11 July 2022

Re: Concealment of Employment, Unfair Dismissal and Failure to Remunerate New

Frame Subeditors

Attention: The Board for the Centre of Pan African Media

1. We, the New Frame subeditors, write to you in response to informal

communication with members of the board whereby we were alerted to
the suspension of our services for the publication and were told of the
imminent termination of our employment with New Frame.

2. The purpose of this letter is to inform you that we are permanent part time
employees of the Centre of Pan African Media (“CAPM”) with
contractually guaranteed weekly hours of work.

3. By denying us our weekly hours of work CAPM and its board has
breached its contractual obligations to us.

4. Furthermore, if our services are terminated by CAPM and its board this
would amount to an unfair dismissal in terms of section 185 (a) read with
section 186(1)(a) and 188 (a)(i) of the Labour Relations Act 66 of 1995 (“the
LRA”).

5. The contracts provided to us by the managing editor, Lukhona Mdluli, on

or about 8 July 2022 purport to be “Independent Contractor Agreements”
and clause 6.1 of each of these contracts stipulates that we are to provide
our services to CAPM as contractors and not as employees.

6. This serves to conceal the reality of our employment relationship with

CAPM and New Frame in order to allow CAPM to escape its legal
consequences as our employer.

7. As is evident from the fact that all of our contracts are virtually identical to
each other, the CAPM has exploited the imbalance of bargaining power
between us and the business in order to compel its subeditors to enter into
standard form Independent Contractor Agreements.

8. At any rate the purported contracts are simply not relevant to the issue of
whether or not we are employees or independent contractors.
 9. The contracts were not signed by either party and would, in any case, have
expired had they been agreed to. All of us have continued to work for
New Frame after the supposed expiry dates of ‘our’ contracts.

10. As per the ‘reality test’ employed by the Labour Court and Labour Appeal
Court in order to ascertain whether a worker is an employee or an
independent contractor, the substance of our relationship with the New
Frame publication and the CAPM is one of personal service rather than
the production of a certain specified result.1

11. The preponderance of factors set out in sections 83A of the Basic
Conditions of Employment Act 75 of 1997 (“the BCEA”) and section 200 A
of the LRA create the “general impression” that an employment
relationship exists between ourselves and the CAPM.2

12. The New Frame editorial team and the CAPM are not simply interested in
a fixed result to be realised by the subeditors but rather in how we
performed our work. The work cannot be done as subeditors see fit. On
this basis alone, we are clearly in substance employees of CAPM.

13. In this regard, please note that the CAPM board and New Frame editorial
staff exercise overarching control over the manner in which we perform
our duties as subeditors in that we are required to work in accordance
with the incredibly detailed methodology laid out in New Frame Style
Guide which is owned by CAPM.

14. Furthermore, we are subject to systematic oversight and supervision by

New Frame editorial personnel.

15. While clause 4.2 of the contracts states that “the Contractor shall perform
the Services and in doing so, shall not be under the control or supervision
of the Company” this does not reflect the reality of the supervisory
structure at New Frame.

1
In this regard please refer to the following Labour Appeal Court judgments Denel (Pty) Limited v Gerber,
2005 (26) ILJ 1256 (LAC) at paragraph and State Information Technology Agency (SITA) (Pty) Ltd v
Commission For Conciliation, Mediation and Arbitration29 ILJ 2234 (LAC).

2
Please note that whereas we are aware that we earn below the relevant remuneration threshold and as such
these provisions do not apply to us, the factors enumerated therein nevertheless provide a list of indicators as
to whether an person is an employee or an independent contractor.
16. We have never been, as falsely stipulated in clause 4.3.2 of the contracts,
“solely responsible” for “our own business affairs” with respect to our
work for New Frame.

17. The manner in which our work is performed is directly and consistently
overseen by the editors in an iterative process that involves constant
communication with editors and journalists.

18. Matters of style were referred first to Darryl Accone, our line manager and
the Revise Editor, during his employment at the publication.

19. Often we have to refer questions to or field complaints from Monica

Laganparsad, the News Editor, and Richard Pithouse, the Editor in Chief,
regarding how they want the stories to sound.

20. We receive detailed and exacting instructions on how to perform our work
on a regular basis by these editors to whom we report and we are expected
to perform our work personally by the editorial staff.

21. Since we are required to engage in extremely frequent communication

with New Frame or CAPM employees, such as editors and reporters, we
are part of New Frame’s organisation.

22. New Frame’s publication process entails six steps: development, in which
an editor reads a story written by a journalist;

22.1 holding, in which the story waits, if necessary;

22.2 ready for editing, in which stories are picked up by subeditors and
edited, then moved into a subfolder to be revised;
22.3 editing, in which the story is read by its author who can comment on
changes or respond to comments by the subeditors or revise editor;
22.4 final eyes, in which a section editor reads the story to check for any
obvious errors;
22.5 and ready for publication, in which captions for photographs would
be edited by the subeditors and revised by the revise editor. The story
would be published from this folder.

23. The subeditors are extensively involved in at least three of these steps and
often have to engage all the way through as changes were suggested and
implemented.

24. We are integral to the process and cannot do our job without constantly
interacting with New Frame staff members.
25. That we are integrated into the New Frame organisation is further
illustrated by the fact that until the Covid-19 pandemic forced us to work
from home, New Frame subeditors were expected to work from the office
for at least some of the days we were on shift. This was to foster a collegial
atmosphere and so that subeditors, reporters and section editors could be
in direct contact and communication.

26. No matter where we work, however, the subeditors are a part of the New
Frame organisation and cooperate with New Frame employees.

27. All of us have @newframe.com email addresses with electronic signatures

as New Frame subeditors and are expected to use these for work.

28. Even the nature of the services which we are to perform as specified at
clause 8.1 and Annexure A of the contracts would require that we engage
in on-going communication with New Frame personnel and to present
ourselves as part of New Frame’s organisation as we “liaise with
publications and publishers about republication of their texts in New
Frame” and “help source and edit content for the weekly ‘New Books’ and
‘From the Archive’ features.”

29. Contra clause 5.1 and 5.1.1 of the contracts, New Frame provides its
subediting team with certain tools of the trade necessary to perform our
work.

30. The extensive style guides which were approved by the editor in chief and
are owned by CAPM have been provided to us by the organisation.

31. None of the subeditors can do our work without referring extensively to
the style guides.

32.  In addition, Fletcher’s main tool of the trade, a computer, was issued by
New Frame. 

33. The company stipulated the hours the subeditors had to work. We were
not in control of our own working hours.

34. We worked from 9am to 4pm or later and as is evident from Annexure A
of our contracts were expected to work a minimum number of days per
week.
35. If necessary, we were required to work on particular days of the week.

36. We were expected to be at our desks at 9am on stipulated days, no matter

what.

37. Our hours of work were therefore subject to New Frame’s control.

38. Fletcher and Nell are expected to work four days a week for New Frame
and so are economically dependent on the company. With only one free
day a week, we are unable to secure other work and we therefore only
work for New Frame.

39. All of the subeditors have worked for New Frame more than 40 hours a
month over the last three months.

40. Since New Frame and the CAPM controls how we perform our work as
well as our hours of work, provides us with essential tools of our trade,
has integrated us into the publication’s organisational structure and since
two of us are economically dependent upon the organisation and only
render services to it we are, in reality, New Frame’s employees.

41. It is despicable that an organisation purportedly committed to social

justice should be so duplicitous as to rely upon the sham that its
subeditors are not its employees.

42. Since we are not employed via valid written contracts and have worked
for New Frame after the supposed expiry of our contracts, we are New
Frames’ permanent employees.

43. Since all of us were, over the years of our employment with New Frame,
required to work a certain minimum number of eight hour days
remuneration per week, as is specified in Annexure A of the unsigned
contracts, we are contractually assured of minimum hours of work per
week and therefore of a minimum set income.
 44. Since we are New Frame’s and CAPM’s employees our exclusion from the
retrenchment consultation process and from potential retrenchment
packages is unfair.

45. If we are not paid for the period during which New Frame has not been
operational, through no fault of our own, the CAPM will be in breach of
contract.

46. We are prepared to pursue litigation or a dispute at the Commission for

Conciliation, Mediation and Arbitration if we are either unfairly dismissed
or are not paid moneys owed to us by CAPM.

Yours faithfully

Robyn Bloch, Kelly Fletcher and Helena Nell