IN THE DISCIPLINARY HEARING

HELD AT SANDTON

In the matter between:

SOUTH AFRICAN BROADCASTING

CORPORATION SOC LIMITED Employer

and

PHATHISWA MAGOPENI Employee

FINDINGS 1

Introduction

1. The facts are uncomplicated. On Tuesday, 14 September 2021,

the High Court in Johannesburg issued an order interdicting the

South African Broadcasting SOC Limited ("the SABC" or "the

Employer") from airing and/or broadcasting and/or publishing a

special assignment investigative report ("the report") of and

concerning the affected parties 2 (a group of companies)

involved in the towing industry pending an action to be

1 I was briefed by Mr Cornel de Heus of Attorneys R Masilo Attorneys (cornel@masilo.co.za)

to chair this internal domestic hearing.
2
I refer to the applicants in the urgent court proceeding as the affected parties.
 -2-

instituted by the affected parties within ten days from date of

the order.

2. The following day the order was further refined and within the

10-day period contemplated in the order of 14 September 2021

the affected parties issued a summons against the SABC. The

effect of all this is that the scheduled broadcast on SABC

Channel 3 at 20:30 on 14 September 2021 was interdicted.

3. It is not in dispute that the effect of the order was brought to the

attention of Ms Pathiswa Magopeni, the News Editor-in- Chief

and Corporate Executive, News and Current Affairs ("the

Employee").

4. The proceedings between the affected parties and the SABC

was settled. Whilst the SABC appreciates its important role in

reporting newsworthy items and in the public interest to air and

publish all matters affecting society at large, it resolved to settle

the dispute because it was presented with an affidavit by the

person who was the source of the information and who had

retracted his initial version, suggesting that he had provided

false information in order to promote his own interests as a

 -3-

competitor in the same business activity as that of the affected

parties. There is a further suggestion that this affidavit may have

been procured under duress. Such may be business practices

in an ever-increasing competitive and material economic

environment.

5. In my view, however, the SABC took the high moral ground,

having been presented with a sworn affidavit made before a

Commissioner of Oaths, that put in serious doubt the veracity of

the source of the report. It also took the right legal decision. All

these developments were brought to the attention of the

Employee in her capacity as the Head of News.

6. On 26 October 2021 at 20:30, the report was broadcast by the

SABC News in its current affairs program on Channel 3. A legal

representation of the affected parties immediately brought this

to the attention of the legal department of the SABC and

required the SABC to ensure that the planned re-broadcast of

the story at 21:30 on its Channel 404 would not proceed.

Advocate Vanara of SABC put into motion steps to ensure that

the repeat broadcast did not take place.

 -4-

7. The SABC had thus breached an order of court and its top

management further engaged with the affected parties and

yet again settled the dispute. This is understandable because

orders of court must be obeyed. In Secretary of the Judicial

Commission of Inquiry into Allegations of State Capture,

Corruption and Fraud in the Public Sector including Organs

of State v Zuma and Others [2021] ZACC 18, Justice Khampepe,

writing for the majority, stated the uncontroversial theme of the

judgment in the following words:

"It is indeed the lofty and lonely work of the Judiciary,

impervious to public commentary and political rhetoric, to
uphold, protect and apply the Constitution and the law at
any and all costs. The corollary duty borne by all members of
South African society – lawyers, laypeople and politicians alike
– is to respect and abide by the law, ... and court orders issued
in terms of it, because unlike other arms of State, courts rely
solely on the trust and confidence of the people to carry out
their constitutionally-mandated function."

For completeness’ sake, I also repeat the contents of

paragraphs 59 and 69 of the judgment which puts into
perspective the reasoning as to why orders of court must be
complied with.

"[59] It cannot be gainsaid that orders of court bind all to

whom they apply. In fact, all orders of court, whether
correctly or incorrectly granted, have to be obeyed
 -5-

unless they are properly set aside. This, in addition to

typifying common sense, the Constitution itself enjoins.
Section 165(5) of the Constitution itself provides that an
order or decision binds all persons to whom it applies. The
reason being that ensuring the effectiveness of the
Judiciary is an imperative. This has been confirmed in
multiple cases, including Mjeni, in which the Court stated
that “there is no doubt, I venture to say, that [complying
with court orders] constitutes the most important and
fundamental duty imposed upon the State by the
Constitution”. On this, the then Chief Justice Mahomed,
writing extra-curially in 1998, said:

“The exact boundaries of judicial power have varied from

time to time and from country to country, but the principle
of an independent Judiciary goes to the very heart of
sustainable democracy based on the rule of law. Subvert it
and you subvert the very foundations of the civilisation
which it protects . . . . What judicial independence means
in principle is simply the right and the duty of Judges to
perform the function of judicial adjudication through an
application of their own integrity and the law, without any
actual or perceived, direct or indirect interference from or
dependence on any person or institution.”

[60] As this Court held in Tasima I, “the obligation to obey

court orders has at its heart the very effectiveness and
legitimacy of the judicial system . . . and is the stanchion
around which a State founded on the supremacy of the
Constitution and the rule of law is built”. It is perspicuous
that the constitutional right of access to courts will be
rendered an illusion unless orders made by courts are
capable of being enforced by those in whose favour the
orders were made. In SALC, it was said that “if the State,
an organ of State or State official does not abide by
court orders, the democratic edifice will crumble stone
by stone until it collapses and chaos ensues”. A
complete denial of judicial mechanisms “would render
meaningless the whole process of taking disputes to
courts for adjudication and that is a recipe for chaos
and disorder”. Accordingly, it is necessary for this Court
to send, by virtue of a punitive sanction, an unequivocal
message that its orders must be obeyed."
 -6-

8. It would have been remiss on the part of the SABC not to have

taken measures to ascertain the circumstances under which the

order of court was breached.

18 November 2021

9. By way of letter dated 18 November 2021 the Group Chief

Executive Officer of the SABC, Madoda Mxakwe (“the CEO”),

wrote to the Employee in her capacity as Head of News, to show

cause as to why the SABC should not proceed with the intended

disciplinary proceedings against her. This letter is to be found at

pages 1- 2 of the Employer's bundle. The nub of the letter is that

the Employee, having been informed of the clear terms of the

court order, through her conduct or omission allowed the report

to be aired and in so doing SABC breached the order of court.

10. From my reading of this letter, the Employee is called upon to

give an explanation as to why she should not accept

responsibility in her capacity as the Head of News at the SABC.

Her response is to be found in her letter of 19 November 2021

and this appears at pages 3 to 5 of the Employer's bundle.

 -7-

11. The Employee's explanation is that the News Division complied

with every single aspect of the interdict. The report was pre-

recorded in electronic format and the News Division has no

control over "any aspects of the activities" relating to the Final

Control Sheet ("FCS") and the News Division cannot be held

responsible for the publication several weeks after the interdict

was granted.

12. Ms Mgopeni’s explanation in her written letter as to why the

report was published, she states that it "remains a mystery and

has got nothing to do with me or any journalist in the News

Division". She further complained that she has been singled out

as the person who failed to act responsibly and that this is "an

act of malice, vindictiveness and grave injustice".

The charges of misconduct

13. There then followed, dated 25 November 2021, charges of

misconduct preferred against the Employee. The charge sheet

appears at pages 6 to 8 of the Employer's bundle. There are

three charges, namely –

13.1. failure to discharge fiduciary duties,

 -8-

13.2. failure to prevent the broadcast of the interdicted story;

and

13.3. bringing the name of the SABC into disrepute with

possible reputational damage."

14. The nub of the charges is, in substance, that the Employee

acted irresponsibly or negligently in her capacity as Head of

News in not taking appropriate measures to ensure that the

court order was not breached.

15. The hearing proceeded before me on 17 December 2021 and

continued on 20 December 2021 and 21 December 2021.

Mr Michael Bill of the firm Motsoeneng Bill Attorneys represented

the SABC and advocate Kameshan Moodley, instructed by

Roxo Law Attorneys, represented the Employee. The Employee

pleaded not guilty to all the charges. I received heads of

argument on behalf of the SABC prepared by Mr Bill as well as

heads of argument on behalf of the Employee signed off by Ms

E Carvalho late in the evening of 22 December 2021.

 -9-

Analysis of evidence

16. The evidence of the witnesses is recorded and for the reasons

that will become clear, no purpose will be served in rehashing

their respective versions. Suffice to say that the SABC called two

witnesses. Vanara, gave a background account of what really

forms the basis of the Employer's bundle before me,

incorporating the court order, the summons and the material e-

mails exchanged between the legal department and the news

department. Naicker, group executive of video entertainment,

gave evidence on the methodology applicable at the SABC for

the airing of programs including those emanating from news.

Special Assignment falls within the news department. Essentially,

the programmers work under his department and are

responsible for the airing of programs inclusive of those received

from the news section. It was his evidence that the interdicted

report was sent by Ms Nadiva Schreibman from the news section

on 26 October 2021 to those responsible for airing and this

resulted in the court interdict being breached.

 - 10 -

17. The three witnesses called on behalf of Ms Magopeni and

before she testified are in the main journalists of substantial

standing and their evidence was to the effect that there was no

deliberate breaching of the court order. Their evidence was

consistent - that the repeat recording should have been a report

entitled "Still waiting", dealing with the frustration of the inner

city's poor residents in Johannesburg who have waited over ten

years for proper shelter after having been moved to make way

for the construction of a mall in Newtown. Instead, they testified

that arising from a duplicate code issued by the programming

section under the leadership of Naicker, the wrong report was

aired on 26 October 2021 at 20:30, namely the interdicted

report. They were at pains to point out that the news

department did nothing wrong and if fault was to be ascribed it

must be with the legal department or the department falling

under Naicker.

18. A synopsis of what went wrong is crisply explained in the

Employee's report of 3 November 2021. The episode aired on

5 October 2021, titled "Still waiting" was assigned the same code

as the one that was meant to air on 14 September 2021 – the

 - 11 -

interdicted report. On 26 October 2021 at 14:46 Nadiva

forwarded to Alfred Ngope the FCC sheet for a repeat program

meant to be "Still waiting". Instead, what was aired was the

interdicted report because according to the Employee's case,

the same code was allocated to "Still waiting" and the

interdicted report.

19. As I understand the position, the letter "A" was to precede the

code on the interdicted report which would have distinguished

the two episodes. There is considerable debate as to whose

responsibility or fault this is because clearly separate codes

should have been allocated to the different programs. The

news department blames the programming department, and

the latter blames the news department for the mishap. In

essence, the wrong episode was aired – instead of "Still waiting",

what was aired was the interdicted report.

20. There is no need to analyse the precise workings as to how

Naicker's department conducts its responsibilities and whether

this caused or contributed to the breach of the court order. My

task is more pertinently circumscribed by reference to my

 - 12 -

investigation and that is whether Ms Magopeni committed

misconduct in her representative capacity by reference to the

charges of misconduct preferred against her. I think it is

necessary to repeat these charges to understand the scope of

the investigation and resultant hearing before me:

Charge 1

Failure to discharge your fiduciary duties to the Corporation

 notwithstanding the clear terms of the relevant Court Order and

the self-explanatory contents of the correspondence from Mr
Ngoaka, on 26 October 2021 you, through your conduct or
omission, intentionally, alternatively grossly neglected to
discharge your fiduciary responsibilities to the SABC, by allowing
and/or causing to be allowed by the SABC News and Current
Affairs programme team to broadcast, air and/or publish the
interdicted Special Assignment Investigative Report concerning
the affected parties on S3, in breach of the relevant Court Order.
Your conduct or omission assisted and abetted a crime to be
committed, namely contempt of Court.

Charge 2

Failure to prevent the broadcasting, airing and/or publishing of an

interdicted story

 you failed and/or grossly neglected to take reasonable steps

from 14 September 2021 to 26 October 2021 to ensure that the
SABC News and Current Affairs Programme does not broadcast,
air and/or publish the interdicted Special Assignment
 - 13 -

Investigative Report on S3, resulting in the broadcasting, airing

and/or publishing of the interdicted story on 26 October 2021.
Your aforesaid conduct resulted in SABC breaching the terms of
the Court Order dated 14 September 2021, thus being in
contempt thereof. Your aforesaid conduct further exposed the
SABC, unnecessarily to potential civil and criminal litigation and
possible financial damages.

Charge 3

Bringing the name of the SABC into disrepute, Airing of an interdicted

story.

 Considering your conduct as outlined in charges 1 and 2 above,

your conduct has improperly brought the name of the SABC into
disrepute with possible reputational damages."

21. Properly construed, the charges formulated against the

Employee are to the effect that in breach of her fiduciary duties

she failed to take appropriate measures to ensure that the

interdicted report would not be aired and thereby comply with

an order of court. Two further points must be made –

21.1. first, she is charged with breaching her fiduciary duties

arising from her seniority and head of the department of

news. There is no magic in the term ‘fiduciary duty’.

The existence of such a duty and its nature and

 - 14 -

extent are questions of fact to be adduced from a

thorough consideration of the substance of the

relationship and any relevant circumstances which

affect the operation of that relationship (cf Bellairs v

Hodnett and Another 1978 (1) SA 1109 (A) at 1130F).

In this case, Ms Magopeni occupies a senior and

trusted position at the SABC arising from her position

as head of news and current affairs. This, after all, is

one of the very fundamental purposes of this

organisation namely, to inform the public fairly and

accurately of current news and newsworthy items

affecting the public.

21.2. second, the Employee has been charged because

the domain of the content of the report resides in the

department of which she is the head.

22. To the extent that there may be any ambiguity, I find that there

is no evidence to support or suggest that Ms Magopeni

 - 15 -

deliberately defied an order of court or orchestrated a situation

resulting in the SABC defying or breaching the court order.

23. The enquiry before me is more mundane, namely whether Ms

Magopeni could have adopted or implemented any measures

to ensure that the report would not be aired. This enquiry need

not have endured for three days – all that was required was for

the Employee to have addressed this very issue.

24. Prior to Ms Magopeni testifying on the last day of the hearing,

namely on 21 December 2021, she interposed yet a further

witness by virtual hearing. The evidence of the former legal

adviser at the SABC, Mr K Mwelase, now practising as an

attorney in Newcastle, took the matter no further. His evidence

was unrelated to the issues before me and I do not understand

why he agreed to testify without familiarising himself with the

issues before me.

25. Ms Magopeni was the last witness to testify in her defence. Her

academic and professional credentials are commendable. Her

work experience and achievements are equally

commendable. She is "home-grown" and a professional

 - 16 -

journalist and a leader. At any given time she oversees the work

of almost a thousand journalists, is responsible for strategy and

ultimately, as she put it, the "last line of defence" in the

protection of editorial independence and the pursuit of keeping

the South African public informed and enlightened as to news

and current affairs.

26. Regrettably she refused to accept any accountability in the

breach of the court order. This calls for an analysis of the

pertinent facts, the probabilities and whether there is any

culpability on the part of the Employee.

27. Ms Magopeni was critical of being charged for disciplinary

misconduct. It is clear from her letter of 19 November 2021 that –

27.1. first, according to her, the fault lay with those who

assigned the code by S3 schedulers and that the news

division as a provider of special assignment material to

S3 in pre-recorded electronic format has no control over

any aspects of the activities related to FCC systems;

27.2. secondly, she reasoned that she was charged as an act

of malice, vindictiveness and grave injustice.

 - 17 -

28. I must accordingly deal with this. The CEO called for reports from

all concerned departments before taking the decision to

charge the Employee. Prior to this, he had a meeting with the

individuals concerned. Vanara, from Legal, Naicker from

Programming and the Employee from News, furnished reports.

On the basis of these reports the CEO took a decision to charge

the Employee. The Employee argued that she was prematurely

charged because there was not a proper and full investigation

as contemplated in the Disciplinary Code of the SABC and this

impacted on the fairness of the process.

29. A disciplinary hearing is a requirement for a fair hearing as part

of the process leading to a lawful and valid sanction as

contemplated in the Labour Relations Act, 66 of 1995 (“the

LRA”). 3 Procedural fairness is the yardstick against which the

employer’s pre-dismissal actions are measured. The Code of

Good Practice: Dismissal sets out the requirements for a fair pre-

dismissal procedure in the following terms (Item 4(1)):

3
Section 188 of the LRA provides that, to be fair, a dismissal that is not automatically unfair
must be for a fair reason and in accordance with a fair procedure.
 - 18 -

“Normally the employer should conduct an investigation to

determine whether there are grounds for dismissal. This does not
need a formal enquiry. The employer should notify the
employee of the allegations using a form and language that the
employee can reasonably understand. The employee should
be allowed the opportunity to state her case in response to the
allegations. The employee should be entitled to a reasonable
time to prepare a response and to the assistance of a trade
union representative or fellow employee. After the enquiry, the
employer should communicate the decision taken, and
preferably furnish the employee with written notification of that
decision.”

30. Although the Labour Court has held that the requirement of

procedural fairness under the current LRA “demands less

stringent and formalise compliance than was the case under

the unfair labour jurisdiction of the Industrial Court”, 4 disciplinary

hearings, in my experience, have become long drawn-out

processes, belligerent in nature, obfuscation of the pursuit of the

true facts and invariably takes the parties further apart,

unconducive to the continuation of a working relationship.

4
Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644
(LC)
 - 19 -

31. The International Labour Organisation (“ILO”) 5 contemplates an

employee being afforded an opportunity to be heard prior to

dismissal for misconduct. The system is designed to be

expeditious and yet fair. 6

32. Otto Kahn-Freund, 7 the founder of modern labour law, never

contemplated, with respect, that disciplinary hearings would be

5
The ILO is devoted to promoting social justice and internationally recognised human and
labour rights, pursuing its founding mission that social justice is essential to universal and
lasting peace.
6
Section 6 of the ILO’s recommended standards published by the ILO provides as follows:
“6. (1) Where an employer has good cause to believe that an employee has committed a
misconduct mentioned in section 4, the employer may suspend such employee with or
without pay and benefits and shall forthwith serve the employee with a letter of
suspension with reasons and grounds of suspension.
(2) Upon serving the employee with the suspension letter in terms of subsection (1), the
employer shall, within 14 working days investigate the matter and conduct a hearing into
the alleged misconduct of the employee and, may, according to the circumstances of the
case –
(a) serve a notice, in writing, on the employee concerned terminating his or her contract or
employment, if the grounds for his or her suspension are proved to his or her satisfaction;
or
(b) serve a notice, in writing, on the employee concerned removing the suspension and
reinstating such employee if the grounds for suspension are not proved.
(3) A determination or order served in terms of subsection 2(b) shall provide for back-pay
and benefits from the time of the summary suspension.
(4) At a hearing in terms of subsection (2), an employee shall have the right to –
(a) at least three working days’ notice of the proceedings against him or her
and the charge he or she is facing;
(b) appear in person before the employer or the employer’s representative
or disciplinary authority as the case may be and be represented by either
a fellow employee, worker’s committee member, trade union
official/officer or a legal practitioner;
(c) call witnesses and have them cross-examined;
(d) be informed of the reasons for a decision;
(e) address in mitigation before the ultimate penalty is imposed.”
 - 20 -

as complex, complicated and pedantic as they are practised

in our country. There has to be a proper balance between the

dictates of being fair to an employee and ensuring that the

overall economic interest of the employer is not prejudiced by

the process itself.

33. I premise this observation on the basis that our new-found values

in the Constitution of South Africa are to seek an economic state

that serves the interests of the majority and not that of the

individual. Regrettably, our courts, particularly in the first

7
Otto Kahn-Freund was a scholar of labour law and comparative law. He was a professor
at the London School of Economics and the University of Oxford. He became a judge of
the Berlin labour court, 1929. Kahn-Freund wrote a path-breaking article, contending that
the Reichsarbeitsgericht (Empire Labour Court) was pursuing a “fascist” doctrine in 1931.
Sir Otto Kahn-Freund was the doyen of British labour law. His writings combined technical
virtuosity with brilliant theoretical insights into the nature of the State, the role of
autonomous organisations in relation to it, and the interaction of the legal norms and
social reality. As a lawyer with a strong sociological and historical background, Kahn-
Freund was, in fact, particularly well qualified for multi-disciplinary and theoretical
analysis. In general, social scientists find it difficult to give an adequate assessment of
legal policy in industrial relations since the raw materials of the law are usually couched
in an abstruse, technical language, pre-supposing a knowledge of legal concepts and
reasoning. On the other hand, the narrow academic and professional training of lawyers
tends to reinforce a pre-occupation with purely technical analysis, laced with occasional
explicit or usually implicit policy assumptions. Kahn-Freund’s education and experience
were of a different order.
 - 21 -

decade of our democracy have emphasised, in my view, the

interests of the individual ahead of that of the majority.

34. All legal systems that have a moral foundation seek to achieve

the greater good for the majority. It is in this context that I use

the term "efficiency" to refer to the relationship between the

aggregate benefits of a situation and the aggregate cost of the

situation. The term "equity" in turn refers to the distribution of

income among individuals. 8 In rudimentary terms, in the context

of economic transformation, maximising the size of the pie is

equivalent to maximising the factory's profits Thus, if the cost of

disciplinary hearings adversely impacts on the "size of the pie",

then such hearings have the adverse effect of prejudicing job

opportunities and, in a fair society, access to opportunities.

35. It is in this context that Bulbulia AM found in Mahlangu v CIM

Deltak, Gallant v CIM Deltak 1986 (7) ILJ 364 at 356 para [24] that

an employee who is accused of certain misconduct or poor

performance must be given a chance to account for his or her

8
See, for instance: Efficiency and Equity in Chapter 2 of An Introduction to Law and
Economics, Mitchell Polinsky.
 - 22 -

behaviour. Thus, where management prematurely decides that

the employee is guilty and does not give that employee an

opportunity to say anything in his or her defence this would be

entirely unfair. 9 The learned judge was, at that stage in the

history of our country, giving effect to the theory of justice

founded on the concept "as meaning a proper balance

between competing claims from a conception of justice as a

9
"24. The onus of proving the employee’s misconduct or poor performance lies upon
management, that is to say, it is not the responsibility of the employee to prove his
innocence. He has a right to challenge any statements which are detrimental to his
credibility and integrity. The other important ingredients of a fair disciplinary hearing
would include:
24.1 the right to be told the nature of the offence or misconduct with relevant
particulars of the charge;
24.2 the right of the hearing to take place timeously;
24.3 the right to be given adequate notice prior to the enquiry;
24.4 the right to some form of representations (the representative could be anyone
from the work-place; either a shop steward, works council representative, a
colleague or even a supervisor, so as to assist the employee and ensure that the
discipline procedure is fair and equitable);
24.5 the right to call witnesses;
24.6 the right to an interpreter;
24.7 the right to a finding (if found guilty, he should have the right to be told the full
reasons why);
24.8 the right to have the previous service considered;
24.9 the right to be advised of the penalty imposed (verbal warnings, written warnings,
termination of employment); and
24.10 the right of appeal, i.e. usually to a higher level of management. (see the article on
‘Discipline: Justice and Equity in the Workplace’ Institute of Industrial Relations
Information Sheet no. 80 July 1985).
25. It is accepted that any act on the part of an employee in the performance of his
employment activities, and of which dishonesty is a component, entitles the employer to
dismiss the employee summarily. (See: Van Jaarsveld & Others SA Handelsregs 1 ed
1978). However, dishonesty must not be merely suspected, it must be proved, although
this proof may be based on a balance of probabilities.
 - 23 -

set of related principles for identifying the relevant

considerations which determines this balance". 10 Judge Bulbulia

was dealing with a situation in 1986 where workers had limited

rights (in real terms, if any) and gave meaning to considering the

import of recommendation 119 on Termination of Employment

(1963) of the ILO, which provided that the "employment of a

worker shall not be terminated for reasons related to the worker's

conduct or performance before he is provided an opportunity

to defend himself against the allegations made, unless the

Employer cannot reasonably be expected to provide this

opportunity."

36. We have come a long way since the era of Justice Bulbulia who

became the Deputy Judge President of the Labour Court and

Dr Ehlers, the President of the Labour Court, who have not

received proper acknowledgements for their profound

contribution to changing labour relations in the workplace,

making life better and more tolerable for employees, and its

10
John Rawls - A Theory of Justice – page 10, paragraph 2.
 - 24 -

transformation in inter-racial relationships not only of, but

beyond, the shop floor to all other sectors of everyday life.

37. The reality, however, in present day South Africa, is that

unemployment has reached astounding levels. In an article

published in the New York Times on 26 June 2018, entitled, "How

McKinsey lost its way in South Africa", South Africa is described

as a "country with the worst income inequality in the world and

a youth unemployment rate over 50%". 11

38. The South African Survey 2018, 12 observes that, "of the 10,3

million South Africans aged (15-24 years) 32,4% (approximately

3,3 million) were not in employment, education or training (NEET)

in the first quarter of 2018 – implying that close to one in three

young South Africans between the ages of 15 and 24 years were

11
Quarterly Labour Force Survey – QLFS Q1:2018
The results of the Quarterly Labour Force Survey (QLFS) for the first quarter of 2018
released by Statistics South Africa today indicate that:

“The South African working-age population increased by 153,000 or 0,4 per cent in the
first quarter of 2018 compared to the fourth quarter of 2017. The rise in both employment
(up by 206,000) and unemployment (up by 100,000) over the quarter led to a rise in labour
force participation rate (from 58,8% to 59,3%). The unemployment rate (26,7%) remained
unchanged over the first quarter of 2018 compared to the fourth quarter of 2017.”
12
Published by the South African Institute of Race Relations.
 - 25 -

disengaged from the labour market. Compared to the first

quarter of 2017, the NEET rate remained unchanged in the first

quarter of 2018." Since then, the economy has worsened and

employment opportunities are dismal.

39. It was never contemplated that hearings would continue for

days if not weeks, and that its impact would severely prejudice

the viability of the employer both in terms of finance and

functionality. The format of the process itself requires urgent re-

evaluation in order to strike a proper balance between

affording an employee a fair hearing and not needlessly

harming the employer's financial and other interests. This

balance is necessary to enhance economic opportunities for

others. 13

13
In the public sector the energy and resources employees employ in pursuing their rights
in disciplinary hearings is a strong indication that jobs in the public sector have become a
prized possession. It is not unfair to say in this context that for public sector employees,
it is either feast or famine. This is why people fight tooth and nail for their jobs. If truth
be told, such individuals probably do not possess the ability or confidence to acquire or
generate other job opportunities. This, of course, is a damning observation in terms of
those who do not have the confidence that they can find a job elsewhere. It also reflects
the poor state of our education and skills that the majority of people have to rely on
government for jobs.
 - 26 -

40. I make these observations in order to promote a different

thinking as to how one must approach disciplinary hearings

generally and those particularly in institutions of the nature of the

SABC and the public sector. Unless there is a change in the

mind-set of adjudicators, the tendency is likely to promote long

hearings, as opposed to fair hearings, and the pursuit of the true

facts as the dominant test is likely to be undermined by

procedural issues that place form above substance. All that was

required was a full and proper explanation by Ms Magopeni in

order to evaluate as to whether she conducted herself

appropriately.

41. I further make these observations to provoke people who have

jobs, particularly in the public sector including state-owned

enterprises and institutions such as the SABC, to value their

positions, to work hard and make the economic and work

environment successful in order to enhance opportunities for

others. Ours is a society based on communal good and ought

ultimately to strive for a situation that the hardships of some are

offset by the greater good in the aggregate.

 - 27 -

42. "It may be expedient but it is not just that some should have less

in order that others may prosper. But there is no injustice in the

greater benefits earned by a few provided that the situation of

persons not so fortunate is thereby improved. The ultimate idea

is that since everyone's well-being depends upon a scheme of

co-operation without which no one could have a satisfactory

life, the division of advantage should be such as to draw forth

the willing co-operation of everyone taking part in it, including

those well situated." 14

43. In more basic terms, in all our endeavours we must ensure that

our major institutions (both public and private) are arranged so

as to achieve the greatest net balance of satisfaction for all

individuals – the principles of utilitarianism are those of Ubuntu.

44. There must thus be a proper balance in any disciplinary hearing,

namely a fair process, but not that which undermines the

greater good. The greater good also involves the interest of

other employees’ rights, opportunities for other employees,

14
John Rawls: Theory of Justice: p 15.
 - 28 -

pursuit of the goals of the organisation itself and, in this case, the

body of employees of SABC and the South African public who

have a claim to proper reporting of news in the public domain.

Of course, opportunities for others can only thrive in an efficient

economic model. In rudimentary terms, in the context of

economic transformation, maximising the size of the pie is

equivalent to maximising the organisation’s profits. Thus, if the

cost of disciplinary hearings adversely impacts on the “the size

of the pie”, then such hearings have the adverse effect of

prejudicing job opportunities and, in a fair society, access to

opportunities.

45. In my view, there is no merit in the criticism that the investigative

process was inchoate. On the contrary, having considered the

respective responses of the three affected departments, I think

the CEO was fully justified in preferring charges against the

Employee. The content of the interdicted report, properly rested

within the domain of the News department under the leadership

of Ms Magopeni and she was, in the result, properly charged

and given the opportunity to deal with the allegations against,

scrutinise such and put up her own version.

 - 29 -

46. Moreover, Ms Magopeni had ample opportunity from the date

of her report on 3 November 2021 until 19 November 2021 to

accept responsibility and deal with the matter sensibly in which

case there would have been no need for the hearing before

me. She elected not to do so with the result, in my view, I dispel

any notion that she was improperly charged. On the

probabilities, had she accepted responsibility this would have

required no more than a counselling session.

47. As to the merits. I acknowledge Ms Magopeni's concern and

her department's passion about editorial independence. The

interdicted report has public interest objectives. It is also the

subject matter of an investigation by the Competition

authorities. There was considerable communication between

Vanara from the legal department and the Employee as well as

the producer of the Special Assignment report, namely Busiswe

Ntuli. I have carefully considered the interchange of e-mails.

48. It is apparent that the Employee, Ntuli and the News

department were anxious not to compromise independent

editorial domain and to persist in the publication of the report in

 - 30 -

the public interest. Against that, Vanara analysed the legal

position meticulously and fairly. He explained that the source of

the report was compromised having been provided with a

sworn statement by the affected parties in which the source

retracted his initial version. He also explained that an interim

interdict was not appealable and should the affected parties

issue a summons within the timeframe contemplated in the

Court Order (and this was done) then the interdict would

become permanent pending the outcome of the action. He

considered it wasteful to pursue the matter because the

interdict per se did not prevent further investigation surrounding

the complaint as the report was interdicted, circumscribed by

the retracted sworn affidavit. In other words, News department

were and are entitled to pursue the investigation without

reference to the source initially relied upon.

49. It appears to me that the News department was not pleased

with the outcome and were aggrieved in not having been more

intimately involved in the court proceedings leading up to the

interdict. Vanara, properly in my view, dealt with the matter and

pointed out, rightfully so, that the court interdict must be obeyed
 - 31 -

and there was very little that the SABC could do to challenge

the retracted sworn statement and it would have wasted

resources in doing so.

50. In her report of 3 November 2021, the Employee points that "the

episode was supposed to have been deleted / removed from

the FCC database, but instruction to do so was never given".

The question is who should have given the instruction? First, I

point out that in her evidence-in-chief Ms Magopeni, for the first

time, stated that she thought that the special report would have

been deleted from the system after six days. She did not persist

with this, but the inference I draw is that she realised that some

measures should have been implemented in ensuring that this

particular report, being the subject matter of a court interdict,

should be removed from the system or put differently, be

isolated in order not to be a position where it could be aired.

Secondly, in her conclusion in her report of 3 November 2021,

she states the following: "Also, if programmes are to be retired,

an instruction for removal, deletion must be given by the

executive producers at News". To me, this is a complete answer,

the content belonged to News and it was for that department,

 - 32 -

under the leadership of Ms Magopeni, to have ensured that the

report is removed or isolated in order to comply with the court

order.

51. It would be wrong to cast any blame on Vanara of the Legal

department; he showed appropriate respect in deferring the

matter to Ms Magopeni who is responsible for News and the

Special Assignment division. It is clearly inappropriate to cast

blame on Naicker who, in the circumstances, dealt with

Programming and cannot interfere in the content of

programmes.

CONCLUSION

52. Mr Bill correctly argues that this case is about accountability. The

interdicted program was kept and not removed from Omneon,

which is the system reserved for programming that is scheduled

for imminent broadcast. The submission by Ms Carvalho, in her

written submissions, that an error by Alfred Ngoepe in allocating

a similar code to two different programs caused the incorrect

airing of the interdicted program and that this should fully

 - 33 -

exonerate Ms Magopeni fails to come to terms with the charges

and the issue before me.

53. Ms Magopeni is the responsible person who should have taken

appropriate measures to ensure that there the Court Order was

complied with. This included taking reasonable steps to avoid

the Court Order being breached. Her testimony and reliance

on other legislative instruments is disconcerting because it

indicates rationalisation on her part in not coming to terms with

her corporate responsibilities and her duties in a leadership role.

54. It is wrong for Ms Magopeni to seek to cast blame on Vanara

who informed both her department and her as to the import of

the Court Order. As I understood her evidence, she accepted

that she could not cast blame on Naicker and her attack on

Naicker’s dignity as set out in the email to be found at page 122

of the Employer’s bundle was an emotional reaction on her part.

Similarly, her criticism of the CEO is unfounded. He has a duty

to investigate and understand how it came about that the SABC

breached an Order of Court. He conducted an investigation

and properly, in my view, took a decision to afford Ms Magopeni

 - 34 -

the opportunity to deal with the charges formulated against her.

The content of the program belonged to her department and

her written responses both of the 3 and 19 November 2021

demonstrated a lack of understanding of her role in the sphere

of accountability and corporate governance.

55. In the result I find that Ms Magopeni is guilty of the misconduct

of not having taken appropriate steps to ensure that the

interdicted report was not aired. It would be speculation on my

part to find that there was any indifference on her part. In the

result, her misconduct is confined to her being negligent in the

circumstances.

56. I think that there is an overlapping between charge 1 and

charge 2. It is my finding that Ms Magopeni was negligent as

contemplated in charge 2 and that is a breach of her fiduciary

duties owed to SABC. It is so that that breach in turn brought

about possible reputational harm as contemplated in charge 3.

57. In the interest of fairness, however, I consider the misconduct to

be confined to her negligent conduct in not taking appropriate

 - 35 -

steps to ensure that the Court Order is abided by SABC. In this

context, charges 1 and 3 are subsumed by charge 2.

58. Ms Magopeni is accordingly found guilty of charge 2 only.

Recommended sanction

59. My recommendation as to the appropriate sanction remains a

recommendation to the Board. Ordinarily, on the facts of this

case, I would recommend a warning. However, the Employee’s

written closing argument as prepared by Ms Carvalho,

regrettably complicates matters and casts the Employee in a

bad light. In paragraph 36 of the heads, it is asserted that “the

charges brought against the Employee are a farce and done so

hastily”.

60. I think the Board of the SABC must give Ms Magopeni the

opportunity to distance herself from the contents of paragraph

36 as it would be unjust to punish Ms Magopeni for a submission

and an opinion of her attorney. If she is prepared to distance

herself from that view, my recommendation remains and that is

of a warning. If, however, Ms Magopeni makes common cause

with the view of her attorney, then the Board must, in its
 - 36 -

discretion and decision-making power, adopt a sanction which

is consistent with that of a breakdown in the trust relationship

between employer and employee. In short, it is now upon Ms

Magopeni to decide her own future with the SABC.

61. Ultimately, a sanction must be just and equitable to both

employer and employee. This, however, is a decision that rests

with the CEO and the Board of the SABC.

NA CASSIM SC

Chairperson

Chambers, Sandton
23 December 2021