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LABOUR COURT PUNISHES ‘TRITE’ SABC ONCE AGAIN

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.

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MORE BAILOUT MONEY WASTED ON LITIGATION | SABC

The SABC has been ordered to reinstate a dismissed employee and pay her compensation of almost R180 000.

Ms Sepei Shole was employed by the SABC on several consecutive contracts. The renewal of her contract came up in December 2018, and despite having full knowledge of the repetitive renewals and an undertaking by management to appoint her permanently, Human Resources decided to terminate her contract.

BEMAWU referred a dispute and the matter was arbitrated by the CCMA.

On 16 October 2019 Commissioner Zwane found in favor of the Applicant, Ms Shole ordering the SABC to appoint her permanently and pay her compensation.

BEMAWU will continue to defend its members in all unfair conduct by employers.

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Tru FM STATION MANAGER WON CASE AGAINST SABC

At least a million rand (R988 000) of the newly acquired bail-out money will be paid to an ex-employee of the SABC by order of the CCMA in the Eastern Cape.

Senior Commissioner Malusi Mbuli found the Public Broadcaster unfairly dismissed Tru FM Station Manager Thobeka Buswana late last year in October and ruled she must be compensated.

Buswana became a target for various reasons and was found guilty in a botched disciplinary hearing. Vital evidence clearing her of any misconduct were overlooked by the SABC’s internal disciplinary panel.

The CCMA strongly disagreed with the SABC’s disciplinary finding and overturned the dismissal, clearing Buswana of any wrongdoing.

Thobeka Buswana, former Tru FM Station Manager

In his arbitration award, published on 7 October 2019, Senior Commissioner Malusi Mbuli wrote:

I cannot accept the respondent’s argument that the applicant was dishonest when I compare this argument to the clear and coherent testimony of the applicant to the effect that no rule has been broken. It is not the opinion of the Senior Management or what the company thinks of what happened in relation to these incidents that should tell us whether the applicant is guilty of a transgression on a balance of probabilities, but evidence that is placed before the Commission by the applicant…”

He continued: “The employer has failed to discharge its onus in terms of section 192 of the Act in so far as the substantive issue is concerned and this means that the applicant’s dismissal was procedurally fair but substantively unfair.”

Due to the fact that Buswana’s contract expired, the CCMA was unable to order her reinstatement. Instead, compensation was ordered.

Buswana said she never had doubt the outcome at the CCMA would be different. She had faith in the CCMA and had the truth and facts on her side. Being in love with radio and her job, she would have preferred to be reinstated, but due to the SABC consistently and deliberately delaying the arbitration process, her last, one year contract expired in the course of the arbitration proceedings.

Reacting to the conduct of her superiors and the SABC during this unpleasant ordeal, Buswana said:

“I was shocked when the Acting Provincial General Manager, Mr Phumzile Mnci blatantly lied during my disciplinary hearing when he denied he approved my expenditure. We handed in documentary evidence to this effect, which clearly showed he had full knowledge of my travel, and approved it. In fact, it was approved twice by my seniors, once by him and on another occasion by his line manager. Yet the panel completely ignored this, as if they were there with a mandate and instruction to dismiss me. Fortunately Mnci was testifying under oath at the CCMA, and he knew there would have been consequences if he lied under oath, so he had to speak the truth. He told the Commissioner he approved my travel, and I attended the event with his full blessing. It’s just sad that he did not do so [speaking the truth] during the disciplinary hearing. “

She added:

‘I know for a fact that Mr Leuba Ramakgolo and Mr Mnci do not know the SABC policies, the PFMA and just the basic concept of fairness. It is such a shame to have Managers who have no clue of the guiding principles of governance leading the SABC.‘

This ruling adds to the number of cases the SABC has recently lost, at an enormous cost to the public broadcaster. It is evidence of a litigation-hungry Board and top management who recklessly spent public money in pursuit of extremely poor decisions, judgement and ill informed often questionable motives.

In as much as it is part of the duty of, for example a cameraperson to set up and focus the camera to capture high quality visuals, it is the duty of management to exercise discretion and good judgement when they institute disciplinary action and CCMA litigation against employees. When the cameraperson does not perform, there are consequences. Equally there should be consequences for poor management and decisions.

Consequence management must meet Ramakgolo and his masters, and in particular Human Resources and the legal department of the SABC, as the gatekeepers and custodians of fair disciplinary action, who instituted malicious disciplinary action against Buswana, This has resulted in fruitless and wasteful expenditure of almost a million rand.

This current management seems to be no different from the previous management, who has spent millions of rands – public money – on fruitless litigation.

Buswana was represented by the Broadcasting, Electronic, Media & Allied Workers Union, BEMAWU.

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Broke SABC slammed for incurring R5.2bn in irregular expenditure

The auditor-general has blasted the SABC for not taking appropriate steps to prevent irregular expenditure and for failing to bring  those responsible for the financial mess to book, BusinessLIVE reported.

The broke public broadcaster was slapped with a qualified audit opinion for the 2018/2019 financial year. It received a disclaimer the previous financial year, which is the worst possible audit outcome.

The SABC’s annual report tabled in parliament on Monday shows that the broadcaster incurred irregular expenditure of R5.2bn, up from R4.9bn the previous year. This as it continues to face an uncertain future due to crippling financial challenges.

In the annual report, auditor-general Kimi Makwetu raised doubt about the broadcaster’s status as a going concern, noting that it is still not able to generate sufficient cash to meet all of its financial obligations. The entity’s current liabilities exceed its current assets by R875m, said Makwetu.

The SABC ended the 2018/2019 financial year with an audited loss of R482m. Losses have decreased over the past number of years – from R1bn in 2016/2017 to R744m in 2017/2018. But indications are that it will continue to record losses for the foreseeable future after posting a R192.3m loss in the first quarter of the 2019/2020 financial year.

The broadcaster ended the 2018/2019 financial year with a cash balance of R72m. Total revenue was R6.45bn, which was R1bn (14%) below the budget of R7.48bn.

As it stands, the SABC is technically insolvent. Its dwindling revenue means it is unable to service its debt of almost R2bn and it could be forced to switch off its cameras and microphones.

The dire financial position means that it is struggling to invest in content and to acquire crucial sports rights. It confirmed that it would not broadcast the Rugby World Cup on television, though it managed to strike a last-minute deal to broadcast four of the Springboks’ games on radio, as well as the two semifinals. ​

It has requested a R3.2bn government guarantee to stay afloat and pay off some of its debt, but its bid for funding has so far been unsuccessful – largely due to its failure to meet the Treasury’s conditions.

Makwetu said effective and appropriate steps were not taken to prevent irregular expenditure, as required by the Public Finance Management Act. He said the full extent of the irregular expenditure could not be quantified.

Most of the irregular expenditure disclosed in the financial statements was caused by competitive bidding process not having been followed. Disciplinary steps were not taken against the officials who had incurred and/or permitted irregular, fruitless and wasteful expenditure, as required by the act, said Makwetu.

Also, effective and appropriate steps were not taken to collect all TV licence revenue due, as required by the act.

Advertising revenue, the SABC’s biggest revenue generator, decreased in the past year by R241m (5%), a key factor preventing the public entity’s profitability. This revenue, which amounted to R4.5bn, makes up 70% of total revenue.

TV licence fees reported for the year amounted to R968m. This represents a “fee evasion rate of 69% [compared to 72% in 2018] of the known TV licence holders not paying their licence fees”, the public broadcaster said in the report.

SABC board chair Bongumusa Makhathini said in the report that damaging governance, maladministration and funding challenges faced by the public broadcaster over decades have hollowed out the institution, “making it tougher and tougher to play to our strengths”.

“The SABC’s financial position has remained under severe pressure, with the corporation still paying the price for years of compromised leadership, failed governance and prejudicial decision-making,” said Makhathini.

He said the SABC is unable to “simply shake off the damage caused without financial assistance by the government”.

Source : https://www.heraldlive.co.za/news/2019-10-01-broke-sabc-slammed-for-incurring-r52bn-in-irregular-expenditure/

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SABC BAILOUT CONDITIONS

What conditions the SABC have to meet

According to Board Chairperson, Bongumusa Makhathini the public broadcaster has met 10 of the 11 preconditions that were set out by National Treasury in overseeing the R3.2-billion bailout that SABC applied for.

In order to comply with the conditions, SABC had to:

  • determine their immediate cash requirements, supported by detailed cash flow projections for the next 12 to 18 months;
  • submit a list of identified initiatives for revenue enhancement and cost-cutting initiatives that the entity has been implementing in the interim;
  • conduct a thorough investigation into what caused the financial collapse of the SABC and why previous turn-around plans have failed to be successfully implemented;
  • provide an update on how the entity is dealing with the people implicated in reports;
  • produce separate financial reporting for their public and commercial broadcasting services;
  • identify non-core assets for sale to assist with reducing the recapitalization required by government. Submit a comprehensive property strategy and a list of non-core assets identified for disposal including the timelines for disposal and the estimated values.
  • commit and start a full review of policies, legislation and regulations affecting the Broadcasting sector and the SABC within a digital environment;
  • develop a comprehensive Private Sector Participation strategy highlighting initiatives to be implemented and the net values to be derived from these partnerships;
  • develop a comprehensive capital and content investment plan which includes the forecast return on investment of all Capex and content spend, split between commercial and developmental activities;
  • appoint a restructuring team headed by a restructuring officer and supported by Broadcasting industry experts to lead a restructuring and turnaround of the entity; and
  • appoint a new Board.
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RIGHTS TO RUGBY WORLD CUP MATCHES ‘NOT COMMERCIALLY VIABLE’ FOR SABC

JOHANNESBURG – The South African Broadcasting Corporation (SABC) board has told Parliament that its decision not to buy the rights to broadcast the Rugby World Cup was because it was simply not commercially viable.

https://ewn.co.za/2019/09/17/rights-to-rugby-world-cup-matches-not-commercially-viable-for-sabc

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SABC PUSHING AHEAD TO INCREASE TV LICENSE FEES

The SABC is pushing ahead with plans to lobby the government to increase TV licence fees as it battles to boost revenue.

Executives at the cash-strapped public broadcaster told MPs on Tuesday that the current TV licence tariff of R265 per year, which translates to about 72c a day, had remained unchanged since 2013. SABC board chair Bongumusa Makhathini said he believed more South Africans could afford to pay at least R1 a day, a remark that prompted objections from various MPs.

“We have 10-million people unemployed … it is incorrect to say the TV licence [fee] is cheap,” said one MP.

https://www.businesslive.co.za/bd/national/2019-09-17-sabc-goes-ahead-with-plans-to-lift-tv-licence-fees-despite-objections/

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EX CEO TESTIFIED BEFORE SCC

Lulama Mokhobo

Former SABC group CEO Lulama Mokhobo has told the judicial commission of inquiry into state capture certain people within the organisation would go to the “bottom pit of lies” to tarnish her name.

Testifying before the commission Wednesday, Mokhobo said she believed she was pushed from the organisation and attempts to do so had happened at least three times.

“There were rumours swirling around the organisation that I was going to be suspended and there were lots of lies that were being told about me.” 

She said she and the chairperson of the board at the time, Ellen Tshabalalala, could not agree on many things, which included a multimillion-rand deal the SABC had signed with MultiChoice. 

“I had challenged a lot of her decisions very vigorously and she was very angry at me.” 

Mokhobo claimed she had not agreed with the signing of the contract because the process was flawed, and the clauses were improper. 

“There was a rush to sign the contract with MultiChoice.”

She said she had also locked horns with former SABC COO Hlaudi Motsoeneng.

READ: ‘I didn’t leave SABC over Protector report’ – former CEO

“He undermined my authority many, many times… Ms Tshabalala gave me a dressing down in front of my staff and I could never understand why she would do that.

“The reason was quite simply that, chair, I was refusing to do things that were not according to policy.”

Mokhobo told the commission that under her leadership, the SABC’s finances became healthy but that the “dislike for [her] increased phenomenally”.

“I realised, chair, that it was time for me to go,” she said. 

Earlier, she told the commission that Parliament was misinformed about the package she allegedly received when she left the public broadcaster.

“I am not sure what the reason was apart from probably trying to damage my reputation.

“Parliament was given a figure of between R8m and R11m… It was totally untrue.”

Mokhobo said the amount she received when she left was R6m.  

She also denied that she left the SABC because of the Public Protector’s report entitled “When Governance and Ethics Fail”, which investigated, among other things, irregular appointments, promotions and salary hikes at the broadcaster.

ALSO READ: Motsoeneng took ex-SABC group CEO to Gupta compound to be ‘congratulated’ on her appointment – Zondo commission hears

“I would have stood up to the disciplinary hearing and have my name cleared there but it just didn’t make sense at the point when I was leaving.”

On the issue of Motsoeneng’s salary increment, Mokhobo said when she arrived at the SABC there was an “outpouring of adoration” for the former COO. 

“There was a belief that he was doing an amazing job and that he was not being paid enough even as a group executive member not as acting COO.”

She said there was an exercise that was undertaken by the SABC which looked at people’s skills to determine their increases. 

“That was really all what the increase was about. The Public Protector completely misunderstood that,” Mokhobo said.  

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SABC ACTING COO APPOINTED

The SABC today has announced the appointment of Sylvia Tladi as acting COO.

Tladi is the head of the struggling TV License Department at the Public Broadcaster.

The current acting COO, Craig van Rooyen resigned amid speculation of board conflict, reported by City Press.

The SABC now has to source replacements for both Chris Maroleng, the sacked COO, who is fighting his matter at the CCMA and van Rooyen.

https://ewn.co.za/2019/08/30/sylvia-tladi-appointed-acting-sabc-coo

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LONG SERVICE AWARD DISPUTE

The dispute in respect of Long Service Awards under case number CCMA Case GAJB19346-19 (GAJB) is scheduled for ‘Con/Arb’ for Tue 17-Sep-2019 09:00 at Johannesburg CCMA.