Authored By: Tshegofatso Nkwala
IIE Varsity College
Case Name and Citation:
South African Broadcasting Commission and Another v Mpofu.
South African Broadcasting Commission and Another v Mpofu, 2009, (4), ALL SA (ZAGPJHC)
Court Name and Bench:
Name of The Court: South Gauteng High Court, Johannesburg
Judges: Victor J, Jajbhay M, Horn J, Jajbhay J.
Date of Judgement:
11 June 2009
Parties Involved:
- South African Broadcasting Commission LTD (First Appellant; First Respondent in court a quo) • The Chairperson: The South African Broadcasting Corporation (Second Appellant; Second Respondent in court a quo)
- Dali Mpofu (Respondent; Applicant in court a quo)
Facts of The Case:
In August of 2005, the respondent was appointed to Group Chief Executive Officer of the South African Broadcasting Commission (SABC). The board of the SABC consisted of 15 members, the respondent as well as two others were executive members; the remaining 12 members were non-executive members. Throughout the course of 2008, he relationship between the respondent the chairperson of the board, Khanyisiwe Mkonza became strained.1
On the 7th of April 2008, the chairperson gave the respondent a notice of a meeting to be held on the 9th of April 2008, of the non-executive board, in which the respondent, Ms. Mampane and Mr, Nicholson were ordered to be “on standby”. The respondent as well as the two other individuals attended the meeting but waited outside and were not called in throughout the duration of the meeting. The meeting itself did not take place at the premises of the SABC but was held at a hotel in Rosebank. Days after the meeting, board memorandum was leaked to the press, implying the SABC board was seeking to replace the respondent. The respondent requested a copy of such memorandum to no avail. This incident was just the first an approach taken by the chairperson to control and curtail the respondent’s participation in meetings that concerned him.2
The Executive Committee then requested a meeting with the board to discuss the breach of confidentiality, on the same day this meeting took place, that responded was sent a letter inviting him to a meeting of the non-executive board but stated that his presence was not welcome and would be not desirable for him to attend. The respondent did not attend this meeting. At another separate non executive director’s meeting, after the leaked memorandum came into question, a Mr. Andile Mbeki informed the respondent that a decision had been made to investigate the respondent on the issues raised in the memorandum.3
On the 6th of May 2008, the respondent after what he understood to be the legal procedure suspended Dr. Zikalala, after he admitted to leaking confidential material to third parties.4 The respondent wanted to inform his staff regarding the suspension and subsequently the press of his decision, he also requested a meeting with the chairperson to inform her about this decision, but could not reach her despite numerous attempts. An hour after the 16:00 announcement regarding Zikalala’s suspension, the chairperson contacted the respondent, informing him that she did not recognise this suspension and scheduled a meeting on the 7th of May to discuss this matter.5
A meeting was the hastily held on the same evening the announcement was made at 20:00 between the non-executive members of the board, with the executive members told to be “on standby”. Later on During the meeting, the executive board members were called in and the respondents was asked to explain the reasoning behind Dr. Zikalala’s suspension, to which he explained was in his powers as the CEO after Zikalala admitted to leaking confidential information to third parties. The responded the explained that according to SABC policy, Dr. Zikalala was a precautionary suspension.6
At 01:40am, the respondent was the asked to leave the meeting, shortly after he received a call from the chairperson advising him that he was being placed on suspension, the responded then read the resolution that passed his suspension which referred to his “divisive and disruptive conduct” as a reason for his suspension.7
Issues raised.
- Was the impugned resolution set aside correctly based on the law and the facts of the case? • Did the SABC board have the legal authority to suspend the respondent?
- Are the resolutions reached at the 20:00 meeting on the 6th of May 2008 in absence of the respondent and the two other executive directors, Ms. Mampane and Mr. Nicholson valid?
Arguments of the parties:
Appellants:
The appellants argued that the High Court made an error in applying company law principles to the suspension of the Group Chief Executive Officer, Dali Mpofu. They submitted that the decision to suspend Mpofu fell within the exclusive authority of the board under section 8A of the Broadcasting Act 4 of 1999, which governs the management of the SABC and explicitly provides that the Companies Act does not apply where inconsistent with the Broadcasting Act.8
According to the appellants, the suspension was executed lawfully in terms of the Broadcasting Act and internal governance procedures. They maintained that the board, as the appointing authority, had the power to suspend the CEO without relying on company law mechanisms such as formal resolutions or adherence to the memorandum and articles of association. The appellants also contended that the High Court improperly interrogated the merits of the board’s decision, which it was not entitled to do.9
Furthermore, they submitted that any complaints about fairness or procedural impropriety should have been brought under labour law or administrative law, particularly under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), not company law.10
Respondent:
Dali Mpofu contended that his suspension was unlawful due to procedural defects and non-compliance with both the Companies Act and the SABC’s founding documents. He argued that the meeting at which the suspension was decided lacked proper notice, failed to meet quorum requirements, and did not comply with the SABC’s memorandum and articles of association.11
He further argued that section 8A of the Broadcasting Act does not entirely override company law, and that the two statutes must be read together. According to the respondent, the SABC board was still bound by corporate governance norms and could not act in a procedurally unfair or unlawful manner.12
Judgement on Appeal.
The appeal was dismissed with costs. The court found that the decision to suspend Mpofu was not validly taken, and therefore the suspension was unlawful.13
Ratio Decidendi:
The court found that:
- Even though section 8A of the Broadcasting Act excludes the Companies Act where inconsistent, the Board still had to act lawfully and within its own rules.
- The decision to suspend Mpofu was not properly authorised, as it:
- Lacked compliance with the internal governance framework, Was taken at a meeting Mpofu was not given fair opportunity to attend, and Breached the principles of natural justice and corporate governance.
Conclusion.
The SABC v Mpofu case underscores the importance of procedural integrity and good governance within public institutions. The court’s decision reaffirmed that even where statutes such as the Broadcasting Act grant broad authority to a board, such powers must be exercised in accordance with foundational legal principles, including natural justice and fair process.14 The judgment highlighted that statutory autonomy does not exempt entities from complying with their own internal rules and governance instruments.
This case has had a ripple effect on how public bodies approach the discipline and suspension of senior officials, reinforcing the principle that legality is rooted not just in statutory authority but in fair and lawful execution.
Reference(S):
- South African Broadcasting Commission and Another v Mpofu, 2009, (4), ALL SA (ZAGPJHC)
- Broadcasting act 4 of 1999
- Protection of Administrative justice act 3 of 2000kn
1 South African Broadcasting Commission and Another v Mpofu, 6, 2009, (4), ALL SA (ZAGPJHC)
2 South African Broadcasting Commission and Another v Mpofu, 7, 2009, (4), ALL SA (ZAGPJHC)
3 South African Broadcasting Commission and Another v Mpofu, 11, 2009, (4), ALL SA (ZAGPJHC)
4 South African Broadcasting Commission and Another v Mpofu, 15, 2009, (4), ALL SA (ZAGPJHC)
5 South African Broadcasting Commission and Another v Mpofu, 19, 2009, (4), ALL SA (ZAGPJHC)
6 South African Broadcasting Commission and Another v Mpofu, 18, 2009, (4), ALL SA (ZAGPJHC)
7 South African Broadcasting Commission and Another v Mpofu, 27 2009, (4), ALL SA (ZAGPJHC)
8 South African Broadcasting Commission and Another v Mpofu, 28 2009, (4), ALL SA (ZAGPJHC)
9 South African Broadcasting Commission and Another v Mpofu, 29 2009, (4), ALL SA (ZAGPJHC)
10 South African Broadcasting Commission and Another v Mpofu, 2009, (4), ALL SA (ZAGPJHC)
11 Broadcasting Act 4 of 1999
12 Ibid em
13 South African Broadcasting Commission and Another v Mpofu, 2 2009, (4), ALL SA (ZAGPJHC)
