After a long drawn out battle, the Labour Court has ordered the SABC to reinstate four journalists it fired early last week.

A judge standing in for Judge Robert Le Grange, who presided over the case, ruled in favour of trade union Solidarity, which was representing Krivani Pillay, Foeta Krige, Suna Venter and Jacques Steenkamp.

The matter was first heard in court on Thursday, but had to be postponed to Friday as the SABC’s legal team was apparently unprepared for the hearing and could not get into contact with management on time.

Issues with SABC’s responding affidavit

On Thursday Judge Robert Le Grange, who presided over the hearing, kicked things off by noting a few issues he’d picked up in the SABC’s responding affidavit handed to Solidarity the night before.

Among the issues were a number of vague details listed in the affidavit and some allegations against the journalists that had not been properly explained.

Advocate Steven Budlender, arguing for Solidarity and the journalists, told Le Grange that this should convince the court that the journalists’ affidavit must prevail over the SABC’s “sleeping and bare” response.

Right from the starting point, it was clear that this would be an uphill battle for the SABC’s lawyers before arguments from both sides had even been heard.

Dismissals a breach of Bill of Rights – Solidarity

Budlender opened the arguments with a strong statement on the implications of the SABC’s actions.

“This case is about what we say are quite extraordinary and cynical attempts to prevent journalists from expressing dissent with the policy to ban violent protest footage,” Budlender said.

Solidarity’s counter argument tackled many contradictory factors in the public broadcaster’s argument, questioning their validity.

Budlender added that, by dismissing the respondents, the SABC breached the Bill of Rights and was acting unlawfully.

The public broadcaster had said it fired the journalists for breaching a clause in their employment contracts which state that they are not to speak about their employer without first getting the permission of the CEO (then acting CEO, Jimi Matthews).

This Budlender argued, is a violation of freedom of expression and would’ve been impossible for the journalists to do seeing as Matthews at the time, sided with COO, Hlaudi Motsoeneng on all matters concerning the SABC’s policy and also was largely behind many controversial decisions made at the time.

“Journalists couldn’t possibly ask Jimi Matthews for permission to speak on the editorial policy because they were told to abide by it or get out,” Budlender said.

Budlender further argued that the journalists’ contracts were breached by the SABC because they were fired without formal hearings for the circumstances around which they were fired.

Another punch in the public broadcaster’s face was the fact that despite it conceding to an interim order by the North Gauteng High Court to lift the ban on footage depicting violent protest footage as well as Icasa’s ruling handed down on 11h July, the SABC was still intent on enforcing the journalists’ dismissals.

“The SABC dismissed the journalists for not complying with what it termed a “lawful instruction” [protest footage ban]. Firstly, they didn’t refuse to comply, they just merely expressed disagreement. Secondly, the public broadcaster turned around and abided by Icasa’s ruling that it was unlawful,” Budlender said.

“The SABC didn’t follow proper disciplinary procedures according to the Labour Relations Act and its disciplinary code. The journalists hearings were not concluded, they were just served with notices. There is therefore no basis for dismissal,” he added.

SABC arguments shallow and weak

In the SABC’s corner was advocate Themba Skosana.

What was quite clear from the argument presented was that it lacked depth and had a number of weak points.

Although Skosana tried to discredit Solidarity’s founding papers, which initially dealt with the journalists prior to them being fired, saying these fell away when dismissals were instituted, Judge Le Grange noted that applying for reinstatement is a continuation of the suspension founding papers.

Among the SABC’s many arguments, was that the Labour Court has no jurisdiction over the matter, as the Labour Relations Act only deals with cases where employees have been dismissed unfairly and not unlawfully.

The public broadcaster’s representative, Themba Skhosana, added that based on this, the employees cannot allege that there was an unfair dismissal, as listed in the Labour Relations Act and therefore can’t seek reinstatement through the court.

However, Skosana said the SABC had fired the journalists based on Schedule Eight of the Labour Relations Act, one which the Labour Court absolutely does have jurisdiction to rule over.

“The applicants [journalists] deny they spoke to the media. Instead of responding to dismissal letters, they came to the court. If they had responded to the notices, the cases may have taken a different direction,” Skosana said.

“Their contracts prohibit certain conduct which they’ve breached. They criticised their conditions of employment externally [to the media],” Skosana said, arguing that the SABC had not breached the journalists contracts by firing them without formal hearings because their contracts provide for dismissals without hearings.

Journalists must be reinstated

Le Grange ordered the public broadcaster to reinstate the four immediately. Adding that the dismissals were unlawful.

The SABC’s general mangers must also write an affidavit to the court within five days, stating who was behind the journalists dismissals and why it should not pay for the legal costs.