GH 2017 South Africa |
a. Introduction
South African law has always recognised that independent contractors are distinct from employees and they remain excluded from the protections afforded to employees by the various statutory instruments enacted to regulate employment relationships. Recognising the dangers of trying to codify in legislation when a person will or will not qualify as an independent contractor rather than an employee, employment legislation in South
Africa has largely avoided defining what an independent contractor is and it has been left to the courts to develop tests through jurisprudence to distinguish the nature of the relationship. The boundaries of what constitutes an independent contractor relationship have been pushed both by employers attracted by the perceived greater flexibility of an independent contractor relationship (and particularly the absence of the security of
tenure protections – especially unfair dismissal protection – afforded to employees) and by individuals seeking greater freedom in how they work (and sometimes perceived income tax advantage). Exploitation of lower earning, more vulnerable individuals through the exclusion of independent contractors from employment law protections has, however, led to some legislated intervention in the form of statutory presumptions that operate to re-characterise independent contractors as employees when certain factors are present.
This chapter aims to provide some insight into how South African law has sought to meet the challenges of distinguishing independent contractors from employees and to regulate the issue in a way that minimises the scope for abuse while allowing space for genuine independent contracting.