IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG
CASE NO. J1343/2016
In the matter between
SOLIDARITY

First Applicant

FOETA KRIGE

Second Applicant

SUNA VENTER

Third Applicant

KRIVANI PILLAY

Fourth Applicant

JACQUES STEENKAMP

Fifth Applicant

and
SOUTH AFRICAN BROADCASTING
CORPORATION (SOC)

First Respondent

REPLYING AFFIDAVIT

I, the undersigned,

ANTONIE JASPER VAN DER BIJL

state under oath as follows:

I am an adult male currently employed by the First Applicant (Solidarity) as

Head of the Labour Court Department. I am also the deponent to the
founding and supplementary affidavits in this matter. I remain duly
authorised to depose to this affidavit on behalf of the applicants.

The contents of this affidavit are within my personal knowledge, unless the
context indicates otherwise, and are to the best of my knowledge both true
and correct. The facts concerning the Second to Fifth Applicants were
provided to me by them and are confirmed by their confirmatory affidavits,
which are filed together herewith.

Where I make submissions of law, I do so on the advice of my legal

representatives, which advice I accept as being correct.

I have read the SABCs answering affidavit. To the extent necessary, I

respond thereto below. To the extent that I fail to deal with any specific
allegation in the answering affidavit, this must be taken as a denial thereof.

Ad paragraph 1.1
2

I deny that the facts contained in the answering affidavit are true and correct
and deny specifically that the deponent has the necessary personal
knowledge to depose to the allegations contained in the affidavit.

In this regard, I emphasise that:

1.1

The deponent does not explain on what basis he has the necessary
personal knowledge concerned;

1.2

The deponent does not say that he was personally involved in the
initial disciplinary hearings against the Second to Fifth Applicants, nor
the Schedule 8 procedure against the Second to Fifth Applicants;

1.3

The deponent has laid no proper basis for the extraordinarily vague
and bald allegations that he makes against the Second to Fifth
Applicants; and

1.4
4

As I demonstrate below, these allegations are quite incorrect.

Legal argument on the effect of this will be advanced at the hearing of this
matter.

Ad paragraph 2
5

The complaint about the short period to answer is entirely unfounded.

1.5

The answering affidavit was served at 19h00 on Thursday 21 July

2016.

1.6

The vast bulk of the factual allegations to be answered were

contained in the founding papers of the applicants. These were
served by e-mail and fax on the SABC at 17h37 on Friday 15 July
2016. A copy of the service affidavit is attached marked RA1. By
Monday 18 July 2016, the SABC had already served its notice of
intention to oppose.

1.7

Thus, in respect of the vast bulk of the factual allegations, the SABC
has had six full days to respond thereto after receipt of the founding
papers.
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1.8

The supplementary papers were served on the SABCs attorneys by

e-mail on the evening of Tuesday 19 July 2016. A copy of the service
affidavit is attached marked RA 2.

1.9

Thus, in respect of the very limited factual allegations contained in

the supplementary papers, the SABC had 48 hours to respond
thereto.

If anything, it is this affidavit that has been prepared under great time
constraints. The answering affidavit was served at 19h00 on 21 July 2016
and this affidavit is due to be filed 15 hours later by 10h00 on 22 July 2016.

Ad paragraph 4.1
6

The allegation is denied.

It is obviously true that radio stations do not broadcast visuals. However,

those SABC employees who worked in Radio still had an acute interest in
the Protest Policy for two reasons.
7.1

First, the Protest Policy stated that the SABC would no longer cover
violent protests with destruction to public property. This suggested
that the SABC would not be sending any crews to those kinds of
protests. Even if it did, the SABC would plainly not be conducting
interviews against the backdrop of or broadcasting footage of violent
protests. This had a direct impact on Radio journalists who rely on
such audio from such interviews and footage for their shows. If there
was no recording at all, or if there was some type of audio-visual

recording but it took place far from the protest itself, the audio
produced would be non-existent or inauthentic.
7.2

Second, and more importantly, the Protest Policy undermined the

credibility of the SABC and its journalists as a whole. The Protest
Policy seriously imperilled the credibility of the SABC with its viewers
and listeners. The Second to Fifth Applicants internal criticism was
driven by their deep concern for the SABC as a public broadcaster
with a constitutional mandate, their deep concern for the interests of
the public and indeed their deep concern for their own personal
credibility as journalists employed by and associated with the SABC.

Ad paragraph 4.2
8

This is not correct.

1.10

Disciplinary proceedings were instituted against the second to fifth

applicants.

1.11

The disciplinary proceedings against the second and third applicants

were ultimately scheduled to proceed on 11 July 2016 but were
postponed.

1.12

The disciplinary proceedings against the fourth and fifth applicants

were ultimately scheduled to proceed on 8 July 2016 but were
postponed.

Ad paragraph 4.3 4.4

9

The allegations are denied to the extent set out hereunder.

10

In respect of the Fourth and Fifth Applicants, the Schedule 8 notices reasserted the alleged misconduct with which they were originally charged.
The Schedule 8 notices however, extended the act of misconduct to include
a contravention of regulation 2(e) of the Regulations and not just regulation
2(d). Copies of the Fourth and Fifth Applicants original disciplinary notices
are attached marked RA 3 and RA 4.

11

Moreover, the Schedule 8 notices were not issued in a vacuum completely

devoid of any relation to the original charges. The Schedule 8 notices
expressly state: you are continuing to commit further acts of misconduct.
Any attempt on the part of the SABC to draw an inference that the two sets
of charges are entirely distinct is disingenuous.

12

In any event, the SABC contracted out of the disciplinary procedures

contemplated under item 4 of Schedule 8 of the Labour Relations Act 66 of
1995 (the LRA), as is evidenced by clause 1.5 read with 4.5 of the SABC
Disciplinary Code and Procedure (the Disciplinary Procedures).

13

In respect of all the journalists, the extraordinarily vague and general

allegations of misconduct contained in the Schedule 8 notices and the
answering affidavit are unfounded and are denied. The position in respect of
each of the journalists is dealt with in turn.

14

In respect of the Second Applicant:

14.1

He did not engage in any media interviews.

14.2

He did not publish any articles regarding his employment with the
SABC or cause any such articles to be published.

14.3

He did attend and participate in the march held on 1 July 2016. This
was after he had already been suspended. He did not speak during
the march. The march went from the SABC to the Constitutional
Court and was organised by a coalition of civil society organisations,
as appears from the annexure to the SABC answering affidavit. A
copy of the petition prepared by the organisers of the march for the
attention of the Constitutional Court is attached marked Annexure RA
5. He attended and participated in the march to register his concerns
about developments at the SABC, including the suspension of him,
the Third Applicant and Ms Gqubule; and his principled objection to
the SABCs Protest Policy which objection he had already raised
internally at the SABC.

14.4

He did not attend the SANEF AGM on 9 July 2016, where the Nat
Nakasa award was made to him and the rest of the SABC 8.

In respect of the Third Applicant:

1.13

During the period between her suspension and when her contract
was purportedly terminated, she spoke to the media only once. This
was on 24 June 2016, when she attended the CCC hearing at ICASA
regarding the MMA complaint about the Protest Policy. While there,
she commented to the media that it was tough not to be able to do
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her job; that she loved and would always love the SABC; and that
she could not comment further but she believed her presence at the
hearing said enough.
1.14

She did not publish any articles regarding her employment with the
SABC or cause any such articles to be published.

1.15

She did attend and participate in the march held on 1 July 2016. This
was after she had already been suspended. She did not speak during
the march. She attended and participated in the march to register
her concerns about developments at the SABC, including the
suspension of her, the Second Applicant and Ms Gqubule; and her
principled objection to the SABCs Protest Policy which objection
she had already raised internally at the SABC.

1.16

She did attend the SANEF AGM on 9 July 2016, where the Nat
Nakasa award was made to her and the rest of the SABC 8. She did
not make any statements there.

In respect of the Fourth Applicant:

1.17

She did not engage in any media interviews.

1.18

She did not publish any articles regarding her employment with the
SABC or cause any such articles to be published. She merely (with
the Fifth Applicant and Ms Ntuli) wrote an internal letter to Mr
Motsoeneng and other senior SABC personnel expressing her
concern about events that had transpired at the SABC, including the
Protest Policy and the suspensions of the Second and Third
8

Applicants and Ms Gqubule. (That letter was later leaked to the

media.)
1.19

She did not participate in the march on 1 July 2016.

1.20

She did attend the SANEF AGM on 9 July 2016, where the Nat
Nakasa award was made to her and the rest of the SABC 8. In
accepting the award, she merely read out the terms of the SABCs
mandate (a copy of which is attached as Annexure RA 6) and then
said Until this is achieved, #notinourname.

In respect of the Fifth Applicant:

1.21

He did not engage in any media interviews.

1.22

He did not publish any articles regarding his employment with the
SABC or cause any such articles to be published. He merely (with
the Fourth Applicant and Ms Ntuli) wrote an internal letter to Mr
Motsoeneng and other senior SABC personnel expressing his
concern about events that had transpired at the SABC, including the
Protest Policy and the suspensions of the Second and Third
Applicants and Ms Gqubule. (That letter was later leaked to the
media.)

1.23

He did not participate in the march on 1 July 2016, but did meet the
marchers at the Constitutional Court. This was on his day off. He did
not speak there. He met the marchers at the Constitutional Court to
register his concerns about developments at the SABC, including the
suspensions of the Second and Third Applicants and Ms Gqubule;
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and his principled objection to the SABCs Protest Policy. He had

already voiced these concerns internally via the internal letter.
1.24

He did attend the SANEF AGM on 9 July 2016, where the Nat
Nakasa award was made to him and the rest of the SABC 8. He did
not speak.

I deny that the conduct above gave rise to any basis for the Second to Fifth
Applicants to be dismissed. On the contrary, the conduct above is a plainly
legitimate expression in the public interest and falls within section 16(1) of
the Constitution.

Ad paragraph 4.5 4.6

15

To the extent it is alleged that the journalists did not respond to the
allegations of misconduct contained in the Schedule 8 notices, it is denied.

16

The journalists specifically recorded, in the letter sent by their attorney and
now attached to the supplementary papers, that it would be inappropriate at
this stage to respond to the charge sheets. Suffice it to say that our clients
deny all of the additional charges against them. (emphasis added).

Ad paragraph 6.1 6.3 and 6.6

17

The allegations are denied.

18

The allegations are a matter for legal argument and will be addressed at the
hearing.

10

Ad paragraph 6.4
19

The allegations are denied to the extent set out hereunder.

20

The SABCs decision to terminate live newspaper readings is irrelevant to

the dispute before this Court. To the extent that the SABC alleges this lead to
a revolt, it is denied. However, and in response to the point, the Second to
Fifth Applicants did criticise the decision, which they were entitled to do.
Reading newspaper headlines is an international journalistic practice, used
to keep listeners up to date with all manner of world events. The scrapping of
the practice, was a regressive step for a public broadcaster with a
constitutional mandate.

21

In any event, the fact that the Second to Fifth Applicants differed with SABC
management over this issue and expressed their differences is no basis for
dismissing them.

Ad paragraph 6.4
22

I have addressed the issue of the march in detail in paragraphs 13 to 8

above. I pray that what is said there be read as incorporated herein. I deny
these allegations to the extent that they are inconsistent with what is stated
there.

Ad paragraph 7.1 7.3

23

The allegations are denied. They will be addressed in legal argument.

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Ad paragraph 7.4 (including 7.4.1 7.4.4)

24

The allegations are denied. The reference in the application before this
Court to interdicting the disciplinary proceedings plainly includes the
purported schedule 8 process. Similarly, the reference in the application
before the Constitutional Court to declaring the decisions to institute the
disciplinary proceedings plainly includes the purported schedule 8 process.

25

Save as aforesaid, these issues will be addressed in legal argument.

Ad paragraph 7.5 and 15

26

The allegations are denied.

27

In any event, since the filing of the supplementary papers:

1.25

The SABC has consented to an order in Part A of the Helen Suzman

Foundation case. A copy of the order made by Murphy J by consent
on 18 July 2016 is attached marked RA 7.

1.26

The SABC has indicated formally to ICASA that it will abide by the
CCC decision. A copy of the letter on 18 July 2016 from the SABC to
ICASA in this regard is attached marked RA 7.

28

In the circumstances, the applicants have now established a clear right and
are now entitled to final relief rather than mere interim relief.

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Ad paragraph 10
29

The allegations are denied. I have addressed these issues in detail in

paragraphs 13 to 8 above. I pray that what is said there be read as
incorporated herein.

Ad paragraph 11
30

The allegations are denied. I have addressed these issues in detail in

paragraphs 7 and 13 to 8 above. I pray that what is said there be read as
incorporated herein.

31

The statements by the ANC Secretary-General quoted in the previous

affidavits speak for themselves. It should be added that the ANC SecretaryGeneral has subsequently criticised the dismissal of the SABC 8. A copy of a
news report quoting him in this regard is attached marked RA 8.

Ad paragraph 14
32

I note the contents of these paragraphs. Legal argument will be advanced

on the effect of the bald denial given.

Ad paragraph 16
33

I note the admission that the charges all relate to the Protest Policy.

34

However, I emphasise that:

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1.27

The Second and Third Applicants were originally charged with

distancing themselves from an instruction given pursuant to the
Protest Policy. This is plainly evident from paragraphs 93 95 of the
founding affidavit in the Constitutional Court Challenge 1, as well as
the disciplinary notice2 containing the original charge.

1.28

The charges in the Schedule 8 notice where in addition to that charge

and were directly related to the original set of charges; they all bore a
connection to the Protest Policy.

1.29

As I have state above the Fourth and Fifth Applicants were charged
with the same act of misconduct but the breadth of any contravention
of the Regulations was expanded.

Ad Paragraph 18
35

The allegations are denied.

36

Paragraph 2 of the letter dated 15 July 2016 3 states: We refer to the notices
served on our clients on Monday 11 July 2016, which contained the
additional charges raised against our clients and which required a response
by today.

1 pp 160 161 of the bundle

2 Annexure FA11 p 194
3 Annexure SA1 p 244
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37

The letter was clearly addressed with the intention of halting all of the
disciplinary proceedings, including the Schedule 8 notices. It made specific
reference to those notices.

Ad paragraph 20
38

The allegations are denied. I note that the SABC has failed to disclose which
of its officials were involved in the decisions to dismiss the Second to Fifth
Applicants.

39

These are matters for legal argument and will be addressed at the hearing.

Ad paragraphs 21.1 and 21.2

40

I deny the contents of these paragraphs. The contracts of employment

preclude the SABC from relying on a Schedule 8 procedure.

41

Even if the journalists had committed new and further acts of misconduct
(which is denied and is dealt with above), the SABC was prohibited by the
journalists contracts of employment from invoking the provisions of schedule
8 of the LRA.

Ad paragraphs 21.3
42

I deny the contents of this paragraph.

43

As I have indicated above, the journalists did respond to the Schedule 8

notices and the charges contained therein.

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44

Moreover, the vague and unspecific allegation that the alleged misconduct
was proved by formal documents or recordings is patently inadequate. I
have dealt with the true facts at paragraphs 13 to 8 above. I pray that what is
said there be read as incorporated herein.

45

Finally, paragraph 21.4 of the SABCs answer contradicts its central position
in this matter: the disciplinary proceedings were carried to completion
through Schedule 8 of the LRA. As a result, the Applicants do not know what
defence the SABC actually relies on.

Ad paragraphs 21.4 and 21.5

I deny the contents of these paragraphs.

Ad paragraph 22
46

I note the admission that the journalists have been dismissed for
(purportedly) publicly criticising the Protest Policy, the suspensions and the
SABC management. On this basis alone, the dismissal decision is in breach
of their section 16(1) rights in terms of the Constitution.

47

The true facts about what the journalists actually did appear from 13 to 8
above.

Ad paragraph 24
48

The applicants persist in contending that this matter is extremely urgent.

49

In this regard it should be noted that at 1:00am on the morning of 21 July

2016, all of the applicants received notices terminating their membership of
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the SABC medical aid scheme. This means that they and their families are
now without medical aid cover and further demonstrates the urgency of this
matter. As an example, attached as Annexure RA 9 is the letter received by
the Fifth applicant.
WHEREFORE I pray for the relief in the amended Notice of Motion.

_____________________________
ANTONIE JASPER VAN DER BIJL
I hereby certify that the deponent knows and understands the contents of this
affidavit and that it is to the best of the deponents knowledge both true and
correct. This affidavit was signed and sworn to before me at PRETORIA on this
the ____day of JULY 2016, and that the Regulations contained in Government
Notice R.1258 of 21 July 1972, as amended by R1648 of 19 August 1977, and as
further amended by R1428 of 11 July 1989, having been complied with

______________________
COMMISSIONER OF OATHS
Full names:
Address:
Capacity:

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