Since there was no response to the allegations contained in the notices,

the respondent then terminated their employment contracts on 18 July
2016. The schedule 8 process was not issued as a result of the urgent
application but the contrary is true in that the urgent application came
thereafter.

5.

Having set out the short factual background above, I now proceed to set out in
brief the grounds for opposing this application.

6.

GROUNDS FOR OPPOSITION

JURISDICTION

It is submitted that the above Honourable Court lacks jurisdiction, to entertain

this matter for more reasons than one:

6.1

First, the jurisdiction of the Labour Court as set out in the LRA is confined to
finding that a dismissal is unfair, either substantively or procedurally. It does
not extend to declaring a dismissal to be void and/or unlawful. The
applicants have pegged their case on the unlawfulness rather than
unfairness of their dismissal.

6.2

Second and closely connected with the first point, is that once a dismissal
is pronounced by the employer it takes effect. As already stated, the
institutions established in terms of the LRA including the above Honourable

Court may then pronounce on the fairness or otherwise of the dismissal

and grant an appropriate remedy including reinstatement.

6.3

Third, the mechanism provided by the LRA requires that, once dismissed,
an employee should follow such mechanism which in this case obliges the
employees to refer the matter to the CCMA for conciliation and
thereafter arbitration before approaching the above Honourable Court.

6.4

It is important to bring to the courts attention that journalists were

encouraged not to rely on newspapers for their stories but rather to seek
their own stories without reliance on newspapers. It is further important to
bring it to the courts attention that the live reading of newspapers
amounted to giving free advertising to newspapers. This then lead to
journalists revolting against their employer.

6.5

It is further important to bring to the courts attention that in an act of

defiance, the Respondents second to fifth took part in a protest march
against their employer on or about the 1st of July 2016, which was led by
SOS Support Public Broadcasting

and one of their colleagues (Ms

Thandeka Qubule),who is not a party to this action, was mentioned as an

organiser of the said march (see attached a list of the organisers
of that march).

6.6

In conclusion of this jurisdictional point, we submit that an order made by

a court which lacks jurisdiction is incompetent and is a nullity.

7.

INCOMPETENCE OF PRAYERS

Further, I submit that prayers 3 and 5 of the notice of motion are incompetent or
have become superfluous for the following reasons:

7.1

The disciplinary proceedings against the employees were instituted prior

to the schedule 8 notices and relate to different acts of misconduct than
the ones contained in the notices;

7.2

Once the dismissal was effected by the employer, such disciplinary

proceedings fell away. In this regard it must be noted that the employees
were dismissed not on the basis of the disciplinary proceedings and the
allegations referred to therein but on the basis of the schedule 8 notices
containing different acts of misconduct;

7.3

Even if the employees were to be reinstated in terms of prayer 1A and 2 of

the notice of motion, the disciplinary proceedings will not be revived
automatically but will have to be reinstituted if the employer deems it
necessary. It must be noted that prayer 3 interdicts the employer not from
instituting or reinstituting the disciplinary proceedings but from continuing
therewith;

7.4

Prayer 5 of the notice of motion is based on the so-called constructive

contempt of court by the employees involved in the decision to terminate
employees contracts. It is submitted that this concept does not apply in
the circumstances, in that:

7.4.1 As stated earlier, the notices were issued before the urgent application
was originally instituted. In fact, the respondent, in terminating the
employees contracts of employment was merely completing a process
that had commenced before the institution of the urgent application;
7.4.2 The letter from the applicants attorneys (annexure SA1) states that the
urgent application would be lodged seeking to interdict the disciplinary
proceedings on an interim basis, pending the outcome of inter alia
Constitutional Court application [my underlining];

7.4.3 Indeed the present application seeks to interdict the respondent from
proceeding with the disciplinary proceedings against the employees. It
does not seek to set aside the schedule 8 notices or the processes relating
thereto; and

7.4.4 The Constitutional Court application also seeks to have the decision to
institute disciplinary proceedings (and not necessarily the schedule 8
notices) declared unconstitutional, unlawful and invalid and the letter
(annexure SA1) also states as such.

7.5

Finally, it seems that the interdict sought is pegged on the Constitutional

Court application, the High Court review against the decision of ICASA
and the decision of the matter of the Hellen Suzman Foundation in the
High Court. The interdict sought is therefore final in effect in that it will not
be revisited by any of the courts referred to in prayer 4 of the notice of
motion. It follows therefore that the requirements of a final interdict are
applicable and have not been established by the applicants in this case.
8.

Having set out the defences above, I now proceed to deal hereunder with the
applicants founding and supplementary affidavits paragraph by paragraph.

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9.

FOUNDING AFFIDAVIT
AD PARAGRAPH 2 THEREOF:

I deny the correctness of the allegations and contentions contained in this

affidavit in so far as they are in conflict with the contents of my affidavit.
Otherwise I note the contents of this paragraph.

10.

AD PARAGRAPHS 13 AND 14 THEREOF:

10.1

It must be noted that the charges and the schedule 8 notices issued
against the employees do not relate to the employees refusal to comply
with the policy but to them making comments in the media relating to
their conditions of employment contrary to their contracts of employment.

10.2

Save as aforestated the contents of these paragraphs are denied.

11.

AD PARAGRAPHS 15 TO 17 THEREOF:

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11.1

It is denied that the work of the second, third and fourth applicants is
directly affected by the so-called editorial decision.

11.2

It is also denied that the employees were subjected to disciplinary

proceedings because they had internally questioned and criticized the
statement. As clearly apparent from the charges and the schedule 8
notices, the employees were charged for externally and publicly criticizing
and distancing themselves from the editorial decision in relation to their
condition of employment.

11.3

It is also denied that the editorial decision has been universally

condemned by all major political parties including the ANC. The
statement has been criticized by some members of the ANC and mainly
by the opposition parties.

11.4

Save as aforestated the contents of these paragraphs are noted.

12.

AD PARAGRAPHS 18 AND 19 THEREOF:

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12.1

For the reasons already stated above, it is denied that the true nature of
the interdict is a temporary one.

12.2

It is also denied that the above Honourable Court has the power to grant
such an interdict as already contended above.

13.

AD PARAGRAPHS 21 TO 27 THEREOF:

These paragraphs relate to grounds for urgency. This aspect is rather left in the
hands of the above Honourable Court.

14.

AD PARAGRAPHS 28 TO 38 THEREOF:

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As these paragraphs relate to the factual background and the sequence of

events in this case, and in view of the limited time available for dealing with this
affidavit, the contents thereof are denied in so far as they are in conflict with the
allegations and contentions already stated herein and should also be regarded
as having been denied for purposes of argument.

15.

AD PARAGRAPHS 39 AND 40 THEREOF:

As stated earlier, the interdict sought by the applicants in substance is a final

interdict and therefore the requirements of the interim interdict are not
applicable. It is denied therefore that the requirements of the final interdict have
been shown.

16.

AD PARAGRAPHS 41 TO 66 THEREOF:

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The contents of these paragraphs have already been dealt with herein above. I
reiterate that the employees were not charged for refusal to comply with the
statement or the so-called editorial decision but for making comments in the
media about their opposition to such policy which was contrary to their
employment contracts.

17.

AD SUPPLEMENTARY AFFIDAVIT
AD PARAGRAPH 2 THEREOF:

I deny the contents of this paragraph in so far as they are in conflict with the
contents hereof.

18.

AD PARAGRAPH 6 THEREOF:

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Save for emphasizing that the letter referred to in this paragraph seeks to stop
the continuation of the disciplinary proceedings against the employees and
does not refer to the schedule 8 notices against them, the contents of this
paragraph are noted.

19.

AD PARAGRAPH 10 THEREOF:

Save for submitting that the employees were dismissed on 18 July 2016 and that
the applicants have in effect brought a new cause of action based on dismissal,
I note the rest of the contents of this paragraph.

20.

AD PARAGRAPH 15 THEREOF:

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20.1

The contents of this paragraph are denied on the grounds as already set
out above.

20.2

Further, any contempt proceedings will require the relevant employees to

be cited in such proceedings and for the requirements of such contempt
application to be satisfied. It is denied that the applicants are entitled to
such order. In any event, the applicants have not sought such
constructive contempt order in these proceedings.

20.3

Save as aforestated the contents of this paragraph are denied and have
already been dealt with herein above.

21.

AD PARAGRAPH 16 THEREOF:

21.1

The contracts of employment state that the respondent is authorized to

take disciplinary action as allowed in the relevant Labour Legislation and
the Disciplinary Procedures and Code of Conduct. Schedule 8 of the LRA
is part of the LRA and therefore an action taken thereunder complies with
the relevant labour legislation.

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21.2

As indicated above, the respondent instituted disciplinary proceedings

against the employees. However, the employees committed new and
further acts of misconduct and breaches of their contracts during their
suspensions and/or after such disciplinary proceedings had been
instituted. The gravity of these new acts of misconduct and the impact on
the business of the respondent necessitated drastic measures to be taken
by the respondent. This is the basis upon which the schedule 8 notices
were issued.

21.3

It must also be noted that the employees failed to respond to the

allegations contained in the schedule 8 notices which involves conduct
that was committed in public and was recorded in the media. Such
conduct therefore was proved by formal documents or recordings.

21.4

It is also denied that the disciplinary proceedings instituted against the

employees were continued through the schedule 8 notices. This has
already been dealt with herein above.

21.5

It is also denied that the dismissals are unlawful and that the above
Honourable Court has jurisdiction to deal with the matter.

22.

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AD PARAGRAPH 17 THEREOF:

22.1

The contents of this paragraph are denied.

22.2

A dismissal of an employee cannot violate the right of access to court in

that the fora to deal with such disputes are available to employees.

22.3

It must be noted that the applicants confirm in paragraph 17.2 of their

supplementary affidavit that the employees were criticizing the editorial
decision, their suspension and the SABC management. It is for this
conduct which was committed through the media that the employees
were dismissed.

22.4

It is not clear what is meant by the statement that this is not a

constitutionally permissible basis for terminating employment relationship.
However, the violation of employment conditions as contained in the
employment contracts constitutes a ground for discipline and even
dismissal.

23.

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AD PARAGRAPHS 18 TO 20 THEREOF:

The contents of these paragraphs have already been dealt with herein above.

24.

AD PARAGRAPHS 21 TO 22 THEREOF:

These paragraphs relate to the grounds of urgency and this aspect is left in the
hands of the above Honourable Court.

25.

WHEREFORE, I pray that it may please the above Honourable Court to dismiss this
application with costs including the costs of two counsel.

_______________
DEPONENT
I hereby certify that the deponent declares that the deponent knows and
understands the contents of this affidavit and that it is to the best of the
deponent's knowledge both true and correct. This affidavit was signed and

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sworn to before me at

on this

day of July 2016 and the

Regulations contained in Government Notice R1258 of 21 July 1972, as

amended, have been complied with.

____________________________
COMMISSIONER OF OATHS

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Dear Comrades, Friends and concerned South Africans,

FOR IMMEDIATE RELEASE: CALL TO PROTEST AGAINST SABC FOR APARTHEIDSTYLE CENSORSHIP

Six days ago, SABC journalists were suspended for refusing to compromise their integrity
by complying with Hlaudi Motsoenengs orders to distort the news through sunshine
journalism and 70% good-news. Soon after, the Acting CEO and Head of News and
Current Affairs, Jimmi Mathews, resigned from the SABC, citing the "corrosive
atmosphere that had taken hold inside of our national public broadcaster.

For a decade, now, the SABC has been in one crisis after another. This started in 2006
when the SABC received instructions from political elites to blacklist certain political

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commentators from our SABC airwaves. The problem continued with the financial decline
of the SABC and Hlaudi Motsoenengs catapult to the top position of COO, in spite of lying
about his qualifications and abusing his power to the detriment of fair and independent
coverage of news, without fear or favour.

We are now all patently aware of the deliberate thought-control campaign being
undertaken by Motsoeneng under the direction and protection of his political masters. We
have watched as they violate basic constitutional and public broadcasting principles of
information freedom, independent media and freedom of expression. We now have to
reclaim our SABC, and demand the end of censorship. This is a seminal moment in the
defence of our democracy. We approach local government elections, and while
communities burn, Motsoeneng would have journalists report only sunshine and rainbows.

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We say #NotInOurName!

We call on you all to support SABC workers, those suspended, and those who are still
working under the tyranny of Motsoenengs rule by edict. We call on you to stand with us
as we march from Auckland Park to Constitution Hill.

DETAILS
Assemble outside SABC Towers on Artillery Rd, Auckland Park, at 09:00 wearing all
black.

We will hold vigil for the suspended journalists facing their disciplinary hearings.

We will march from SABC to Constitution Hill in silence.

We will break the silence at Constitution Hill where we will be addressed by SABC
workers and civil society partners.

Because this march is non-partisan, we request all participating to NOT wear any partypolitical regalia.

DEMANDS
1. We demand that the SABCs illegally revised editorial policies be scrapped, and all
journalists suspended under Motsoenengs edict be reinstated with immediate
effect.
2. We demand the immediate reversal of all downward editorial decisions premised
on the unlawfully revised editorial policy.

3. We demand an SABC that is free of editorial, commercial, and political

interference; and we demand it NOW!

CONTACTS

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+27 76 581 4287

Thandeka Gqubule
Suspended SABC journalist

+27 82 920 8669

Hannes du Buisson
Broadcasting, Electronic, Media & Allied Workers Union (BEMAWU)

+27 83 743 3567

Tuwani Gumani
Media Workers Association of South Africa (MWASA)

+27 76 084 8077

Sekoetlane Phamodi
Save Our SABC Coalition
+27 82 887 1370
William Bird
Media Monitoring Africa

+27 74 783 2743

Sheniece Linderboom
Freedom of Expression Institute (FXI)

+27 83 297 3444

Micah Reddy
Right2KnowCampaign

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