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Tru FM STATION MANAGER WON CASE AGAINST SABC

At least a million rand (R988 000) of the newly acquired bail-out money will be paid to an ex-employee of the SABC by order of the CCMA in the Eastern Cape.

Senior Commissioner Malusi Mbuli found the Public Broadcaster unfairly dismissed Tru FM Station Manager Thobeka Buswana late last year in October and ruled she must be compensated.

Buswana became a target for various reasons and was found guilty in a botched disciplinary hearing. Vital evidence clearing her of any misconduct were overlooked by the SABC’s internal disciplinary panel.

The CCMA strongly disagreed with the SABC’s disciplinary finding and overturned the dismissal, clearing Buswana of any wrongdoing.

Thobeka Buswana, former Tru FM Station Manager

In his arbitration award, published on 7 October 2019, Senior Commissioner Malusi Mbuli wrote:

I cannot accept the respondent’s argument that the applicant was dishonest when I compare this argument to the clear and coherent testimony of the applicant to the effect that no rule has been broken. It is not the opinion of the Senior Management or what the company thinks of what happened in relation to these incidents that should tell us whether the applicant is guilty of a transgression on a balance of probabilities, but evidence that is placed before the Commission by the applicant…”

He continued: “The employer has failed to discharge its onus in terms of section 192 of the Act in so far as the substantive issue is concerned and this means that the applicant’s dismissal was procedurally fair but substantively unfair.”

Due to the fact that Buswana’s contract expired, the CCMA was unable to order her reinstatement. Instead, compensation was ordered.

Buswana said she never had doubt the outcome at the CCMA would be different. She had faith in the CCMA and had the truth and facts on her side. Being in love with radio and her job, she would have preferred to be reinstated, but due to the SABC consistently and deliberately delaying the arbitration process, her last, one year contract expired in the course of the arbitration proceedings.

Reacting to the conduct of her superiors and the SABC during this unpleasant ordeal, Buswana said:

“I was shocked when the Acting Provincial General Manager, Mr Phumzile Mnci blatantly lied during my disciplinary hearing when he denied he approved my expenditure. We handed in documentary evidence to this effect, which clearly showed he had full knowledge of my travel, and approved it. In fact, it was approved twice by my seniors, once by him and on another occasion by his line manager. Yet the panel completely ignored this, as if they were there with a mandate and instruction to dismiss me. Fortunately Mnci was testifying under oath at the CCMA, and he knew there would have been consequences if he lied under oath, so he had to speak the truth. He told the Commissioner he approved my travel, and I attended the event with his full blessing. It’s just sad that he did not do so [speaking the truth] during the disciplinary hearing. “

She added:

‘I know for a fact that Mr Leuba Ramakgolo and Mr Mnci do not know the SABC policies, the PFMA and just the basic concept of fairness. It is such a shame to have Managers who have no clue of the guiding principles of governance leading the SABC.‘

This ruling adds to the number of cases the SABC has recently lost, at an enormous cost to the public broadcaster. It is evidence of a litigation-hungry Board and top management who recklessly spent public money in pursuit of extremely poor decisions, judgement and ill informed often questionable motives.

In as much as it is part of the duty of, for example a cameraperson to set up and focus the camera to capture high quality visuals, it is the duty of management to exercise discretion and good judgement when they institute disciplinary action and CCMA litigation against employees. When the cameraperson does not perform, there are consequences. Equally there should be consequences for poor management and decisions.

Consequence management must meet Ramakgolo and his masters, and in particular Human Resources and the legal department of the SABC, as the gatekeepers and custodians of fair disciplinary action, who instituted malicious disciplinary action against Buswana, This has resulted in fruitless and wasteful expenditure of almost a million rand.

This current management seems to be no different from the previous management, who has spent millions of rands – public money – on fruitless litigation.

Buswana was represented by the Broadcasting, Electronic, Media & Allied Workers Union, BEMAWU.

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Broke SABC slammed for incurring R5.2bn in irregular expenditure

The auditor-general has blasted the SABC for not taking appropriate steps to prevent irregular expenditure and for failing to bring  those responsible for the financial mess to book, BusinessLIVE reported.

The broke public broadcaster was slapped with a qualified audit opinion for the 2018/2019 financial year. It received a disclaimer the previous financial year, which is the worst possible audit outcome.

The SABC’s annual report tabled in parliament on Monday shows that the broadcaster incurred irregular expenditure of R5.2bn, up from R4.9bn the previous year. This as it continues to face an uncertain future due to crippling financial challenges.

In the annual report, auditor-general Kimi Makwetu raised doubt about the broadcaster’s status as a going concern, noting that it is still not able to generate sufficient cash to meet all of its financial obligations. The entity’s current liabilities exceed its current assets by R875m, said Makwetu.

The SABC ended the 2018/2019 financial year with an audited loss of R482m. Losses have decreased over the past number of years – from R1bn in 2016/2017 to R744m in 2017/2018. But indications are that it will continue to record losses for the foreseeable future after posting a R192.3m loss in the first quarter of the 2019/2020 financial year.

The broadcaster ended the 2018/2019 financial year with a cash balance of R72m. Total revenue was R6.45bn, which was R1bn (14%) below the budget of R7.48bn.

As it stands, the SABC is technically insolvent. Its dwindling revenue means it is unable to service its debt of almost R2bn and it could be forced to switch off its cameras and microphones.

The dire financial position means that it is struggling to invest in content and to acquire crucial sports rights. It confirmed that it would not broadcast the Rugby World Cup on television, though it managed to strike a last-minute deal to broadcast four of the Springboks’ games on radio, as well as the two semifinals. ​

It has requested a R3.2bn government guarantee to stay afloat and pay off some of its debt, but its bid for funding has so far been unsuccessful – largely due to its failure to meet the Treasury’s conditions.

Makwetu said effective and appropriate steps were not taken to prevent irregular expenditure, as required by the Public Finance Management Act. He said the full extent of the irregular expenditure could not be quantified.

Most of the irregular expenditure disclosed in the financial statements was caused by competitive bidding process not having been followed. Disciplinary steps were not taken against the officials who had incurred and/or permitted irregular, fruitless and wasteful expenditure, as required by the act, said Makwetu.

Also, effective and appropriate steps were not taken to collect all TV licence revenue due, as required by the act.

Advertising revenue, the SABC’s biggest revenue generator, decreased in the past year by R241m (5%), a key factor preventing the public entity’s profitability. This revenue, which amounted to R4.5bn, makes up 70% of total revenue.

TV licence fees reported for the year amounted to R968m. This represents a “fee evasion rate of 69% [compared to 72% in 2018] of the known TV licence holders not paying their licence fees”, the public broadcaster said in the report.

SABC board chair Bongumusa Makhathini said in the report that damaging governance, maladministration and funding challenges faced by the public broadcaster over decades have hollowed out the institution, “making it tougher and tougher to play to our strengths”.

“The SABC’s financial position has remained under severe pressure, with the corporation still paying the price for years of compromised leadership, failed governance and prejudicial decision-making,” said Makhathini.

He said the SABC is unable to “simply shake off the damage caused without financial assistance by the government”.

Source : https://www.heraldlive.co.za/news/2019-10-01-broke-sabc-slammed-for-incurring-r52bn-in-irregular-expenditure/

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SABC BAILOUT CONDITIONS

What conditions the SABC have to meet

According to Board Chairperson, Bongumusa Makhathini the public broadcaster has met 10 of the 11 preconditions that were set out by National Treasury in overseeing the R3.2-billion bailout that SABC applied for.

In order to comply with the conditions, SABC had to:

  • determine their immediate cash requirements, supported by detailed cash flow projections for the next 12 to 18 months;
  • submit a list of identified initiatives for revenue enhancement and cost-cutting initiatives that the entity has been implementing in the interim;
  • conduct a thorough investigation into what caused the financial collapse of the SABC and why previous turn-around plans have failed to be successfully implemented;
  • provide an update on how the entity is dealing with the people implicated in reports;
  • produce separate financial reporting for their public and commercial broadcasting services;
  • identify non-core assets for sale to assist with reducing the recapitalization required by government. Submit a comprehensive property strategy and a list of non-core assets identified for disposal including the timelines for disposal and the estimated values.
  • commit and start a full review of policies, legislation and regulations affecting the Broadcasting sector and the SABC within a digital environment;
  • develop a comprehensive Private Sector Participation strategy highlighting initiatives to be implemented and the net values to be derived from these partnerships;
  • develop a comprehensive capital and content investment plan which includes the forecast return on investment of all Capex and content spend, split between commercial and developmental activities;
  • appoint a restructuring team headed by a restructuring officer and supported by Broadcasting industry experts to lead a restructuring and turnaround of the entity; and
  • appoint a new Board.
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RIGHTS TO RUGBY WORLD CUP MATCHES ‘NOT COMMERCIALLY VIABLE’ FOR SABC

JOHANNESBURG – The South African Broadcasting Corporation (SABC) board has told Parliament that its decision not to buy the rights to broadcast the Rugby World Cup was because it was simply not commercially viable.

https://ewn.co.za/2019/09/17/rights-to-rugby-world-cup-matches-not-commercially-viable-for-sabc

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SABC PUSHING AHEAD TO INCREASE TV LICENSE FEES

The SABC is pushing ahead with plans to lobby the government to increase TV licence fees as it battles to boost revenue.

Executives at the cash-strapped public broadcaster told MPs on Tuesday that the current TV licence tariff of R265 per year, which translates to about 72c a day, had remained unchanged since 2013. SABC board chair Bongumusa Makhathini said he believed more South Africans could afford to pay at least R1 a day, a remark that prompted objections from various MPs.

“We have 10-million people unemployed … it is incorrect to say the TV licence [fee] is cheap,” said one MP.

https://www.businesslive.co.za/bd/national/2019-09-17-sabc-goes-ahead-with-plans-to-lift-tv-licence-fees-despite-objections/

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EX CEO TESTIFIED BEFORE SCC

Lulama Mokhobo

Former SABC group CEO Lulama Mokhobo has told the judicial commission of inquiry into state capture certain people within the organisation would go to the “bottom pit of lies” to tarnish her name.

Testifying before the commission Wednesday, Mokhobo said she believed she was pushed from the organisation and attempts to do so had happened at least three times.

“There were rumours swirling around the organisation that I was going to be suspended and there were lots of lies that were being told about me.” 

She said she and the chairperson of the board at the time, Ellen Tshabalalala, could not agree on many things, which included a multimillion-rand deal the SABC had signed with MultiChoice. 

“I had challenged a lot of her decisions very vigorously and she was very angry at me.” 

Mokhobo claimed she had not agreed with the signing of the contract because the process was flawed, and the clauses were improper. 

“There was a rush to sign the contract with MultiChoice.”

She said she had also locked horns with former SABC COO Hlaudi Motsoeneng.

READ: ‘I didn’t leave SABC over Protector report’ – former CEO

“He undermined my authority many, many times… Ms Tshabalala gave me a dressing down in front of my staff and I could never understand why she would do that.

“The reason was quite simply that, chair, I was refusing to do things that were not according to policy.”

Mokhobo told the commission that under her leadership, the SABC’s finances became healthy but that the “dislike for [her] increased phenomenally”.

“I realised, chair, that it was time for me to go,” she said. 

Earlier, she told the commission that Parliament was misinformed about the package she allegedly received when she left the public broadcaster.

“I am not sure what the reason was apart from probably trying to damage my reputation.

“Parliament was given a figure of between R8m and R11m… It was totally untrue.”

Mokhobo said the amount she received when she left was R6m.  

She also denied that she left the SABC because of the Public Protector’s report entitled “When Governance and Ethics Fail”, which investigated, among other things, irregular appointments, promotions and salary hikes at the broadcaster.

ALSO READ: Motsoeneng took ex-SABC group CEO to Gupta compound to be ‘congratulated’ on her appointment – Zondo commission hears

“I would have stood up to the disciplinary hearing and have my name cleared there but it just didn’t make sense at the point when I was leaving.”

On the issue of Motsoeneng’s salary increment, Mokhobo said when she arrived at the SABC there was an “outpouring of adoration” for the former COO. 

“There was a belief that he was doing an amazing job and that he was not being paid enough even as a group executive member not as acting COO.”

She said there was an exercise that was undertaken by the SABC which looked at people’s skills to determine their increases. 

“That was really all what the increase was about. The Public Protector completely misunderstood that,” Mokhobo said.  

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SABC ACTING COO APPOINTED

The SABC today has announced the appointment of Sylvia Tladi as acting COO.

Tladi is the head of the struggling TV License Department at the Public Broadcaster.

The current acting COO, Craig van Rooyen resigned amid speculation of board conflict, reported by City Press.

The SABC now has to source replacements for both Chris Maroleng, the sacked COO, who is fighting his matter at the CCMA and van Rooyen.

https://ewn.co.za/2019/08/30/sylvia-tladi-appointed-acting-sabc-coo

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LONG SERVICE AWARD DISPUTE

The dispute in respect of Long Service Awards under case number CCMA Case GAJB19346-19 (GAJB) is scheduled for ‘Con/Arb’ for Tue 17-Sep-2019 09:00 at Johannesburg CCMA.

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SABC SLAMMED WITH YET ANOTHER LEGAL COST ORDER

Another blood nose in court, another cost order against the SABC! 

On 16 August 2019 the Labour Court dismissed an urgent application by the SABC attempting to set aside subpoenas issued to inter alia the GCEO and CFO of the SABC to testify in a CCMA hearing.

The Labour Court awarded cost against the SABC.

Judge Andre van Niekerk ruled in favor of Ayanna Mkhize who was dismissed on the 17th of October 2018.

In his brief judgement van Niekerk said there is no provision in the LRA or any other legislation that confers a general jurisdiction on the Labour court to supervise the manner in which the CCMA exercises  its statutory powers. He dismissed the SABC’s contention that dismissed employees could subpoena witnesses to harass them.

‘He furthermore found that the application by the SABC was not supported by a proper legal basis to set aside the subpoenas.

How much more money will be spent on senseless litigation whilst the SABC Ship continues to sink?

Copy of judgement here

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FREELANCERS HAVE RIGHTS TOO

Independent Contractors or so-called freelancers are often the most abused regime of “workers” in the media industry in South Africa.

Almost without exception this group of people does not get the normal benefits employees would be entitled to in terms of the Basic Conditions of Employment Act, like paid leave, sick leave, company medical aid and pension and most importantly, security of employment.

Freelancers are by definition excluded by the Labour Relations Act, No.66 of 1995 as employees.

Section 213 of the Labour Relations Act defines an employee as anyone, other than an independent contractor, who works for another person or who assists in conducting the business of an employer.

In an attempt to stop, or at least to minimize the abuse, Section 200A was promulgated.

Section 200A states that, unless the contrary is proven and regardless of the form of the contract, a person is presumed to be an employee if any one of the following circumstances exist:

The manner in which the person works or his/her hours of work is/are subject to the direction or control of another person;

The person forms part of the organisation;

The person has worked for the other person for an average of at least 40 hours per month for the last three months;

The person is economically dependent on the other person ;

The person is provided with tools of trade by the other person; and

The person only provides services to one person.

Freelance contracts are generally very one-sided and in favour of the “employer” and it is generally accepted freelancers can be hired and fired at the whim of the employer.

Freelancers would not have access to the CCMA or Labour Court unless there is a claim of being an employee in terms of Section 200A of the Act.

For the reasons above the SABC, like many employers favour freelance contracts and has thousands of freelancers on their books.

Employers, and the SABC in particular has also been very vocal in respect of discouraging freelancers to join trade unions, on the basis that a freelancer does not have any labour rights.

Fortunately the landscape for freelancers is fast changing.

In a landmark case, freelance journalist and presenter Vuyo Mvoko who was one of the SABC 8, won his case in the Supreme Court of Appeal after his contract was terminated for speaking out against the protest policy of Motsoeneng.

MVOKO’S MATTER

Mr Mvoko was inter alia aggrieved when the SABC adopted a policy in terms of which footage of violent protests would not be shown on television, a decision which resulted in the resignation of Mr Matthews.

As a result of several incidents of political interference at the time, Mr Mvoko decided to turn to the media to offer his reflections of the state of the SABC.

On 6 July 2016 he published an article in The Star.

The article was entitled ‘My hell at the SABC…  ‘In power mongers’ grip’.

The first paragraph read as follows:

The SABC has never been a paragon of a great anything. It has been a work-in-progress, with degrees of success as generations of well-meaning South Africans tackled the extraordinarily and complex task of undoing decades of apartheid misuse of this national asset.

Mr Mvoko criticised the policy referred to above, namely, that violent images would not be broadcast by the SABC.

However, the part of the article that evoked the most outrage on the part of the SABC, was the following:

We are saying there’s no point in doing the right thing by promoting women to leadership positions – only to reduce them to policing duties, or walking around with their cellphones glued to their ears as they take arbitrary instructions on who to put on air.’

This was construed by the SABC as a direct and vicious attack on Ms Maseko.

Mr Mvoko was adamant that in writing the article he had the following objectives:

• to offer his reflections on what was happening at the SABC in relation to the erosion of editorial independence;

• to convey his own first-hand experience of that erosion; to dispel myths about the goings-on at the SABC; and

• to remind the public that there was still time to save the integrity of the SABC.

On 7 July 2016, the day following the publication of the article, Ms Maseko informed Mr Mvoko telephonically that he was required to collect a letter addressed to him.

Mr Molete handed him the letter and said: ‘Don’t crucify me. I just have to give you this letter’.

It is necessary to quote the relevant part of the letter:

It has come to management’s attention that you have allegedly been involved in acts of non-compliance/contravention of your contract which conduct constitutes a material breach of the agreement, relating to the following issues:

– You have brought the name of the SABC into disrepute and also damaging the image of the SABC with the comments/statements in the newspaper article of The Star Newspaper dated 06 July 2016.

Management views your conduct in a very serious light and contemplates terminating the agreement.

However, you are requested to submit written representations as to why the agreement should not be terminated and should you wish to do so, same have to be submitted to writer hereof on or before close of business on Monday 11 July 2016 (16:00).

Furthermore, Management has resolved not to schedule you to render your services as the Independent Contract until this matter is resolved.

Following on that letter Mr Mvoko’s legal representatives wrote to the SABC demanding that he ‘be scheduled’ in terms of his written agreement with the SABC.

The SABC did not comply and Mr Mvoko then turned to the courts for relief.

The SABC, in resisting Mr Mvoko’s application contended, principally, that the agreement (independent contract) on which he relied stipulated that it was the SABC’s prerogative to engage Mr Mvoko’s services ‘as and when required’.

The SABC contended that the agreement itself recognised that Mr Mvoko had no right to insist on being scheduled.

Thus, so it was submitted, Mr Mvoko could not compel specific performance.

As to the suspension of his services, the SABC took the view that it was lawfully done since the agreement provided that in performing his services he was prohibited from engaging in any conduct, behaviour, utterances and the like that, in the reasonable opinion of the SABC, had the effect of bringing the name of the organisation into disrepute or impacting negatively on his relationship with colleagues and the SABC.

The publication of the article in The Star, in the view of the SABC, was a breach of that contractual provision entitling the SABC to suspend his services.

It was adamant that an independent contractor such as Mr Mvoko could not dictate whether to feature television programmes.

Moreover, it warned that if Mr Mvoko were to be granted relief, the court ‘would in fact be prescribing to the respondent what programmes should be featured on television, and who should present them’.

This warning to the court was dramatically presented as follows:

This Court would be dragged into the news room of the respondent.’

It was not for the court, so the SABC stated, to prescribe which means it should employ in performing its functions.

The clause on which particular reliance was placed by the SABC, reads as follows:

The Independent Contractor will be engaged on an “as and when required” basis.’

It had been the practice, both in terms of the present agreement and the one preceding it, for Mr Mvoko to be scheduled to perform tasks in terms of annexure A.

The scheduling appears to have been regular, subject of course to necessary and lawful changes to programmes that fell within management’s prerogative.

The part of the agreement under the heading ‘for office use only’ contemplates services to be regularly provided by Mr Mvoko as a planning and contributing editor.

The annexure, which the agreement specifically recognises as an integral part thereof, clearly contemplates that Mr Mvoko would ‘form part of the Newsroom think tank by contributing to the divisions overall editorial strategic direction’.

This is hardly a description that supports the SABC’s interpretation in relation to the ‘as and when required’ clause.

The clause which gives the SABC the right ‘not to schedule’ the independent contractor, pending a dispute in relation to the right to terminate the agreement, is in line with that construction.

One might rightly ask why one would need to terminate rather than just not schedule an independent contractor’s services.

It is the equivalent of ‘do not call us, we will call you’, or, perhaps more accurately, ‘do not call us and we will not call you’.

All of this explains the practice in relation to the use by the SABC of Mr Mvoko’s services, both in relation to the preceding and present agreement.

The ‘as and when required’ clause has to be read in the restricted manner referred to in the second sentence of this paragraph. The principle of reading the clause within the overall context and contemplating its purpose and business efficacy when applied to the clause presently under consideration renders that result.

In light of the conclusion in the preceding paragraph there is no basis for the warning sounded by the SABC to courts to avoid imposing themselves within the SABC boardroom.

If anything, for reasons that are set out hereunder, the SABC should be careful not to be a law unto itself.

It has to operate within its statutory mandate and, like the rest of us, it has to conduct itself within constitutional parameters.

The SABC’s reliance on clause 13.2 of the agreement read in conjunction with clause 5.4.3 for its right to suspend Mr Mvoko is misplaced.

Clause 13.2 requires an investigation into irregularities on the part of the independent contractor pending the conclusion of which the SABC is entitled to suspend.

The difficulty regarding that part of the SABC’s case is that its conduct, described in detail by Mr Mvoko and which is unrefuted, is what brought it into disrepute.

It behaved in a manner reminiscent of an era which we all would much rather forget. It smacks of high-handedness and of a lack of consideration of the SABC’s role as a national broadcaster.

In this respect, regard should firstly be had to the basic values and principles governing public administration set out in s 195 of the Constitution which provides, amongst others, that services must be provided impartially, fairly, equitably and without bias, and that public administration must be accountable.

In terms of s 195(2) these principles apply to administration in every sphere of government, organs of state and public enterprises.

The highest standards of journalism and of integrity in public administration can rightly be expected of the SABC.

The political interference complained of by Mr Mvoko is, as already pointed out, uncontested.

It is inexcusable and rather than rendering Mr Mvoko liable to disciplinary action it calls for an enquiry into the conduct of the SABC in its role as public broadcaster.

The article in The Star was in the form of a whistle blower exposing the ills at a national institution owned by all of us as citizens.

The criticism allegedly directed at Ms Maseko as a person who was being politically manipulated by others and who responded to political instruction was based on Mr Mvoko’s experiences at the SABC.

The SABC was directed to comply with the written agreement dated 4 April 2016, and to schedule Mr Mvoko, as in the past, to perform his services as set out in annexure A to the agreement and to remunerate him accordingly in relation to the remaining term of the agreement.

The SABC was ordered to pay the applicant’s costs including the costs consequent upon the employment of two counsel.

As if the SABC did not learn from this costly exercise, they embarked on similar conduct recently when Lotus FM station manager Alvin Pillay fired freelance radio presenter Shirdika Pillai for raising concerns about favouritism and other complaints against station management, with management but copying the now fired COO, Mr. Chris Maroleng and CEO Madoda Mxakwe in the email.

Pillai was accused of misconduct and breach of contract and her freelance contract was ended by the SABC.

Pillai lodged a complaint with her trade union BEMAWU and when an exchange of letters and warnings did not pursuade the SABC to review its unlawful decision, the union proceeded with legal action against the SABC.

Assenmacher Attorneys, instructed by BEMAWU issued summons against the SABC on behalf of Pillai in the High Court.

Pillai was paid out for the remainder of her contract and the SABC had to pay the legal cost of BEMAWU.

It is clear that freelancers are not at entirely at the mercy of its masters, and furthermore that freelancers employed in public institutions would enjoy more rights to fair treatment than others not so employed.

Taking a matter to the High Court is a costly exercise, in particular for individuals.

Being a member of a Trade Union like BEMAWU, prepared to take on and represent freelancers, would be a wise decision.

Just a friendly warning – no union will take on members already in trouble. It’s best to join and be a member in good standing which will ensure representation when needed.