About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 139
|
|
Mvoko v South African Broadcasting Corporation Soc Ltd (1066/2016) [2017] ZASCA 139; 2018 (2) SA 291 (SCA) (29 September 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
CASE
NO: 1066/2016
In
the matter between:
VUYO
MVOKO
APPELLANT
and
THE
SOUTH AFRICAN BROADCASTING CORPORATION SOC
LTD RESPONDENT
Neutral
Citation:
Mvoko
v SABC
(1066/2016)
[2017] ZASCA 139(29 September 2017).
Coram:
Navsa
ADP, Mathopo JA, Mokgohloa, Tsoka and Fourie AJJA
Heard:
11
September 2017
Delivered:
29
September 2017
Summary:
Application
for leave to appeal in terms of 17(2)
(d)
of the
Superior Courts Act 10 of 2013
granted – in relation to
merits of the appeal – claim for specific performance of a
written agreement between independent
contractor and the South
African Broadcasting Corporation (SABC) – SABC ordered to
comply with written agreement –
SABC has to conduct itself
within constitutional parameters and within its statutory mandate –
Broadcasting Act 4 of 1999
.
ORDER
On
appeal from
:
The Gauteng Local Division, Johannesburg (Van Oosten J sitting as
court of first instance).
The
following order is made:
1.
The application for leave to appeal is granted and the respondent is
ordered to pay the applicant’s costs.
2.
The appeal is upheld with costs including the costs of two counsel.
3.
The order of the court below is set aside and substituted as follows:
‘
a.
The respondent is directed to comply with the written agreement dated
4 April 2016, and to schedule the applicant, as in the
past, to
perform his services as set out in annexure A to the agreement and to
remunerate him accordingly in relation to the remaining
term of the
agreement.
b.
The respondent is ordered to pay the applicant’s costs
including the costs consequent upon the employment of two counsel.’
JUDGMENT
NAVSA
ADP (Mathopo JA, Mokgohloa, Tsoka and Fourie AJJA concurring):
[1]
The appellant, Mr Vuyo Mvoko, a journalist, applied to this court in
terms of s 17(2)
(d)
of the Superior Courts Act 10 of 2013 (the SC Act), for leave to
appeal against an order of the Gauteng Local Division, Johannesburg,
which dismissed with costs an application by him for specific
performance of a written agreement concluded with the respondent,
the
South African Broadcasting Corporation SOC Limited (the SABC) - the
state-owned national radio and television broadcaster established
in
terms of the Broadcasting Act 4 of 1999 (the Act).
[2]
The application for leave to appeal followed on a refusal by the
court below to grant such leave. This court referred the application
for leave to appeal for oral argument in terms of s 17(2)
(d)
of the SC Act and directed the parties to be ready, if called upon to
do so, to argue the merits of the appeal. We heard the application
and directed that the merits be argued as well. The history of the
matter is set out in the paragraphs that follow.
[3]
The agreement underlying Mr Mvoko’s application in the court
below made provision for him to render professional television
journalism services to the SABC. His functions when scheduled, before
a decision by the SABC to suspend his services, included
covering
breaking news items and conducting specialist interviews with,
amongst others, Presidents and other heads of states. He
also
packaged news stories which included researching, analysing and
commentating on news items and conducting interviews. Mr Mvoko
was
also responsible for anchoring, analysing and commentating during
live broadcasts. In addition he was responsible for covering
news in
other countries. The agreement in question is dated 4 April 2016 and
the period for which it endures is 1 April 2016 to
31 March 2018. I
shall in due course deal with specific provisions of the agreement.
[4]
From 2002 to 2006 Mr Mvoko was employed by the SABC as its Group
Political Editor. From 2011 until his application brought in
the
court below, he was an independent contractor with the SABC in terms
of written agreements including the one which is at the
centre of
this appeal.
[5]
At this stage it is necessary to set out the events leading up to the
suspension of Mr Mvoko’s services by the SABC. According
to him
the events which are set out hereafter were a manifestation of
manipulation by executives at the SABC to serve narrow personal
and
political agendas and they demonstrate how, in breach of its
statutory and constitutional mandate, the SABC was stifling
independent
journalistic thought and silencing critical voices. It
was submitted before us that the actions complained of were the very
antithesis
of a journalistic culture which enabled a free flow of
information independently conveyed to the public. Mr Mvoko’s
case
in the court below, as will be more clearly demonstrated below,
was that his services were unlawfully terminated because he was
seeking to hold the SABC to its constitutional and statutory
mandates. Put differently, his case was that he stood up to
interference
in editorial decisions which impinged on journalistic
independence.
[6]
The first example provided by Mr Mvoko as an indication of SABC
managerial political interference with editorial decisions occurred
during March 2016, shortly after a television interview he had
conducted with the former Public Protector, Ms Thuli Madonsela,
concerning racism in South Africa, was aired. The interview was part
of a programme called ‘On the Record’. It was
the SABC’s
custom to re-run the programme by way of a broadcast the next day at
05h00. This did not occur. The cancellation
of the re-run was without
any consultation or communication with Mr Mvoko, who was the
programme’s executive producer.
[7]
Subsequently, Mr Mvoko was summoned to a meeting with two SABC
executives to whom he was accountable, namely Mr Nyana Molete
and Ms
Nothando Maseko. The former informed him that management was intent
on cancelling ‘On the Record’ and was not
willing to
discuss the matter any further. On a later date Mr Mvoko was told by
Ms Maseko that the then group executive for television
news, Mr Jimi
Matthews, was not pleased with the fact that Ms Madonsela had been
interviewed. Mr Mvoko notified viewers by way
of his twitter account
that the program had been cancelled for reasons he was at that moment
not willing to disclose. His tweet
apologised for the abrupt manner
in which the program was ended. Mr Molete was displeased with this
notification and informed Mr
Mvoko that he was liable to be subjected
to disciplinary action. However, Mr Mvoko was told that if he signed
a letter accepting
that his tweet was inconsistent with the
provisions of the written agreement with the SABC, and if he
acknowledged that the letter
served as a warning that a recurrence
would lead to stringent action against him, no further action would
be taken against him.
According to Mr Mvoko he reluctantly signed the
letter because, at that time, the agreement presently in issue was in
the process
of being negotiated and he did not want to jeopardise the
upcoming potential extension of his contract.
[8]
The second example of political interference in editorial decisions
cited by Mr Mvoko involved his television
coverage
of local government elections during 2016. Mr Mvoko described how, in
his coverage of the launching of the manifesto of
the Democratic
Alliance (DA), the official opposition in the National Parliament he
had mentioned that the DA believed the African
National Congress
(ANC), the ruling party, was at its most vulnerable in certain
metropolitan municipalities. Soon thereafter the
then acting
political editor at the SABC, Ms Sophie Mokoena approached him
stating that Mr Motsoeneng, the Chief Operating Officer
at the time,
objected to the fact that he had mentioned the ANC in relation to a
DA rally. Mr Mvoko was informed that ‘Mr
Motsoeneng was
watching and scrutinising “each and every word”’
that he was uttering and that he should be careful
on air.
[9]
The third instance of political interference occurred during January
2016 when Mr Mvoko interviewed the President of the Republic
of South
Africa and questioned him about the dismissal of the former Minister
of Finance, Mr Nhlanhla Nene. He did this because,
so he asserts, it
was a burning public issue. The President replied to the questions
and the interview ended. Soon thereafter,
Ms Maseko told Mr Mvoko
that she was under pressure not to air the interview, or to excise
the part that related to the dismissal
of Mr Nene. Mr Mvoko responded
by stating that other television stations had conducted similar
interviews without censorship.
[10]
The fourth example provided by Mr Mvoko involved another interview by
him of the President, after the latter’s address
on the State
of the Nation. The interview included questions concerning the
Minister of Police in relation to Mr Robert McBride
and Mr Anwar
Dramat, as well as questions concerning limitations on land ownership
by foreigners and whether that would have the
effect of driving away
potential investors. Mr Mvoko was told later by Ms Maseko that those
parts of the interview relating to
the land question and the Minister
of Police had to be excised. Those portions were subsequently not
broadcast.
[11]
Mr Mvoko was also aggrieved when the SABC adopted a policy in terms
of which footage of violent protests would not be shown
on
television, a decision which resulted in the resignation of Mr
Matthews. The SABC thereafter consented to an order of the Gauteng
Division, Pretoria, in terms of which it undertook not to enforce the
policy, pending ‘a full ventilation of the matter at
a later
stage’. Mr Mvoko took the view that the adoption of the policy
was a dramatic and heightened escalation of political
interference in
editorial policy. I pause to record that the Independent
Communications Authority of South Africa later declared
the policy
unlawful.
[1]
[12]
As a result of the events set out in the preceding paragraphs, Mr
Mvoko decided it was time to take up the cudgels as a journalist,
both in the interest of the SABC and the public, and to offer his
reflections in the media. On 6 July 2016 he published an article
in
The Star
, a newspaper with its principal circulation in
Johannesburg. It is that article which set off the events culminating
in the litigation
leading to the present appeal. For that reason it
is necessary to have regard to its contents in some detail. The
article was entitled
‘My hell at the SABC’ and it bore
the subtitle ‘In power mongers’ grip’. The first
paragraph reads
as follows:
‘
The
SABC has never been a paragon of a great anything. It has been a
work-in-progress, with degrees of success as generations of
well-meaning South Africans tackled the extraordinarily and complex
task of undoing decades of apartheid misuse of this national
asset.’
It
is necessary to record that the title of the article was provided by
The Star
itself.
[13]
The article also referred to Mr Mvoko’s experience at the SABC
concerning the cancellation of ‘On the Record’,
as noted
above. He was critical of the SABC’s Mr Motsoeneng and said the
following concerning the organisation:
‘
What
cannot and should not be pawned, though, is the SABC. It’s too
important an institution for its integrity to be impugned,
and for
the intelligence of everyone associated with it or the public that’s
supposed to be benefiting from it to be undermined.’
[14]
Mr Mvoko criticised the policy referred to above, namely, that
violent images would not be broadcast by the SABC. However,
the part
of the article that evoked the most outrage on the part of the SABC,
as was evident from the submissions before us on
its behalf, was the
following:
‘
We
are saying there’s no point in doing the right thing by
promoting women to leadership positions – only to reduce
them
to policing duties, or walking around with their cellphones glued to
their ears as they take arbitrary instructions on who
to put on air.’
This
was construed by the SABC as a direct and vicious attack on Ms
Maseko.
[15]
Mr Mvoko was adamant that in writing the article he had the following
objectives: to offer his reflections on what was happening
at the
SABC in relation to the erosion of editorial independence; to convey
his own first-hand experience of that erosion; to dispel
myths about
the goings-on at the SABC; and to remind the public that there was
still time to save the integrity of the SABC.
[16]
On 7 July 2016, the day following the publication of the article, Ms
Maseko informed Mr Mvoko telephonically that he was required
to
collect a letter addressed to him. Mr Molete handed him the letter
and said: ‘Don’t crucify me. I just have to give
you this
letter’. It is necessary to quote the relevant part of the
letter:
‘
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 the 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 Contract until this matter is
resolved.’
[17]
Following on that letter Mr Mvoko’s legal representatives wrote
to the SABC demanding that he ‘be scheduled’
in terms of
his written agreement with the SABC. The SABC did not comply and Mr
Mvoko then turned to the court below for relief.
The SABC, in
resisting Mr Mvoko’s application contended, principally, that
it was misconceived in that the agreement on which
he relied
stipulated that it was the SABC’s prerogative to engage Mr
Mvoko’s services ‘as and when required’.
The SABC
contended that the agreement itself recognised that Mr Mvoko had no
right to insist on being scheduled. Thus, so it was
submitted, Mr
Mvoko could not compel specific performance. Before us the SABC
persisted in that stance. As to the suspension of
his services, the
SABC took the view that it was lawfully done since the agreement
provided that in performing his services he
was prohibited from
engaging in any conduct, behaviour, utterances and the like that, in
the reasonable opinion of the SABC, had
the effect of bringing the
name of the organisation into disrepute or impacting negatively on
his relationship with colleagues
and the SABC. The publication of the
article in
The
Star
,
in the view of the SABC, was a breach of that contractual provision
entitling the SABC to suspend his services.
[18]
The SABC asserted that the scheduling of television programmes
featuring Mr Mvoko was within the control of Ms Maseko, who
was the
head of News Output, and that Mr Mvoko is not the one who ultimately
decides on whether a program is to be aired. It was
adamant that an
independent contractor such as Mr Mvoko could not dictate whether to
feature television programmes. Moreover, it
warned that if Mr Mvoko
were to be granted relief, the court ‘would in fact be
prescribing to the respondent what programmes
should be featured on
television, and who should present them’. This warning to the
court was dramatically presented as follows:
‘
This
Court would be dragged into the news room of the respondent.’
It
was not for the court, so the SABC stated, to prescribe which means
it should employ in performing its functions.
[19]
Furthermore, particularly in relation to Ms Maseko and Mr Molete, the
SABC submitted that the article destroyed the element
of trust and
good faith that was necessary between them and Mr Mvoko. The
depiction of Ms Maseko as a ‘useless puppet’
was regarded
as most offensive and it was contended that it would affect the
relationship of trust between her and Mr Mvoko. In
dealing with the
alleged attack on Ms Maseko, counsel on behalf of Mr Mvoko submitted
that the article should be understood to
reflect that he was
concerned about black women being appointed to executive positions
merely as tokens subject to political control.
[20]
It is especially disconcerting that the SABC deliberately chose not
to respond to Mr Mvoko’s detailed description of
political
interference in relation to editorial comment and journalistic
integrity. The following is what it restricted itself
to:
‘
These
allegations, on the applicant’s case, are irrelevant to this
application. I therefore do not deal with them, and point
out that
that does not mean that the contentions made are admitted. The
contrary should be accepted. This urgent court is not the
appropriate
forum, nor is it the appropriate time to engage in a debate as to the
respondent’s editorial policies.’
This
is an aspect to which I shall return in due course.
[21]
The court below, in a brief judgment, considered the following clause
of the agreement to be pertinent:
‘
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 contract,
of
the SABC shall have the right, pending determination of the dispute
or the outcome 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.’ (Clause 13.2.)
The
court considered that provision of the agreement alongside the very
last sentence of the letter by the SABC, referred to in
para 16
above, which informed Mr Mvoko that management had resolved not to
schedule him ‘until the matter is resolved’.
In the
court’s view Mr Mvoko’s suspension was temporary and not
permanent.
[22]
As to Mr Mvoko’s constitutional challenge, which included his
reliance on his right to freedom of expression, the court
below said
the following:
‘
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.’
The
court went on to say:
‘
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.’
[23]
Consequently, Mr Mvoko’s application was dismissed with costs
including the costs of two counsel, the taxation or payment
of which
was suspended, pending finalisation of the SABC’s
‘determination of the dispute’. I proceed to consider
whether the approach of the court below was correct.
[24]
In my view, one should start with a consideration of the relevant
provisions of the written agreement. The following all appear
in the
definition section of the agreement:
(a)
Clause 1.1.5 defines ‘independent contractor’ as:
‘
[T]he
Party whose name and details are reflected on page 1 and in the
annexure attached to this agreement and shall mean a natural
and/or
juristic person who is contracted by the SABC to render specific
services or to perform a particular task/specific programme
etc in
return for an agreed contract fee . . . .’
(b)
Clause 1.1.10 reads:
‘“
Programme”
shall mean, where applicable, the specific radio or television
programme in terms of which the Independent Contractor
will be
engaged to render services.’
(c)
Clause 1.1.13 sets out the meaning of ‘services’ as:
‘
[T]he
specific services to be rendered or to perform a particular
task/specific programme etc that the Independent Contractor is
engaged to provide to the SABC under and in terms of this Agreement
as depicted in the annexure(s) to this Agreement’.
[25]
Annexure A of the agreement reads as follows:
‘
ANNEXURE
A
STATEMENT
OF WORK
a)
Services to be rendered:
o
Initiate and Cover News stories
o
Planning, Producing, as well as
on air presentation for TV news for specialist occasions such as
National Days, eg June 16, Sona
and Elections
o
Packages for bulletins on some
of the Major breaking stories
o
Drive the Editorial directions
of such broadcast under guidance of Head of TV News
o
Submit forward planning diaries
for above programmes or broadcasts
o
Use of official SABC Vehicles
for coverage of news stories
o
Be available to travel for out
of town and international broadcasts
o
S&T @ R319 per night will
be paid by the SABC and Bed and Breakfast only (Travel and
accommodation daily per diem for services
rendered)
b)
Contract fee to be paid
o
R5780.00
o
Per Shift
c)
Performance Standards to be adhered to:
o
Form part of the Newsroom think
tank by contributing to the divisions overall editorial strategic
direction
o
Avail yourself for live
analysis
d)
Division and cost centre:
o
TV NEWS
o
1479
e)
Start date and End date of the Agreement:
o
01/04/2016
o
31/03/2018
f)
Division specific requirements:
o
o
g)
Possible misconduct as a basis to terminate the independent
contractor’s agreement:
o
Bringing the SABC into
disrepute;
o
Negligence in the execution of
your duties;
o
Dishonesty;
o
Conflict of Interest;
o
Disruption of Relations;
o
Assault;
o
Reporting late for duty;
o
Not reporting for duty;
o
Committing a common/statutory
law offence having an impact on the contract and services rendered/to
be rendered’
[26]
Clause 2.5 provides:
‘
The
annexures to this Agreement form an integral part hereof and words
and expressions defined in this Agreement shall bear, unless
the
context otherwise requires the same meanings in such annexures which
do not themselves contain their own definitions.’
[27]
Under the heading
‘Introduction’, clause 3.1 records the following:
‘
The
SABC wishes to engage the Independent Contractor to provide the
Services on the basis and due to the representation made by
the
Independent Contractor that the Independent Contractor has the
necessary ability, experience, resources and the capacity to
provide
the Services.’
[28]
Clause 5 sets out the obligations of the independent contractor.
Clauses 5.1, 5.2 and 5.3 read as follows:
‘
5.1
The Independent Contractor shall provide the Services strictly in
accordance with the Terms and Conditions contained in this
Agreement
and reflected in the Annexure.
5.2
The Services shall be performed in consultation, co-ordination and
under the direction of the Principal Client or his/her duly
appointed
nominee. It is understood that there will be no supervision and
control by the Principal Client during the course of
delivery of the
Services by the Independent Contractor.
5.3
The Principal Client will provide a brief of the obligations to be
performed, manage the outcomes and provide adequate feedback
on the
outcome thereon.’
[29]
Clause 5.4.3 prohibits the independent contractor from ‘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
and the Principal Client’. Significantly, in the agreement in
question, under a heading that states ‘for
office use only’
the following appears:
‘
Service
to be Rendered: PLANNING & CONTRIBUTING EDITOR
Programme:
NEWS
Nature
of Contribution: PLANNING & CONTRIBUTING EDITOR
Method
of Payment: MONTHLY IN ARREARS
Contract
Period: 01/04/2016-31/03/2018’
[30]
Clause 13.2 of the agreement provides:
‘
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.’ (My emphasis.)
[31]
The clause on which particular reliance was placed by the SABC, is
clause 3.4 which reads as follows:
‘
The
Independent Contractor will be engaged on an “as and when
required” basis.’
[32]
It should be borne in mind that it had been the practice, both in
terms of the present agreement and the one preceding it,
for Mr Mvoko
to be scheduled to perform tasks in terms of annexure A. The
scheduling appears to have been regular, subject of course
to
necessary and lawful changes to programmes that fell within
management’s prerogative. The part of the agreement under
the
heading ‘for office use only’ contemplates services to be
regularly provided by Mr Mvoko as a planning and contributing
editor.
The annexure, which the agreement specifically recognises as an
integral part thereof, clearly contemplates that Mr Mvoko
would ‘form
part of the Newsroom think tank by contributing to the divisions
overall editorial strategic direction’.
This is hardly a
description that supports the SABC’s interpretation in relation
to the ‘as and when required’
clause. Clause 13.2,
referred to in para 30 above, which gives the SABC the right ‘not
to schedule’ the independent
contractor, pending a dispute in
relation to the right to terminate the agreement, is in line with
that construction. One might
rightly ask why one would need to
terminate rather than just not schedule an independent contractor’s
services. It is the
equivalent of ‘do not call us, we will call
you’, or, perhaps more accurately, ‘do not call us and we
will not
call you’. All of this explains the practice in
relation to the use by the SABC of Mr Mvoko’s services, both in
relation
to the preceding and present agreement. The ‘as and
when required’ clause has to be read in the restricted manner
referred
to in the second sentence of this paragraph. The principle
of reading the clause within the overall context and contemplating
its
purpose and business efficacy when applied to the clause
presently under consideration renders that result.
[2]
[33]
In light of the conclusion in the preceding paragraph there is no
basis for the warning sounded by the SABC to courts to avoid
imposing
themselves within the SABC boardroom. If anything, for reasons that
are set out hereunder, the SABC should be careful
not to be a law
unto itself. It has to operate within its statutory mandate and, like
the rest of us, it has to conduct itself
within constitutional
parameters.
[34]
The SABC’s reliance on clause 13.2 of the agreement read in
conjunction with clause 5.4.3 for its right to suspend Mr
Mvoko is
misplaced. Clause 13.2 requires an investigation into irregularities
on the part of the independent contractor pending
the conclusion of
which the SABC is entitled to suspend. The difficulty regarding that
part of the SABC’s case is that its
conduct, described in
detail by Mr Mvoko and which is unrefuted, is what brought it into
disrepute. It behaved in a manner reminiscent
of an era which we all
would much rather forget. It smacks of high-handedness and of a lack
of consideration of the SABC’s
role as a national broadcaster.
[35]
In this respect, regard should firstly be had to the basic values and
principles governing public administration set out in
s 195 of the
Constitution which provides, amongst others, that services must be
provided impartially, fairly, equitably and without
bias, and that
public administration must be accountable.
[3]
In terms of s 195(2) these principles apply to administration in
every sphere of government, organs of state and public enterprises.
The South African Broadcasting System is dealt with in the Act. The
following appears at the commencement of Chapter II of the
Act:
‘
This
Chapter is of central significance to the Act, as it lays the basis
that the South African broadcasting system is owned and
controlled by
South Africans. The National Government, acting through the Minister,
is responsible for the achievement of this
purpose and the
constitutional mandate of broadcasting policy development. Being
empowered to act on behalf of the nation, the
Minister has the
ultimate responsibility to fulfil certain obligations relating to
use, protection and access to broadcasting resources.’
Even
more significantly, fundamental principles and interpretations are
dealt with at the commencement of the Act where the following
appears:
‘
This
Chapter sets out the fundamental principles and objects of this Act.
Freedom of expression and the journalistic, creative and
programming
independence of the broadcasters and independence of regulation are
identified as guaranteed by the Constitution. These
principles
recognise that the South African broadcasting system comprises
public, commercial and community elements which make
use of the radio
frequencies that are public property and provides, through its
programming, a public service necessary for the
maintenance of South
African identity, universal access, equality, unity and diversity.’
[36]
Section 3(5) of the Act provides, inter alia, that the programming
provided by the South African Broadcasting System must:
‘
(a)
be varied and
comprehensive, providing a balance of information, education and
entertainment meeting the broadcasting needs of the
entire South
African population in terms of age, race, gender, religion, interests
and backgrounds;
(b)
be varied and offer a range of South
African content and analysis from a South African perspective;
.
. . .
(d)
provide a reasonable, balanced
opportunity for the public to receive a variety of points of view on
matters of public concern;
(e)
provide a significant place for
programmes produced by the independent production sector.’
[37]
The SABC is especially catered for in Chapter IV of the Act.
Importantly, s 6(4) which provides a charter for the SABC, reads
as
follows:
‘
The
Corporation must encourage the development of South African
expression by providing, in South African official languages, a
wide
range of programming that –
(a)
reflects South African attitudes,
opinions, ideas, values and artistic creativity;
(b)
displays South African talent in
education and entertainment programmes;
(c)
offers a plurality of views and a
variety of news, information and analysis from a South African point
of view;
(d)
advances the national and public
interest.’
Furthermore,
s 6(8) provides:
‘
The
Corporation must develop a Code of Practice that ensures that the
services and the personnel comply with –
(a)
the constitutional principle of
equality;
(b)
the equitable treatment of all
segments of the south African population;
(c)
the constitutional requirement of
equitable treatment of all official languages;
(d)
the rights of all South Africans to
receive and impart information and ideas;
(e)
the mandate to provide for a wide
range of audience interests, beliefs and perspectives; and
(f)
a high standard of accuracy, fairness
and impartiality in news and programmes that deal with matters of
public interest.’
[38]
Section 10(1)
(d)
of the
Act dictates that the public service provided by the SABC must, inter
alia, ‘provide significant news and public affairs
programming
which meets the highest standards of journalism, as well as fair and
unbiased coverage, impartially, balance and independence
from
government, commercial and other interests’.
[39]
In
South African Broadcasting Corporation Soc Ltd & others v
Democratic Alliance & others
2016 (2) SA 522
(SCA) (
SABC v
DA
), this court said the following in para 49 about the SABC:
‘
It
is important to emphasise that this case is about a public
broadcaster that millions of South Africans rely on for news and
information about their country and the world at large, and for as
long as it remains dysfunctional, it will be unable to fulfil
its
statutory mandate. The public interest should thus be its overarching
theme and objective. Sadly, that has not always been
the case. Its
Board has had to be dissolved more than once and its financial
position was once so parlous that a loan of R1 billion,
which was
guaranteed by the National Treasury, had to be raised to rescue it.’
That
case involved the legality of the appointment of Mr Motsoeneng who
features in the present case as well.
[40]
The highest standards of journalism and of integrity in public
administration can rightly be expected of the SABC. The political
interference complained of by Mr Mvoko is, as already pointed out,
uncontested. It is inexcusable and rather than rendering Mr
Mvoko
liable to disciplinary action it calls for an enquiry into the
conduct of the SABC in its role as public broadcaster. The
article in
The Star
was in
the form of a whistle blower exposing the ills at a national
institution owned by all of us as citizens. The criticism allegedly
directed at Ms Maseko as a person who was being politically
manipulated by others and who responded to political instruction was
based on Mr Mvoko’s experiences at the SABC. His assertions in
regard to management at the SABC being politically controlled
were
not challenged. This court, in
SABC
v DA
described the SABC in much the same way as was done in the
introductory paragraph of the article in
The
Star
.
[41]
The long title of the Protected Disclosures Act 26 of 2000 (the PDA)
reads as follows:
‘
To
make provision for procedures in terms of which employees in both the
private and the public sector may disclose information
regarding
unlawful or irregular conduct by their employers or other employees
in the employ of their employers; to provide for
the protection of
employees who make a disclosure which is protected in terms of this
Act; and to provide for matters connected
therewith.’
Of
course the PDA applies to employees and not independent contractors.
However, one might rightfully ask why an independent contractor
whose
professional independence is threatened by irregular and unlawful
conduct at a public broadcaster and who has his own and
the public’s
interest at heart is precluded from exposing irregular and unlawful
conduct.
[42]
A further problem for the SABC, insofar as the right to suspend is
concerned, is that a jurisdictional fact for its exercise
is that an
investigation has to be conducted. The letter by the SABC suspending
Mr Mvoko’s services, far from contemplating
an investigation,
states a conclusion already reached by management in relation to the
alleged misconduct and then attempts to
qualify it by requesting
written representations which is not of assistance to it in relation
to the asserted right to suspend.
No indication is given of the form
of the investigation and how the question of the misconduct would
ultimately be adjudicated.
[43]
For all the aforesaid reasons it is clear that the court below erred
in its approach to the application by Mr Mvoko and that
the appeal is
liable to succeed. The appropriate order is one that should not be
beyond what is contemplated by the agreement in
question.
[44]
1. The application for leave to appeal is granted and the respondent
is ordered to pay the applicant’s costs.
2.
The appeal is upheld with costs including the costs of two counsel.
3.
The order of the court below is set aside and substituted as follows:
‘
a.
The respondent is directed to comply with the written agreement dated
4 April 2016, and to schedule the applicant, as in the
past, to
perform his services as set out in annexure A to the agreement and to
remunerate him accordingly in relation to the remaining
term of the
agreement.
b.
The respondent is ordered to pay the applicant’s costs
including the costs consequent upon the employment of two counsel.’
______________________
M
S Navsa
Acting
Deputy President
Appearances:
Counsel
for Appellant:
L Sisilana
(with him T Ngcukaitobi)
Instructed by:
Bowman Gilfillan Inc, Johannesburg
McIntyre & Van Der Post,
Bloemfontein
Counsel
for Respondent:
S Du Toit SC (with him
S K Hassim SC and S Kangangarara)
Instructed by:
Ncube Incorporated, Johannesburg
Phatshoane Henney Attorneys,
Bloemfontein
[1]
Established in terms of the
provisions of the
Independent Communications Authority of South
Africa Act 13 of 2000
.
[2]
See
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para 26.
[3]
Section 195(1)
(d)
and
(f)
of the Constitution.