While the HSF interdict is a victory for democracy, the SABC still has other cases currently underway in the labour and constitutional courts, writes Eusebius McKaiser.
The Helen Suzman Foundation has succeeded in extracting an agreement from the SABC that its editorial decision to not show violent protests is unconstitutional.
This is incredible, considering how much energy the SABC’s COO, Hlaudi Motsoeneng, and the SABC’s board, have spent justifying this ludicrous policy as lawful, and even as one that is required as a matter of good ethics. This morning, on the steps of the North Gauteng High Court, the hubris came to an interim end.
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The court has granted an interim interdict that requires the SABC to desist from further implementation of its policy. Most of the arguments of the HSF were conceded, and lawyers from both sides simply then spent some time to ensure that the final wording of the agreement affirms the editorial independence (of course) of managers in the newsrooms of the SABC while simultaneously getting the SABC to also agree that no editorial decisions should fall foul of the constitution or the Broadcasting Act.
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There can be little doubt, of course, that this breakthrough decision is in the public interest. Citizens cannot exercise choices, especially political ones, in a democracy in which the flow of information is stemmed by censorship policies within the major institutions of society such as the public broadcaster.
Quite apart, therefore, from this being an interdict that is good for journalists, because it allows them to do their jobs with professional integrity intact, the agreement by the SABC also helps to ensure that the requirements of a deliberative and participatory democracy are partly met, insofar as effective participation in democratic processes require us to know what the heck is going on in our country.
If you turn off the cameras when violent protests break out, then you undermine the generation of a democratic culture. Because accurate and honest opinions cannot be formed in the absence of true facts being reported by the media. This is why the interdict should be welcomed by all citizens regardless of political affiliation.
But don’t be fooled. The array of legal and non-legal issues that need to be sorted out at the SABC, including other cases currently underway in the labour and constitutional courts, must still be negotiated.
First, the so-called SABC8’s labour rights have been trampled on. This interim interdict was not about their labour rights. But the implications are clear: Given that the SABC8 were suspended, and seven of them fired summarily, because of their disagreement with this unlawful editorial policy of the SABC, it cannot be possible for the SABC to claim that they suspended and fired them lawfully.
If the SABC now refuses to reinstate these journalists, then they will surely be undermining the letter and spirit of the interim interdict granted by the North Gauteng High Court. The practical effect of the agreement reached in Pretoria is that the suspensions of the SABC8 stemmed from the eight disagreeing with an unlawful policy.
How can those suspensions and dismissals make sense, in terms of fair labour practise, now that the SABC has conceded that the editorial policy was unlawful?
It is crucial, therefore, that lawyers for the SABC8 continue with the labour rights cases to tie up these legal loose ends. The interim interdict strengthens their hand because it justifies the journalists’ pushback against the unlawful editorial policy of the SABC. The SABC should, in good faith, apologise to the SABC8 and immediately reinstate them.
It also follows that any SABC journalist who now reports on violent protests cannot, on that basis alone, be suspended or fired because the policy is by agreement no longer a valid one.
This case also has implications for the SABC’s fight with Icasa, the regulatory body that recommended it lift the editorial decision to not show violent protests. Again, it is hard to see how the SABC can sustain its disagreement with Icasa now that it has conceded the majority of the arguments of the HSF. It should, in good faith, write to Icasa and express its intention to comply with the Icasa recommendation, immediately.
What remains unclear at this stage is what will happen with the matter before the constitutional court. The SABC8, recall, have filed papers in that court, arguing that they should be granted direct and urgent access in order to have the editorial policy of the SABC declared unconstitutional.
Today the SABC8 also filed a supplementary affidavit, in light of the dismissals over the past two days, citing this development as further reason why direct access should be granted, and granted urgently. However, the interim order granted today in the North Gauteng High Court presumably means that the likelihood of direct access being granted is now reduced.
Because contrary to what is argued in those affidavits, it is clear that the HSF case is evidence that lower courts can handle these issues competently and there’s no need, as yet, for the constitutional court to hear the matter. It wouldn’t be surprising, therefore, if the constitutional court neither deems the matter to be urgent nor would it be surprising if it refuses to grant direct access.
Those affidavits, at any rate, seem at times to conflate labour rights questions with constitutional law questions and not all the judges will deem the issues as necessarily and inherently intertwined.
But whether the constitutional case becomes redundant now, of course, depends on whether the SABC complies with the interim order faithfully. It also depends on whether the SABC ends up opposing the interim order when the HSF asks the court to declare the interim order a final order.
In the final analysis, therefore, civil society must remain vigilant. Democratic habits take a long time to form.
For one thing, not all state institutions have a good reputation for faithfully complying with court judgments and out of court settlements. For another, the agreement today is very narrow anyway: questions about the labour rights of journalists, and aspects of the wider editorial policy and upward referral systems in the newsroom, aren’t settled by this agreement. We still have a long way to go, therefore, before the SABC is in a healthy state.
* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma. His new book - Run, Racist, Run: Journeys Into The Heart Of Racism - is now available nationwide, and online through Amazon.