Government Gazette Deeming Provision

By Adrian Galley

Five Years in the Making: Why This Notice Matters

A closer look at what the Minister’s notice really does – and what it doesn’t – for South African performers.

The Minister’s notice, published in Government Gazette No. 53987 on 23 January 2026, is a welcome – and long overdue – step in the right direction. It proposes to deem performers in advertising, artistic and cultural activities to be employees for the purposes of specific provisions in key labour statutes, extending to actors the basic protections other workers already enjoy. This is not a sudden shock to the system, but the next phase of a process that began more than five years ago, when the Department of Employment and Labour first invited stakeholders – including SAGA – to help design a fair framework for our industry.

A process that began in 2019

In December 2019 the Department of Employment and Labour (DEL) first published a draft deeming provision to address the legal grey zone in which many performers work. DEL then convened a series of NEDLAC and sectoral engagements, over two days in February 2020, inviting stakeholders to help design a fair, workable framework for our industry.

SAGA participated actively in those meetings, made detailed written submissions, and – at DEL’s own suggestion – drafted a sectoral determination to reflect the unique realities of film, television, advertising and theatre work. In doing so, we have honoured our responsibility to participate in democratic consultation on matters that directly affect actors’ livelihoods and the health of the industry.

Some industry bodies chose not to engage. Others actively sought to stall or dilute the process. SAGA, by contrast, has always recognised that no organisation can act unilaterally to set conditions and rates across a sector: without a statutory framework, such attempts risk falling foul of competition law, however well intentioned. We have therefore consistently supported a structured, collaborative process in which all stakeholders work with the Department to design fair, lawful contracting standards.

Despite the reluctance of some, DEL has continued with the task it began in 2019: bringing vulnerable creative workers within the protective scope of our labour laws. The Gazette notice of 23 January 2026 should be seen as the continuation of that work, not as a bolt from the blue.

What the notice actually does

Much of the current commentary misrepresents the content and effect of the notice. In plain terms, the Minister intends to:

• Deem performers in advertising, artistic and cultural activities to be employees for the purposes of specific provisions in the Basic Conditions of Employment Act (BCEA), the National Minimum Wage Act (NMWA), the Compensation for Occupational Injuries and Diseases Act (COIDA), and parts of the Labour Relations Act (LRA).
• Extend to these performers the same basic floor of protection that other workers already enjoy: regulated working time and rest, written particulars of employment, minimum leave entitlements, proper payment and payslips, notice and severance on retrenchment, access to the Compensation Fund if injured at work, and minimum wage.

It is important to stress what the notice does not do:

• It does not force anyone into permanent, full-time employment. Producers may still engage performers on daily, weekly or project-based contracts.
• It does not prevent performers from working for multiple clients across a year, or from stringing together overlapping projects – in practice, that is how most careers in this sector are built.
• It does not abolish independent businesses. Where a supplier genuinely operates as a business in their own right – with their own staff, equipment, premises and diversified client base – they will continue to do so.
• It does not change how SARS determines your tax status or which expenses you may claim. The deeming provision operates in labour law, not tax law; SARS will continue to apply its own criteria.

The change is that when a performer is engaged to work, basic protections will apply regardless of what the contract calls them. Labels such as “freelancer” or “independent contractor” will no longer be enough to strip away core rights.

Freelance work and labour protection can coexist

A recurring theme in recent commentary is that recognising performers as employees for labour law purposes will somehow “destroy” the freelance nature of the industry. International experience says otherwise.

In major production hubs – including the United States, the United Kingdom, Canada and New Zealand – screen workers routinely operate on project based contracts under the protection of collective agreements and employment standards. They move from show to show, from advert to series to feature; yet for each engagement there are clear rules on hours, safety, remuneration, residuals and termination. Flexibility of engagement and firmness of protection coexist.

The ILO’s work on the future of arts and entertainment underscores this point. Its 2023 technical meeting concluded that social dialogue and collective bargaining play “a fundamental role in building a sustainable and professional industry” and in ensuring safe and healthy work environments. Its broader research on non-standard employment calls on states to close legal gaps that leave atypical workers unprotected simply because their contracts are framed as freelance.

South African performers deserve nothing less. Our sector can remain project-driven and internationally competitive while still ensuring that those who appear on camera or on stage are not required to waive basic rights as the price of admission.

Setting the record straight

It is worth addressing a few concerns circulating in the industry.

“This will end our ability to work across multiple clients and projects.”
Nothing in the notice stops a performer from accepting engagements from different producers, broadcasters, agencies or theatres. The law has long recognised that people may work for more than one employer over time, or even in overlapping periods. The deeming provision simply says that for the duration of each engagement the engager must abide by core labour standards.

“Small businesses and independent contractors will be wiped out.”
The focus of the notice is the relationship between performers and those who engage them. It is designed to prevent misclassification – the use of contractor labels to avoid obligations that would otherwise apply to clearly dependent workers. Genuine small businesses will continue to operate, but they will no longer be able to shift their own costs and risks onto individual performers by misusing those labels.

“International productions will take their work elsewhere.”
International producers already budget for labour standards in jurisdictions where collective agreements or employment law apply. What deters production is uncertainty: unclear expectations, unsafe sets, reputational risk and disputes that could have been avoided. Clear, enforceable rules about working time, rest, safety and pay make planning easier and help build a stable, experienced workforce – one of the very assets that attract productions to South Africa.

“We are losing autonomy and choice.”
Many professionals in this sector value the ability to choose projects, manage their own time and develop portfolio careers. SAGA supports that kind of autonomy. But there is a difference between genuine professional freedom and a situation where individuals are forced to accept unsafe conditions, unpaid overtime or opaque usage terms under threat of blacklisting. A legal framework that insists on minimum standards does not extinguish autonomy; it sets a floor beneath which autonomy may not be traded away.

The next step: towards a sectoral determination

SAGA has always argued that recognising performers as employees is a necessary first step, not the end of the journey. The notice brings performers under the general protections of the BCEA, NMWA, COIDA and parts of the LRA. The next logical move – one the Department itself has previously mooted – is to develop a sectoral determination tailored to the specific conditions of our industry.

It is worth remembering that our sector already has experience with such an instrument. Since 1997, Sectoral Determination 10 has regulated the employment of children in performance, treating them as employees for the purposes of defined provisions of the BCEA and setting out additional safeguards. In other words, the idea that performers in our industry can be deemed employees and protected through a sectoral determination is not new or theoretical – it has been a lived reality for child performers for nearly three decades.

Such a determination for adult performers can:

• Adapt working time rules to fit long shooting days and night performances, while still protecting health and family life.
• Clarify how overlapping contracts and multiple engagers should be managed.
• Set minimum standards for food, accommodation and transport when performers work away from home.
• Establish a dedicated framework for dangerous and hazardous performances, including stunts and physically risky scenes.
• Provide a structured space for collective bargaining, so that performers and engagers can negotiate fair, predictable contracts at industry level rather than relitigating the basics on every job.

SAGA has already submitted a draft sectoral determination and a detailed motivation to DEL, drawing on international precedent and our members’ lived experience. We stand ready to work with the Department, with producers’ associations and with fellow unions to refine that framework in the public interest.

A call for informed engagement

The Minister has invited public comment until late February. This is an opportunity for the industry to lean into constructive dialogue rather than succumb to fear-driven narratives.

SAGA encourages:

• Performers and crew to share their real working experiences, particularly around safety, hours, pay and access to recourse.
• Responsible producers, agents and commissioners to engage honestly with the evidence: recognising that sustainable careers, clear standards and decent work are in the long-term interests of the sector.
• All stakeholders to separate legitimate operational concerns – which can and should be addressed – from unfounded claims that any attempt to regulate will “destroy” our industry.

South Africa’s creative workers have waited a long time for meaningful labour protection. This notice is a significant step forward. With careful, informed engagement, it can be the foundation of a more professional, equitable and globally competitive industry for everyone who depends on it.

Photo by Jakob Owens on Unsplash