Case Note: Jurisdictional Quandaries Triggered by a New Variant for Dismissal

• Author: Maloka, T.C.
• DOI: https://doi.org/10.47348/SAMLJ/v34/i1a6
• Published date: 24 October 2022
• Date: 24 October 2022
• Pages: 135-151

JURISDICTIONAL QUANDARIES

TRIGGERED BY A NEW VARIANT FOR

DISMISSAL

TUMO CHARLES MALOKA

University of Limpopo

IINTRODUCTION

While the imperative tone of the Constitutional Court (CC) in Steen-

kamp v Edcon Ltd (2016) 37 ILJ 564 (CC) (Steenkamp I) leaves no doubt

that the Labour Relations Act 66 of 1995 (LRA) does not contemplate

invalid dismissals or an order declaring a dismissal invalid, or of no force

or effect, the extent of the Labour Court’s (LC) jurisdiction to grant

appropriate relief declaring dismissals unlawful and invalid because they

constitute encroachment of the applicants’ fundamental rights is a vexed

question. In Steenkamp I it was decided that when an applicant alleges

that a dismissal is unlawful (as opposed to unfair), there is no remedy

under the LRA. What this means is that the LC lacks jurisdiction to make

any determination of unlawfulness.

A multi-layered and complex jurisdictional problem arose in Chubisi

v SABC (SOC) Ltd (2021) 42 ILJ 395 (LC) (Chubisi) where the question

was whether Ms Chubisi could obtain a declaratory order that the

termination of her contract of employment was unconstitutional,

unlawful, invalid and of no force and effect. At issue was the termination

of employment pursuant to non-recognition of the employee’s contract

by the public broadcaster ostensibly to give effect to the Public Protec-

tor’s remedial actions. There is no doubt that the remedial actions of the

Public Protector have a binding effect, unless, of course, they are

reviewed and set aside (EFF v Speaker of the National Assembly 2016 (3)

SA 580 (CC); see also Mhango & Dyani-Mhango, ‘The powers of the

South African Public Protector: A note on Economic Freedom Fighters v

Speaker of the National Assembly’ 2020 African Journal of Legal Studies 1).

The court held in Chubisi that the termination of the applicant’s contract

of employment by the South African Broadcasting Corporation (SABC)

was unlawful, invalid and of no force and effect. The question that arises,

therefore, is whether the LC in granting a declaratory order to the effect

that the termination of employment was unlawful and invalid misinter-

preted and misconstrued the ratio of Steenkamp I. To answer this

question, the reasoning of Tlhotlhalemaje J in addressing jurisdictional

diff‌iculties requires close scrutiny and analysis.

135 https://doi.org/10.47348/SAMLJ/v34/i1a6

(2022) 34 SA Merc LJ 135

© Juta and Company (Pty) Ltd

In effect, the resolution of the issues emerging from Chubisi allows for

a detailed examination of the import of Steenkamp I. This also provides a

platform for examining the fundamental but somewhat tenuous distinc-

tion between the jurisdiction and the powers of the LC. In legal parlance,

the critical task for the court in any given case is to decide whether the

statutory provision on which an applicant relies to found jurisdiction is

indeed one that confers jurisdiction. At a more general level, Chubisi

implicates corporate governance malaise at the SABC with the unfortu-

nate reality of retrenchments. Therefore, a concise discussion of the

corporate governance challenges is merited.

II ENDEMIC CORPORATE GOVERNANCE CHALLENGES

AT THE PUBLIC BROADCASTER

It cannot be disputed that the public broadcaster plays a critical role in

society (Khumalo v Holomisa 2002 (5) SA 401 (CC); Mail & Guardian

Ltd v JSC 2010 (6) BCLR 615 (GSJ); Midi Television (Pty) Ltd v DPP 2007

(3) All SA (SCA); Multichoice (Pty) Ltd v NPA: In re Pistorius 2014 (2) All

SA 446 (GP); Bell Canada v Canada (Attorney General) 2019 SCC 66

(CanLII). The pivotal role was explicated by the Constitutional Court in

SABC v NDPP 2007 (1) SA 523 (CC) paras 26–28:

‘Ultimately, however, what is central to the issue is not the responsibility

and rights of the SABC as a broadcaster. What is at stake is the right of the

public to be informed and educated as is acknowledged in the Preamble to

the Broadcasting Act which reads—‘‘Noting that the South African

broadcasting system comprises public, commercial and community ele-

ments, and the system makes use of radio frequencies that are public

property and provides, through its programming, a public service neces-

sary for the maintenance of a South African identity, universal access,

equality, unity and diversity.’’ The need for public information and

awareness f‌lows from the nature of our democracy. Public participation

on a continuous basis provides vitality to democracy.’

Like other state-owned companies, the SABC remains a ‘hotspot’ of

sustained corporate governance def‌iciencies exemplif‌ied by improper

board appointments, weak and dysfunctional boards, operational def‌i-

ciencies and political meddling (Cassim, ‘Removing directors of state-

owned companies: SOS Support Public Broadcasting Coalition v South

African Broadcasting Corporation SOC Limited (81056/14) [2017] ZAG-

PJHC 289’ 2019 Obiter 147; Thabane & Snyman-Van Deventer,

‘Pathological corporate governance def‌iciencies in South Africa’s state-

owned companies: A critical ref‌lection’ 2018 PER/ PELJ 3; Thabane,

‘Removal of directors in state-owned companies: Shareholders’

https://doi.org/10.47348/SAMLJ/v34/i1a6

(2022) 34 SA MERC LJ

136

© Juta and Company (Pty) Ltd