Why there are two tests
“Is this person an employee?” has two answers in South Africa, and they are reached by different routes. The labour-law answer decides whether the CCMA and the Labour Court have jurisdiction, and whether the Basic Conditions of Employment Act, the Labour Relations Act, the Employment Equity Act and the Unemployment Insurance Act apply. The tax answer decides whether you must withhold employees’ tax from what you pay. They can diverge: a person can be an independent contractor at common law and still be a deemed employee for PAYE, reported under IRP5 code 3616.
What neither answer turns on is the heading of the document.
The presumption applies regardless of the form of the contract. Accordingly, a person applying the presumption must evaluate evidence concerning the actual nature of the employment relationship. The issue of the applicant’s employment status cannot be determined merely by reference to either the applicant’s obligations as stipulated in the contract or a “label” attached to the relationship in a contract. Therefore a statement in a contract that the applicant is not an employee or is an independent contractor must not be taken as conclusive proof of the status of the applicant.
Figures last reviewed 9 September 2026.
The presumption below the threshold
For anyone earning at or below R269 600,90 a year (R22 466,74 a month), the Labour Relations Act and the BCEA carry an identical presumption. Any one of seven factors is enough, and the presumption operates whatever the contract says.
Until the contrary is proved, for the purposes of this Act, any employment law and section 98A of the Insolvency Act, 1936 (Act No. 24 of 1936), a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present: (a) the manner in which the person works is subject to the control or direction of another person; (b) the person’s hours of work are subject to the control or direction of another person; (c) in the case of a person who works for an organisation, the person forms part of that organisation; (d) the person has worked for that other person for an average of at least 40 hours per month over the last three months; (e) the person is economically dependent on the other person for whom he or she works or renders services; (f) the person is provided with tools of trade or work equipment by the other person; or (g) the person only works for or renders services to one person.
Note — Paragraph (c) is quoted as it was enacted by section 51 of the Labour Relations Amendment Act 12 of 2002: “the person forms part of that organisation”. The consolidated text on Law Library drops the “s” from “forms”; the 2006 Code of Good Practice quotes it with the “s”. Nothing turns on it, but the wording here follows the Act.
Once a factor is shown, the burden moves.
The fact that an applicant satisfies the requirements of the presumption by establishing that one of the listed factors is present in the relationship does not establish that the applicant is an employee. However, the onus then falls on the “employer” to lead evidence to prove that the applicant is not an employee and that the relationship is in fact one of independent contracting. If the respondent fails to lead satisfactory evidence, the applicant must be held to be an employee.
Either party to an arrangement at or below the threshold may ask the CCMA for an advisory award on whether the people involved are employees (s 200A(3)) — a cheap way to settle the question before it becomes a dispute.
The dominant impression above it
Above the threshold the presumption falls away, but the same factors still guide the enquiry, and the courts weigh the whole relationship rather than any single feature.
In cases in which the presumption is not applicable, because the person earns above the threshold amount, the factors listed in the presumption (and discussed above) may be used as a guide for the purpose of determining whether a person is in reality in an employment relationship or is self-employed.
Those three criteria are the employer’s right of supervision and control, whether the person forms an integral part of the organisation, and the extent of their economic dependence. In the same judgment a company interposed between the worker and the client was held to be no obstacle to a finding of employment. The Labour Appeal Court has been equally direct about the document:
Recent Labour Court decisions show both sides of the line. A contract that does little more than declare the person a contractor carries little weight, and the freedom to work for others counts only if it is real rather than illusory. But where parties of roughly equal standing negotiated a genuine consultancy and the arrangement was not a sham, the courts have enforced it on its terms.
The tax test
The Fourth Schedule to the Income Tax Act excludes from “remuneration” amounts paid to a person carrying on a trade independently — and then overrides that exclusion twice. If the work must be done mainly at your premises and you control or supervise how it is done or the hours, the person is deemed not to be independent, and you withhold. If the person employs three or more full-time, unconnected staff in the service business all year, they are deemed independent whatever else is true. SARS calls the second the overriding test.
This test is the overriding test
Where the contractor invoices through a company or a trust, a third regime applies: the personal service provider rules, which can require you to withhold at 27% (a company) or 45% (a trust) and which limit the entity’s own deductions. The personal service provider test walks SARS’s own steps.
If the answers point to employment, the instrument you need is an employment contract, not a contractor agreement — see which contract do I need? If they point to a genuine independent business, the agreement still has work to do on scope, substitution, tools, exclusivity and copyright.
Questions about the test
Because two bodies of law decide the question separately. Labour law decides whether the CCMA, the BCEA and the LRA apply. The Fourth Schedule to the Income Tax Act decides whether you must withhold employees’ tax. A person can be a contractor at common law and still be a deemed employee for PAYE, reported under IRP5 code 3616.
Below the threshold, once the worker shows any one of the seven factors, they are presumed an employee and the engager must lead evidence that the relationship is genuinely independent contracting. If that evidence is not satisfactory, the Code says the worker must be held to be an employee.
No. If the facts are balanced it says so and lists the specific facts that would move the verdict either way. Where an answer is missing it names the answer it needs.
Only in your own browser, and in the link if you choose to copy one. Nothing is sent to the firm or to any third party.