In the last week irregular steps taken to victimise the SABC head of News, Phathiswa Magopeni, have multiplied with the CEO, Madoda Mxakwe acting beyond his powers, and dismissing Magopeni because of a breakdown of trust. This happens while multiple claims of irregularity against the CEO and board chair have not been addressed. Removing Magopeni may well be aimed at impeding her raising evidence in any hearing.

Since last week, SABC attempts to victimise Head of News Phathiswa Magopeni (https://www.polity.org.za/article/danger-signals-as-sabc-victimises-head-of-news-division-phathiswa-magopeni-2022-01-24/searchString:Raymond+Suttner) escalated, with her dismissal on the grounds of a “breakdown in the trust relationship between you and the SABC” (letter from SABC CEO, Madoda Mxakwe, 28 January 2022).

The processes that have led to this moment have been replete with irregularities from the beginning until the present.

Before charges were laid, the SABC disciplinary code lays down that there must be an investigation. Such an investigation ought to have been aimed at finding out who bore responsibility for the illegal airing of an interdicted programme of Special Assignment, for which Magopeni was charged and convicted.

Had that investigation taken place it would have found where the problem lay and given the location of Magopeni and her relationship to the department that loads programmes, it would not have been possible for an investigation to lay the blame on her.

No investigation was held before the disciplinary hearing, an indication of bad faith and a firm intention to drive Magopeni out of the SABC. Thus the disciplinary hearing originated and proceeded despite non-compliance with factors that ought to have been addressed and preceded any hearing. The findings of Advocate Nazeer Cassim SC, who chaired the hearing, do not address this, despite it being repeatedly raised by the defence.

Adv Cassim found Magopeni guilty of negligence. In the course of moving towards this decision, he was not prepared to take account of her relationship to the loading of programmes and accused her of trying to “pass the buck” to those who were in fact responsible.

What Magopeni was saying is that a proper investigation would have found that she certainly was not a candidate for a charge of negligence in relation to the loading of the programmes.

It was up to the SABC to decide whether or not the incorrect loading of a programme warranted charges of acting negligently by those who were in fact responsible.

That was not done and that there was no investigation and how Magopeni stood, structurally, in relation to the loading of programmes, was not taken into account in the findings of Adv Cassim when he decided that she was guilty of negligence.

According to the disciplinary code of the SABC, before deciding on a penalty the chair of the disciplinary hearing is supposed to hear arguments in mitigation or aggravation of sentence. This was not done.

Cassim recommended a warning. But that was conditional on Magopeni disassociating herself from a statement of her attorneys to the effect that the whole process was “a farce”.

Magopeni's attorneys in fact put on the record withdrawal of the statement to which Cassim took offence and indicated that Magopeni associated herself with this withdrawal. An email from her attorney, Genie de Carvalho, dated 23 December 2021, copied to the SABC lawyers and Adv Cassim reads:

“The writer together with the employee, Ms Phathiswa Magopeni, hereby withdraw the contents of para 36 as contained in the ‘Employee’s Closing Arguments’.’’

The outcome of the hearing was that a warning was recommended, and the record should have shown (as communicated to Adv Cassim) that the conditions under which the warning was recommended were met by the withdrawal of the offending statement (to which I will return).

After the disciplinary hearing, on 28 December 2021, Dr Mojaki Mosia, Group Executive for Human Resources at the SABC wrote to Magopeni under the heading: “Employers factors in aggravation and invitation to the employee to submit factors in mitigation”.

The letter indicated their desire to move quickly and address the “question of sanction” and they called upon her to present arguments in mitigation before the close of business on 31 December 2021. It was noted that aggravation/mitigation arguments were not presented in the hearing. The letter then makes a statement of law (in relation to Adv Cassim’s recommended warning), that violates the SABC disciplinary code, in claiming powers for the Group CEO:

“The chairperson, it would seem, purported to make a recommendation to the Board – this cannot be correct as matter of law. The recommendation must be for the GCEO’s consideration. Accordingly, the ruling should be read as referring to the GCEO and not the Board.”

Magopeni asked for a postponement of the date that they required her submission in order to consult with her lawyers.

On 25 January 2021, however, Magopeni responded to the call to present mitigating evidence to the CEO as contrary to the disciplinary code because the only person who could impose a sentence was the chair of the committee and he had not done that.

“As you are aware, Annexure A of the Code sets out the disciplinary hearing procedure to be followed at the SABC. In summary, Sections 18 to 22 of Annexure A provide that should the Chairperson find the employee guilty of the allegations levelled against them, the Chairperson is required to request the parties to submit mitigating and aggravating factors. Once the Chairperson has considered the mitigating and aggravating factors, they are required to decide on the appropriate sanction.

“To the extent that the Chairperson failed to provide the parties with the opportunity to make their submissions in relation to the mitigating and aggravating factors regarding sanction, the disciplinary hearing procedure is irregular as it is contrary to the process set out in the Code.

“Moreover, the submissions set out in your letter in relation to the SABC’s factors in aggravation and your request that I provide my factors in mitigation are not permitted in terms of the Code. In terms of the Code, no other person, save and except for the Chairperson may request and consider the parties’ mitigating and aggravating factors. But that function has been usurped by the SABC in terms of your letter. In essence, you cannot contravene the Code and assume a responsibility which in terms of the Code is not vested in you. This responsibility is vested in the Chairperson and, notably, he failed to exercise his responsibility in this regard.”

It was not within the power of the CEO to impose punishment on her and she was not prepared to participate in a process that was flawed in this way.

The SABC responded on Friday 28 January 2022 by dismissing Magopeni because of a “breakdown of trust”, referring, inter alia, to the failure to dissociate herself from her lawyer’s remarks, which had been done, as indicated above.

Why the urgency to dismiss Magopeni?

What we have to ask ourselves is, why has there been this rush to dismiss Magopeni?

The answer lies in a parallel process whereby Magopeni sent an extensive grievance letter against the CEO and Board Chair, Bongumusa Makhathini ( See previous article: https://www.polity.org.za/article/danger-signals-as-sabc-victimises-head-of-news-division-phathiswa-magopeni-2022-01-24/searchString:Raymond+Suttner).

She made extensive claims of irregularity against the chair of the board and the CEO regarding the ANC's attempts to direct the news reporting in a manner that ran counter to the approved policies of how news department processes should operate.

Both the CEO and the board chair put extensive pressure on Magopeni, making it very clear that the concerns of the ANC were a priority and the policies, directives and codes of conduct of the SABC should be subordinated to that.

Magopeni refused to comply and there is no doubt that the charges that were subsequently brought against her relate to that question, and the airing of the interdicted programme was simply a peg used to hang an attempt to charge her, no matter what.

There was no conflict between Magopeni and the board chair or the CEO over the interdicted programme, until she was charged with responsibility for the airing of the interdicted programme, which all who know the operations of the SABC are aware is not something for which responsibility could be attached to Magopeni.

One of the consequences of dismissing Magopeni is that she is no longer an employee of the SABC and it may have been hoped, by the CEO, or the chair of the board, who has presumably been apprised of the intentions of the CEO, that she may - being no longer an SABC employee - not be able to bring evidence beyond what she has written in addressing the grievances she raised against the irregular conduct of the CEO and the chair of the board (though processes with the board are different).

Before dismissal, it was reported that the board were not getting an external chair to hear the grievances in relation to the board chair, but that a three-member committee chaired by Prof Saths Cooper was going to hear the grievance proceedings.

It is reported that Parliament is going to call the board to appear before it. But what is going to happen to the proceedings that ought to have happened in relation to Magopeni's grievance proceedings?

The question of trust

When SABC CEO Madoda Mxakwe refers to a breakdown of trust as the reason for the dismissal of Phathiswa Magopeni, has he considered the meaning of the word "trust" and its application to this situation? Trust is listed as one of the central values of the current SABC.

Trust refers to being able to rely on people, to count on their integrity, to be confident of what they will do in relation to tasks that they are duty bound to perform. The dismissal of Phathiswa Magopeni relates precisely to her unwillingness to break with the trust that had been vested in her when she was employed by the SABC for a task that was important in restoring confidence in the SABC as an institution.

It is the CEO and the board chair who bent their efforts to undermine the implementation of this mandate. Magopeni is paying a price not for breaking any trust, but for fidelity with the trust bestowed on her and the expectations and hopes that very many people held for the regeneration of the SABC, which is now endangered.

Raymond Suttner is a former legal academic and currently an emeritus professor at the University of South Africa. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His writings cover contemporary politics, history, and social questions, especially issues relating to identities, gender and sexualities. He blogs at raymondsuttner.com and his twitter handle is @raymondsuttner. He is currently preparing memoirs covering his life experiences as well as analysing the political character of the periods through which he has lived.