Cape Town - SABC contributing editor Vuyo Mvoko’s constitutional rights to freedom of expression were infringed by the public broadcaster’s decision to “punish” him by taking him off air for an article in which he criticised its management.
This is argued in Mvoko’s application for leave to appeal against the dismissal of his application to have his contract enforced.
South Gauteng High Court Judge Fritz van Oosten this month dismissed Mvoko’s application, saying, among others, it was premature because the SABC was still investigating the matter and had not yet taken a decision to terminate the contract.
The decision to take him off air was temporary, pending the outcome of this investigation, the judge said.
But Mvoko’s lawyers argue Judge Oosten failed to decide whether it was constitutionally permissible for the public broadcaster to punish the journalist for criticising its management in the article.
That the contract provided for Mvoko’s services to be suspended should the broadcaster decide to investigate an alleged breach of the contract should not trump his constitutional rights, his lawyers argue.
The court “did not appreciate that the applicant’s case was robust against any procedural’ or contractual constraints since both of these were being challenged for their breach of the highest law in the land, the constitution,” his lawyers argue.
It was also incorrect for the court to accept that the SABC was “investigating” the alleged breach of contract, since its case was always that the article constituted a breach of the contract by bringing the public broadcaster into disrepute.
In fact the SABC was merely weighing whether or not to terminate the contract in light of the breach, not seeking to discover whether or not there had been one. “If anything, all the respondent needed was a legal opinion on its right, if any, to terminate,” Mvoko’s lawyers say.
The court had also chosen not to answer the question of whether or not publication of the article amounted to a breach of the contract. If it was not, there would be no basis for the decision to suspend Mvoko’s services.
Mvoko wrote an article, published by the Star on July 6, in which he described instances of intimidation, censorship and improper interference by the SABC management.
This followed the decision by SABC chief operating officer Hlaudi Motsoeneng not to show footage of destruction of property during protests, which he extended to include a ban on criticism of the SABC and President Jacob Zuma.
Mvoko and seven other journalists have applied for direct access to the Constitutional Court to challenge the constitutionality of this decision and their suspension and dismissal, although the seven have been reinstated.
Parliament’s portfolio committee on communications is to meet on Tuesday for a hearing on the matter.
Political Bureau