Print + Broadcasting sector status reports by Association of Independent Publishers + ICT Union; ICASA Council recommendations

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Communications

31 October 2017
Chairperson: Mr H Maxegwana (ANC)
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Meeting Summary

The Association of Independent Publishers (AIP) briefed the Committee on the difficulties that community media face. It claimed that the organisation represented over 250 publications, and reached over 26 million people across South Africa. Community print media was independently owned by members of the community, whereas local media was owned by large establishments that may run the newspaper outside of the region where it was distributed. Due to this confusion, the ability for community print media to gain funding, particularly from advertising, was an immense challenge. Other challenges to securing advertising revenue included the monopolistic nature of the industry, which favoured local print and broadcast media, fraud, and in certain cases there were advertisers whose racist presumptions undermined the value of advertising in community print media in predominantly black areas.

While the Media Development and Diversity Agency (MDDA) was the most significant Parliamentary outcome for community print media, it was not properly functional and, in addition to the Government Communication and Information System (GCIS), it did not deliver on its stated commitments to fund community print media. Furthermore, the State Owned Enterprise Communications Association (SOECA) and South African National Roads Agency (SANRAL) had failed to deliver on promised advertising for community print media. Fraud had been alleged to be an issue as to why these state entities had failed to deliver. The general picture presented was that community print media were struggling in a dying industry. A request was made to the Committee to assist in coming up with proposals for the way forward.

The Committee expressed concern and a willingness to support community print media, but requested the AIP to produce a report for clarity on the role and track record of state entities such as the GCIS and MDDA. It was especially concerned about fraud and promised for further investigations into those accused of fraud. The next Budget Review and Recommendation Report would have to emphasise the 30% of government funds promised to community print media. A Member pointed out how the lack of political will and systemic corruption made it difficult for the Committee to promise that the issues would be resolved.

The second presentation was by current and former independent contractors or freelancers of the South African Broadcasting Corporation (SABC). The main issue was that independent contractors were in certain cases, according to their contracts, treated as full time employees in terms of what was expected of them by the SABC management. However, independent contractors were often exploited and did not have the same benefits as full time employees, such as pension funds or sick leave. The SABC management and human resources (HR) department were accused of working together to undermine independent contractors who were critical of the unfair conditions imposed on them. They were easily sacked or working hours were reduced without consultation. Fraud was especially a concern in the context of how much management were paid in comparison to the general workers.

The Committee empathised with the contentions of the independent contractors and requested that they draw up a thorough report to have evidence available in anticipation of its meeting with the Board in the following week.

Lastly, the Committee dealt with the nominations for the Council of the Independent Communications Authority of South Africa (ICASA). Five names were recommended by the Committee: Ms Nomonde Gongxeka-Seope, Ms Thembeka Simane, Ms Kate Skinner, Ms Lulama Mokhobo and Mr Rubben Mohlaloga.

Meeting report

Ms P Van Damme (DA) said that she wanted clarity on a meeting with the “South African Broadcasting Commission Eight” (SABC 8). 

The Chairperson responded that after “chasing” the Information Communication Technology Union (ICTU), the SABC 8 had been nowhere to be found. He had been informed that the SABC 8 would be consulting with SABC Board, so it was not necessary for the SABC 8 to present to the Committee. 

Association of Independent Publishers: Print + Broadcasting sector status report

 

Ms Mbali Dhlomo, President, Association of Independent Publishers (AIP), said the organisation represented over 250 publications throughout South Africa. Its role as representative of community newspaper centres was important, as they gave voice to urban and rural communities. The AIP was a grassroots organisation, because it talked to people who really needed the information which main stream media did not cover.

This was the third time that she was presenting to the Committee, and each time the AIP had to present the same challenges, specifically in terms of financial support. She emphasises that the AIP did not come to the Committee to request “hand outs”, but for support where she knew it was due. The Government Communication and Information System (GCIS) did have a budget, but financial support did not reach the AIP. Fraud was a challenge in dealing with the GCIS, and she had raised this with the Committee on previous occasions. The AIP had continuously followed up on investigations into fraud committed by the GCIS.

The AIP ran and sustained community media in situations they did not have to be in. It was important to paint the realities of each AIP member’s relevant community media entities. Once a brief summary of each grievance had been made by the representatives of the AIP who were present, she asked that proposals put to the Committee be looked into.  

Mr Thomas Nkosi, Board Member, AIP, said that the AIP represented a number of newspapers around the country which served around 26 million people, so its representatives were located across South Africa. His main concern was to address how the Committee could pay attention to issues facing the community media sector. Community media were often confused with some newspapers distributed to communities, especially private newspapers. To the AIP, the community media sector still formed part of the mainstream media that contained cultural stories with personal narratives.

The AIP aimed to sustain the voice of community sector publishers, as community newspapers struggled to gain advertisements. The government had promised 30% advertising to the community newspaper sector, which continuously served the communities. One could find government advertising in mainstream media, for example, the Sunday Times, for social grants. Most community newspapers were free and more of them were distributed than in the mainstream media, but community newspapers were “continuously being snapped.”

Mainstream media was divided into “three tiers,” which included private, public and community media. Focus was usually given to public media, and the only time one heard of the private sector being involved was during media tribunals where issues were raised. However, there were challenges yet to be looked into, such as the monopolising of printing and the monopolising of distribution. The AIP wanted to hear the voice of lawmakers asking how a transition could take place. 

The most significant outcome for community media that had been brought about through Parliament was the establishment of the Media Development and Diversity Agency (MDDA), but it was either inadequately funded or treated print media as “distant cousins” in comparison to broadcast media. The State Owned Enterprise Communications Association (SOECA) was an interesting organisation that contained a similar structure to the GCIS. It was formed by members of state owned enterprises (SOEs) who had come together to form the organisation. The AIP had engaged with SOECA without success. At times, people had had to attend meetings in Pretoria. On arrival, those who flew in were told that the relevant SOECA members were in meetings. The South African National Roads Agency (SANRAL) was a founding member of SOECA. AIP had approached SANRAL to request advertising in community newspapers, but they would appoint their own private agencies who would make it difficult for community media to have access to advertising. Community media became important when there were media releases or when the AIP was invited to press conferences. Politicians were shown that media representatives were present at press conferences, but when it came to advertising, papers like the Sunday Times or the Sowetan were prioritised.

Mr Wandile Fana, Board member: AIP, said that he came to present on behalf of Xhosa newspapers in the Eastern Cape. Newspapers which had been running for around 100 years, especially Xhosa newspapers, were starting to give up in the time of a free South Africa, and community media’s dignity was being compromised. Media in communities played a big role. The mainstream media served a market, and community print media served a cause. Journalists who ran newspapers for over 60 years had ended up in exile on Robben Island, but were giving up in the time of democracy. The reason for these newspapers closing down was not due to the emergence of the digital era, but was due to the government’s inability to source the right funding.

Mr Mahmoud Sanglay, former President of the AIP and Director: Muslim Views, said he wanted to contextualise the publication history of South Africa. This narrative was described as a professional narrative, but emphasis was made on personal narratives by many community media publishers. The one narrative he could best speak to was the publication he worked for.  Muslim Views was first published in 1960, and was the only community newspaper that contained a history where the editor was detained, tortured and murdered in detention. It was the only community newspaper in South Africa to rightly claim to have appointed the first a female editor, appointed in 2003. In that year, he had gone for a fellowship abroad and a woman had been appointed as the editor who was ironically “scooped up” by the Oprah Magazine. In 2004, the Mail & Guardian had appointed a female editor and ever since had claimed to be the first newspaper in South Africa to appoint a female editor. This example provided an idea of the nature of the credentials the AIP could lay claim to. It was a travesty that community media was ignored by the powers that be. On 11 November 2011 there had been an announcement that 30% of government advertising spending would be allocated to community media. After many years down the line, the question remained as to what had been delivered.

Mr Dunisani Ntsanwisi, Board member, AIP, and a publisher from Limpopo province, said that he was publisher of a Xitsonga newspaper. If funding was received from the GCIS, payment was given late. The GCIS had a lot of money, but community media did not receive any. Some publishers present at this meeting with the Committee had been cut from GCIS funding. Follow ups were needed on GCIS spending, as false claims were being made by the GCIS about allocating money to community newspapers.

The Chairperson said that “this talks to fraud.”

Mr Patrick Rudolph, Board member, AIP, said that community media were tightly linked to the government, specifically when it came to press releases. However, when it came to advertising, the goal posts were shifted. When questions were raised on advertising to corporate or government actors, then questions regarding the credibility of community media were brought forward. 

Mr Fanelo Maseko, Board member, AIP, and managing editor at Loxion News, said that as community media representatives, the AIP presented media diversity that the government failed to support. The MDDA did not fund enough to support community media. The AIP was not presenting to the Committee to point fingers, but was trying to build a relationship that would see the AIP as being part of a solution. One problem was that most people failed to distinguish between local media and community media. Community print media were publications independently owned by members of the community. He had worked as a publisher for a number of national newspapers, such as Sunday Times and City Press, but he had gone to his own local community and had established his own media publication. Community print media publications were rich in terms of reporting, and empowered youth through employment and providing internships. Some interns were now working in national media.

He said the government failed to distinguish between local media and community media. Caxton was an example of a local media publication, with representatives that sat in “flashy media offices” in Cape Town or Johannesburg. National media were prioritised, and he gave the example of the South African Social Security Agency (SASSA) and the Independent Electoral Commission (IEC), which do not support community print media when approached. The AIP wanted to have its role taken more seriously by the Committee to find solutions, otherwise most community print media organisations would close down and young people would lose their jobs.

Mr Naushad Khan, former Board Member, AIP, said that AIP representatives worked for local media representation, which was a hard slog due to a highly monopolistic industry that had not transformed in the last 25 years. Digital media seemed to be mainstream and was prioritised, but one must understand that printed media was not an opportunity that had been given to South African masses in the past. Although print media might be dying internationally, there were audiences in South Africa that found ways to appreciate their stories through printed material. Print media in South Africa had a long way to go and support was important as stories to shape our nation were still to be told.

Ms Dhlomo introduced Mr Brent Samson, Client Services Manager: Novus Holdings, the printing company for some AIP-affiliated newspapers. She said that there was an issue of printing companies being able to print for only around three years, but then “the paper suddenly disappears.” Printing companies’ relationship with community print media could paint the challenges faced.  

Mr Samson said he could provide testimony as to how hard community print media publishers worked and the challenges community media faced. After 10 years working with AIP, he had seen how they had been striving against the dying light, and they had “a lot of heart.” He did not see the AIP as coming to the Committee to beg, but to indicate that they were important to the media landscape. The success of a newspaper was based on its frequency of distribution, and print media had a model of gaining funds through advertising. Community media was a vital communication tool for everyone. He asked what the Committee would like printing companies to present to assist community media, and if community media did not “tick all the boxes,” then he wanted to know what requirements were to be assisted.

Ms Dhlomo said that the AIP wanted the Committee to investigate the lack of support from the government. The GCIS had a budget of $500 million, and community media was requesting a portion. Community newspapers approached local shops who claimed to insert advertisements into community media, but it was local media that they supported, not community media. Community publishers consumed products in shops in the communities, but advertising was given to white-owned companies. A request was made for a community print media charter. 

Discussion

 

Ms Van Damme said that it was frustrating, as it seemed as if the ball was in the Committee’s court. She requested that the Committee obtain a legal opinion and conduct an investigation to gain information on fraud-related activities. Progress was needed on the request for a legal opinion. After speaking to the last Minister, it had been decided that a directive should be in place to encourage more spending on community media, but she was not sure if the directive had been issued. She wanted to request more support for community media from the Committee’s side, and this should be made clear in the Budgetary Review and Recommendation Report (BRRR). Some of the challenges were as a result of the high turnover of ministers and staff. She requested more details on the GCIS. 

Mr M Ndlozi (EFF) said that journalism had always existed in a difficult position in relation to society, because it had to be critical of government, society and capital. The only media that survived were where the “big fish” had shares. The survivors of this industry needed to ask if there was a different model of funding that could be used, because 70% to 80% of print media relied on advertising, so if community media did not get funding from the government or private entities, they did not survive. Business and the government all had to be engaged in the circulation of information. It was important to spend on the media that encouraged critical dialogue and debate. There was a big problem of political will, and he asked if there was another funding model. He said that promises could not be made, as the Committee was not the government, but part of Parliament. Members of the ANC may have a different perspective, but they were not in a position to say they were the government. There was a big problem of political will to make the necessary radical economic transformations, which made it hard to implement the law. It was hard, because where there had been oversight, one saw that where money was given that did not ensure a publication’s survival. Publications that were given money were the ones that were not strong and had not been around for long. Sometimes publications that received money have links to the MDDA. He said that the Committee would push and exert the necessary pressure. The problem the Committee faced was that it was difficult to hold the government accountable. 

Ms V van Dyk (DA) said she had written two letters on issues with the MDDA, and requested that the Chairperson provide an update. It was surprising that the amount of money available for print media had been reduced by R3.5 million. She asked for the documented agreements between community media and the GCIS, as the AIP had made it clear that agreements were not honoured. Referring to a section in the presentation, she asked whether the procurement agency, Milele, had received money from the GCIS. An update had been made on how many publishers were supposed to be paid out, and she asked for reports of how many publishers were “to be paid out”. The GCIS had paid money to a procurement agency, but that company had not paid that money over, and she asked if the company had been held accountable. Advertising brokers were damaging the relationship, because they took a lot of money from the GCIS for their own pockets instead of serving community media. The GCIS had put out plans to replace an advertising procurement tender, but after two months they had not fulfilled their obligations. There was a huge responsibility on the Committee’s side to ask questions of the GCIS.  

Mr G Davis (DA) thanked the AIP for keeping community journalism alive, and said that it was something the Committee wanted to support. The argument of the AIP seemed to be that community media was a public good, but it was constrained because there seemed to be a market failure. The AIP had provided a powerful argument. He asked for more specifics on what the MDDA had done, specifically whether there was a structural problem that prevented the MDDA from funding print media. The Committee and the AIP needed to get to the bottom of why the MDDA prioritised broadcast media. There seemed to be an inference that decisions on advertisements were taken by advertising executives and the private sector that were far away from communities, and who did not understand the value that community media could bring to them. He wanted to know exactly what was going on in the advertising industry and why there was such a blockage. Money talked, and if the advertisers understood that there was a market for their products in communities, then they would advertise. 

Mr Davis asked about the onset of the “fourth industrial revolution,” which was resulting in a decline in the readership of print media in general. What had the AIP done to manage their survival in the context of the fourth industrial revolution? It was interesting to note that the AIP represented independent media, and one found them in a position where they were not dependent on state funding. He asked how community media were regarded by the AIP to be independent in their outlook, but also dependent on the state for funding. What mechanisms had they put in place to ensure their independence?

Ms W Newhoudt-Druchem (ANC) asked if there was a working relationship between the AIP and MDDA. She asked how much funding the MDDA really allocated to print media, or if funds were allocated at all. Was funding received from provincial and local governments? The Committee should investigate how much funding was allocated to Caxton, a big media publishing house. 

Mr M Kalako (ANC) said that clarity had been provided on the difference between local and community newspapers. In Cape Town, the dominant papers distributed for free were local newspapers, and they were not independently owned. The papers that were not locally owned were some sort of subsidiary of big publishing companies. Clarity was needed on funding not provided by the GCIS in preparation for when the Committee engaged with them. The AIP presenters had emphasised that there was a monopoly in the printing sector. The suggestion AIP was making seemed to be that a print media charter was needed. The Committee should liaise with the Department of Communications (DoC) to present the issues of the AIP. 

AIP’s response

Ms Dhlomo responded to Ms Van Damme’s comments, saying that the AIP was pleased to hear the Committee was willing to take the matter forward as a Committee. In response to inquiries about fraud committed by the GCIS, the AIP had gone to a board meeting in March 2017 at GCIS’s national office in Pretoria.  The GCIS representative, Mr Mlisa, who normally engages with the AIP, deliberated during that meeting on various issues. She had referred to the budget and had wanted to know why it was not going to them when there was fraud being committed. The AIP had been encouraged to list with advertising procurement agencies with which the GCIS signed contracts, but had not received advertising in a long time. Mr Mlisa had asked if AIP had not received campaigns in December 2016, and the AIP had responded that they had not. After that, Mr Mlisa had asked another GCIS official to open files to show evidence to her that there had been campaigns that had run in Mr Dunisani Ntsanwisi’s publication in Limpopo. The AIP had requested the proof of an invoice. A GCIS employee had shown supposed proof of funding for a campaign, which included the name of Mr Ntsanwisi’s newspaper. The whole campaign had involved around ten publications, but Mr Ntsanwisi’s newspaper did not receive any funds. She said that she had asked Mr Mlisa why there was fraud involved, and he promised he would speed up the process and ask the service provider what had happened. The service provider was the Milele Group, an organisation that the AIP had had problems with for a long time. 

The Chairperson intervened, and said that it was one issue that had to be investigated.

In response to the question on financial models, Ms Dhlomo said that there were numerous models used. It was not to say that no advertising was received from local shops, but the AIP saw the government as an enabler. Support was received from numerous organisations -- for example, an agreement had been signed with the eThekwini municipality in KwaZulu-Natal. This agreement was the first of its kind where a government office had signed such an agreement with the community media sector. The AIP looked to the government because there was a budget allocated to print media. 

Mr Maseko referred to Mr Meshi Qwelane, Group CEO at the Milele Group, which received money from GCIS. He said were instances where Mr Qwelane was paid for the advertisements appearing in community newspapers, instead of the actual newspapers receiving the money. In response to the question by Mr Davis on the private sector providing funds, he said the issue was that the private sector was a situation of the “old boys’ networks.” There were six Shoprites and eight Pick ‘n Pays in his community where he distributed newspapers, but he had never received advertisements for his newspaper from them. The main problem was that black-owned publishers were overlooked. Advertisements by Caxton were published in English in predominantly Xhosa communities. Another issue was that advertisers may have racist presumptions that the market for their products would not be in Xhosa communities. He referred to an example of an advertiser who wanted to advertise Johnny Walker, but the advertiser told a community newspaper publisher that her community could not afford Johnny Walker whisky. However, if one knew the Xhosa communities, then one would know that Xhosa people did not drink Johnny Walker, but they “poured it down.” The advertising sector was not transformed and was very racist. Thus, the AIP had given up on approaching the private sector, as they were not going to work with them, and the AIP rather wanted to push the government to help source funding.

Mr Wandile said that with the emergence of the independent media sector, the print sector had broken away from the MDDA. Since then, the MDDA had been in disarray. It was not just about the money, it was also the process of sustainability. With the current emergence of the new board of the MDDA, one should see improvements. He referred to the Minister of Public Service and Administration and former Minister of Communications of South Africa, Ms Faith Muthambi, who had “destroyed” the MDDA. The MDDA had not really been functioning. He said that established journalists emerged from community newspapers. Community newspapers were the producers, but were treated like “orphans.” 

Mr Mahmoud asked if Caxton was a beneficiary of government advertising. There was a report he had tabled to the GCIS in September 2012, where he had written about issues relating to an AIP distribution channel that was promised to be put out to tender by the GCIS. The report stated that in 2011, the Chief Executive Officer (CEO) had awarded the tender to Caxton. The report had noted that Caxton had the worst track record in terms of employment equity, and had also been reported to the Competition Commission. His main point was that the GCIS had capitulated to conglomerates.

Mr Nkosi said that an investigation conducted by the Committee should also look into the Independent Electoral Commission (IEC). He came from Mpumalanga province, where there was a Caxton newspaper. The most worrying injustice that had happened in a community during the 2016 elections was that there were two newspapers aligned to the Caxton media house, and he described how Caxton monopolised the printing of advertisements by advertising in the “main paper,” and advertised the same thing in the “insert.” This was one example, but such injustices happened in all provincial newspapers. There was never such advertising provided for community newspapers. Despite complaints being raised, nothing happened. He requested that SOECA and SANRAL be investigated.

Ms Dhlomo thanked the Committee for the opportunity to present AIP’s concerns. She said that the more action was taken, the more sustainable community media would be.

The Chairperson said that it would be nice if the AIP could give their proposals to the Committee. The Committee took the issue of fraud committed by the GCIS very seriously. He referred to the 30% of funds promised to community media, and said that when the BRRR was presented in the next week, the Committee would then be able to link up with the new Minister of Communications, Ms Mmamoloko Kubayi. She was aware of the 30%, and she should be “nudged” so that everyone was on the same page. When the Committee met with the GCIS, only the AIP representatives from Cape Town should come, as it was not necessary for everyone to travel.

 

ICASA Council recommendations

 

The Chairperson welcomed the representatives of the Independent Communications Authority of South Africa (ICASA).

The Chairperson asked what the difference between the Information Communication Technology Union (ICTU) and the Broadcasting, Electronic, Media and Allied Workers Union (BEMAWU) was.

Mr David Kekana, a former SABC independent contractor and ICTU member, said that BEMAWU catered only for the permanent staff of the SABC. Throughout the years, the voice of the freelancers had not been heard, but freelancers were working the same hours as full-time SABC employees. ICTU caters for “so-called freelancers,” or independent contractors. He reiterated the importance of the phrase, “so-called freelancers,” because according to the legislation of the SABC, “they” were referred to as freelancers, but actually worked as full time journalists. For example, some freelancers had worked for the SABC for 32 years, and were still regarded as freelancers.

Investigations into SABC Board: Independent contractors and labour legislation

 

Mr Dumile Mateza, independent contractor to the SABC, said that freelancers at the SABC were given contracts that were referred to as “independent contracts.” While it was an independent contract, the freelance journalists and the contract itself allowed for the management of freelance journalists to be treated as if they were full-time SABC employees. The contract stated that as an independent contractor, one was not entitled to paid sick and responsibility leave, and one was not entitled to be paid overtime or for working on public holidays. Furthermore, an independent contractor was not entitled to be on the company’s payment scheme or medical scheme, which he claimed to be the reason why contractors go the independent contract route. When the nature of the employment terms were challenged by independent contractors at the Commission for Conciliation, Mediation and Arbitration (CCMA), the independent contractor was in almost all cases regarded to be an employee.  After discussing this with the CCMA Board and SABC management, there had been no successful outcome for independent contractors.

It was implied that the management should be limited in terms of how it delegated tasks to an independent contractor as opposed to how it may delegate tasks to a fulltime employee. Companies, especially the SABC, had ignored the Act to a large degree and at the expense of independent contractors. The provisions of a section 200A and 83A of the Labour Relations Act did not apply to persons who earned in excess of the amount determined by the relevant Minister of Labour. It was usually in the case of persons who did earn in excess of the threshold that the so-called independent contractor agreement was entered into, rather than a contract of employment or a contract of service.

Before the provisions of the Labour Relations Act and the Basic Conditions of Employment Act could be applied, an employment relationship must exist between the employee and employer. This was another reason why employers go the independent contractor route, because a true independent contractor had no protection under this legislation. They had a situation where they were employed, and reported to the relevant person. Independent contractors were told to arrive at work at 08h00 and that they had to leave at 16h00. Independent contractors had to work at the relevant SABC offices and report to their employer. However, in terms of an independent contractor, “section 200A of the Labour Relations Act in January 2015, that person was regarded as a full-time employee.” These unfair terms were the main reason why independent contractors ended up fighting with senior management. 

 

The threshold amount of what employees earned was determined by the relevant Minister of Labour. Although employees earning over the threshold amount were not subject to the presumptions made in a section 200A of the Labour Relations Act, if such an employee did challenge their status as an independent contractor and allege that he was in fact an employee, the CCMA would still be required to rule on the matter.  He said that he found it strange that the SABC was reneging on awards that were made by the CCMA. The SABC preferred to take any award on review, or appeal the CCMA decision. People who brought a case to the CCMA were not able to access the labour court due to funding. It had to be determined what the intentions were of the parties to the contract. One had to determine whether the intention was that it be a contract of employment, or that it be an independent contract. Sometimes companies did this to try to avoid paying tax. Independent contractors paid tax as if they were employees, but they were not employees.

Furthermore, if the independent contractor argued that he was an employee, the employer was the one who would determine the employment status.

 

The contract of a formal employer was a contract of service that an employee entered into to render his services to the employer, as opposed to an agreement to undertake and complete specific tasks. This was usually for an undetermined or understated period of time, in return for which the employer undertakes to pay the employee for those services. The other independent contract that exists was a contract for service which was usually a contract where the contractor had to perform a specific service or task. Upon completion of the agreed service or task, or upon production of the result agreed upon, the contractor would be paid. Furthermore, this was not the case, as senior management was unaware of the aforementioned legislation. Instead, senior management had their imperatives. On many occasions, senior management told the independent contractors that there was not enough money.

 

Mr Mateza said that in a contract of service, an employee contract, the employee was subject to the control and direction of the employer. The employer stipulated what hours the employee shall work, dictates how and when the various tasks shall be performed and provides all the resources for the task to be performed. The employee was obliged, in terms of the contract, to obey the employer's instructions and direction. In the contract for service, the employer may dictate a certain date by which the agreed task must be completed. The contractor would not, for example, be able to instruct the contractor regarding what materials must be used and how the job was to be done. He illustrated an example of a contract for service, whereby a person would paint your house. The employer would instruct that person regarding what colours the house had to be painted in, and a date by which the job should be completed. However, one would not instruct the contractor regarding what size paint brushes he must use, or where he should use paint brushes, paint rollers and so forth, as it was up to the contractor to decide. The contractor would be free to decide who he sends to one’s house to carry out the painting, and would be free to take on painting jobs for other people - even jobs for other people with whom one may have a problem. The contractor would also decide for himself whether he was going to attend to painting the house every day of the week for the next three weeks, or whether he would attend to the job on only two days of the week or three days of the week. He would regulate how many workers he desired to put on the job, how much he would pay them, and when he would pay them. 

Even in a contract of service that stated the duties of an independent contractor, the true nature of the relationship between the parties would become clear by various stipulations in the contract. For example, office hours would be stipulated and the "contractor" would be required to attend work every day at the employer’s premises. The employer would direct and instruct the tasks to be carried out and how they were to be carried out. The contractor would not be free to do work for other companies, “including companies in opposition to you,” and would not be free to regulate his own working hours or days of work. He would not be free to send other people to one’s premises to carry out the tasks that he was contracted to carry out, and so on.

 

Pay-as-you-earn (PAYE) monthly tax and would also probably be deducted from the contractor’s salary, as well as Unemployment Insurance Fund (UIF) contributions. There might even be reference to certain bonuses in the contract, and in addition the contract might even contain a restraint of trade clause. In such a contract, the intention of the parties would be glaringly obvious, as the conditions stated in the contract point were that of an employer to employee relationship. A restraint of trade clause could never be inserted in a truly independent contractor agreement. He illustrated how one could not restrain one’s plumber, painter or electrician from taking on other work, or for providing a service to one’s competitors.

 

Mr Mateza said there were many other pitfalls to consider. For example, should the employee not show up for work for two or three days, or only start at 10h00 every morning, the employer would not be able to take action against that person. An independent contractor was fully entitled to regulate his own work hours. As an independent contractor, one was not subject to labour legislation so things like disciplinary actions did not apply.

Sacking of sports journalists; issues with SABC Human Resources

Mr Kekana said that the Human Resources (HR) Department at the SABC was a hindrance when it cames to dealing with issues -- firstly in terms of contracts, and secondly in terms of providing proper advice to senior management on how to deal with these issues. He would elaborate with his own personal story of the difficulties he had faced with management. On 30 June 2017, sports-related contracts for independent contractors contracts were “pushed towards June”. HR could “amass” the termination of these contracts. Before two weeks of the end of the contract, the relevant independent contractors were given notice that their contracts would not be renewed. This situation was then taken to an interim SABC Board on 22 June 2017. During that discussion, the Board wanted to deliberate on the issue of renewing contracts, and decided that they would meet with the independent contractors after a meeting with the Committee. A week later, another meeting was held with the independent contractors and the Board. The Board agreed that the manner in which things were being done was inappropriate and that all notification letters of the non-renewal of contracts should be rescinded. The Board suggested an independent process that would look into the matter and how the decision had come about to terminate contracts. The management machinery was in cahoots with HR. The SABC HR Sports Division Manager, Mr Sipho Maseko, and the SABC Sports Operations Manager, Mr Zakhele Sibiya, were some of the SABC employees involved in deliberating with the independent contractors, but these employees were offered only one month’s extra contract.

Mr Kekana said that the Board referred the matter back to the ones who had made the decision to sack the sports journalists. The Board did not want to be seen as influencing the decision besides just giving the directive. The Board was contradicting itself, as the Board had initially agreed that the notifications of resignation should be rescinded, but had then referred the matter to the ones who had problematically made the decision to sack the journalists. Some of the journalists affected had undergone hardship during this process. One journalist was in hospital and another had died from stress after he was informed that he would be sacked. There were not any reasons, besides personal issues or decisions made off the cuff, that determined who was sacked. He referred to a journalist who brought sponsorship to SABC, but was forced to leave due to situations created by the management. Despite management referring to financial issues, sacked journalists were replaced by new SABC employees, who received higher wages. He referred to an SABC senior official who earned R80 000 a week, whereas a journalist who was sacked received R70 000 a month. Fallacies were reported by the Board to the public.

Mr Kekana said there were other impending issues which had legal implications for the SABC. Even when evidence was brought forward to prove who was the guilty party, management still ignored the issues. For example, when SABC journalists were sent to Brazil for the 2016 Summer Olympics, an inquiry for accommodation which was meant to be received only by management, had mistakenly been messaged to SABC general workers. The message asked management how much money would be needed for accommodation. He referred to the silence of management, which indicated to him that the sender had made a mistake. Threats had been made to expose the messages. He said he wanted these cases to be investigated, because it was the money of the state that had been used and misused. Management was also responsible for booking accommodation for employees and then cancelling the accommodation two days before it was booked. Huge sums of money were wasted during the Summer Olympics.

Mr Kekana said that it was difficult to describe the SABC as having a proper functional HR department as they did not evaluate situations properly and did not impartially consider the rights of workers. The department could avoid tedious legal battles. He said that he had gone to HR that day and written a legal letter pertaining to his contract that was “cut in half” without consulting him. He had told HR that there had not been an indication of what would happen with his contract, and asked what they would do about the fact that his shifts had been cut in half, despite him not having been consulted. He would have to go through a prolonged negotiation process with the CCMA, which would cost him a lot of money. The SABC had funds to prolong the matter, while his resources would be drained.

Mr Kekana concluded that he would send his list of grievances to the Committee. He had spoken to the former Minister of Communications, Ms Ayanda Dlolo, who had been eager to discuss the matter. However, on the day that she was supposed to consult with the independent contractors, the Cabinet had been reshuffled.

Exploitation of freelancers

 

Mr Sipho Manana, National Media Officer, ICTU, an independent contractor to the SABC, said that freelancers were exploited. After every financial crisis, the freelancers were the first to have their hours reduced without the impact on workers being considered. They had cut eight-hour daily working hours to seven, because they did not want to upgrade freelancers’ status to permanent staff.

Mr Manana asked how workers could take their cases to the CCMA. He thought that the service providers should take the cases to the CCMA if they did not get paid money. One may have dealt with the case of the Board being replaced, but there needed to be a bottom-up approach. He had been told that he “talks too much,” he was victimised and his contract was not renewed, and he had had “to fight to come in.” In every division in the SABC, HR provided various problems. He requested that the Committee send a public service commission to the SABC to investigate the HR department.

Sexual harassment

 

Mr Manana said that there was a lady who worked for Channel Africa who had told him that she had been sexually assaulted by a manager. When she had refused his advances, the manager had told her that she thought that she was clever, but her shifts would be reduced and those shifts would be given to someone else. In addition, when she reported this to HR, they had never investigated the issue but instead had called the accused manager into a meeting with the victim. He said that HR should rather be described as “management resources,” due to the abuse and exploitation of workers. He referred to another case of a freelancer who received only seven days of maternity leave.

Discussion

The Chairperson said he could see that the presenters were speaking from experience. There should be an investigation into the relationship between the media unions and SABC’s management. He asked if there was a bargaining relationship between ICTU and SABC management.

Mr Mateza said that the ICTU was not a recognised union yet, and that there was no bargaining relationship between the ICTU and SABC management.

The Chairperson said freelancers should surely have a relationship with the SABC Board and management. It should have been clear that ICTU was not recognised and therefore they did not have a relationship with management. As freelancers, surely there should be a relationship with the Board.

Ms Newhoudt-Druchem said that it was sad, because there was a caring government that puts laws in place to protect people. However, people working in entities like the SABC abused those laws which were meant to protect people. She hoped that the Committee could properly investigate these issues, because money was being wasted. Furthermore, vulnerable people were affected. The DeafTV show had been cut and the staff who worked there had also been treated badly. No one spoke on behalf of the staff. She also mentioned that the Paralympic Games had not been shown on SABC. She sat with the Deaf Federation of South Africa (DeafSA) and was always shocked to see the mess that the SABC was in. She had been speaking about the issue of access for 16 years. The deaf community paid their television licences, but they would never have access to shows that catered for them. She also sat on the Portfolio Committee on Public Service and Administration, and said she would make mention of this, because Non-Governmental Organisations (NGOs) were scrutinised for their HR/employee relationships while exploitation happened within state entities. She asked if the presenters, as independent contractors, received IRP5 employee tax certificates.  

Ms N Tolashe (ANC) said that she was part of a delegation which had met young and brave SABC employees. She assured the presenters that the Committee would be dedicated to improve the situation. A lot of personal issues had been mentioned, and she asked for a report. She asked what the presenters were doing on behalf of those independent contractors who were not present. A new Board had been appointed, and she did not want this to be seen as a day to day issue, because it would be unconstitutional. She asked what the response of the new Board to the presenters’ frustrations had been. She said that the stories made one question whether it was 1994 or 1957, because she had never heard of such stories at the SABC since the advent of democracy in South Africa in 1994. The Board should present to the Committee so that they could be questioned in order to bring about change.

The Chairperson said that the Committee would be meeting with the Board in the following week.

Ms Van Damme said that she appreciated that the presenters had come forward, and their experiences were terrible. It would be difficult to ask the SABC to convert independent contracts to permanent contracts unless they heard the side of the Board. The ICTU should go through a process to gain recognition from the new Board, and she was hoping that they would be open to listening to what they would say. The Committee would do what they could, but more effort would need to be made by the presenters.

The Chairperson said that the independent contractors did not have to wait for recognition to raise their issues with management.

Dr Ndlozi said the Committee should express its recognition of these difficulties. The Committee found itself in a very difficult situation due to the priorities of government, because he did not want to create false hope. The Committee had to be sharp and critical, and not “sweet talk” each other. There were issues related to resource allocations to state entities that showed one where the priorities were, but the blame needed to be put not just on the SABC, as there was a broader problem with how state institutions were run. He said that the marginalised working class had precarious labour contracts. When jobs were celebrated in South Africa, it was the celebration of temporary workers at Pick ‘n Pay, the security sector and temporary workers who did not have basic benefits. A change of attitude was needed among those who ran South Africa. Regardless of a person’s political affiliation, one had to be honest about the real problem, which was the leadership of South Africa that was not taking the stabilisation of government entities seriously. The issues should be raised with the new Minister of Communications.

Mr Mateza said that they did receive IRP5s, so independent contractors were treated as full-time employees. The new Board had started working only last week, and independent contractors had had to consult with the interim Board. He criticised the Committee for not “raising an eye” about the management going to the Presidency. The SABC could not present the Paralympics in the state that it was in now, and it could not organise programme bouquets due to poor “institutional memory” of how things should be organised. This was why the Paralympics could not be screened and provincial screening times were not catered for.

Mr Kekana said that another issue that the new Board would have to deal with was sporting material. One could not quantify how much of the archives were sold to SuperSport. If the current Board did not deal with the matter of the archives, a lot of revenue would be lost by the SABC.

The Chairperson said that when presenters provided details of issues, solutions must also be provided.

Mr Manana said that the ICTU had met with the HR department, but it had needed a list of its members. The list would have the names of freelancers and contractors of freelancers, whose contracts were coming to an end in March. Freelancers were scared that the issue with ICTU would be dragged on until the contracts came to an end, victimising the freelancers in the process. He referred to an agreement between Henley Television Facilities and SABC News, but if one when to the studios at Henley, one would see that there was nothing going on. R50 million had been allocated to run Henley, but there was no money there. Henley had to make money for the SABC and rent out studios to the programmes brought forth to the SABC. However, tapes were given to the SABC instead of the studios being rented for recording. The previous management had spent R6 million and paid 120 artists R50 000 each, which he presumed came from Henley.

The Chairperson told Mr Manana that such information needed to be put in a report, otherwise the Committee dealt with the information in front of them. He requested that before the Board was consulted, that the presenters help compile the information.

ICASA Council Recommendations

The Chairperson asked Mr Kalako to provide the names suggested for the ICASA Council.

Mr Kalako recommended Ms Nomonde Gongxeka-Seope, Ms Thembeka Simane, Ms Kate Skinner, Ms Lulama Mokhobo and Mr Rubben Mohlaloga.

Mr Davis said that not all the candidates were the DA’s first choice, but to compromise and move the process forward, the list was accepted.

Dr Ndlozi said that he did not want to start a debate, but he did not want the “comrades” to feel uncomfortable with his declining decisions. He had been very uncomfortable with the performance of Ms Gongxeka-Seope in the interview, particularly due to her “silence and inability during the turbulent times of the SABC” to choose the right way of acting when under pressure. The determinist attitude of people going into ICASA was a concern. There must not be an uncritical acceptance when appointing councillors to ICASA, as candidates should not think that the selection process was a walk in the park. There were fundamental concerns about the councillors and their performance in previous positions of responsibility.  It seemed to him as if the process forced the Committee to prioritise the candidates and he would like guidance, if he was not mistaken, because there were three positions that should be filled. He asked if he should put mention candidates in order of priority, or agree on five names with the Committee.

The Chairperson said that there was no sequence and that there were only five, and the Minister would not be guided by how they were listed. He agreed with Dr Ndlozi that there was discomfort with the fact that parties could say anything.

Mr Tolashe said that the right and best process was being followed, because standards for the candidates’ performance had already been set publicly. If the selected candidates did not perform, then the necessary criticism of performance should be given.

The Committee adopted minutes.

The meeting was adjourned.    

 

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