Minister of Sport, Arts and Culture Gayton McKenzie has stepped into the dispute over cast and crew members allegedly left unpaid by Bakwena Productions, instructing his department to contact the affected workers and explore ways of relieving their financial hardship.
“He has tasked the department with engaging with the affected individuals to explore what possible solutions could be found to relieve their obvious suffering, which was not of their doing. That process is ongoing,” said Stacey Khojane of the Department of Sport, Arts and Culture (DSAC).
But the department’s written responses raise questions about what, exactly, McKenzie’s intervention can achieve.
DSAC says it has no payment plan, no identified source of funding, no approved budget allocation and no legal opinion establishing that it has the authority to assume the unpaid private debt.
It also has not established how many workers are affected, how much they are owed or why they were not paid.
“DSAC has not made, approved or committed to any payment to cast or crew members of the Pimville production, and no such payment is currently planned. The Minister has not directed any expenditure in this regard,” Khojane said.
The department insists that the engagement with the workers should not be understood as an undertaking by government to settle the debt.
“DSAC is not party to any contract between Bakwena Productions, the SABC or the affected individuals and has no statutory mandate to assume private contractual liabilities,” Khojane said.
The legal responsibility for paying the cast, crew and suppliers, it said, rests with Bakwena Productions as the contracting party.
This creates a potentially awkward gap between the Minister’s intervention and the department’s legal position.
McKenzie has instructed officials to look for possible solutions to the workers’ hardship, but DSAC says it has no identified mechanism through which public money could currently be used to resolve the problem.
“No fund, programme, budget allocation or vote has been identified because no payment decision has been taken,” Khojane said.
“There’s no proposed expenditure requiring Treasury approval or consultation, as no decision to make a payment has been taken and no legal opinion has been obtained regarding authority to make payments, as no decision to make such payments has been taken.”
The department said the absence of all three funding, Treasury processes and legal advice follows from the fact that no payment decision has been made.
There is another unanswered question, the department does not appear to have established the scale of the problem it has been asked to help address.
DSAC confirmed that it has not conducted a verification of individual claims.
“DSAC has not conducted a verification process of individual claims. Such contractual verification falls outside the department’s mandate and jurisdiction in this matter,” Khojane said.
That means officials are engaging with workers about possible relief without the department having independently verified the underlying claims.
DSAC has not established how many people remain unpaid, what each worker is owed or whether the amounts claimed are contractually due.
The department has also sought to distance itself from the production.
The Pimville production was commissioned by the SABC and produced by Bakwena Productions, DSAC said. The department was not a funder of the production and said it was not aware of any direct departmental funding to the producers for the project.
It also said it has not investigated why the workers were not paid.
That leaves the central question of McKenzie’s intervention unresolved, if DSAC is not responsible for the debt, has no funding identified and has not verified the claims, what form can the proposed “solutions” legally take?
The department did not say what options are currently being considered, who is leading the engagement, when it started or when it is expected to conclude.
It also did not say whether the Minister’s instruction has resulted in any formal proposal or whether legal advice has been sought on possible forms of assistance.
On whether public funds should ever be used to settle debts incurred by private production companies, DSAC said McKenzie’s position was unequivocal.
“The Minister’s position is that private producers bear full legal and financial responsibility for their contractual obligations to cast, crew and suppliers,” Khojane said.
“The appropriate remedies for non-payment lie with existing legal mechanisms, including labour legislation, the Companies Act and the courts.”
Khojane said DSAC’s role was sector oversight and policy development, rather than assuming private liabilities.
“Any future consideration of support would have to comply fully with applicable law and government financial management requirements,” she said.
That position puts the department in a difficult position of its own making, it has been tasked by the Minister with exploring relief for workers who say they are suffering because they were not paid, while maintaining that government has no responsibility for the debt and has no current legal or financial mechanism identified to settle it.
For now, DSAC’s answer is that the workers must pursue the remedies available to them under labour legislation, the Companies Act and through the courts.
Those are the same legal avenues that were available to them before the Minister intervened.
What remains to be established is whether McKenzie’s intervention will produce anything beyond an engagement process and, if it does, who will pay, from which legally authorised source and on what basis.
The cast and crew remain unpaid.