25 February 2021

A Commitment to good governance: SABC Legal Success

Submitted by Pearlmar Chauke

The litigation process is a costly exercise that often invites public attention and has reputational repercussions for any organisation. Despite these risks, the SABC has prioritised good governance and made representation before the courts to correct past malpractices, save the company money and is enroute to restore its corporate image.

With governance practices a key focus for the SABC's turnaround efforts, the corporation has been actively driving initiatives to strengthen decision-making and address historic wrongdoings. Recent legal successes signal the corporation's shift to correct past mistakes and reestablish a culture of good governance at the public broadcaster.

The SABC recently litigated and won five cases that will save the organisation hundreds of millions of rands.

The first relates to the 17-year-old R760 million claim court case against the Government Employee Pension Fund (GEPF). The long-standing matter, which commenced in March 2004, was based on an alleged breach of a lease agreement by the SABC and the premature vacation of the Bophuthatswana Recording Studio, which resulted in a loss of rental income for the GEPF.  The GEPF wanted the SABC to be held liable and pay approximately R760 million in outstanding rental, for occupying and utilising the Bophuthatswana Recording Studio.

The Gauteng High Court dismissed the application, with costs in favour of the SABC. The GEPF is appealing the judgment and the SABC is opposing the appeal in the best interests of the Corporation.

The second case relates to the SABC's disposal of non-core properties to cut costs in line with its turnaround plan. The tenants in Mmabatho and Mahikeng brought numerous Court Applications to stop the SABC from selling its non-core properties in Mmabatho and Mahikeng. However, the occupants of these non-core properties filed an urgent application seeking to prevent the SABC from proceeding with its intention to dispose of its residential properties. The Court ruled that the Tenants do not have a legal right to stop the Corporation from disposing its non-core asserts consistently with the law and to realize the much needed financial returns on the sale, given the SABC’s known precarious financial situation. The tenants were ordered to pay the SABC’s legal costs on an attorney client basis, including the cost of Counsel.

The SABC's commitment to recovering finances lost due to fruitless and wasteful expenditure yielded a third victory when the Gauteng High Court ruled against the SABC's former Chief Operations Officer (COO), Hlaudi Motsoeneng, ordering him to pay back more than R850 000 forked out by the broadcaster, for his legal fees.

The SABC had approached the courts to recoup R851 981.73 paid to Messrs Majavu Incorporated when Motsoeneng had launched a legal bid, challenging a decision to set aside his appointment as COO. The legal services were incurred in Motsoeneng personal capacity.

According to the judgement, Motsoeneng was ordered to pay back the money with interest. He also has to pay the costs of the interlocutory application and the costs of the default judgment.

In the fourth case, the Broadcasting, Electronic, Media & Allied Workers Union (BEMAWU) brought an application to the labour court, to declare the SABC's Section 189 of the Labour Relations Act (LRA) consultation process as irregular and the withdrawal of the redundancy letters issued by the public broadcaster. This was despite the 48 consultations over 6 months concluded by the SABC, far exceeding the prescripts of the LRA Section 189 only requiring four (4) consultation sessions in 60 days.

The Labour Court dismissed, with costs, BEMAWU's application to declare the Section 189 consultation process as irregular and invalid as well the withdrawal of the redundancy letters.

Dissatisfied with the outcome, BEMAWU applied for leave to appeal the Labour Court's judgement of December 2, 2020.

The Labour Court further dismissed BEMAWU's leave to appeal the judgement with costs, citing that there were no reasonable prospects that another court would come to a different conclusion, based on the facts presented by BEMAWU and their failure to prove that there was a material failure in the section 189A (13) process of the LRA.

Finally, in 2019 Ukhozi FM, South Africa's biggest radio station, broke decades of tradition and did not announce one of its most coveted programmes, 'Ingoma Ehlukanisa Unyaka' or New Year's Eve Song of the Year. The staple custom most South Africans grew up anticipating every New Year's Eve was blocked by Michael Ndlovu of Michael Owen Productions, who had approached the courts to file an urgent application to interdict the SABC from airing promotions and announcing the winner or results or poll promotions relating to Ukhozi FM's Ingoma Ehlukanisa Unyaka'. 

Michael Owen Productions later withdrew their application, clearing Ukhozi FM to announce the winner of its most prestigious slot. But in December last year, Ndlovu attempted to interdict the SABC again, filing an urgent application, which the High Court struck off the roll for lack of urgency and Michael Owen Production CC was ordered to pay the legal costs of the SABC on an attorney and clients scale, including costs of counsel.

The Corporation has initiated steps to recover legal costs due to it as awarded by the Courts in all the affected cases.

Notwithstanding the corporation's history, the SABC remains South Africa's best and biggest medium to protect and sustain democracy through free and fair reporting and provide citizens with reliable information to make informed decisions. And while litigation is not the SABC's preferred method of dispute resolution of matters, it is often compelled to engage in litigation to protect the best interests of the Corporation consistently with its governance protocols. However, whenever the SABC engages in litigation, it does so in the most efficient and cost effective way, bearing in mind its financial position.

Described as a Public Relations (PR) guru by her peers, Madelain Roscher is the Managing Director of PR Worx, a full-service marketing-communications agency, which she established in 2001. With 22 years’ in-depth industry experience based on an impressive consulting and corporate career, the firm has achieved remarkable successes under her leadership. ​ Notably, PR Worx is the highest awarded public relations firm in Africa having been honoured as the best in Johannesburg, Ekurhuleni, South Africa and Africa awards for nine consecutive years. Madelain also won the 2019 Africa Women Leader Award by the World Women Leadership Congress and Awards, 2017 Woman of the Year: Media category; the Most Influential Women in Business award; was recognised as the Most Admired PR Professional in South Africa; and was the first person to receive the Public Relations Institute of SA’s Lifetime Achievement Award. ​ Her knowledge of the sector and developing commercial strategies that are impactful and that generate a maximum measurable return on investment for her clients, are some of her strongest service offerings. Her responsibilities include strategic business development for her own firm and that of PR Worx’s blue-chip client portfolio. ​ Prior to starting up PR Worx, Madelain was head of South African Airways’ worldwide corporate communications function and the airline’s global spokesperson for a period of six years. During this time, she was one of two employees that was selected from 25,000 airline staff to represent South Africa in Switzerland as part of an aviation MBA programme.