Johannesburg – The SABC has lost its appeal against the reinstatement of its general manager for commercial services, Nompumelelo Phasha, who was dismissed without a disciplinary hearing.
Sunday World can reveal that the Labour Appeal Court, in its judgment dated November 27, dismissed the SABC’s appeal with costs and ordered that Phasha be allowed to return to work In his judgment, Judge JA Davis said the SABC’s decision was invalid and unlawful in that it had entered into an employment contract with Phasha, which clearly stipulated that the employee could only be dismissed after a disciplinary hearing or an inquiry.
The court papers show that the SABC had ignored a Commission for Conciliation, Mediation and Arbitration (CCMA) inquiry, which was still being heard, and dismissed Phasha, claiming that she had brought the SABC into disrepute by making serious allegations against the public broadcaster.
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This came after Phasha challenged two CCMA commissioners, Motlatsi Phala and Terry Moodley, who were appointed to facilitate her inquiry, both of whom have ties to Werksmans Attorneys, the SABC’s attorneys.
In her representation at the CCMA, Phasha had asked that Phala recuse himself from the inquiry, indicating that he had previously connived with the SABC to ensure that all disciplinary hearings he headed led to the dismissal of SABC employees.
Arguing for the SABC, advocate Nazeem Cassiem (SC) said the disciplinary code was not yet incorporated into Phasha contract of employment when she was employed. Cassiem also argued that the SABC had merely utilised its discretion to summarily dismiss Phasha without a hearing as it was allowed by the contract of employment.
But Judge Davis would have none of the SABC’s argument, ruling that the broadcaster’s defence that Phasha’s dismissal was unrelated to the CCMA inquiry holds no water.
“Unlawfulness renders the initial decision void. And that means that the respondent is entitled to be put back into a position from which she was unlawfully removed,” reads part of the judgment.
The SABC now has a financial headache as it will have to pay Phasha a two years’ salary, which is set to amount to R3.5-million.
This is on top of the R2.5-million in legal costs, which were awarded against the SABC.
SABC spokesperson Mmoni Seapolelo said: “The SABC, having considered the Labour Appeal Court judgment and its implications, unreservedly accepts the outcome of the appeal. Ms Phasha is reinstated, remains on suspension pending the outcome of a disciplinary hearing”.
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