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[2016] ZAGPJHC 269
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Mvoko v South African Broadcasting Corporation Soc Ltd (25604/2016) [2016] ZAGPJHC 269 (12 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 25604/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
DATE:
12 AUGUST 2016
In
the matter between
VUYO
MVOKO
APPLICANT
and
THE SOUTH AFRICAN
BROADCASTING
CORPORATION SOC LTD
RESPONDENT
Contract
- applicant employed by respondent in terms of written agreement
-applicant temporarily suspended by respondent pending
investigation
into complaint - applicant urgently seeking
re-instatement of his services - impropriety of -respondent
having
acted in terms of the agreement which provides for temporary
suspension pending investigation - Constitutional challenge
misconceived -application dismissed.
J
U D G M E N T
VAN
OOSTEN J:
Introduction
[1]
On 26
May 2016 the SABC published a controversial and widely criticised
media statement to the effect that the SABC will no longer
broadcast
footage of violent protests and destruction of public property during
protests. The statement caused significant public
uproar and was soon
disapproved of by way of a directive issued by ICASA, pursuant to a
complaint lodged with the Complaints and
Compliance Committee in
respect of which a public hearing was held, for the SABC to withdraw
its resolution. But there it did not
end: a number of SABC
employees (initially four and eventually seven), were alleged to have
breached their employment contracts
resulting in disciplinary steps
being taken against them and their dismissal. Then, not unexpectedly,
urgent applications were
launched against the SABC in the Labour
Court in which orders for their reinstatement were granted. In
addition, an application
to the Constitutional Court for direct
access to that court, based on a constitutional challenge to the
SABC’s decisions,
is pending.
[2]
In essence the common thread underscoring the issue raised in the
litigation concerns the constitutionality, lawfulness and
validity of
the decisions of the SABC to institute disciplinary proceedings
against the applicants and the termination of their
contracts of
employment. This application, which comes before this court by way of
urgency, is yet another case in this line of
litigation. In regard to
the Constitutional Court case the applicant in the present matter, Mr
Mvoko, has joined forces with seven
other applicants, as the eighth
applicant. I should mention at this stage already, that the SABC
contends that the applicant, in
essence, seeks the same relief in
both matters which constitutes the ground for raising a special plea
of
lis alibi pendens,
to which I shall revert.
The
applicant
[3]
Although Mr Mvoko has made common cause with the other applicants in
the Constitutional Court application, he is strictly speaking
not an
employee of the SABC, but an independent contractor to the SABC, in
terms of a written agreement, concluded with the SABC
in April 2014
(the agreement). The agreement provides for Mr Mvoko’s
engagement by the SABC on an ‘as and when’
basis for a
period of three years and defines the services to be rendered by him
as ‘planning and contributing editor’
in respect of SABC
news programmes, which Mr Mvoko elaborated requires him to perform a
host of different functions, including
that of executive producer of
the TV show
On the Record.
The
STAR newspaper article
[4]
On 6 July 2016 an article written by Mr Mvoko, with the title
(supplied by the STAR) ‘My Hell at SABC’ and sub title
‘In power mongers’ grip’, was published in the STAR
daily newspaper. I do not consider it necessary in the view
I take of
this matter, to review the contents of the article. Suffice to
briefly refer to the views of the parties in this application
concerning its content. Mr Mvoko maintains that he had, based on
previous instances of alleged intimidation, censorship and improper
interference by the SABC in editorial decisions, firmly decided to
stand up, as a professional journalist and in the interests
of the
public and the SABC. He states that he intended in writing the
article to reflect and comment on recent events that had
occurred
within the ranks of the SABC, especially in regard to, what he
referred to as ‘the erosion of editorial independence’
and, with the further objective ‘to dispel some untruths about
the goings on at the SABC’ with the intention of reminding
the
public that ‘there was still time to save the integrity of the
SABC, as a national broadcaster serving the needs of the
country as a
whole’.
[5]
The SABC proffers an entirely contrary view: the article, it states,
is ‘very critical’ of the news gathering and
news
dissemination at the SABC and, moreover, contains adverse comments
concerning the integrity of one of its most senior executive
officers
who, by inference, it then identifies. In so doing, the SABC
contends, the applicant has brought the name of the SABC
into
disrepute which constitutes a breach of Mr Mvoko’s contractual
undertaking ‘not to engage in any conduct, behaviour,
utterances and the like that, in the reasonable opinion of the SABC,
has the effect of bringing the name of the SABC into disrepute
or
impacting negatively on the relationship with colleagues...’
(clause 5.4.3 of the agreement). I should add that in the
agreement
as one of the ‘guarantees’ by Mr Mvoko, it is recorded,
that he ‘shall not do anything that will be
defamatory,
injurious, or in any way bring the reputation of the SABC…into
disrepute...’ (clause 16.3)
Factual
matrix
[6] Both the present
application and Mr Mvoko’s case in the Constitutional Court
application are premised on a letter addressed
to him by the SABC, on
7 July 2016 (the SABC letter). Due to its relevance to and importance
in deciding this matter, the body
of the letter reads as follows:
‘
RE:
INDEPENDANT CONTRACTOR’S AGREEMENT
It
has come to management’s attention that you have allegedly been
involved in acts of non-compliance / contravention of your
contract
which conduct constitutes a material breach of the agreement,
relating to the following issues:
You have brought the name of the
SABC into disrepute and also damaging the image of the SABC with the
comments/statements in the
newspaper article of the STAR Newspaper
dated 06 July 2016.
Management
views your conduct in a very serious light and contemplates
terminating this agreement. However, you are requested to
submit
written representations as to why the agreement should not be
terminated and should you wish to do so, same have to be submitted
to
writer hereof on or before close of business on Monday 11 July 2016
(16:00).
Furthermore
Management has resolved not to schedule you to render your services
as the Independent Contractor until this matter
has been resolved.’
Mr Mvoko did respond on
11 July 2016 in denying the ‘charges’ against him and
requesting more time for the filing of
his reply for consideration
thereof by his legal team. On 15 July 2016 the applicant’s then
attorneys, with reference to
the SABC’s letter, stated as
follows:
‘
Our client
denies the allegations that he has brought the name of the SABC into
disrepute or damaged its image in respect of his
article dated 6 July
2016, due to the fact that the SABC’s name is already in
disrepute and its image damaged, by its own
decision and actions to
ban the broadcasting of violent protests, which amount to
censorship.’
The letter concludes with
a demand for the immediate reinstatement of Mr Mvoko’s
scheduling and a notification that the matter
would be referred to
the CCMA or the Labour Court in the event of a failure to comply with
the demand within 5 days.
The
application
[7] On 22 July 2016 the
applicant launched the present application in which, in addition to
the customary prayer relating to urgency,
the following relief is
sought:
‘
2. It is
declared that the respondent’s decision not to schedule the
applicant’s services as an Independent Contractor
conveyed in
the letter dated 7 July 2016 is unlawful, unconstitutional and
constitutes a breach of the contract of service dated
4 April 2016,
(“the Agreement”) concluded between the applicant and
respondent.
3. The respondent is prohibited from
giving effect to its decision not to schedule the applicant’s
services as an Independent
Contractor.
4. The respondent is directed to
schedule the applicant to perform his services and to remunerate him
accordingly in terms of Clause
5 of the Agreement.
5. The respondent is directed to pay
the costs of this application.
6. Further and/or
alternative relief.
7. In the
alternative:
7.1 The applicant seeks an interim
order in the following terms:
7.1.1 The respondent is directed to
schedule the applicant to perform his services and to remunerate him
accordingly in terms of
Clause 5 of the Agreement.
7.1.2 The relief in paragraph 7.1.1
above shall apply with immediate effect as an interim order, pending
the final determination
of the relief sought in paragraphs 2 to 4 of
this Notice of Motion.
7.1.3 The respondent is directed to
pay the costs of this application.
7.1.4 Further and/or alternative
relief.’
[8]
The SABC opposes the application and its answering affidavit has been
filed. The applicant has not filed a reply thereto. The
application
was enrolled for hearing in the urgent court, on Thursday 28 July
2016, before Francis J. I was informed from the Bar
that the learned
judge, with reference to
Luna
Meubels
(1977 (4) SA 135
(W) 137D) and the Practice Manual of this court,
expressed reservations about the enrolment and hearing of the matter
on a Thursday,
in the urgent court. The applicant’s legal
representatives took heed and decided to ask for the matter to be
removed from
the roll, costs reserved, which was granted. The matter
was instantaneously enrolled for Tuesday the next week when it came
before
me. I am accordingly required to determine the costs reserved
by Francis J as one of the issues in this matter.
[9] Having heard argument
I issued the order appearing at the end of this judgment, the next
day. In regard to the urgency of the
matter, which was contested by
the SABC, I ruled, in the interests of the parties and having
had regard to the nature of
the dispute, that a sufficient degree of
urgency existed for the matter to be heard in the urgent court, in
terms of rule 6(12).
I further indicted that my reasons for the
order would be delivered on 12 August 2016. What follows are those
reasons.
Discussion
[10] Counsel for the
applicant as a starting point, contended that the SABC was in breach
of the agreement in refusing to schedule
Mr Mvoko to further render
his services. The argument is short-lived and, as rightly conceded by
counsel for the applicant, the
agreement specifically provides for
the procedure adopted by the SABC. In this regard clause 13.2 of the
agreement provides as
follows:
‘
Should
either party terminate this agreement and the other dispute the
terminating party’s right to do so
or
in instances where the SABC conducts an investigation into
irregularities allegedly conducted by the independent contractor, the
SABC shall have the right, pending determination of the dispute or
the outcomes of the investigation, not to schedule the independent
contractor to render any services and may engage/use another service
provider to continue with the services.’
[emphasis
added]
[11]
The SABC’s letter is clear as to the applicant’s
suspension to be of effect ‘until this matter has been
resolved’. Applicant’s counsel seemingly overlooked the
fact that the SABC’s suspension of the applicant’s
services was of temporary duration and not permanent. But, counsel
had another string to his bow: he submitted that the suspension
of
the applicant was punitive in nature and therefore unjust and unfair
to the applicant thus entitling this court to decline enforcing
the
term. The applicant has seemingly failed to demonstrate why the
enforcement of the clause would be unfair and unreasonable
within the
context of the agreement and, in any event, the applicant’s
case is not premised on this contention as a ground
for this court to
interfere with the decision of the SABC. I am moreover unable to find
any conceivable reason that, as was contended
for by the applicant
with reliance on
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC), the
contractual terms contained in the agreement are in any way
incompatible with Constitutional principles and values.
[12]
This brings me to the Constitutional challenge relating to the
applicant’s suspension. The relief sought by the applicant
is
for a
final order
in regard to the SABC’s decision not
to schedule the applicant for his services, as stated in the SABC’s
letter. In
this regard counsel for the applicant in argument, after
meticulous scrutiny of the STAR article and with reference to the
Constitutional
imperatives and principles relating to freedom of
expression and speech as well as the duty of the SABC, as a public
enterprise,
to observe and apply Constitutional principles and values
and generally public interest, submitted that the suspension was
unconstitutional
and therefore invalid.
[13] The applicant’s
Constitutional challenge flounders at the procedural level. The
suspension of the applicant’s services,
as I have been at pains
to observe, was temporary and not permanent. The SABC’s letter,
on which sole reliance is placed
by the applicant, clearly indicates,
and, in specific terms, provides for an investigation into the
appropriateness of the STAR
article. It would therefore be premature
for this court to express any firm views, let alone decide on, the
Constitutionality of
the views expressed in the STAR article in the
face of a final decision yet to be taken by the SABC whether or not
to terminate
the agreement at the conclusion of its investigation.
The same principles applicable to the requirement that internal
remedies
ought to be exhausted prior to an approach to court, in my
view, on a parity of reasoning, with equal force apply here (cf
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining And
Development Company Ltd and Others
(2014 (3) BCLR 265
(CC);
2014
(5) SA 138
(CC))
[2013] ZACC 52
;
[2013] ZACC 48
(13 December 2013)
para [63]
et seq
).
[14]
Nothing of substance was advanced on behalf of the applicant that
would entitle this court to interfere with the SABC’s
investigation prior to finally determining the fate of the agreement,
as set out in its letter. The applicant, as part of the
investigation, was duly afforded the opportunity to make
representations, which he indeed availed himself of. Regrettably, the
contention raised by his then attorneys to which I have already
referred, was not only non-sensical but could also not in any way
contribute to a just decision of the issue.
[15]
The SABC’s investigation into the matter is still pending and
probably due to this application intervening, no final
determination
has been made. I can only express the hope that this matter will now
be dealt with expeditiously. In my view, in
the interest of the
parties and in order to ensure a proper determination of the issue,
the SABC should be apprised of all the
relevant facts and
circumstances to enable it to arrive at a just decision. I have
accordingly decided, in my discretion and to
reach finality on the
issue, to order that all documents filed in this application
including counsels’ heads of argument,
shall form part of the
investigation and to further direct the SABC to consider the content
thereof in the determination of the
issue (cf
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
1999 (4) SA 147
(CC)
(1999 (7) BCLR 725)
;
[1999]
ZACC 9
paras [35] and [48]).
[16]
Finally, I turn now to the plea of
lis pendens.
In my view,
until the Constitutional Court has granted direct access, the issue
cannot be said to be properly pending before that
court. It follows
for this reason alone that the plea of
lis pendens
must fail.
Costs
[17] The applicant has
set out his dire financial position resulting from a lack of income
due to the suspension of his services,
which he maintains constitutes
his only source of income. The ordinary rule of costs following the
result applies. In order not
to financially compromise the
applicant’s future conduct pending the determination of the
issue, I have decided to suspend
the taxation and payment of the
costs of this application, pending the SABC’s final decision.
[18] Finally, regarding
the reserved costs, I am of the view that it is just and fair for
each party to pay its own costs.
Order
[19]
For all the above reasons I make the following order:
1.
The
application is dismissed.
2.
The
applicant is ordered to pay the costs of the application, excluding
the costs referred to in paragraph 4 below, such costs to
include the
costs of two counsel.
3.
The
taxation/payment of the costs referred to in paragraph 2 above is
suspended pending finalisation of the SABC’s determination
of
the dispute referred to in paragraph 6 below.
4.
In
regard to the costs reserved by the Francis J on 28 July 2016, each
party shall pay its own costs.
5.
The
papers filed in this application, including counsels’ heads of
argument, shall form part of the written representations
called for
by the SABC in its letter to the applicant, dated 7 July 2016.
6.
The
SABC is directed to consider the content of the documents referred to
in paragraph 4 above, in its investigation and determination
of the
issue referred to in the said letter.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT
ADV TN NGCUKAITOBI
ADV
L SISILANA
APPLICANT’S
ATTORNEYS
BOWMAN GILFILLAN INC
COUNSEL
FOR RESPONDENT
ADV S DU TOIT SC
ADV
A BESTER
ADV
S KANYANGARARA
RESPONDENT’S
ATTORNEYS
NCUBE INC
DATE
OF HEARING
4 AUGUST 2016
DATE
OF ORDER
5 AUGUST 2016
DATE
OF REASONS FOR JUDGMENT
12 AUGUST 2016