You have to get to the root of a snag in order to make a breakthrough, because it’s possible that what you thought you knew is actually wrong. Unlearning is perhaps the hardest thing to do, but it must be done. Any knowledge, unless updated, becomes worthless.
Viswanathan Anand (five-time World Chess Champion)
All organizations need to know that virtually no program or activity will perform effectively for a long time without modification and redesign. Eventually every activity becomes obsolete.
Peter Drucker
Introduction
South Africa has a proud and sophisticated history of understanding that workplace rights affect the rest of our lives, that we cannot speak of dignity, human rights and societal progress in the abstract, and that where and how we work affect the very essence of the quality of our lives.
Our framework of labour laws, patiently built up through activism, litigation and the blood, sweat and tears of generations of people who insisted on making these slogans a lived reality, serve as inspiring guidance not just here, but also in global workplaces. Against this backdrop, it is then troubling to realize that the South African creative sector (unless otherwise indicated I mean this in as wide a sense as possible) is essentially unregulated, without the most basic of employer or employee protection and negotiating frameworks.
An industry that contributes approximately 3% to SA’s GDP, that contributes over a R100 billion tax to the fiscus and supports around 1, 4 million jobs (or about 7% of employment share), that is somehow excluded from formal employment protection and frameworks was bound to at some stage attract questions and attention as to why this seeming oversight is allowed to continue.
The conflict itself – setting the stage
There seems to be no specific historical decision by government, unions or the various components of the creative sector itself to so exclude itself from regulation. Understanding the rest of our frameworks show that the various industries and sectors have all worked hard at establishing and then developing their own interests and progress, and the seemingly monolithic status of our labour laws should not detract from those varied and specialised lobbying efforts that have shaped our current laws.
The work done in the industry gets managed and described in a number of ways – actors and people offering services are described and understood as consultants, freelancers, independent contractors and even the occasional “employee”, understood in a manner that is hardly recognizable from the legal term “employee”. Contracts and projects are negotiated, entered into and executed in a rather ad hoc manner, with an uncomfortable level of error, ignorance and imagined compliance often holding the commercial fortunes of the parties involved together with duct tape and a prayer.
As with all unregulated commercial affairs, compliance is more imagined than real, self-regulation is a far-away dream, and the rather inevitable conflict arising from these agreements are often cyclical, complex, expensive and damaging to resolve, and full of sincere misunderstanding and designed abuse. The result is an industry that often negotiates and enters into agreements simply for the sake of some nod in the direction of formality, with options and value creation perceived to be found on a short and uninspiring list of preconceived options.
Those in traditional employer roles do not see much room for improvement or even discussion. “It is what it is.” Negotiations, if we can call it that, run on the well-worn tracks of budgets and the way things are. Those in traditional employee roles do not see much room for improvement. “Things are what they are”. Negotiations are often formalities operating in a very tightly delineated space, more designed to make participants feel better than to resolve the lingering problems faced by all, in differing degrees.
The creative arts run on lines that are depressingly uncreative. In the process, as with all unresolved complex conflict, we end up with spirals of hopelessness, despair, distrust of people and processes, and a fatalistic acceptance of perceptions and limitations.
Enter regulation, stage left
Into this disheartening situation then step two recent, apparently unconnected events, events that I would suggest will take up some significant space when the history of South African labour development is told one day. It starts off, about two years ago, with the South African Guild of Actors (SAGA), the industry’s best-known body working for an improvement to the conditions we briefly mentioned earlier, receiving a formal exemption from the Competition Commission to enable them to start negotiating with interested parties in the industry in order to try and create some order from the prevailing chaos. SAGA, led by industry icon Jack Devnarain and his team, are now, by virtue of this exemption, given the greenlight to go ahead and try and create stability, predictability and creative solutions for the industry.
We will return to that platform later on in the article. The second event (actually three legislative events that happened so close in proximity to each other that we can regard them as one category) is the government’s own intervention in the situation.
The unregulated wilderness of the creative industry suddenly have not one, but two possible legislative interventions affecting the very essence of these unregulated working conditions, specifically the questions of employee status, employee rights and the rights flowing from organized labour, such as collective bargaining.
Between January and February 2026 we then have the ministerial notice of a deeming provision (specifically a notice of intention under s83 (2) of the BCEA), proposing to deem performers in acting, advertising and cultural activities as employees for specific employment protections. Towards the end of February we see the publication of the draft Employment Laws Bill (the ELA bill) and the draft Labour Relations Amendment Bill (the LRA bill).
This article is not designed to be a formal legal discussion of these bills, so for our purposes we can start of by noting that the deeming notice will, if accepted, deem certain service providers in those positions to be protected as employees for specific categories of protection, and the latter two bills propose extensions of the concept of an employee, various extended presumptions (such as a reverse presumption requiring the employer to establish that someone is not covered, and so on), flexible work, the practicalities of the gig economy, the rights of certain workers to bargain and strike, and a range of realities faced by freelancers and independent contractors at this stage.
Between SAGA’s work then, and these legislative developments, the creative sector has moved on from absolutely no regulation to far-reaching external regulation or drastically improved internal self-regulation being inevitable, and imminent. But to what extent is such progress, such regulation (either externally imposed, self-regulated or a hybrid thereof), beneficial to the various parties to these processes, and to the industry as a collective?
To what extent is regulation necessary, or desirable?
Some of the current debate is focused on issues that only now seem to have become relevant. Our employment law, for example, has already developed a passing solution for the entire employee / independent contractor presumed dilemma, through legislation and a well-developed body of case law. Whether we use that, or even the decades-old tests designed to determine whether a worker is an employee or an independent contractor, the position should have been clearer.
A range of CCMA and Labour Court decisions in recent years have however showed a disappointingly conservative approach to these debates, service providers being decided to be independent contractors (and hence no labour law protection) in cases like Kambule (2013), Goliath (2022), and the Generations actors being dismissed after what they called strike action. At the very best, and regardless of the interpretation of these laws, the position of service providers in these situations, as far as they may be seeking even the most basic employment law protection, is at best a precarious one, and these case law patterns show both the desire for clarity, and the very real lack of protection experienced by service providers.
The fair question flowing from this, is “So what?” This is the way that the industry has been for decades. People can negotiate. Those who contract with these service providers look after them, it is in their best interests to do so. If a service provider does not like what is on offer they can go elsewhere. Budgets limit what can be paid, it is a unique market…. and so the justifications and often sincerely held beliefs tell us.
Wearing one’s organized labour hat, of course none of these reasons hold water. We can apply them verbatim to most other industries. Why must doctors and lawyers be protected as employees in their internal arrangements? Mining is facing financial pressures, the car manufacturing economy cannot stand this type of regulation right now, retail workers are well-looked after, and so on.
We just heard all of those defences in similarly and previously unregulated industries such as the domestic worker and farm labourer industries, and they have all been regulated to the point of being indistinguishable from the rest of the economy enjoying employment protection and organized labour benefits. But let’s return to this part of the equation below. What about the perfectly legitimate arguments showing, with accurate and depressing data, the existential pressures that the creative arts are experiencing globally?
The threats of changed consumer habits, streaming, artificial intelligence and evaporating budgets? It is in this area where I believe that the creative arts does deserve to be treated as a sui generis instance, and where unquestioning other industry comparisons may provide us with a skewed and harmful picture.
A few comparative studies, local and global
Comparing the South African creative arts firstly to other industries and sectors in South Africa leaves us with the distinct impression that policymakers may not be all that interested in the nuances and subtleties of the arts.
It is still difficult to understand how this esteemed industry has simply escaped legislative and regulatory nets for this long. South African legislators may however, with a good measure of justification, simply include the creative sector into the employment net, and leave those nuances and specifics to be dealt with at the collective bargaining level. It works, to debatable degrees, for other industries.
The deeming provision notice is, in this respect, rather unique, in that it seeks to deal with the very specific challenges of an industry that has shown itself to require specific attention to its operational intricacies. If we compare this place in time and history with other comparable global experiences, we find recent developments that some would argue are examples of victories for actors, but which I would rather come back to in my concluding remarks below.
Briefly summarized, we find that US actors, mainly as spearheaded by the SAG-AFTRA unit, have made impressive inroads in the 2023-2026 period, with a protracted strike and other unionized strategies bringing about significant progress in streaming residuals, minimum staffing, AI / digital replica protections, stronger AI guardrails, picket line protection, success bonuses and so on. The streaming and gig projects remain precarious, to put it mildly, AI remains a significant threat, and enforcement of secured rights are all significant remaining challenges.
In the UK the Equity – PACT negotiations are ongoing, showing some progress on AI offers and threats, consent-based complaints, residual and royalties reforms, and to an extent also on compliance and actual enforcement.
At the EU level we see some silver linings in the fair remuneration, data mining opt-outs and unauthorized AI training. The generally unsatisfactory state of these negotiations are shown by the continuation of a variety of AI-related threats, and the threats of industrial action on an ongoing basis.
These comparative studies should assist the South African experience in showing us two very clear, rather objective results flowing from regulation, firstly, that regulation at some level is necessary, but secondly, that regulation is not the panacea that some deem it to be, and that even in comparatively well-regulated industries significant interest-based conflicts remain, ongoing problems that will not always be resolved with regulation.
A suggested solution from a conflict resolution perspective
The hammer of regulation does not always bring progress and benefit. In South Africa a range of legislative interventions in troubled industries have either not resolved existing problems, or exacerbated existing problems, or caused new challenges. From BBBEE debates, to the dynamics of agriculture, tourism and the domestic worker industries, with the securing of minimum wage, organization rights and employee status also came other serious challenges, often of a financial and operational nature.
The comparative analysis of global experiences of full or partial legislative regulation and employee status show that this is a blunt tool, solving some problems while creating others.
When producers and entrepreneurs warn of limited budgets and the waning attractions of the industry in which they are expected to invest time and money in, some of them are actually quite correct in their assessments. What is the best solution in this complex conflict?
What brings the best, most widely disseminated benefit and progress to the biggest number of participants, while assuming the least burden of risk? Personally, I see the solution rather clearly. That solution may however no longer be available to the industry.
Let’s first look at my suggestion as to the best solution, whether it is attainable or not: In broad terms:
1. Legislation and regulation is not a magic wand, it does not guarantee employment or progress. Meaningful legislative intervention and regulation is necessary, but should be attended to urgently, surgically, and sparingly.
2. This regulation should be tailor-made not just for the popular idea of the creative industry, but for the various sub-genres (theatre, movies, streaming, television, voice-over etc).
3. If regulation can be timeously implemented, the question of employee status need not be a distraction. Being an employee has its benefits and its downsides. Service providers are not complaining about being employees so much as they are seeking certain levels of protection and organizational rights, clarity and stability. These can be achieved with or without being designated, or deemed, to be an employee.
4. A regulatory framework, with minimum intervention, should aim at minimum rights, such as health and safety, organizational and process rights. Parties should be less told what to do than to be given a system and the tools to create what they want on an ongoing basis. Self-regulation, internal dispute-resolution mechanisms, training in substantive but also procedural skills should be the main aims of such a system.
5. The creative sector must be better funded, and funding should be clearly allocated also for these procedural improvements. Bargaining councils, sectoral determinations, compulsory industry standards and participation – these are tools that work elsewhere, they must be made an important part, in some form or another, of the creative sectors’ solutions. If need be, the term “employee” can be implemented, but tailor-made for the various sectors, with opt-out clauses, rate determination bodies or mechanisms, and industry-level regulatory bodies. It works elsewhere, there is no reason why this level of regulation, that forces parties to participate, but leaves the realities of the industry open to negotiation, cannot be implemented.
6. Government can play a minimal, steering role in ensuring compliance and enforcement of self-regulatory outcomes.
7. The self-regulation, negotiation of various matters of mutual interest, and the enforcement thereof, should be designed to give the involved parties the first option to negotiate and implement such measures themselves, only allowing for escalation once clearly defined initial measures have failed.
8. Within that regulatory framework (which can include legislative aspects), parties should have a revised but improved autonomy to manage and negotiate their own best interests. Certain rates and repeat aspects can be regulated, and the comparative studies show great results from this approach, but the industry should avoid ending up with heavy-handed, one-size-fits-all legislation that unintentionally drains the very life and spark from the sector, all in the name of regulation and protection. Within that safety net, that framework, parties should be able to improve their negotiation and bargaining skills and positions, and professional tools and support for negotiation and advisory assistance through professional bodies such as the Personal Manager’s Association (PMA), should be encouraged and enabled. Decision-makers should discuss the questions with organizations such as SAGA before the answers are suggested or implemented.
I anticipate two potential causes for the derailment of such an optimal solution before we get there. Firstly, the involved departments and legislators seem to have an urgency to their work. These bills are well-drafted, and they have clearly had the benefit of a lot of thought. That shows a focus on these results. If one or more of these Bills are enacted, some of my suggested solutions will become more difficult or impractical to implement.
Secondly, the creative sector itself is somewhat stuck in its own ruts of perception and stagnation. People speak to each other in clichés, assumed and unexamined “truths” determine negotiations, and very few people have done much by way of preparation for alternative solutions.
My proposals, for example, would take a lot of very dedicated and focused discussions and debate from all stakeholders. It would need a very dedicated period of time in which to do the work and to thereby convince government that focused, ethical and responsible self-regulation, in detailed form, is a better solution than simply including the industry in the existing machinery of the law. The creative industry may have run out of time, although I believe that an energetic, focused collaboration, one visible to policymakers, could still lead to the best outcome for the industry here.
Conclusion
The majority of South African sectors have practically inherited the employment law relating to their respective industries. Other than organized labour discussions about wage negotiations and a few tweaks here and there, the frameworks exist and compliance with these external rules is really all that remains for those industries.
It is here where the creative sector has a wonderful, unique, difficult opportunity. It can, to a large extent, create its own future realities as far as compliance and regulation is concerned. I would like to believe that the industry approaching legislators with its own thoughtful, wise solutions, could still prevent the simple inclusion of the sector in existing legislation.
It remains a valid question to interrogate the assumption that we should seek to interfere with existing processes in the first place. The status quo serves some very well, and it is understandable why they would not want to fix something that, according to them, is not broken. It is similarly quite understandable for some to argue that they would prefer being categorized as employees, and then enjoy the benefits extended to the majority of workers in our country.
Both of these ends of the spectrum makes sense to some. If tomorrow all actors are deemed to be employees, for example, much work still needs to be done, and much can be done to streamline and upgrade the industry even inside those parameters.
What we can however not do, here at the eleventh hour, is accept that nothing will happen from here. As we can see from the promulgations, these are important projects, gathering steam as we wait. The deeming provision proposal, for example, has its start in 2019 discussions, and this is the end product now being mooted. We are, I would guess, mere months away from one or more of these proposals becoming our everyday reality in this sector. If that happens, we will have the debatable benefit of clarity in some respects.
It will also, as in all other spheres of employment law, bring about significant consequences, some of them very much unintended, even unconsidered at this stage. With the granting of employee status, to focus on one aspect, may come administrative, record-keeping and taxation obligations, complications around disciplinary processes, retrenchments, sick-leave, and a myriad of other normal employment questions. We seem to be months away from that result. Government will, understandably, not be interested in sitting down and crafting a tailor-made solution for the industry. That is the industry’s job.
The status quo, however we experience it and whatever our views of it may be, is over, hanging on by its fingertips. Change is coming, whether the industry is ready or welcoming of it or not. All that remains is how to manage that reality. Within the small window of opportunity remaining, and combining the impetus of the promulgated Bills and the ongoing work of SAGA, it seems self-evident that the industry should start speaking to itself internally. Organized, urgent, negotiations and debates - that is where the questions and answers lie, and there, only there, is where they can make use of this last opportunity of crafting their own futures.
Summary of main sources, references and suggested reading
1. For a discussion on the creative synergies resulting from approaching negotiation as conflict, see https://www.conflict-conversations.co.za/conversations/commercial-negotiation-and-conflict-modern-best-negotiation-practices
2. For articles dealing with conflict in general, see our blog index at Conflict Conversations
(Andre Vlok can be contacted at andre@conflict1.co.za for any further information.)
(c) Andre Vlok July 2026
* Author’s note on the use of artificial intelligence in writing this article
I learned to draft, argue and write in the hard school of litigation. I enjoy and value the very human process of creating ideas, of testing my own knowledge and thoughts. It is a process that I need, for answering some of my professional and even personal questions, it is cathartic and inspiring. Other than the most basic research assistance I do not use any AI in the creation of my written work, this article included. It is a matter of pride, of preference, and of mental health. Whether that is a wise choice or not, I will leave to the reader to decide.