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    Ameded court papers filed by Alide Dasnois at Labour Court in Cape Town Part2

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    Ameded court papers filed by Alide Dasnois at Labour Court in Cape Town Part2

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    © All Rights Reserved
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    4K views38 pages

    Indie Dasnois Court Part 2

    Uploaded by

    Gill Moodie
    Ameded court papers filed by Alide Dasnois at Labour Court in Cape Town Part2

    Copyright:

    © All Rights Reserved
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    of 38
    129. 36 Cape Times that Survé had seen atthe Vineyard Hotel had no wrapper around it at all He said that at this meeting he became angry with her for the folowing reasons: 420.1 Her disrespect towards Madiba, 128.2. The dedsion to leave Mandela's death off he front-page was in truth pert of a vendetta and a conspiracy against him, No reasonable editor anywhere in the work! would not have sipped the fron:page to cover Mandela's death and the only inference to be drawn from the events was that applicant decided out of pure malice - because of her hatred towards him - not to stip the fon: page. n other words ~ according to - 80 driven was she to insult Surv that she was prepared to insult Mandela's legacy ‘and not put his death on the front page to promote her sinister agenda, 120.3 Suvé elaborated on this thesis by pointing out that he had witton op-ed to respond tothe attacks inthe media against him. Applicant had not wished to publish this response, but when she became obliged to do so, she deced to retaliate ‘against him by deliberately refusing to aller the Cape Times from the form in which it had been produced before Mandela's death. Hed che done 80, had she stinped the paper, then she would not have been able to run the report in which she claimed 37 that the public protector had found Sekunjalo guilty. tn this regard Surv said the following: “she was an angry, angry woman okay" [and sof'when she went {0 bod that Thursday night she went fo bed with angor and she had plated. She was hoping th final report thatthe public protector wae going to bring out on Thursday would find, Sokunjelo guity. So she can say, up you, Dr Surve, on the Friday moming.” 428.4 Elsewhere in his evidence Survé, however claimed that the decision to remove applicant as the editor had nothing whatsoever to do with the publication of the Sekunjalo story and ‘was exdusively the result of her failure to cover Mandela's doath, 4130. In Sué's version ofthe facts hein effect claimed that had applicant agreed to move tothe Labour Buletin when this was asked of her, then the malter would have ended there. n other words, and on his version atthe disciplinary hearing, i was only when she locked horns with him con the question of the cicumstances. under which she would be moving o the Labour Buln - in particular when she refused to step down immedicely asthe editor ofthe Cape Times - so that tho plan fo replace her Couk! Immettaely be put into effect - that i became necessary for him to ais the insult fo Mandela issue inorder to justiy her immediate romoval 431, At the meeting at the Vineyard Hotel Survé told the applicant she must step down immediately and when she asked him why he sald her conduct in not puting Madiba on the front page doesn't make her fitto 38 continue to edit the Cape Times, She said to him you carit do this to ime. He said, she can come speak to him on Sunday in his office, to false her contractual teams as the ediior of the labour report According to him , Applicant said * J wil not listen to you I wil not ‘sccopt this.” He responded * woll you have to. You wil not bo the edifor of the Cape Times as of now. fostiity and a 1 towards applicant in the of the dis hearing 432. Survé launched @ number of unrestrained vitriolic attacks against applicant in the course of the hearing, which attacks effectively rendered her meaningful participation in the hearing impossibie 4133, This process of maligning the character of the appicant commenced suih Surve labeling applicant a racist. This was not one ofthe charges ‘and hed there been evidence to suppor this claim it would obviously have negated the need to bring any other charges. Its submited that the “race car’ attack was strategically launched, and the racist label attached, to wound and silence an opponent. 4134, This was folowed by a further baseless gender based claim by Survé that the way in which applicant had edited the paper could be * 0 39 explained on the basis that she was an tational woman consumed with hate, 495. This was then followed by a number of rants and threats to sue the applicant “At no stage dl she ever say anything bout a wrapper... Sho was 50 consumed by anger by @ hated. that she simply decided t incur tno cost of a wrapper and pt it out there. That i he tuth of the ‘mater, History wil prove me right, okay, in more ways than one. And sho wil forever be remembered inthe work as ello that could not put Nelson Mandela on the front page. wil be writen that way. 1 an assure you okay. My bilions wil be used fo make sure that i wil bo union that way, Aldo, Okay... Disgusting: | describe erections «2s isgustng.. wil come out .. She isa lar, she san abso Har. It isin tine wth her charactor; she fs a... She esto people out Are .. She isa disgusting ar... is not emotion, | am caling the facts." 496, He added thal he would be instituting “a massive damages claim against you" In his personal capacity. Furthermore, that reepondent \was intending fo bring @ futher claim against the applicant to recover the costs of the wrapper as well as for damage caused to the tile of 197. Fp. 0 the Cape Times and its reputation. He sald: °! will use my tilions for the truth to come out" He added: “My intention is actualy fo have the facts around Alide mado public in «a vety, very big way. And In quite happy to do that, bocause I think the truth must emerge eventually as to what actuelly happened and her ‘conduct on thal ovening has fo come out. Unt! go to my grave that {wil come out, F must use every single cent. I have outside of Independent todo thet! wil do thet.” ‘The applicant asked for assistance from the chair as to how sho was supposed to defend herself in circumstances where after being denied the right to legal representation she was being threatened by Survé that hor answers were gokng fo be used to bring massive damages claims against her. tis submited thal chaiman was patently notin contol ofthe proceedings as they had been hijacked by Survé to be used as a plairm not forgiving evidence, but for ranting about his subjective perceptions about the alleged defects in applicants personally. Aa numberof pins in the hearing Survé comes across as a person seemingly out of contol. In response tothe applicants request for guidance the chairman informed the appicant that maybe she should net say anything that could incriminate” her that if sho did not want 1 answer the charges on the wrapper thon "don discuss it But there are sil othor charges on the chargo sheet that you sil have {0.90 through 4 498. In the end resuit because of the bizarre fashion in which the proceedings were conducte, title evidence was given by the applicant on the issues which formed the erux of the hearing. No mention is made of tis in the finding ofthe chaltman and no reference is made in the finding to the outrageous conduct of Survé during the hearing, 4138. On 30 May 2044 the chairman handed dovin his findings. Charge: dereletion of duty andlor a gross lack of judgement in {ailing to lead editorially with the death Nelson Mandela and the 6 December 203 edition of the Cape Times of which edition you wore the responsible editor 140. It was found that by failing to lead editorially “with the biggest story in the world at tho time" the applicant demonstrated “gross lack of judgement expected of @ seasoned editor’. it was also found that negligence has been demonstrated in the evidence presented “in that they were stardard operating procedures for such an event, and that ‘regular meetings in preparation for this had taken place over the yoar™ these were net folowed. Although applicant was found to have been aware of these standard operating procedures: ‘tts been demonstrated that the decision not to lead edtiorially with Mandela's doath was most probably influenced by personal feelings against her new employer, hence the publication of the public ‘protector’ report as the lead story on the dey. I's boen demonstrated in fostimony that there was @ deliberate altompt to tamish Sekunjalo ‘and your actions plus those of other senior members and reporters in poricular Molanie Gosling brings to (sie) question your integrity ancl that of some senior members of the Cape Times newsroom. This demonstrates lack of professional judgement anc! integrity in that you 144 2 failed {107} put aside personal feelings ahead of the interests of the rwadors of the newspaper by not running the most newsworthy story of the day: ‘Applicant points out the following in respect ofthis finding 441.1 It is factually incorrect that the newspaper did not run a story about the death of Mandela - and until this finding by the chairperson, this had never been alleged; 441.2 There wero no standard operating procedures for events of this nature - there could hardly have been a standard operating procedure for an event such as the death of Nelson Mandela, 441.3 Findings are made against senior members of staff who were not even been charged and the chairperson appears to atlach ho significance whatsoever to the fact that only one person has been singled out to be charged for conduct wich was previously alleged te have been the work of cabal, 141.4. The decision to lead with the Sekunjalo story was not influenced by personal feelings but was dictated by the fact that on any journalistic standards, it was a story that deserved to be a front page story folowing on a major finding by the Public Protector cconcerring matters of both national and regional importance, It has new! been suggested that thio wae not a front page Imad story ~ instead the argument was that Mandela's death should have pushed this story off the front-page. Charge: Dishonzsty in alleging at the meoting on 6 December 2013 that the reason why you did not lead editorially with the death of Nelson Mandela was because you did! not have enough resources to hhave done so a 442. Although this is not explicitly stated, it appears to have been found by the chairman, that applicant stated atthe meeting of 6 December 2013 that the reason for the wraparound was that the Cape Times did not have sulicient ‘esources to strip the frontpage in order to replace the ‘Sokunjalo story with the Mandela story. The chaliman found that it had been demonstrated in the evidence that i's much easier to stip the front pages than to add more pages which require more resources. ‘Accordingly, agplicants “reasoning that there wore no resources has ‘as such been proved to be dishonest” 443, Applicant's version was that she had told Survé and Howard when shown the copy of the Cape Times that Suivé and Howard had in theie possession at the Vineyard Hotel that there were insufficient resources to “remake the paper completely. At the time that this discussion occurred Survs and Howard did not appear to be aware of the ‘existence of the wraparound, In other words they appear to be asking applicant why the Cape Times had ignored Mandela's death, whereas the applicant thought they were asking why Mandela's death had only been covered inthe wraparound, 4144. They then attacked her based on their misunderstanding that she was attempting to justify failure of tho Cape Times to even cover Mandela's death with an lame excuse about a lack of resources. 445, What the appicant and the editorial staff pointed out was that given thelr resources in the timeline and the endeavour to cover Mandela's death in a dightied and comprehensive fashion it made more sense to use the wraparound and not stip the front page. 448. As Whitfield fointed out in his evidence at the hearing the 0 called \weaparound was the replacement front page on the 2" edition of the ‘Cape Times. The first edition of the Cape. Times with Sekunjalo story had gone to print before Mandela died. He said that opinions may “4 ciffer over what s the best way to cover the story of this magnitude tn the second edition within these time constraints, 147. There is however a world of difference between debating genuine Journalistic diferences on whether wraparounds or stripping is better, ‘cheaper, fasier ete and on what applicant was in fact charged with. The chaige was that instead of defending the wraparound as being & legitimate form in which to cover the Mandela story, applicant sought to ‘cover up her misconduet by Wying and by falsely claiming that her fence to the wraparound was lack of resources. 4148. Applicant's version was that one of the reasons why she thought that a ‘wraparound was the best editor option in the circumstances for dignified and complete coverage related to the availabilty of resources. Respondent's version was this - t being obvious that the wraparound represented “2 smoking gun’ providing evidence of applicants ‘misconduct disrespect of Mandela — she confronted with this “smoking ‘gun’ attempted to justify her misconduct by using lack of resources as @ defence. On that building block, the prosecution built a case that the applicant's defence to the charge of being involved in a conspiracy to bestirch the good name of Dr Survé was ‘lack of resources’, Several witnesses were then called by the employer, with a view to showing that as strppirg the paper would have been easier and cheaper than a ‘wraparound she must have been lying 149. Applicants defence was not, however, about how to cover the Mandela story in a quicker and cheaper way. Instead it was about how to give the story the test coverage possible in these circumstances, albeit that the method which she used may have made the printers’ fives more ficult and cast the respondent more money than would have been the case if the staff had merely stripped down a small portion of the newspaper to change the headline story 160. 151 182 168. 45 Evidence willbe led to prove that the so-called wraparound was infact a substitute frort cover of a commemorative spacial edition ofthe Cape Times. ‘The senior group editor Whitield's evidence at the hearing was that although he is ro fn of wraparounds the method which applicant used ‘was a compromise on the night, which she felt was the most effective ‘way to change the front page.* He also confirmed that there was no so- called standard operating procedure for a story lke this. * He added that if some readers did not get the Cape Times in the intended form because of gliches in the printing process, then that was not the applicants faut, He conceded that his views on wraparounds, notwithstanding he had complimented applicant about the Cape Times ‘on the moming thatthe special edition had appeared."® Most significarty Whitfiald pointed out that the discussion in the ‘meeting with Howard and Survé before applicant was called in was not about the faliure to cover Mandela's death. What Tony Howard was focused on was the problem of covering the Sekunjalo story on the {front page."" That this was the real issue for Survé was confirmed when he told the meeting, after applicant had left and after he had terminated applicant's editrship that he had been advised by ENS attomeys that he had every right to do this as if he did not "she's going to carry on \witng this stuff about me, attacking me." Consistently, and on the following day. Suré then instructed his attomeys to send a letter of demand to the Cape Times threatening a ‘damages claim in his personal capacity and on behalf of Sekunjalo. * vane p70 46 4154, The allegation hat applicant had sought to dishonesty rely on lack of resources as her reasons for using a wraparound in order to defend herself against the wraparound charge is accordingly nonsensical ‘Applicant was of the view, and remains of the view, that the special ‘edition of the Cape Times produced on that night was a work of a high ‘quality produced under extra ordinary circumstances. Not only was she hot dishonest in cting resource issue as indeed forming part of the explanation for the production of this particular wraparound supplement but moreover had no need to le about wity this production method was used. The finding that lack of resources was raised as a dishonest ‘excuse for misconduct is accordingly baseless as the conduct was not misconduct and applicant did not raise the question of resources a8 defence to misconduct 455. Had the chairperson of the hearing not ignored all the evidence in ‘applicant's favour, he would simply have concluded that there was no basis to the charge that there was wraparound was misconduct and that she was Wing in order to cover her tracks, A smear campaign orchestrated by Survé sought to peddle falsehoods by characterising his opponents as racists and persons without respect for the founding father of a democratic South AMtica, a Charge: Gross cisrespect andior insubordination or insolence in stating in the 6 December meeting that you would not ever work with Dr Survé; 456. The chairman found that by refusing fo shake the hand of Dr Survé the applicant: “demonstrated, rudeness and disrespect She also challenge the chairman's autvonly in saying you can't implement the changes to the Cape Times editorial he was considering. Its clear from the evidence presented that sho was not going o be subordinate fo Dr Survé, which is @ prerequisite for any working relationship. On a balance of probabilities, it appears more Ikely than not that she was insubordinate and insolat (s).” 4157. As the applicant had at that very moment been unfairly and unlawfully removed from her positon ofthe editor of the Cape Times it can hardly be expected that someone in those circumstances should wish to shake the hand of the person primarily responsible for such outrageous conduct. It is obvious that the Chairman, proceeding from the incorrect assumption thet Dr Survé was fully within his rights to actin the manner in which he did (before offering his hand), found that it folows thatthe applicant was required to respond to this allegedly friendly gesture in a gracious and acquiescent manner. This finding demonstrates nothing more than the bias of the chairman and reflects that he made no attempt to analyse event in an oven handed manner, with « view fo handling down a fair and well-reasoned decision. Charge: Breach of trust communicating your stance regarding your ‘employment via the media 48. The chairman found that although, on the one hand, Survé and the respondent were permitted to go public on the issue of applicants 8 termination, on the other hand, the applicant was not permitted t0 respond in pubte: *. as a senior employee , she should have understood the Importance of the company, commenting on the story given the reputational damage to the Cape Times brand and the company. Sho thorefore broke the trust relationship.” 4169, This is hardly an even-handed finding. The reputation of the applicant fas a senior journalist of many years standing, was being publicly besmiched by Survé, senlar managers ofthe respondent appointed by ‘Suné and his poltical alies. in the circumstances it can hardly be correct that Applicant was not entitled to defend herself in public. in ‘essence, the crairman finds that only the respondent enjoys the right to freedom of speech, but not an employee being altacked by the respondent at the time that the respondent was exercising its right to {readom of speech. 460. It must borne in mind that respondent elected to respond to the pubic citcism of Suné by running a high profile smear campaign against ‘applicant and other senior editorial fqures the essence of which was to spread @ message that whereas Suné was a wonderful person of exceptionally high repute his opponents were a racist cabal of dishonest reactionaries who didn't even mourn the passing of Mackiba. 461, The suggestien that ne, Surve, through His use personal association ‘association wth Nelson Mandela - as well a his high standing in the [ANG - was a noble person of high virtue comes through strongly both in is evidence as well as that of Aneez Salle, Salle, for reasons that fare difficult t> ciscem if ragard Is had to the actual misconduct charges, also gave evidence about how he (Salle) ran the Underground operations of Umkhonto we Sizwe in the Westen Cape and about his close association with “Doc” Survé, a fine person with “9 whom he had occasion to discuss their joint involvement in the ‘Umkhonto we Sizwe. ‘Charge: Applicant's relationship with the senior management of the company, including Dr Survé 1s itretrievably broken down duo ‘substantially to applicant's misconduct as described in the misconduct charges 162. The chair found that three Key witnesses namely Survé, Howard and Salie testified that working with applicant would be ‘every(sio) challenging, if not impossible.” This incompatibility, so i was found, was not caused but by the employer, but by the employee: “dye to her personal feelings against the new owner. On the balance of probabilities, twas demonstrated that she more than likely, said she ‘would never work for Dr Survé, The honourable thing would have been {or Ms Dasnoie to remove hersolf from her position of personal conic ‘She instead altempted fo influence the actions of other editors against the new owner. Given the parties are incompatible Ms Dasnois will never be in a fosition fo execute her duties resulting in incapacity.” 463, The chairman appears to use the concepts of incapacity and incompatibilty interchangeably. He also appears to wrongly proveed from the premise that Dr Survé is the new owner of the respondent. Dr ‘Suivé is te CEO. The money that wae ueed to purchase respondent was not his ovtn, but funds that he should manage in a fiscally prustent manner on behalf of shareholders. Those funds included public funds hold by the PIC. The chairperson also does not appear to have been aware that Dr Survé had taken steps, long before the wraparound incident with a view to engineering the removal of the applicant from her postion 2s edtor. He was merely waiting for @ strategically ‘opportune occasion to implement his plan in a way that he hoped ‘would be defensible, 50 Charge: Under applicant's editorship the sales performance of the Cape ‘Times has dectinod significantly; 464, There are a number of negative findings made suggesting that a guilty verdict would fellow but the applicant was found not gully of charges 85.3.2 and 3 Charge: Under applicant's leadership the Cape Times was not appropriately directed to its target readership and advertising market, resulting Ina loss of circulation revenue; 465. The theme in the afore-going charges, followed up under this charge, is that because the Cape Times under tho applicant's leadership was not sufficiently business frendly this had ted to declining revenue, The chaiiman found that "She demonstrated lack of understanding of her reader's needs, obvious case in point being, the decision not fo run the ‘most newswortiy story on 6 December 2014." 466. It Is not clear what the chairman means by "business friendly.” This appears to be code language for not running negative stories about corporations like Sekunjalo. The link drawn by the chalrman hetween the wraparound issue and the “not business fiendlythesisis dificult to comprehend, Even more difficult to comprehend is the failure of the respondent to charge the applicant with being responsible for deciding to use a wrzpaivund to commemorate the death of Mandala, 467. One gains the impression that the chairman of the hearing seems to have been led to believe that inthe applicants alleged irrational desire to denigrate Survé, she and other staffers decided not to cover Mandela's deeth at all last this minimize the impact of the Sekunjalo story. This indeed isthe thesis of the attacks by Brown and Mde on the: si ‘applicant and other persons alleged to be part of the anti transformation ‘white cabal” at the Cape Times. Charge: Applicant Ie unsuitable for a senior editorial post “particularly {in the light of the fect that you have rofused to take up an alternative post offered.” 468. The chaiman finds applicant also guiy on this charge. Presumably the chairman is of the view that as Dr Survé was within his rights in terminating applicant's position as editor and that in such circumstances, it constitutes misconduct to refuse to toke up an alternative post. There 1s no justification in law for the approach ‘adopted by the chairman, 4169. Without affordng the applicant any opportunity to lead evidence in mitigation, the chairman decided that the sanction of immediate dismissal had to folow. 470. The respondent later attempted to retract the sanction with @ view to affording the applicant an opportunity to present evidence in mitigation before a different chairman, On 4 June 2014 Dr Survé wrote to say the following after the applicant had indicated that she had no intention of utlisng her right to an internal appt: + note your intention nat fo exercise @ right fo appeal and to instead! refer the dispute fo the CCMA, jn relation fo your dismissal. However, having considered, the cheirperson’s written finding dated 90 May 2014, it seems fo me that you may not have been afforded the opportunity o submit mitigating circumstances and to state your views ‘on the disciplinary sanction £0 be imposed forthe misconciuct of which the chair found you guilty." 2 471. Dr Surv indicated that he was wiling to arrange for the applicant to be afforded an opportunity to submit before diferent chairperson mitigating circumstances and a time deadiine was laid down for the ‘applicant to ackise whether she wished to take up this opportunity. 4172, On 5 June 2016 the applicant wrote to the respondent stating that she hhad no interest in accepting this invitation, unless the hearing was ‘commenced de novo in frent of an independent chairman with legal representation oeing permitted. She wrote that she was ofthe view that the finding of gull was without any foundation, and submit that the outcome of the hearing demonstrated that this was @ foregone conclusion. Ths state of affairs was further demonstrated by the fact that the chaierson was prepared to recommend the sanction of isinissal without fst having heard evidence in mitigation. 4173. Applicant also recorded that despite her intial understanding that she would be proviied with audio recording ofthe disciplinary hearing, she had now been advised that this would not be provided. Applicant Indicated that she would in due course demand this recording via court process. 474, This counter proposal was rejected and on 30 June 2014 the applicant ‘was informed that she was dismissed. The dismissal etter purported to backdate her cismissal to 7 June 2014. LEGAL SUBMISSIONS. 475. The applicant does not differentiate between respondent's reasons for her termination as efitor and the reasons for her subsequent termination as an employee of the group. The reasons relied on by the respondent fo" the termination as exit also caused her termination as _an employee ofthe group, and are essentially the same. 176. 17. 178. 178. 160. 33 In short, the applicants case is that the purpose of the “hearing” into the alleged misconduct was nothing more than the rubberstamping of a decision taken some time before then by Survé to engineer the removal (of the Applicant 2s editor of the Cape Times. “The unilateral redeployment of the applicant to a non-existent post in a non-existent pusication was unlawful and amounted fo litle more than fan attempt to reduce the fallout from the legal and other ‘consequences which followed from the unlawful decision to summarily {terminate applicant asthe editor. Removal from an existing post for disciplinary reasons coupled with an coffer of redeployment to an inferior post of lower status with reduced ‘career opportunity constitutes @ demotion, alternatively, a suspension, alternatively punishment short of dismissal, “The reasons advanced by the respondent for the applicant's dismissal ‘and demotion varied overtime. These included the folowing: 179.1 The Sekunjalo story was published as an “up yours’ to Survé; 4170.2 The wraparound constituted a major editorial failure; 4179.3 The appioant, lacked the capacity or ably to make the Cape times prefitable; 179.4 The contol of the editorial contol of the newspaper needed to be wrested away fom a Democratic Alliance supporting, lteinatively lefewing, white skinned esbal and replaced with a [ANC aligned business orientated notwhite skinned editorial staff, 179.5 Applicants personal hatred of Suv, ‘The respondent had in fact hired applicant's replacement before the ‘wraparound was even published and was at the time of the Vineyard 34 gathering endeavouring to find a suitable basis for engineering her 481. Applicant accepts that in all probabily and but for the publication ofthe ‘Sokunjalo story, applicant would have been pressurized to accept a suitable redeployment and that respondent thus sought to engineer her removal as editor by consensual means. 4182, The publicatior of the Sekunjalo story, coupled with applicants editorial of 6 December 2103 ("Independent Views") stressing the editor's right be independent, however, angered Survé fo the extent that he decided that he ne longer wish to wat to bring about her removal through more: conventional methods and he instead decided to remove her as editor with immediate effect. 483, The further reasons subsequently cited for her removal and no more ‘than a convenient ex post facto justiieation to attempt to mask the true 6 dominant reasons forthe applicant's dismissal Ezitorial independence as a component of media freedom 4184, Section 16 of the constitution provides that everyone has the right to {reedom of exoression, which includes freedom of the press and other media, 4185, Editorial independence is an important component of press freedom. 486. The press occupies a special role in a constitutional democracy and in addition to having the right to freedom of expression, the media has a constitutional mandate and obligation towards the establishment and ‘maintenance of an open and democratic society 487. This obligation Includes ensuring that the public is provided with information concerning any breaches by the State of its obligations under section 217 ofthe Constitution, which requires organs of state to 35 ‘act in accordance with a procurement system which is fair, equitable, transparent. competitive and cost effective. 188. In interpreting the scope of saction 16 of the Constitution, the Employment Equity Act and in determining whether the respondent's ‘concluct violated the applicant's rights to freedom of expression and ‘editorial independence, this court Is obliged by section 39 of the Constitution to rave regard to international lav. 189. Article 9 of the Afiican Charter on Human and People's Rights states that “Every individual shall have the right fo receive information” and that "Every indvidual shal! have the right fo express and disseminate bis opinions win the law 490, Duting 17 to 28 October 2002 the Attcan Commission on Human and Peoples’ Rights at its 32nd Session In Banjul (Gambia) approved the Declaration of Principles on Freedom of Expression in Aftica.. Article 8 of the Declaration states that: “iledia owners and media professionals shall be encouraged to roach agreements {0 guarantee editorial independence and to prevent commercial considerations from unduly influencing ‘media content.” 491, The Declaratin at article 11 deals with attacks against media practitioners and states that: “Attacks sueh as the murder, kidnapping, intimidation of and throals to media practitioners and others exercising thelr right to fheedom of expression, as well as the material destruction of communications faciliies, undermines independent joumelsm, freedom of expression and the free flow of information to the publi. ‘Slates are under an obligation 0 fake offective measures fo prevent such ettacks and, when they do occur, to investigate them, 56 fo punish perpetrators and fo ensure that victims have access to cffectivo remedies." 4192, The Third Royel Commission of the Press (UK 1974) , expressed the view that editorial independence includes, but is not limited to the following basie ights of editors: 492.1 The rigtt to determine the contents of the paper within the bounds of reasonable economic considerations and the established policy of the publication; 492.2 The right to eiicize the paper's own group or other parts of the same corporate organisation. 493. Unesco has also endorsed editorial guidelines produced by the Commonwealth Broadcasting Association. These guidelines provide standards of conduct for intemational broadcasters, Section 9.2 on Commercial, Business and Financial Interests states the following “ut is essentiel that a station's integrity Is not undermined by tho commercial, business or financial interests of any programme makers, Journalists or presenters. There must never be any suggestion that commercial or financial interests have influenced coverage of ihe subject matter of programmes or the choice of items.” 494, Section 9 (2) af the cunsttution provides thet no person may unfairty discriminate o1 the grounds of race, conscience or belief agalnst any ‘ther person. 495, Section 15 of the constitution provides that everybody has the right to freedom of censcience, belief and opinion. This includes the right to publish material which, in your epinion and which you, in accordance withthe dictates of your conscience or moral beliefs, believe requires publication. 37 “The olaim under the EEA 4196, Section 6 of the Employment Equity Act 65 of 1998 CEA’) prohibits unfair discrimination in any employment policy or practice on the {grounds listed cr analogous grounds, 497. Section 1 of the EEA includes in the defintion of employment policy ‘and practice "demotion" and “disciplinary measures other than dismissal. 4198. In terms of section 10(6) this court has jurisdiction to hear claims brought in terms of chapter 2 of the EEA, save that claims about ciscriminatory dismissals must be heard not in terms ofthe provisions of the EEA but in terms of the provisions of the LRA, 499, The conduct of the respondent in removing applicant as exttor constituted unfair discrimination in the form of 2 discriminatory demotion, altenatvely @ disciplinary suspension, alternatively other discriminatory disciplinary measures other than distmissal 200. The conduct in question was discriminatory in that the reason for the employer's conduct is prohibited under the EEA as the employer's ‘concluct breached the following rights ofthe applicant: 200.1 the righ’ to freedom of expression, including the right to freedom ofthe press; 200.2 the righ:to freedom of conscience 200.3 The right not to be discriminated against on the grounds of race ‘or potieal opinion. 201. As the dominant reason for respondent's conduct was to punish applicant for publishing material adverse to the interests of the respondent respondent's conduct was in breach of the applicant's right to freedom of expression and her right to freedom of conscience, sa 202, The respondent also breached the applicant's right not to be tiscriminated against on the grounds of race and political opinion as in taking steps to punish the applicant the respondent was influenced or motivated by its view: 202.1. that the applicant and her senior colleagues would not have published the material that was indeed published ifthe applicant ‘and her senior editorial colleagues (a) had not been white (b) hhad not been allegedly left wing, alternatively had not been ‘alleged supporters of the Democratic Aliance (c) were allegedly hot supporters of the African National Congress (a) had generally not held different poliical views to those held by Surv. 203, The applicant was also discriminated against during the disciplinary heating on the grounds of race and gender in that she was labelled by Survé as a hostile, angry, racist, white woman in circumstances where these gratuitcus insults based on her gender and race bore no relationship whatsoever to the charge sheet. 204. Inthe event ofa finding thatthe factual allegations made above do not, ‘even if proven, constitute discrimination then itis in either event alleged that the appleant’s demotion and suspension constituted an unfair labour practice under the Labour Relations Act, as it was effected for substantively unfair easons, namely the reasons pleaded above. 205. The demotiowsuspensionlsiscipinary action short of dismissal was also procedurally unfair in that applicant was afforded no proper ‘opporturily t> be heard prior to the respondent deciding to take prejudicial steps against her. 206. To the extert that any of the applicants claims under this heading, ‘ought to have been referred to arbitration the respondent is requested to consent, in terms of $158(2)() to this cout siting as an artitrator © ‘avoid the time and costs of the parties being required to run subsequent proceedings in the CCMA. 9 207. In the event ef such consent being refused and In the event that ‘applicants claims in terms of the Employment Equity Act are dismissed it Is submitted that the Court can in its discretion remit the arbitrable aspects to the CCMA for aibitration as contemplated by section 158(2)ia). See Solidarity on behalf of Wehnoke v SurtéCars (Ply) Ltd (2014) 95 NLU 1982 (LAC). In the event of the applicant's claims in terms of Employment Equity Act being dismissed and the respondent not consenting to this court hearing the applicant’ ‘ordinary’ unfair labour practice claims then the applicant requests that her claim that her demotion and suspension was a substantively and provedurally unfair labour practice be referred for hearing to the COMA, damissal (5187 208. Section 187 (1) of the Labour Relations Act 1995 provides that a dismissal is automatically unfair i the reason for the dismissal is that the employer unfairly diecriminated against an employee on ary arbitrary ground, ot any of the of the grounds listed in 6187(1)(. 209. The listed grounds include conscience, belief, race and polticat pinion. it fs submited that in the case of a journalist freedom of ‘expression art of the press the press are grounds protected under section 187(1) 210. As the dominant reason for respondent's conduct in dismissing the applicant was to punish applicant for publishing material adverse to the Interests of the respundent, respondent's conduct wae in breach of the applicants right te freedom of expression and her right to freedom of conscience. 211, The respondent also breached the applicant's right not to be igoriminated against on the grounds of race and politcal opinion &s in ‘taking stops cf punishing the applicant, the respondent was influenced by the view: 212, ana oo that the applicant and her senior colleagues would not have published the material that was indeed published i the applicant ‘and her senior editorial colleagues (a) had not been white (b) had not been (allegedly) left wing, alternatively had not been (alleged supporters of the Democratic Aliance (0) were (allegedly) not supporters of the Afiican National Congress (d) had generally not held (allegedly) diferent poltical views to those held by Survé, “That the reasens furnished for the dismissal, constituted a pretext is further evidenced by the following: 2424 2122 2128 2124 2128 2126 “The cheitman’s finding fails to analyse the evidence and also makes no mention of the threats made by Survé against applicant, which resulted in her not giving evidence or being cross-examined on the bulk ofthe issues in dispute ‘The inal refusal of the respondent to provide applicant wth recording of the heating as it sought to prevent ciscosure ofthe detall cof what ranepired at the heating, “The fallwe of the chairperson to even mention in his finding that SurvSs “evidence! consisted in the main of unacceptable

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