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[2013] ZALCJHB 11
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Kambule v Commission for Conciliation Mediation and Arbitration and Others (JR 721/10) [2013] ZALCJHB 11; [2013] 7 BLLR 682 (LC); (2013) 34 ILJ 2234 (LC) (31 January 2013)
Reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
case
no: JR 721/10
In the matter between:
MAJOTA KAMBULE
Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER NADIA SITHOLE (
N.O.
)
Second Respondent
KAYA FM 95.9
Third Respondent
Heard
:
4 November 2011
Delivered
:
31 January 2013
Summary:
(Review – jurisdictional issue - existence of
employment relationship – principles applicable –
application dismissed).
JUDGMENT
LAGRANGE, J
Introduction
The second respondent, the arbitrator, issued an
in limine
ruling in the unfair dismissal claim of the applicant Mr M Kambule,
better known by his broadcasting personality name ‘Phat
Joe’.
The
in limine
ruling concerned the question whether or not
Khambule was an employee of, or an independent contractor to, the
respondent radio
station, Kaya FM95.9 (‘the station’).
The arbitrator found that he failed to discharge the onus of proving
that he was an employee. In reaching the conclusion she
appeared to
emphasise the following findings. The fact that the station was
allowed to veto the content of the morning show which
Khambule
presented did not amount to supervision and control of his work. She
noted also that the program manager had not been
attending meetings
to discuss the content of the program. Khambule submitted invoices
to the station in the name of his company,
Njabulo Communitech CC,
and was not paid for shows he did not present. No deductions were
made from his salary and he earned
additional money over and above
his normal monthly fee for so-called ‘shout outs’. The
terms of the contract alluding
to ‘remuneration’and the
like were not decisive factors. In his tax returns Khambule
described himself as an independent
contractor who received 80% of
his income from the respondent. The fact that he did not do other
work was a matter of choice
and not because he was prevented from
doing so. In fact he was entitled to do any other work which did not
conflict with the
work he performed for the station. He also
employed staff in his firm. Even though Khambule had a business card
bearing the station's
name, wore branded clothing and attended
functions and made public appearances outside the hours during which
he presented his
program on air, this was all merely part of the
marketing of his show and himself.
The arbitrator was referred to a number of cases dealing with the
vexing issue of how to identify the existence of an employment
relationship, some of which will be referred to below.
The law on the employment relationship
In
Denel (Pty) Ltd v Gerber (2005) 26
ILJ
1256
(LAC)
, Zondo, JP, as he was, characterised the task of a forum
deciding the jurisdictional question as follows:
“
[19] When a court or
other tribunal is called upon to decide whether a person is another's
employee or not, it
is enjoined to determine the true and real
position. Accordingly, it ought not to decide such a matter
exclusively on the basis
of what the parties have chosen to say in
their agreement for it might be convenient to both parties to leave
out of the agreement
some important and material matter or not to
reflect the true position.
[20] If a court or other tribunal were to be
precluded from looking at matters outside of the parties' agreement,
there would be a serious danger that it could be precluded from
determining the true position or the true I relationship between
the
parties and end up making a finding that the parties wish it to make
as to the position when in fact the true position is different.
That
cannot, in my view, be allowed in a case where the duty of the court
or tribunal is to determine that which is objectively
the position.
Indeed, were a court or tribunal faced with such a
question to decide it in accordance only with the contents
of the
agreement between them, then, in a case such as this one, where the
decision whether a person was or was not another one's
employee goes
to the jurisdiction of the court, the parties would in effect be able
by their agreement to confer jurisdiction on
a court or tribunal
which it otherwise does not have or to take away from a court or
tribunal jurisdiction that it otherwise has
over them. That would be
completely untenable and can simply be not allowed because whether or
not a court or other tribunal has
jurisdiction in a particular matter
is, generally speaking, a matter that must be determined objectively
and not be based on the
say-so of any party or, indeed, of all
parties to a dispute.”
1
Because a ruling on a person’s employment status is a
jurisdictional question, if a party seeks to review such a ruling
it
can be set aside, on the evidence before the arbitrator, simply on
the grounds that it was wrong and not because it was a
ruling no
reasonable arbitrator could make. The LAC made the distinction
between reviews based on reasonableness clear in
Fidelity Cash
Management Service v Commission For Conciliation, Mediation &
Arbitration & Others
(2008) 29
ILJ
964
(LAC)
“
[101] Nothing
said in Sidumo means that the grounds of review in s 145 of the Act
are obliterated. The Constitutional
Court said that they are suffused
by reasonableness. Nothing said in Sidumo means that the CCMA's
arbitration award can no longer
be reviewed on the grounds, for
example, that the CCMA had no jurisdiction in a matter or any of the
other grounds specified in
s 145 of the Act. If the CCMA had no
jurisdiction in a matter, the question of the reasonableness of its
decision would not arise.
Also if the CCMA made a decision that
exceeds its powers in the sense that it is ultra vires its powers,
the reasonableness or
otherwise of its decision cannot arise.”
2
(emphasis added)
The standard test for employment has evolved over the years. It
finds its latest and most expansive expression in the decision
of
the LAC in
State Information Technology Agency (Pty) Ltd v
Commission For Conciliation, Mediation & Arbitration &
Others (2008) 29
ILJ
2234 (LAC)
. In that
matter the LAC expressed current thinking as follows:
“
[10] ...In
short, the court in Denel, approached the vexed question of
the employment relationship on the basis of the
substance of the
arrangements between the parties as opposed to the legal form so
adopted. That particular judgment has been the
subject of legal
analysis. See in particular André van Niekerk
(2005)
26 ILJ 109
,
who in turn refers to a most comprehensive and thoughtful analysis by
Paul Benjamin in
(2004)
25 ILJ 787
.
Benjamin's contention is that the Denel judgment is congruent
with s 213 of the Labour Relations Act which inter alia defines
an
employee as any other person who in any manner assists in carrying on
or conducting the business of an employer. Benjamin (whose
article
was written before the decision in Denel), notes that the issue of
the employment relationship has become crucial to labour
law partly
because of the concept of outsourcing and because, in many cases, a
traditional employer-employee relationship no longer
operates in the
labour market. He refers in this connection to international
standards developed by the ILO and, in particular,
to recent
conventions which 'show a conscious policy to extend their
application to workers not employed in convention[al] employment
relationships' (at 801).
[11] Benjamin then makes a further useful point
in relation to the determination of this question (at 803):
'A starting-point is to distinguish personal dependence from
economic dependence.
A genuinely self-employed person is not
economically dependent on their employer because he or she retains
the capacity to contract
with others
.
Economic dependence
therefore relates to the entrepreneurial position of the person in
the marketplace
. An important indicator that a person is not
dependent economically is that he or she is entitled to offer skills
or services to
persons other than his or her employer. The fact that
a person is required by contract to only provide services for a
single ''client'
is a very strong indication of economic dependence.
Likewise, depending upon an employer for the supply of work is a
significant
indicator of economic dependence.'
[12] For this reason,
when a court determines
the question of an employment relationship, it must work with three
primary criteria
:
1
an
employer's right to supervision and control;
2 whether
the employee forms an integral part of the organization with the
employer; and
3 the
extent to which the employee was economically dependent upon the
employer
.
[13] These three tests are congruent with the
principles in the Denel judgment.”
3
Reason dictates that the test is qualitative rather than
quantitative. Even if it is useful to list factual indicators by
category,
the nature of the relationship cannot be determined simply
by comparing the number of indicators for and against the existence
of an employment relationship. This is because some indicators
necessarily tell us far more about the substance of the relationship
than others. For example, a term of a contract setting out an
obligation to deliver a finished product by a particular time,
will
usually carry more weight in determining employment status than the
fact that the contract also bears the title "contract
of
employment".
Material factors bearing on the applicant’s employment
status
The contract between the parties
The parties entered into an 18 month contract entitled “INDEPENDENT
CONTRACT AGREEMENT” between the station and Khambule,
in which
Khambule was referred to as ‘the radio personality’. The
provision dealing with the services Khambule would
provide read:
"5
SERVICES OF THE RADIO PERSONALITY
5.1 radio personality’s services shall include and entail:
5.1.1 presenting and producing a radio program Monday to Friday
from 05:00 hours two 09:00 hours excluding public holidays.
5.2 the radio personality undertakes to:
5.2.1 abide by broadcasting requirements laid down by the station
management, which may contain authorised editions or adjustments
as
may be brought about from time to time;
5.2.2 perform services in accordance with the instructions which
may be given to the radio personality from time to time by the
program manager of the station;
5.2.3 ensure that performance of the services shall not contain
anything defamatory or anything calculated to the bring (sic) of
the
station into disrepute;
5.2.4 ensure that the execution of services does not contain any
unauthorised advertisements or promotions;
5.2.5 adhere to the station security rules and other station
regulations;
5.2.6 ensure that the radio personality does not make any
statements will give interviews to any form of media whether print or
electronic, concerning the station without obtaining prior written
approval of the station; and
5.2.7 attend all meetings deemed necessary by the program manager
and/or station management;
5.2.8 present either in the station studio and/or from outside
broadcast unit, at the sole discretion of the station;
5.2.9 attend all functions arranged by the station, upon
reasonable notice and provided that the professional schedule of the
radio
personality permits it if it should be outside the hours
hearing stipulated;
5.2.10 the radio personality and takes to read and respond to all
communications from all stakeholders to ensure effective
communication
channels and maintained;
5.2.11 actively promote and sell the station to advertisers under
the terms of a separate agreement whose basic terms outlined in
and
it should be.
5.2.12 be responsible in conjunction with the digital content
manager and show producer for content for the higher website,
downloads,
blog or other digital platform content the show may
produce."
Other provisions in the contract reinforced his obligations
regarding broadcasting regulations and publication of defamatory
material by requiring him to warrant that he would not knowingly air
any material which might be in breach of such obligations.
On request the station was obliged to provide a written outline of
human resource procedures that would apply to the radio personality
and it would provide all technical support necessary for him to
fulfil his obligations, subject to the proviso that he would
have to
pay for lost or damaged equipment. The station further undertook to
provide him with written notification as soon as
possible of any
meetings or functions requiring his presence outside of the hours
during his broadcast and undertook to provide
him with minutes of
any meeting taking place during his broadcast to keep him informed
of what transpired in the meeting. The
station also undertook to try
to provide an annual budget for promotion and production within the
station budget and to budget
separately for the breakfast show.
Under clause 7 headed "Remuneration and Conditions of
Employment" his remuneration was described as a total cost to
company “salary” paid monthly “as a consideration”
for the services referred to above. The clause also
indicated an
intention for the station to develop a relationship with Khambule
for up to 5 years with annual "salary reviews".
It further
undertook to renegotiate an annual contract based on audience and
show revenue increases. The station reserved the
right to deduct
employee taxes and other statutory deductions that might apply to
him, save that if the station was exempted
from making such
deductions by SARS, the tax liability would fall on Khambule. It
also undertook to reimburse him for all expenses
disbursements and
costs reasonably incurred with the approval of the station in the
course of discharging his duties under the
contract. Khambule was
entitled, but not obliged, to join the station's medical aid scheme
but the full cost of membership would
be for his account.
If Khambule required time off from presenting the show he was
obliged to give reasonable notice to the station and had to present
a “comprehensive” medical certificate if he was unable
to present the show on account of illness. His failure to
appear on
the program would disqualify him from receiving fees vote for so
long as he was absent for whatever reason.
Clause 9 of the contract read:
"9
RIGHTS OF BOTH PARTIES
9.1 In respect of the radio personality:
9.1.1 the radio personality is self-employed and is not an
employee of the station. Neither party shall represent itself as an
agent,
representative, employee, partner of the other, another party
shall incur any liability whatsoever for the other.
9.1.2 the radio personality may have other lawful business
interests, which may be pursued out of our stipulated for the
rendering
of services in terms of this agreement. Notwithstanding
this acknowledgement, the radio personality agrees that her services
related
to such business interests may not conflict with the
station's image as projected in the program.
9.1.3 the radio personality shall be entitled to work for
organisations which transmits signals via a public address system,
provided
that the station shall have first call on radio
personalities time and services in the event of a conflict existing
between such
work and the radio personality services in terms of this
agreement."
Apart from these limitations on the applicant’s freedom to do
other work, he was also subject to a restraint of not performing
any
work for other radio stations in southern Africa or for any other
business competing with the station. He was entitled to
retain
copyright in any concept involving his name that was clearly
identified with his independent work in media business outside
of
the station's business, and for recorded material made privately,
outside of the scope of the agreement, which the station
agreed to
use or purchase from him.
In terms of one provision, each party was required to give three
months notice to the other of termination of the agreement.
Confusingly, another provision of the contract permitted either
party to terminate the agreement on one calendar months notice,
save
that it seems it was intended in terms of clause 14.5, a portion of
which is missing, that any misconduct which would justify
summary
dismissal at common law. In terms of clause 13.1, the parties were
entitled to call on each other to remedy any breach
of the agreement
within 10 days or such extended period that might be necessary to
remedy the breach, where after a party could
terminate the agreement
on notice if the breach was not rectified. In the stations founding
affidavit before the CCMA it was
said that the one month notice
provision was the operative one and the 90 day version was an
earlier draft, though this was not
apparent from the copy of the
contract appearing in the record before the court. It must be said
that the various termination
and notice provisions appear partly
incomplete and lack coherence and consistency, making the true
intention of the parties difficult
to discern.
Clause 15.4 of the contract provided that any dispute between the
parties about the interpretation or effect of the parties rights
and
obligations under the agreement or any matter arising out of it
would be decided by private arbitration in terms of the
Arbitration
Act 42 1965
. It seems the effect of this provision was not something
that was raised as an
in limine
point, and I will confine
myself to the jurisdictional ruling which is the subject of the
review.
Other material features of the relationship
The collapse of the relationship was precipitated by letter dated 19
January 2009 from Neil Johnson the content manager of the
station.
In the letter entitled "Morning Show Issues" he stated
that the letter served two purposes: firstly to put
Khambule on
terms and to record that any further material breach like the ones
described below would result in summary termination
of service
contract and secondly to gauge Khambule’s responses to the
issues which would affect the stations decision whether
to renew the
contract or not. At the end of the letter the points out that:
"...were you an employee, [this letter] would
be tantamount to
a final warning and given that you are a contractor, you are hereby
placed
in mora
and if there is a further material breach of
the same or similar nature to the issues raised herein above then
you may expect
the termination or at very least non renewal of
contract." The letter listed the complaints, which might
usefully be summarised
under the phrase “gratuitous smut,
sexual innuendo and partisan politicking” , a term that the
station used to describe
Khambule is alleged breaches of
broadcasting legislation. Certain complaints were particularised
such as a promotion for a brandy
in which finalists were made to eat
cat food, much to the annoyance of the sponsoring client. In another
promotion contestants
were dared to drink the presenter’s
urine.
In station further complained that he failed to maintain a balanced
outlook and criticised his frivolous new year ‘prediction’
that the president would be raped, and his handling of the killing
of the ex-Speaker of Nelspruit in which he suggested that
the merger
was a political killing which the ANC was responsible. The station
also raised its concern that there was a perception
that he was too
‘pro-COPE’. This complaint was prefaced by a reminder to
Khambule that government institutions spent
between seven and ten
million rands annually in advertising on the station.
While stressing its support for political debate on the program,
management and wanted Khambule to be more even handed in his
attacks
on political personalities. The letter also mentioned a more minor
gripe that Khambule would not play the so-called “business
classic” at the end of the morning business report.
Khambule made a detailed, eloquent and voluminous reply to these
complaints. He ended the letter querying why it was being
characterised as a final warning when he had been led to believe
that three written warnings were the norm. The final paragraph
of
his response reads:
"Given that we disagree with regards to the concerns tabled
in your letter, I hereby request that you formally withdraw the
concerns in your letter and we resolve the issue through dialogue, or
we refer the concerns in your letter arbitration in terms
of my
service agreement and arbitration act 42 1965, to bring formal
finality to these concerns."
At the arbitration hearing both parties presented extensive heads of
arguments and the matter was argued on the allegations set
out in
the parties’ respective affidavits. In the affidavits filed in
the review application some of the factual claims
were expanded on,
or amended, but it is the factual material before the arbitrator
which must be considered.
The applicant's case
The principal allegations marshalled by the applicant in support of
its contention that Khambule was an independent contractor
are set
out below. Apart from being entitled to do other work, Khambule was
the CEO of Phat Joe Holdings (Pty) Ltd and sole member
of Njabulo
Communitech CC (‘the corporation’), and invoices were
issued by the corporation for the program services
provided by
Khambule. VAT was added to the program fees in the invoice. Khambule
had declared to SARS that the Closed Corporation
did not receive
more than 80% of its income from the station. The corporation also
employed three other persons, which the station
claimed did not work
for it. Khambule did not dispute the last mentioned allegation in
his answering affidavit before the CCMA,
though he later maintained
that the persons engaged by his firm had been used to develop
material for the program he presented
at the station. Other than
attending pre-and post production meetings to discuss the show,
Khambule was free to do as he wished
outside the broadcasting hours
of 05h00 to 09h00. For this he received a fixed monthly fee which
was not specifically linked
to the actual hours he worked. The
station emphasised that it was the provision of the program which
was the primary obligation
of Khambule. He determined the content of
his program subject to compliance with the broadcasting regulatory
regime. Further,
Khambule pursued other commercial interests of his
own "such as a television licence and mining rights", a
claim which
Khambule did not dispute in his answering affidavit.
Khambule and the station had entered into a third-party agreement
with a property leasing company in terms of which, in exchange
for
advertising by the station, Khambule was given rent-free
accommodation in a furnished apartment, whereas no other employees
received a benefit of this nature. Khambule was also the beneficiary
of a unique arrangement enjoyed by no other employee of
the station
in terms of which he was allowed the free use of a Cadillac as part
of a branding exercise, which complemented his
on air persona.
Lastly, the station due attention to features of the contract
between the parties and pointed out that in his reply to the
stations letter of complaint, Khambule did not dispute the statement
that he was an independent contractor.
Khambule’s case
Khambule presented his evidence under the heading of various tests
which had been used to determine the existence of an employment
relationship. Thus, he maintained that he worked under the control
and direction of the respondent. In this regard he cited his
fixed
working hours, the control of material aired on the show, and that
he was disciplined. He maintained that his contract
confirmed this
point because he had to report to the program manager, abide by
broadcasting requirements and station regulations
laid down by
station management. He also cited the restraint which prevented him
from rendering the same services to other radio
stations or
businesses competing with the station and clause 9.2.2 of the
contract in terms of which the station retained its
"prerogative"
to change program content "in conjunction with the radio
personality". He also cited the fact
that the required the
station's permission to take time off his broadcasting schedule and
the fixed program hours as indicative
of the station's control over
him.
Khambule interpreted the housing and vehicle benefits he received as
company benefits which showed that he was part of the station's
organisation. He also saw the integration of his radio personality
in the station's marketing campaigns as another indication
of this.
At work he was provided with a workstation and worked in conjunction
with a team of employees of the respondent dissociated
with the
production of the program. The station pointed out that a number of
the announcers he worked with were also contractors
like himself. He
also had an e-mail address at the station and was given Kaya FM
business cards which described him as a presenter.
Although his broadcasting hours consisted of 20 hours a week he
claimed that on average he would work between 35 and 50 hours
a week
on the program. In practice he worked exclusively for the station
and was totally dependent on the income he received
from it.
Khambule also pointed out that the station provided him with all the
technical and broadcasting equipment required for him to
present his
program and that he was reimbursed for expenses incurred in
discharging his programming duties. Moreover, in the
budget for the
program the station provided the necessary financial support to
produce the show.
Khambule relied too on the reference in his contract to remuneration
and conditions of employment as indicative of the fact that
he was
an employee who received remuneration and the station's reservation
of its right to deduct employee tax was another factor
supporting
this contention.
Analysis
The employer's right to supervision and control
In his letter responding to the stations complaint, the applicant
points out that the programming manager attended planning meetings
and contributed during the first three months of the contract but
thereafter only attended approximately 20% of the meetings.
It is
also apparent from the retrospective nature of most of the stations
complaints that it concerned how far Khambule had pushed
the
boundaries of his program content in exercising his discretion,
rather than his failure to comply with direct instructions
on the
content of each broadcast. The fact that he was subject to
broadcasting regulations and the common law of defamation is
a
factor that would affect employee and contractor alike engaged in
public broadcasting activities. It is also noteworthy that
clause
9.2.2 of the contract concerning changes in program content required
such changes to be done ‘in conjunction’
with Khambule,
which is not something one would expect in a relationship of
subordination.
The fact that the station’s contract had with Khambule as a
radio personality was clearly because it wanted to harness
his
unique style of presentation and edgy program content to its station
profile. It was only when it believed that Khambule
had pushed the
proverbial envelope to breaking point that it sought to reassert
parameters of what was acceptable. Setting broad
content parameters,
particularly when these also reflect concerns of possible breaches
of the regulatory regime governing public
broadcasting, is not
comparable in my view with the supervision and direction of an
employee's work.
Integration in the employer’s
organisation
In the context of making public broadcasts as a business, it is
difficult to imagine how a program broadcast could be delivered
with
out a degree of cooperation between all the individuals whose
efforts must be coordinated to make the program presentation
possible. In relation to the program itself, clearly Khambule was an
integral part of that program team, but beyond his commitment
to the
program he was free to pursue his interests independently without
reference to the organisational structure or hierarchy
of authority
within the station.
Khambule was a radio personality presenting his program as part of
the station’s offering. In that capacity, having an
e-mail
address of the station was a reasonable ancillary tool to facilitate
communication with him on matters pertaining to his
program. He
never claimed it was his exclusive e-mail address and in my view
this is a relatively trivial factor in determining
the substance of
his relationship with the station. The same goes for the business
cards, which was also part of the way in which
the station sought to
benefit from his personal brand, and was part of a marketing
strategy rather than a factor determining
the absorption of all
Khambule's remunerative activity in the business of the station. The
fixed nature of the program hours
is also an inescapable incident of
regular live programming. How Khambule prepared for the program how
much time he spent himself
on preparation and how much he relied on
the services of others for this was a matter of his choice.
Similarly, the fact that the station provided the technical
infrastructure necessary for production of the program, is little
different in my view from an airline using freelance pilots
providing the aircraft which they fly. It is true that if Khambule
had produced the program in his own studios, that would have been a
clear indication of his organisational independence, but
the absence
of that does not mean that Khambule’s economic activities were
all an integral part of the station's business.
It is noteworthy in
this regard, that Khambule retained his own staff who were not under
the supervision or direction of the
station nor were they part of
its organisation, or in its pay.
In this regard, it is also noteworthy that even though the applicant
was entitled to claim disbursements and expenses incurred
in
performing his duties, his closed corporation was registered for VAT
and VAT invoices were issued for his work. This would
have entitled
the corporation to claim VAT deductions for its business-related
expenditure. The fact that Khambule's services
to the station were
linked to the sale of services by the corporation is also indicative
that his work was part of the corporation's
business activities.
Economic dependence
Khambule maintains that he was solely reliant on the remuneration
received from the station, but on the other hand portrayed
to SARS
that it did not exceed 80% of the income to his Closed Corporation.
Khambule also maintained his interest in the Closed
Corporation and
his company while engaged to produce the program. The point made by
Benjamin alluded to above is pertinent in
this regard. Khambule
maintained a business profile as an entrepreneur in his own right
and in terms of his contract only gave
up his ability to work in
competition with the station. What he brought to the station was his
services as a radio personality,
not all his creative and commercial
capacity, which he remained free to use in other non-competitive
pursuits outside of the
broadcasting hours. The more efficiently he
used his own time for preparing the program or the more he paid
others to do so,
the more time he could dedicate to other economic
pursuits.
It may well be that the applicant did not pursue other remunerative
opportunities with any enthusiasm and relied on his income
from the
contract with the station, but he never claimed he was prevented
from doing so. I am satisfied that he retained sufficient
independence to do other work in the media field or elsewhere.
Conclusion
In the circumstances, I believe that Khambule exercised considerable
discretion over the content and manner of presentation of
his
program subject only to broad parameters and the legal regulatory
constraints of broadcasting. Moreover, any fundamental
change in the
content of his program was something to be done in conjunction with
himself. He also retained sufficient freedom
of contract and a
discretion as to how he used his time outside of broadcasting hours
to pursue other commercial activities and
the restriction on
competing with the station did not sterilise his capacity for
engaging in other gainful activity. The extent
to which he worked in
the organisational context of the station was limited to what was
strictly necessary for the purposes of
producing and broadcasting
his program. Any other economic activity he pursued he could do as
an individual or under the auspices
of his own corporate entities.
Consequently, I believe that a consideration of the relevant
criteria, shows that Khambule was an independent contractor rather
than an employee of the station.
Order
Accordingly, the following order is made:
The application to review and set aside the ruling of the second
respondent dated 1 February 2010, under CCMA case number GAJB
33319-09 is dismissed.
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
Appearances:
For the
applicant: B Marques of Fluxmans Attorneys
For the
third respondent: J D Crawford of Crawford and Associates Attorneys
1
At
1264-5
2
At
996
3
At
2238