27 July 2016

South Africa: Labour Court Strikes a Blow Against Vanity Litigation

Photo: Zaian/Wikipedia
SABC offices (file photo).

If this week's Labour Court decision had done nothing but reinstate dismissed senior staffers of the South African Broadcasting Corporation, we would have celebrated. But it did a whole lot more than that.

By threatening those responsible for dismissing the journalists with having to pay the legal costs on a punitive scale and out of their own pockets, the decision will help sober up officials who recklessly spend public money on unwinnable, anti-constitutional litigation.

It could also significantly influence the outcome of this week's next round of hearings related to other journalists sacked by the SABC. And as for the judgment itself, it gloriously cuts through the nonsense coming from the executive suites of the SABC, freeing us to declare the truth of the kaalgat emperor.

Behind the judgment lies one of the most shameful episodes in the not very happy history of the SABC. Used as a pawn by the apartheid government, the public broadcaster was supposed to play a very different role under the new post-1994 constitutional dispensation. But its top executive, under the disastrous leadership of COO Hlaudi Motsoeneng and a repeatedly imploding board, has dismally failed the broadcaster, its employees and the rest of South Africa.

In May Motsoeneng published what the Labour Court referred to as his 'news editorial edict'. Without consulting the broadcaster's journalists he announced no footage of violent protests would henceforth be aired.

When senior journalists questioned the edict and consequent decisions such as not covering protests against the new policy, they were suspended pending disciplinary inquiries.

Several legal challenges were launched after the new policy was announced and the journalists - by now sacked without a disciplinary hearing - also approached the courts for help.

On 22 July the Labour Court heard the dispute brought against the SABC by four of the eight sacked journalists and on 26 July Judge Robert Lagrange's decision was delivered: the dismissal of the four was unlawful, they were to be reinstated immediately and the SABC was interdicted from continuing with any of the stalled disciplinary steps against the staffers as these steps were 'premised on the enforcement of an unlawful policy'.

How did the court reach its conclusion?

The SABC has incorporated its disciplinary procedures in the contracts of all its journalists and so when the SABC sacked the journalists without having gone through those processes it effectively breached these contracts. Their dismissal would have been invalid on this ground alone.

But there was another, constitutional, reason why their sacking was invalid: the court found that the SABC, in dismissing them, did so in breach of the journalists' right to freedom of expression.

Lagrange catalogued the 'sequence of escalating actions taken by the SABC' against the journalists. When they were first suspended, it was on the basis that they had disobeyed SABC policy - a policy the Independent Communications Authority of South Africa (Icasa) has since declared invalid and unlawful. But the broadcaster's complaints against the journalists shifted in emphasis as 'the public clamour over the suppressive policy grew'. First complaining that the journalists had dissented over the policy, the SABC later alleged they told external media about internal dissent at the broadcaster. The journalists claimed these allegations were not correct but the judge said even if the allegations were true, it would mean the SABC was relying on grounds that breached the journalists' constitutional right to freedom of expression 'which includes making information about the internal dissent over the policy more widely known'. Thus even if the SABC's allegations were correct, dismissal on those grounds could not be lawful.

Not all employees could claim freedom of expression to disseminate information that might put their employers in a bad light. But the SABC was different; so was the issue it objected to being publicised. It was a public institution, bound by certain constitutional values, and the public had a right to know if it were implementing the key principles that applied to it. SABC journalists also had ethical and constitutional obligations as seen in various professional codes and Constitutional Court decisions. It is clear, said the judge, that dissent over the extraordinary censorship measure is a matter which concerns the core functions of the SABC as a public broadcaster. Thus the dissent was a matter of public interest.

He also noted that the SABC had agreed to an interim order just a few days before, acknowledging that the protest policy was invalid. Given that agreement, one might have thought the SABC would have offered to allow the journalists to return to work pending a final decision on the matter in the courts, but instead the broadcaster had been 'unrelenting' in opposing the journalists' legal action.

The case had been urgent given the forthcoming elections and it was important the journalists should be allowed to return to work without delay.

But the real sting lay in the court's orders. Declaring the sackings unlawful and void from the start, the judge said the journalists were 'entitled' to return to work and continue with their duties, and that all the disciplinary proceedings against them were to be dropped. And then he gave two top SABC officials five days to file papers showing why they should not have to pay the costs of the case themselves and at a punitive scale.

Lagrange said he was concerned that the dismissals were authorised 'with reckless disregard for the pending (legal) applications and with little regard for the costs and benefits to the SABC of doing so.' It was all the more worrying that such poor decisions were taken 'during a time of financial crisis'.

His widely-welcomed order will see SABC officials pleading to be let off what could be hugely significant legal costs, and it could have an immediate knock-on effect. When the Labour Court sits tomorrow (Thursday) to hear the case of others among the journalists sacked by the SABC, it will at once be clear if top SABC executives have learned any lessons. Should they contest this second hearing and again try to justify the dismissals, those same officials will no doubt be faced with another possible costs order.

Just think of the other benefits. Officials carrying out the instructions of the SABC bosses may well rethink their role in future where these instructions are so clearly in reckless disregard of the Constitution, not to mention fairness and justice. Who would risk bankruptcy for the honour of being Motsoeneng's messenger?

The judge's order is also timely. Opposition has been growing to state institutions and parastatals that waste huge sums on hopeless legal action. Just this week tax ombud and former Gauteng Judge President Bernard Ngoepe flighted the idea that public servants and heads of state-owned entities should have to pay out of their own pockets for vanity litigation. The Mail & Guardian quoted Ngoepe as saying when such cases had no merit or were pursued against sound legal advice or on grounds that were 'patently against the Constitution', it would be appropriate for those responsible to pay personally, rather than handing the bill to the tax payer.

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