Friday, 27 November 2009

Open letter - Request for granting more time


Director General - Mamodupi Mohlala
Department of Communications
iParioli Park
399 Duncan Street

Fax: (012) 427-8026

Dear Madam,

We are a specialist trade union organised in the Broadcasting and Media Sector. We represent more than a thousand members in these sectors, particularly at the SABC.

This serves as a request for a shift of the deadlines to submit input in respect of the proposed Broadcasting Bill. Apart from the fact that the Bill, in its current form, cannot work in practice, the process being followed is flawed and unconstitutional.

As a trade union we are particularly concerned about the huge job losses that will occur if this proposed Bill is passed in its current form.

We estimate that between 1200 and 1500 people will lose their jobs. This goes directly against the stated intent, in the pre-amble of the Bill, of its aim of fighting unemployment.

Furthermore, we are of the view that the current tax proposal will not be enough to fund the SABC sufficiently to fulfill its public mandate.

According to the last budget review figure of the SABC R5.1b (Operational and CAPEX) is required for the next financial year. This excludes the current loan repayment of R1m and the repayment of the new loan in process (installment unknown). According to SARS Financial Statements, Financial Year 2008/9, they collected R 196b in Personal Income Tax for the year. This figure will be substantially lower for the current financial year due to approximately 1 million jobs being lost in the first nine months of 2009. SARS reported an expected shortfall of R 70b in Personal Income Tax. At a maximum rate of 1% the proposed Fund would only receive R1.9b from tax this year.

If the SABC only receives 60% (other broadcaster will also benefit from the Fund) they would have received R1.14b. Add to that the current income of approximately R 1.7b from advertising and sponsors the total is R 2.84b. There appears to be a serious shortfall. When commercial advertising is capped, as suggested by the Bill, the shortfall may even be more.

Having said this, it is clear that due and thorough debate and brain storming needs to be done before any new legislation is passed.

We propose that a process be started where all stakeholders are involved, including treasury, to looking at the new funding model, which may simply include a government grant for the PBS part of the SABC and that TV licenses be retained as part of that funding.

As part of this exercise we need to relook the SABC’s very heavy and expensive top structure and the exorbitant salaries Executives are paid.
We also need to look at cutting costs in respect of all the pleasure trips (Beijing, Jazz Festival, Dakar, etc) by the Executive Management of the SABC and there needs to be proper, transparent and thorough accounting and accountability by those individuals.

We need a qualified and competent CEO with a proven track record of successful business operations, not another (incompetent) political appointment. We need a lean and competent top structure which should be effective and understand the business. The SABC cannot afford to pay top management exorbitant packages when they cannot do their jobs properly and they then hire consultants at a cost of Millions of Rands to do their job. If we cannot find competent people, only then should the SABC appoint consultants. We cannot afford to pay both.

A few years ago the SABC had what was known as the Top 100 management team. Then the SABC made a surplus of several millions. It has now become the Top 250, if not more, and the financial situation is dreadful.

Some of our other concerns (extracted from a SOS Coalition document of which we are a member of) are:

We believe that the Bill introduces a number of fundamental policy shifts that require significant discussion and debate. Briefly, we wish to reiterate some of these shifts:
  • The Bill includes two new Charters – one for the SABC and one for community broadcasting.
  • The Bill aligns broadcasting to the “Developmental goals of the Republic” and the developmental state. Previously broadcasting was aligned to the Constitution. It is not always clear what the developmental goals are.
  • The Bill introduces fundamental shifts to the broadcasting funding environment. It calls for the scrapping of TV license fees and for amendments to the Income Tax Act, 1962 to ensure that up to 1% of personal income tax is set aside for broadcasting.
  • Also, in terms of funding, it introduces a new Public Service Broadcasting Fund, to be administered by the Media Development and Diversity Agency, requiring that the MDDA Act be amended. The Fund is mandated to fund a wide-ranging set of issues including the public service division of the SABC, regional television and international broadcasting services, content development, community broadcasting services and signal distribution.
  • The Bill introduces far-reaching and draconian new powers for the Minister of Communications. The Minister can now issue directives to the SABC and community media on “any matter connected to public service broadcasting”. If the entity is unable to “perform its functions as prescribed in this Act”.
  • Previously the SABC was split into two divisions – public and public-commercial.
  • The SABC is now to be divided into three separate divisions – public, commercial and international.
  • Sentech has been designated as ‘the common signal distribution carrier’ requiring amendments to the Electronic Communications Act, 2005.
  • Finally, and very importantly, community media’s role has now been re-conceptualised. A new Charter has been introduced for the community media sector specifying the ways in which the community media sector needs to be organised. Further, the Bill requires that community media forge partnerships with their local municipalities.

Given these major policy shifts, we believe that a period for debate of just over a month is not sufficient. Further, we wish to place on record that we are not sure why a Bill of this magnitude and reach needs to be passed in such haste. We believe strongly that the present financial crisis at the SABC is primarily a management crisis and can be dealt with under present legislation.
We believe that the Interim Board has done an excellent job in beginning to stabilise the SABC. We have faith that the new, Permanent Board, will continue this process. The drafting of new legislation should be a separate and parallel process. We believe that rushing this new legislation may very well create new crises for the SABC, which may include industrial action, should employees be retrenched.

A second area of general concern about the Proposed Bill is that it is not clear what exactly the Proposed Bill is and what its full ambit is. The Notice describes the Proposed Bill as a “Bill”. However a “Bill” must be introduced in Parliament. To the best of the Coalition’s knowledge the Proposed Bill has not been introduced in Parliament and therefore it ought, more correctly, to have been called a Draft Bill.

Further, it is customary for Draft Bills to be discussed in Cabinet before being published for public notice and comment in the Government Gazette and yet the Proposed Bill is silent on whether or not the National Executive, acting through the Cabinet, has endorsed this Proposed Bill as indeed reflecting national policy.
Given the number of apparent significant breaks with existing broadcasting and national fiscal policy, the Coalition would have expected that Cabinet approval to have preceded the publication of the Proposed Bill.
The Coalition respectfully requests the DOC to clarify exactly what the nature of the Proposed Bill is if and when it publishes a future iteration thereof.    

The Proposed Bill also clearly envisages significant changes to the entire broadcasting sector: public, commercial and community broadcasters as well as, in respect of signal distribution, the role of the regulator etc.
However the Bill makes no proposals for necessary consequential amendments to be made to, inter alia¸ the Independent Broadcasting Authority of South Africa Act, 2000 (“the ICASA Act”) and the Sentech Act, 1996 (“the Sentech Act”). Without these necessary consequential amendments it is likely that there will be inconsistent and clashing provisions in the various pieces of legislation that regulate broadcasting – clearly an undesirable outcome.


Another third area of critical concern is that it appears from sections in, inter alia, Chapters 4 and 5 of, and the Schedule (what ought to be Schedule 1) to the Proposed Bill, that the Proposed Bill is in fact a “Money Bill” as defined in section 77(1) of the Constitution of the Republic of South Africa, 2006 (“the Constitution”) that is, “a Bill that appropriates money or imposes taxes, levies or duties”.
If this is indeed the case then the Proposed Bill is, on its face, unconstitutional.

The grounds of unconstitutionality include the following:

Section 73(2) of the Constitution provides that only the Minister responsible for national financial matters may introduce a money Bill in the National Assembly. However, it appears that the Proposed Bill is intended to be introduced by the Minister of Communications (“the Minister”) and not the Minister of Finance.
This does not accord with the requirements of the Constitution on the National Legislative Process set out in Chapter 4 of the Constitution.

Section 77(1) of the Constitution specifically provides that a Money Bill “may not deal with any other matter except a subordinate matter incidental to the appropriation of money or the imposition of taxes, levies or duties”. Clearly the Proposed Bill deals with a number of other non-tax related issues and this does not accord with the requirements of the Constitution on the National Legislative Process set out in Chapter 4 of the Constitution.

We wish to place on record our overwhelming support for the concept of public funding of public broadcasting that is, of funding being made available for the public broadcaster out of the National Revenue Fund. This is essential, if the SABC is to deliver on a public mandate. However this must be done in accordance with the Constitution and current Government fiscal policy.


The SABC’s Freedom of Expression Rights:

The Proposed Bill contains what appear to be a number of Schedules to the proposed Bill. One of these is headed “the Charter of the Corporation” (“the Proposed Charter”). As such it forms part of the Proposed Bill and, should the Proposed Bill be passed into law, would constitute legislative provisions. One of the provisions appearing in the Proposed Charter is section 1.5 which is headed “The Independence of the Corporation”. This section provides, inter alia, that the SABC enjoys “freedom to express [sic] and journalistic, creative and programming independence as enshrined in the Constitution”.
The SABC, like all other persons (both natural and juristic) enjoys the right to freedom of expression as enshrined in section 16(1) of the Constitution and does not require section 1.5 of the Proposed Charter in order to enjoy such right.
However, notwithstanding the provisions of section 1.5 of the Proposed Charter, the Proposed Bill contains a number of provisions which directly, and in our view, unconstitutionally limits the SABC’s right to freedom of expression, by subjecting the SABC to National Executive control in a number of important respects, these include but are not limited to:
  • Section 15(2)(a) of the Proposed Bill which specifies that the International Services to be provided by the SABC must be subject to the “Republic’s foreign policy”;
  • Section 15(4) which specifies that the SABC may only establish any international broadcasting service channel with the approval of the Minister after consultation with the Minister of International Relations and Cooperation; and
  • Section 3.11.1 (8) of the proposed Charter of the Corporation which appears to suggest (although the section is confusing and contradictory in this regard) that the Minister must approve various revised editorial policies of the SABC.

We submit that it would be entirely unconstitutional for any of the SABC’s programming or services to be subject to National Executive policy and for its editorial policies, which directly influence its broadcasting content, to be approved by anyone, save for the Constitutionally-mandated regulator of broadcasting services, namely ICASA.

A more detailed submission has been made by the SOS Coalition.
Kindly read same into this document.

This was put together in a very short space of time. It is clear that there is still much to be done in the way of thinking and research.


Hannes du Buisson
BEMAWU (Broadcasting, Electronic, Media & Allied Workers Union)

SABC ordered to reinstate dismissed BEMAWU member

The CCMA yesterday ordered the SABC to reinstate unfairly dismissed BEMAWU member Chris le Roux and to pay him compensation of R 85 464.40.

BEMAWU referred un unfair dismissal dispute to the CCMA when our member, Mr. Chris le Roux was dismissed after 13 years of service and 17 repetitive fixed term contracts. His last contract was for a 3-year term and just before the lapse of this contract he was informed his contract would not be renewed again. He had a reasonable expectation that his contract would be renewed again as it was done the previous 17 times.

We hope this will send a stern message to the SABC that they are playing with fire when they appoint people on fixed term contracts whilst it is in fact a permanent position. We have urged the SABC for many years to convert all fixed term contracts into permanent contracts if the position is permanent. We will do so again.

Members faced with similar problems should notify BEMAWU in time. We will continue to fight for and protect our members against any unfair and unjust practices.


Santosh Beharie back at Lotus FM

Lotus FM Program Manager Santosh Beharie’s unlawful suspension has been uplifted by the SABC today and he has been instructed to take up his normal duties on Monday, 30 November 2009.

The so-called investigation has, according to the SABC been completed.

BEMAWU will not withdraw its dispute of unfair suspension against the SABC. We will proceed to claim compensation at the CCMA. SABC managers abusing their powers to unlawfully suspend employees will be held accountable for their actions.


Wednesday, 25 November 2009

Harassment at Work

Are you harassed by your manager?

Go through the definition of harassment hereunder and file a complaint with us today if you are harassed at the workplace. You have to take the first step to complain. We will do the rest.

·          Bullying
·          spreading malicious rumours, or insulting someone, particularly on gender, race or disability grounds;
·          ridiculing or degrading someone, picking on them or setting them up to fail;
·          exclusion or victimisation;
·          unfair treatment, for example, based on race, gender, sexual orientation, pregnancy, age, disability, religion, HIV status, etc;
·          overbearing supervision or other misuses of power or position;
·          unwelcome sexual advances;
·          making threats/comments about job security without foundation;
·          deliberately undermining a competent worker by overloading and constant criticism;
·          preventing individuals progressing by intentionally blocking promotion or training opportunities.
Every employee has the right to be treated with dignity and respect in the workplace, and employees do not have to tolerate harassment by employers.

The CCMA states that employers have a duty to protect workers from harassment, and employers should develop a code of conduct on harassment in consultation with the employees and employee representatives.
Harassment is in fact classed as an unfair discrimination and only results in a violation of human rights, poor morale among employees, causes unexplained absenteeism, late coming and poor concentration at work.  It is the cause of loss of productivity, and a major cause of workers resigning. When employees are unfairly discriminated against in this way, it is advisable that the employee should first confront the harasser directly, in the presence of a witness, and request the harasser to cease the harassment immediately.
Employees also have available to them the normal grievance procedures, or they can turn to their union or employees association for assistance.
Once the case has been reported, the employer is obliged to investigate the case and if necessary disciplinary action must be taken against the harasser.
 Any matters that cannot be resolved at employer level can be referred to the CCMA for conciliation and if a resolution is not reached by that process, then the matter will be referred to the Labour Court.
Harassment, because it constitutes unfair discrimination, falls within the jurisdiction of the Employment Equity Act.
Acknowledgement is made for the information contained in CCMA information sheet "Harassment" for the information contained in this article.

Salary Increase, Bonus and other matters

The Chairperson of the SABC Board, Irene Charnley re-assured BEMAWU on Monday (23 November 2009) the additional 1.5% increase will be effected by the end of this month, as per the Agreement. Bonuses (a contractual right) will also be paid as usual.

Post Retirement Medical Aid
A judge has been appointed as the case manager in this matter, going on trial in February 2010. We will publish a list soon with all the claimants. Please make sure your name is listed. The SABC is on record that only claimants will benefit from a ruling. Recently Polmed has won a similar case and the SABC has lost three times, the last time in the Appeal Court. BEMAWU members are covered by virtue of their membership as claimants in this matter.

If you are in possession of any documents that you haven’t send us previously relating to Post Retirement Medical Aid, urgently faxed it to us on 0866715585 or mail it to This is the only e-mail for BEMAWU Head Office. For personal mail, I can be mailed at

In short
  • So the SABC got a guarantee from Government to raise a loan. We trust no money will be squandered again. No Beijing trips, No Jazz Festivals. No Million Rand parties. Keep an eye on this and let us know if you see or hear anything. Let’s save our SABC from the Hyenas who only came to enrich themselves.
  • An outside Chartered Accounted will be acting in the suspended CFO’s position.
  • No appointments have been made in COO and CEO positions. According to Irene they are still busy with the process. Speculation that Solly Makoetle has been appointed as CEO or COO is simply not true, according to the Board Chairperson.
  • Don’t take your accumulated leave, as the SABC will not and can not take away any leave from you.



Wednesday, 18 November 2009

Substantive Negotiations

The ruling in respect of the Substantive Negotiations.

Keobokile Mosweu now wants to delay the process with all sorts of technical arguments.

It helps to get the right man for the right job....

1  At the last sitting of this matter on 4 November 2009, I indicated to both
parties that the matter would have to proceed to the next stage of the
enquiry, being the hearing of viva voce evidence in light of the fact that a
dispute of fact exists and it is trite law that same may only be resolved
through the aforementioned process.
2 To this end, I direct that the SABC must extend the life of this process to
20 November 2009.  
3 I further direct that my terms of reference as well as the main agreement
creating  this process, be amended and that the words “mediation” and
“mediator” (as same appear in both documents), be substituted with the
words “arbitration” and “arbitrator”. The process is therefore akin to a Con
Arb. The aforementioned documents (which documents I direct be
amended refer to” Mediation”, mediator” and are therefore confusing). The
“mediator” is called upon, in the aforementioned documents to “finalise”
the dispute and to make a “determination” which determination will be
“binding”(according to feedback relayed to me by the SABC and the
affected union parties.) I sought audience with the Board to seek clarity
from the Board but was prevented from doing so by the SABC
representative. This much became obvious during the proceedings. The
representative in question further prevented the parties from making
 concessions as directed by me and instead argued that I had exceeded
my mandate after I had so directed the parties. The SABC representative
further insisted that I finalise my report after the last sitting of the process
in spite of the issues I had highlighted on record. The SABC
representative’s attitude was totally disruptive and unprofessional.
4 In an attempt to finalise the matter I further direct the SABC  to make the
following persons available on 13 November 2009 (and to arrange that
the below-mentioned persons remain in attendance until the matter is
disposed of):
4.1 Mr Sipho Sithole;
4.2 Mr Eddy Molokoane;
4.3 Someone responsible for the administration of the SABC’s
pension fund;
4.4 Someone responsible for the administration of the SABC’s
housing subsidy;
4.5 Someone who can speak authoritatively on the medical aid
scheme of the SABC;
4.6 Someone who can speak authoritatively on the SABC’s group life
4.7 Someone who can speak authoritatively on TCOE;
4.8 The SABC’s lead negotiator during the 2008 negotiations with the
affected unions;
4.9 The affected union’s lead negotiator(s) during the 2008
negotiations with the SABC;
4.10 The two parties’ (SABC and the affected unions’) witnesses (if
5 The matter is to proceed before me on 13, 16, 17, 18, 19 and 20
November 2009.  
10 November 2009   

Tuesday, 17 November 2009

The most expensive Temp in South Africa?

So the Interim Board issued an unlawful instruction that you may not sell your leave days, despite your contractual right to do so. They furthermore unlawfully and despite your contractual right to accumulate leave threatened that you will forfeit your hard earned leave if you don’t take it. BEMAWU had to take a hard line approach and threaten the SABC with legal action and an urgent interdict before the Acting Chief Executive, Human Capital Mr. Sipho Sithole confirmed that BEMAWU members will not forfeit any leave, except the compulsory 12 days which employees have to take every year, if not taken.

We had seen an application for provisional liquidation of the SABC, strikes and protest action because the SABC alleged they had no money to pay employees, producers and its debtors. Performance management is non-existent, and when applied, it is used to punish and prosecute employees. There is no reward system coupled to it. SABC employees does not have any career paths. No employee can be promoted, say from a secretary to a senior secretary based on meeting standards and good performance. HR will inform that the post have to be re-evaluated. Those who qualify for promotions are told to wait, there is no money. Then some HR Consultants will whisper that Pat Naves, the suspended (why no action?) Chief Executive, Human Capital had issued an instruction that no ad-hoc promotions/salary increases will happen. Sithole denied it. He said it nonsense, no such instruction had been issued.

Fact is, it is almost impossible to get a regrading (move from one scale of seniority to the following), except if your name is connected to the former SABC Board Chairperson and it is starts with a “C” (for Colin). Then you jump several scales at once.

Then another announcement that the SABC deficit is even more than what we were told.

Bottom line is, there is no money... allegedly.

So having said all of this, Mr. Ray Nkwe, please explain where you getting money from to pay a Temp as much as R 40 458.60 per month in April this year, 2009? (There are several other payments made for even higher amounts for Temps) And how does one Temp work 290.5 hours overtime in one month?

And can the SABC please explain whether the moratorium on appointments means Temps can be appointed and paid exorbitant salaries, whilst current, permanent staff cannot sell one day leave to pay for school fees?

Maybe the SABC should borrow money from the Sales and Marketing Division?

R 100 035,00 for a Temp for three months can only mean there is more than enough money for the coming salary negotiations. So please, apply for regradings... Sell your leave, claim your outstanding money if you an independent producer, because the SABC does have money. No need for 1% tax.

Update: Another R 175,500.00 plus R 220 000,00 spent on a Temp by Sales and Marketing!!!

Friday, 13 November 2009

This is not the Army, Minister

So we saw the unconstitutional Bill, with no White paper, no Green Paper, no public participation trying to tax citizens for a TV license! What nonsense! So what Minister will be next in the queue and what other taxes will we have to pay for services we constitutionally does not want to associate with? Maybe tax for your dog license, gun license, radio license? What about Domestic Worker Tax? They are the lowest paid, so why don’t we pay tax to be distributed to all registered domestic workers?

Tax is definitely not the answer to the question of TV Licenses. When the SABC goes digital, there will be no longer analogue TV. So the SABC will have to use decoders. Decoders can be switched off if you don’t pay. So no pay, no TV. Easy.

Currently 1500 jobs are threatened by the proposed Bill, that strangely enough make mention of unemployment and the combating thereof.

BEMAWU will continue to fight the new Bill and the proposal to do away with TV Licenses. There are other, less invasive and very effective options available.

This is not the Army, Minister.

Tuesday, 03 November 2009

Draft Bill - SABC

We have received the draft Bill and we are currently studying it. BEMAWU will make representations to Parliament and the Minister in respect of the proposed Act.

If you have any comments, kindly forward same to me as a matter of urgency.