South African Broadcasting Corporation v Coop and Others (178/08) [2009] ZASCA 30; [2009] 3 All SA 433 (SCA) (30 March 2009)

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[2009] ZASCA 30
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South African Broadcasting Corporation v Coop and Others (178/08) [2009] ZASCA 30; [2009] 3 All SA 433 (SCA) (30 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 178/08
In
the matter between:
SOUTH
AFRICAN BROADCASTING CORPORATION LTD APPELLANT
v
FRED
PETER COOP & OTHERS
RESPONDENT
Neutral citation:
SA
Broadcasting Corporation v Coop
(178/2008)
[2009] ZASCA 30
(30 March 2009).
Coram: Nugent, Jafta, Mlambo, Maya JJA et Hurt AJA
Heard: 2 March 2009
Delivered: 30 March 2009
Summary: Court order – meaning and effect – SABC
seeking to phase out and withdraw benefits it had been ordered to
maintain
– not shown by SABC that legal basis of order no longer in
existence.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
High Court,
Witwatersrand (Mogagabe AJ sitting as court of first instance).
The following order is made:
‘
The appeal is dismissed with costs including the
costs of two counsel.’
_____________________________________________________________
JUDGMENT
_____________________________________________________________
MLAMBO JA (Nugent, Jafta, Maya JJA, Hurt AJA
concurring)
[1] This is an appeal by the South African Broadcasting
Corporation (SABC), against the judgment of the Johannesburg High
Court
(Mogagabe AJ) granting the respondents an interdict and
other ancillary relief against it. The appeal is with the leave of

the court a quo.
[2] The matter has a somewhat chequered past spanning
some 8 years of litigation between the parties and I sketch such to
facilitate
an appreciation of the issues of contestation. The
respondents were part of a group of employees who left the employ of
the SABC
between 1993 and 2000 and were paid the full actuarial value
of their pensions. They, however, remained members of the SABC
medical
scheme and the SABC continued paying a 60 per cent subsidy of
their monthly medical scheme contributions, amongst other so-called

retirement benefits (the subsidies).
1
The SABC also paid the same subsidies to other employees who had left
its employ and who had remained members of the medical scheme
but who
had not been paid the full actuarial value of their pensions. These
latter employees came to be known as ‘bona fide pensioners’
and
are regarded by the SABC as retirees in terms of its pension fund
rules.
[3] In 2001 the SABC gave notice to the respondents of
its intention to withdraw their subsidies. The SABC justified its
stance
on the basis that the respondents were not retirees and that
the subsidies paid on their behalf had not been authorised. The SABC

relied on the fact that upon termination of their employment the
respondents lost any claims they may have had in terms of its
pension
fund rules, having been paid the full actuarial value of their
pensions. Having unsuccessfully disputed the SABC’s stance
the
respondents instituted motion proceedings in the Johannesburg High
Court seeking an order, amongst others, for the reinstatement
of
their subsidies, which the SABC had withdrawn in keeping with its
notice to the respondents.
[4] In view of some irresoluble disputes of fact on the
papers, the matter was referred to trial for the hearing of evidence.
Blieden
J heard the matter and rejected the SABC’s claims. He found
that the SABC had ratified the decisions by its officials to extend

the subsidies to the respondents, and granted the respondents the
relief they sought. That judgment has since been reported:
Coop
& others v South African Broadcasting Corporation & others
[2004] 25 ILJ 1933 W. Blieden J essentially ordered the SABC to
reinstate the subsidies.
[5] Having been granted leave by Blieden J the SABC
appealed his orders to this court. In that appeal this court upheld
Blieden
J’s orders, albeit for different reasons. This court
disapproved Blieden J’s finding that the SABC had ratified the
decision
of its officials in extending the subsidies to the
respondents. It reasoned that the respondents had established that
the SABC
was estopped from denying the authority of its officials who
had purported to represent it in agreeing that the respondents could

be treated as retirees and therefore entitled to the subsidies. It
further found it unnecessary to decide whether the respondents
were
contractually entitled to the subsidies as contended by them or
whether these were gratuitous as asserted by the SABC. The
decision
of this court has also since been reported:
South
African Broadcasting Corporation v Coop & others
2006 (2) SA 217
(SCA).
[6] Nearly a year after the handing down of the judgment
and order of this court, the SABC sent out a standard letter to the
respondents
stating, amongst other things, that after intensive
consultation with the so-called bona fide pensioners (retirees) it
had decided
to commence phasing out the subsidies paid to these
retirees over a five year period. The SABC stated that it continued
to hold
the view that it was entitled to vary, withdraw or phase out
the subsidies on reasonable notice. In that letter the SABC gave the

respondents notice that it had decided to commence phasing out their
subsidies at the rate of 20 per cent per annum with effect
from 1
February 2007. On receipt of that letter the respondents disputed the
SABC’s stance and threatened litigation to enforce
their rights to
the subsidies unless the SABC undertook not to phase them out. After
eliciting no response the respondents again
launched motion
proceedings in the Johannesburg High Court inter alia seeking an
order interdicting and restraining the SABC from
withdrawing or in
any way reducing or phasing out the subsidies.
[7] In that matter the respondents’ stance was simply
that the conduct of the SABC in phasing out or reducing their
subsidies
was in conflict with and in contempt of the judgment and
order of Blieden J. On the other hand the SABC asserted that it was
entitled
to phase out the subsidies by virtue of the fact that it had
commenced phasing out same in respect of the bona fide pensioners.

The SABC’s interpretation of the reasoning underlying Blieden J’s
order was that the respondents had to be treated in the same
manner
as the bona fide pensioners. On that basis its counsel submitted that
because it had decided to phase out the subsidies
of those
pensioners, it was entitled to phase out the subsidies of the
respondents as well.
[8] Having heard argument Mogagabe AJ found in favour of
the respondents and ordered the SABC to comply with the order issued
by
Blieden J. He also granted an order interdicting and restraining
the SABC from phasing out the subsidies. In arriving at that
conclusion
Mogagabe AJ reasoned that the SABC was misguided in
interpreting Blieden J’s order to mean that it was entitled to
disregard
that order so long as it was treating the respondents in
the same manner as the bona fide pensioners. In this regard Mogagabe
AJ
reasoned that Blieden J’s order could not be interpreted to mean
that the SABC was entitled to phase out and withdraw the subsidies
of
bona fide pensioners.
[9] On appeal before us counsel for the SABC submitted
that Mogagabe AJ had erred in holding against it. He submitted that
Blieden
J’s order did not mean that the SABC was bound to comply
therewith in perpetuity. He submitted that the SABC’s decision to
phase out the subsidies in conformity with its decision to do so in
relation to bona fide pensioners was a new act that occurred
after
the order had been granted and relieved the SABC of its obligation to
henceforth comply with the order.
[10] I do not think a litigant who is bound by a
continuing mandamus is able to escape those obligations merely by
alleging that
he or she has chosen to end them. It cannot be disputed
that the order was made because it was found that the respondents had
a
legal right to continue to receive the subsidy. While it is correct
that the order was not made in perpetuity it remains effective
until
the rights upon which it was founded come to an end. Where those
rights emanate from a contract then no doubt they end when
the
contract lawfully terminates. But the SABC has laid no basis for
finding that the rights have been lawfully terminated in this
case. A
mere assertion that it has terminated those rights, without
establishing that the termination was lawful, does not seem
to me to
be sufficient to relieve it of the continuing obligations imposed by
the order.
[11] We were asked by counsel for the respondents to
rule that the finding by Blieden J in the course of his judgment that
the respondent’s
contracts entitled them to the subsidies is res
judicata between the parties. I do not think we are called upon to
stray beyond
what is properly required for our decision in this
appeal.
[12] The appeal is dismissed with costs including the
costs of two counsel.
_________________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANT: C E Watt-Pringle SC; M S Baloyi
INSTRUCTED BY: Maserumule Inc;
Johannesburg
CORRESPONDENT: Honey Attorneys;
Bloemfontein
COUNSEL FOR RESPONDENT: J J Reyneke SC; A Mooij
INSTRUCTED BY: Blake Bester Inc;
Johannesburg
CORRESPONDENT: Naudes ; Bloemfontein
1
The other subsidy related to television licenses.