Suspended South African Broadcasting Corporation (SABC) CEO Dali Mpofu’s lawyer argued with a Johannesburg High Court judge on Thursday over whether Mpofu’s case should be referred to the Labour Court.
Vincent Maleka, representing Mpofu, told the court that the Commission for Conciliation, Mediation and Arbitration (CCMA) did not have the power to set aside the resolution taken at an SABC board meeting to suspend the CEO.
”It is a matter on which the Labour Court cannot pronounce itself,” Maleka said.
”Mr Mpofu does not complain about unfair labour practice,” he added.
But Judge Antonie Gildenhuys replied: ”I thought that was his complaint … Mr Mpofu has come here to have his suspension set aside. That’s the purpose why we are here.”
But Maleka maintained arguments by Paul Pretorius, lawyer for the SABC board, that the judge must refer the case to the Labour Court were incorrect.
Maleka said Mpofu was in court to declare the meeting where the suspension was decided unlawful and that the CCMA could not rule on that.
But the judge said the CCMA could rule on the issue of unfair labour practice, which would ultimately deal with Mpofu’s complaint.
”The point is, there are other remedies under the labour legislation,” said Gildenhuys.
Earlier, Pretorius argued that even if the case was not referred to the Labour Court, the judge should still find that the board meeting was lawful because Mpofu and two other executive directors left the meeting voluntarily.
Mpofu’s lawyers argued that they were forced to leave, which would make the meeting unlawful.
Pretorius said Mpofu was ”not intimidated in any way to take the board on” and that he left without any protest.
”Mental reservations not communicated are of no legal consequence,” said Pretorius.
At the end of the hearing, he added: ”It would be alarming if a director leaves [a meeting] without an objection and then comes to court and says he must have attended. The proposition is just too astounding.”
But Michael Kuper, also representing Mpofu, told the judge to keep in mind that his client did object to the meeting later.
Kuper said the chairperson of the board said: ”I ask you to recuse yourself, but before we make a decision we will call you back.”
”That is the basis. Look at the record,” said Kuper. ”How could he possibly have an impression in his mind that he was leaving [the meeting] on any other basis?” asked Kuper.
In the morning outside the court, a group of about 15 people held up placards stating ”Viva Dali” and ”Stop Discrimination”, while blowing on vuvuzelas.
On Tuesday, Gildenhuys ruled that Mpofu’s application was urgent. However, the judge said he could only rule on whether the meeting where the suspension was decided on was unlawful, and not on whether the suspension itself was unlawful.
Mpofu’s lawyers are arguing that the meeting did not follow the correct legal procedures, and also quoted from two previous judgements by Judge Moroa Tsoka, which overturned the CEO’s first two suspensions.
Mpofu was first suspended on May 7, a day after he suspended his news chief, Snuki Zikalala, who was accused of leaking a memorandum on Mpofu’s alleged bad management of the SABC.
Zikalala was reinstated to his position as SABC head of news this week because the board believed Mpofu did not have the authority to suspend him.
Judgement was reserved and will be handed down on Monday at 3.30pm.
The second part of the court application relating to the powers of the SABC board will be heard on August 5. — Sapa