Local radio station, Kaya FM recently terminated its contract with controversial DJ Phat Joe (real name Majota Khambule). It was the beginning of the end of the relationship between the parties when the content manager of the station sent a letter to Khambule, complaining of incidents of “gratuitous smut, sexual innuendo and partisan politicking”, in contravention of broadcasting legislation. The station warned Khambule that any further indiscretions would lead to the termination of his contract.
Khambule disagreed with the content manager’s concerns and his contract was terminated. When Khambule then referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), the Commissioner ruled that Khambule was not an employee and that the CCMA could only adjudicate disputes concerning employees (as opposed to independent contractors).
Khambule was clearly not happy with this ruling and asked the Labour Court to review the decision. The Labour Court however agreed that Khambule was not an employee.
- Khambule exercised a considerable discretion over the content and manner of his show. This was only subject to the broad parameters and legal regulatory constraints of broadcasting, which all broadcasters, regardless of their employment status, are subject to. Since the program manager only attended approximately 20% of planning meetings, there was limited supervision and control from the station’s side which one would ordinarily find in an employment relationship. Khambule’s contract with the station also stated that any change to program content must be done in conjunction with Khambule and this is a clause which one would not ordinarily expect to find in a subordinate relationship of employment.
- Khambule was furthermore not integrated into the employer’s organisation as an employee would be. Although Khambule’s email address and his business cards had the station’s logo and name on, the court found that this was more of a marketing strategy for the station to benefit from Khambule’s personal brand.
- Khambule retained his own staff for the production of his show who were not supervised, directed or remunerated by the station. This tilted the scales in favour of a contractor relationship.
- Khambule invoiced the radio station for his services in the name of a close corporation of which he was the sole member. He also claimed VAT deductions for his business related expenditure. This is something an employee would not do.
- Lastly, Khambule was allowed to do other work with the only restriction being that he may not compete with the radio station. Khambule was therefore not truly economically dependent upon the station as he maintained a business profile as an entrepreneur in his own right. The fact that Khambule dedicated further time to prepare for the show and in the end, mainly relied on the radio station for his income, were personal choices and not an indication of an employment relationship.
Courts in South Africa will clearly look at all the surrounding facts to determine whether a person is actually an employee who will be entitled to the protection of South African employment law.
By Karen Ainslie
Assited by Nicole Piaray