The recently axed SABC employees were targeted because they could not comply with their journalistic ethics and the broadcaster’s protest policy at the same time, the Labour Court in Johannesburg heard on Friday.
“Journalists are the bearers of ethical and constitutional obligations which go to the very heart of their daily existence,” Steven Budlender, representing four of the SABC 8, told the court.
“The problem that the protest policy created for the applicants was that they couldn’t comply with their ethical obligations and the policy. [They said] ‘we can’t do both’.”
He said the court could one day hear a case about an eNCA or Media24 reporter criticising their company, however, journalists at the SABC were under a particular duty because it was a public broadcaster.
“They had the right and duty to draw the attention of the public to the problems.”
Budlender argued that the dismissals went against their employment contracts and the Bill of Rights, and that this made it unconstitutional to dismiss them.
The court was hearing the case of four journalists – Foeta Krige, Suna Venter, Krivani Pillay and Jacques Steenkamp – who were being represented by trade union Solidarity.
The other reporters who were notified of their dismissals this week were Thandeka Gqubule, Busisiwe Ntuli and Lukhanyo Calata.
They had criticised the SABC’s policy of not broadcasting footage of violent protests.
Reporter Vuyo Mvoku filed papers in the High Court in Johannesburg earlier on Friday, asking for an order that the SABC’s decision not to “schedule” him constitutes a breach of contract.
All eight have applied for direct access to the Constitutional Court.
The Helen Suzman Foundation and the SABC reached an agreement on Wednesday, which saw the High Court in Pretoria interdicting the broadcaster from enacting its policy.
The Independent Communications Authority of SA (Icasa) ruled on July 11 that the SABC had to withdraw its resolution, announced in May, to ban showing footage of violent protests.
Motsoeneng initially said after the ruling that no one could tell the SABC what to do and that they would challenge Icasa’s decision in court. However, in a surprise turn, Icasa said on Wednesday afternoon that the SABC had agreed to comply with the ruling.
Budlender told the Labour Court on Friday that, while the SABC made these concessions, their policy was unlawful, and that they were still here in court, arguing against reinstating the people it had fired for initially having the bravery to stand up and say the same thing.
The SABC argued in its court papers that the Labour Court lacked the jurisdiction to entertain the matter because its jurisdiction in the Labour Relations Act was confined to finding that a dismissal was unfair, and not to finding that it was unlawful.
It said that, according to the act, employees should approach the Commission for Conciliation, Mediation and Arbitration, before approaching the Labour Court.
It is cold outside
Themba Skosana argued this on Friday, and said the matter was a breach of contract.
“Once a dismissal is pronounced, it takes effect and may not be avoided… This is a simple dismissal like any other dismissal.”
He said the dismissals were not about their criticism of the protest policy, but rather about them going out and talking to the media.
He said the employees needed the permission of the CEO before they spoke to the media on any matter of the SABC. He denied a previous argument by Budlender that this was unconstitutional.
Budlender said that Jimi Matthews, who recently resigned as CEO, previously told some of the employees: “It is cold outside. If you do not like it you can go. You’ve got two choices: the door or the window.”
He said this was the same CEO that they would have had to get permission from.
Skosana said the employees were fired for misconduct that happened while their disciplinary processes were on-going.
‘There is a contract of employment that prohibits certain conduct by employees. They have breached that.”
Judgment would provisionally be handed down on Monday. – News24