Matlou v South African Broadcasting Corporation

• Jurisdiction: South Africa
• Court: Gauteng Division, Pretoria
• Judge: N Davis J
• Judgment Date: 07 June 2020
• Citation: 2020 JDR 1432 (GP)
• Hearing Date: 25 May 2020
• Docket Number: 70546/2019

Davis J:

[1] Introduction

1.1

The applicant in this application is an erstwhile provincial news editor of the South African Broadcasting Corporation Soc Ltd ("SABC"). He features in a report of a Commission of Inquiry established to investigate "Interference in the Decision-making in the Newsroom of the SABC" ("the Commission"). The Commission is also referred to in the papers as the "Thloloe Commission", after its chairperson, an eminent journalist.

1.2

This is a review application whereby the applicant seeks to have the report of the Commission reviewed and set aside.

[2] Background regarding the Commission:

2.1

Allegations of mismanagement of the SABC, but in particular, improper interference with editorial practices in its news reporting, have circulated for many years.

2.2

In 2014 the (then) Public Protector issued a report, Report No 23 of 2013/2014 titled "When Governance and Ethics Fail". The report detailed irregularity in the appointment of Mr Hlaudi Motsoeneng who served as the acting Chief Operating Officer of the SABC from 2011 – 2013. The report also dealt with instances of interference in the SABC by a former Minister of Communication.

2.3

The initial failure by the SABC Board to implement the remedial action prescribed by the Public Protector lead to litigation, culminating in the decision reported as SABC v Democratic Alliance 2016 (2) SA 522 (SCA). This was followed by litigation concerning the failure to uphold the highest standards of journalistic integrity, which also culminated in an appeal, reported as Mvoko v SABC 2018(2) 291 (SCA).

2020 JDR 1432 p3

Davis J

2.4

This, in turn, lead to the establishment of the Commission on 31 May 2018.

[3] The Commission's terms of reference:

The Commission's terms of reference included the following:

3.1

To investigate the nature, prevalence, merits and veracity of all the allegations, grievances and/or complaints of editorial, political, business and commercial interference;

3.2

To establish whether there is evidence to substantiate the allegations made;

3.3

To review any or all submissions made before by any person in respect to any of the allegations, grievances and/or complaints lodged by the employees;

3.4

To make factual findings and conclusions based on evidence/testimony presented;

3.5

To play an inquisitorial role;

3.6

To interview all SABC employees and/or other persons mentioned in the allegations, grievances and/or complaints lodged by the employees.

3.7

To advise the SABC Board on what steps that need to be undertaken; and

3.8

To recommend appropriate corrective action.

[4] The findings of the Commission which feature the applicant:

4.1

The applicant features very little in the report, the findings and the recommendations of the Commission.

2020 JDR 1432 p4

Davis J

4.2

The Commission's hearings spanned from 27 June 2018 until the issuing of the report on 25 February 2019. The "ambit and focus" of the report concerned the reign of Mr Motsoeneng and the actions of the erstwhile Minister of Communications, Ms Muthambi.

4.3

The report was ultimately made public by the SABC on 6 August 2019.

4.4

The first reference to the applicant contained in the report is only at paragraph 184 thereof. The context wherein the references to the applicant are made, starts from paragraphs 177 and 178 of the report. Therein the Chair of the Commission stated the following:

"Ntuli on Regional Editors

177 In my discussion with staff at the Mafikeng and Northern Cape Offices, I was informed that Motsoeneng appointed provincial editors who were not qualified for the job. It is important for this inquiry to investigate how the appointments were made and what impact they've had on the editorial standing of these offices.

178 She alleges that at least one of them catapulted from scale 40-something to scale 120 or 125 after he was made provincial editor". ("40-something" should be "four-something" when one reads the record of Ntuli's oral evidence).

4.5

The "Ntuli" to which reference is made, is Ms Busisiwe Ntuli who was the executive producer of "Special Assignment", an investigative journalistic television programme. She had made written submissions to the Commission and had also orally testified before the Commission, from whence the above comments were extracted.

2020 JDR 1432 p5

Davis J

4.6

As aforementioned, the next reference to the applicant in the report is in paragraph 184 which reads as follows:

"184 The Commission looked at the personnel files of some of the people who were fingered. Nothando Maseko, Sebolelo Dithlakanyane, Hlaudi Motsoeneng and Charles Matlou".

4.7

Nothing further is said about the applicant until paragraphs 192 and 193, which read as follows:

"Charles Matlou

192. All the recruitment processes were followed, except the verification. He was appointed without the verification of his qualifications. There were also outstanding documents.

193. It is not clear in the file if the verification was done in the end or whether the required documents were finally submitted".

4.8

The only reference to the applicant in the Commission's recommendations, appears in paragraph 273 (which is repeated in paragraph 5 of the recommendations contained in the executive summary of the report):

"273 Motsoeneng's instructions to Human Resources to institute disciplinary hearings against employees or to dismiss, promote or appoint others must be reviewed. Also, Human Resources to do an audit of the appointments, promotions or sideways shifts...