Facilitator suggested third week in Jan


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.

Facilitator suggested third week in Jan


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.

Facilitator suggested third week in Jan


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.

Facilitator suggested third week in Jan

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/