The labour court has delivered a stern warning to the SABC to stop wasting taxpayers’ money on frivolous litigation by awarding the broadcaster a punitive provisional cost order in yet another defeat.
In a judgement delivered on 18 October 2019 the court described the SABC’s legal strategy as “overbearing” and said that “regrettably and inevitably, the taxpayer will bear the bulk of the cost”.
The matter had to do with Ms Ayanda Mkhize.
On 17 October 2018 SABC Chief Financial Officer, Ms Yolande van Biljon dismissed Mkhize without a hearing, echoing the dismissal of the SABC 8.
Mkhize referred her unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), where the SABC questioned the CCMA’s jurisdiction, saying the dismissal would have needed to be challenged on lawfulness, not unfairness.
The CCMA ruled it had jurisdiction, but should it become clear during evidence it lacks jurisdiction, the matter would be referred to the appropriate forum.
The matter was set down for arbitration and the SABC brought yet another technical application before Commissioner Daniel du Plessis, who was not willing to hear it as legally he was unable to review and overturn the previous Commissioner’s ruling.
The SABC then filed a review application to set aside the ruling of the CCMA that it had jurisdiction to hear the dispute.
It is a fundamental principle that a party cannot bring a review application in the middle of an arbitration process, simply because the matter may ultimately be decided in favour of that party.
Undeterred, a few days later, the SABC brought another application, this time to stay the arbitration proceedings. The broadcaster’s legal team wanted, among other things, the labour court to direct the CCMA to hear its technical application at the CCMA.
The labour court refused to do so, making it clear it will not micro manage the CCMA or tell Commissioners how to conduct proceedings. It underscored already patently established labour law principles – an employer cannot simply rely solely on contract law to fire an employee.
The court described the SABC’s proposition as “profoundly unsound”.
Judge Andre van Niekerk said, “I find it disconcerting to have to record such a trite principle – to any labour lawyer, this is a statement of the manifestly obvious.”
BEMAWU is more concerned than ever before about the SABC’s slew of legally reckless actions. The public broadcaster continues to lose labour cases one after the other. This latest judgement should sound alarm bells for South African citizens. The SABC is on a litigation-hungry course and tax money is being used to oust employees who seemingly do not agree with positions held by the current executive – firing them without hearings.
This bullying is happening under the pretense of a clean-up, and with the executive in breach of its own governance policies.
Employees have become the targets. Benefits in existence are targeted. One dispute after the other is filed, with the SABC seemingly unfazed.
We are heading for disaster – again.
Ms Nompumelelo Phasha was dismissed in a similar manner without a hearing and has won several legal battles against the SABC, including a personal cost order against the GCEO, Madoda Mxakwe and Head of SABC Legal, Advocate Nthuthuzelo Vanara.
Former company secretary Theresa Geldenhuys was also dismissed without a hearing. Her matter is due to be heard soon.
The SABC and Mr Sandile July was represented by Werksmans Attorneys.
Advocate Kufa, instructed by Motlatsi Seleke Attorneys represented Mkhize.