SABC MUST PROVE EMPLOYEES KNEW APPOINTMENTS WERE IRREGULAR

The SABC’s prospects of reversing 28 appointments it believes were irregularly made are likely to hinge on whether it can prove the employees concerned were ‘wilful participants’ in bypassing the organisation’s employment policies.

‘If it can be proven that those who benefited fully participated – meaning they knew the appointment process was irregular and they participated nonetheless – the SABC would probably succeed in its efforts to reverse the appointments. However, this is not a clear and simple case to prove,’ says Khomotso Makapane, partner in the Employment and Benefits Practice at Bowmans.

A complicating factor would be a material dispute of facts between the SABC and the 28 employees, Makapane says, as this could change the nature of the dispute resolution process.

Implications of a dispute over the facts

‘The SABC says it will approach the Labour Court to have the 28 appointments declared unlawful, invalid and set aside,’ he points out. ‘But if there is a dispute of facts over whether the appointments were irregular and the employees claim they were not aware of this fact of irregularity, then the matter cannot be proved through motion proceedings at the Labour Court.

‘Instead, it would have to be tried, meaning that oral evidence would be required to be led on the material facts in dispute. Simply put, the matter would have to go to trial so that oral evidence can be led and the veracity thereof proved.’

In order to prove that the employees knowingly participated in bypassing the SABC’s employment policies, it would have to produce evidence such as email trails, text messages, undeclared relations between the appointee and appointer and/ or fraudulent qualifications.

‘Once proven, the employees would have to revert back to their original positions if they were irregularly promoted, and could face disciplinary action for wilful participation in an irregular process.’

This would also have implications for those who had approved the appointments. ‘If the appointments were found to be irregular, the actions of those who effected them would have resulted in fruitless and irregular expenditure, and civil action could be taken to recover the costs,’ Makapane says.

Taking a step back

He adds that it would of course be necessary to prove that the appointments were irregular in the first place. This would entail showing what the employment policies of the organisation were and what delegation of authority was applicable at the time and, if necessary, also proving that the appointments had been made in a way that was contrary to the accepted culture of the organisation.

‘Once you get through that, it will be necessary to prove that there is a reasonable legal basis justifying the termination of the employment contracts as irregular appointments not in line with the applicable policies,’ says Makapane.

‘At the end of the day, the matter will be decided on the facts and the parties’ ability to prove those facts based on the evidence,’ he says.

‘The step taken by the SABC to seek a declaratory to nullify employment contracts is generally untested and will set a precedent for similar cases in future. It seems a prudent and efficient approach to deal with obvious irregularity, for both the SABC and affected employees, as the facts will be properly ventilated before the court. The hope is that at the end justice will prevail, and quickly.’