Two answers, not one
Almost every South African business asks this question at some point, usually while writing a contract. The mistake is to treat it as one question with one answer. It is two.
The labour-law answer decides whether the CCMA and the Labour Court can hear a dispute, and whether the Basic Conditions of Employment Act, the Labour Relations Act, the Employment Equity Act, the Unemployment Insurance Act and the Compensation Fund apply. The tax answer decides whether you must withhold employees’ tax from what you pay. The two are reached by different routes and can genuinely diverge: a person can be an independent contractor at common law and still be a deemed employee for pay-as-you-earn, reported under IRP5 code 3616.
Both answers turn on the facts of the working relationship. Neither turns on what the document is called. If you want the answer for a particular engagement, the employee or contractor test asks the statutory questions and returns both verdicts side by side.
Figures last reviewed 9 September 2026.
What the Act says
The Labour Relations Act defines an employee very broadly, and then carves out the independent contractor without ever saying what one is. That gap is why the case law matters.
“employee” means— (a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer
Two features of that definition are easy to miss. It does not require a valid contract — the Labour Court held that a foreign national working without a permit was still an employee because the statutory definition does not depend on an enforceable contract. And limb (b) reaches anyone who “in any manner assists” in the business, which is wider than most people expect.
The common law draws the line differently again: an employee places their capacity to work at the employer’s disposal, while a contractor undertakes to produce a result.
The presumption below the threshold
For anyone earning at or below R269 600,90 a year — about R22 466,74 a month — the Labour Relations Act and the Basic Conditions of Employment Act each carry an identical presumption. It is not a balancing exercise: any one of seven factors is enough to trigger it.
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.
Read that list against an ordinary “consultant” who works from your office, on your laptop, during your business hours, for you alone. Four or five of the seven are present before anyone opens the contract.
Once a single factor is shown, the burden of proof moves across the table.
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.
There is also a cheap way to settle the question early. Where an arrangement involves people earning at or below the threshold, any party may approach the CCMA for an advisory award on whether they are employees (s 200A(3)) — far better than discovering the answer in a dismissal dispute three years later.
The dominant impression above it
Above the threshold the presumption switches off. That is a narrower change than it sounds: the same factors still guide the enquiry, and the burden simply sits with the person claiming to be an employee.
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.
What the courts then apply is the dominant impression of the whole relationship — no single feature is decisive. The Labour Appeal Court has reduced it to three primary criteria.
Those 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 case a close corporation placed between the worker and the client was dismissed as a device:
And on the document itself, the Labour Appeal Court has been consistent for nearly thirty years:
The same judgment sets out the classic contrast between the two contracts, in one line each: an employee is “at the beck and call of the employer”, while “the independent contractor is his own master.”
What SARS asks
The Fourth Schedule to the Income Tax Act runs its own tests, and they are mechanical rather than impressionistic. It excludes from “remuneration” amounts paid to someone carrying on a trade independently — and then overrides that exclusion twice.
Provided that … a person shall be deemed not to carry on a trade independently as aforesaid if the services are required to be performed mainly at the premises of the person by whom such amount is paid or payable or of the person to whom such services were or are to be rendered and the person who rendered or will render the services is subject to the control or supervision of any other person as to the manner in which his or her duties are performed or to be performed or as to his or her hours of work: Provided further that a person will be deemed to be carrying on a trade independently as aforesaid if he throughout the year of assessment employs three or more employees who are on a full time basis engaged in the business of such person of rendering any such service, other than any employee who is a connected person
So: work done mainly at your premises under your control as to manner or hours means you withhold, whatever the common law says. And a contractor who employs three or more unconnected full-time staff in the service business all year is treated as independent whatever else is true. SARS calls the second the deciding test.
This test is the overriding test
Where neither statutory test applies, SARS falls back on the common law, weighing a grid of twenty indicators in three tiers of importance. Its own caution about that grid is worth quoting, because it is the same warning the courts give about the dominant impression:
The Grid is a guide and should not be used as a checklist to determine a certain “score”
If the contractor invoices through a company or trust, a third regime applies — the personal service provider rules, which can require withholding at 27% or 45% and strip the entity’s deductions. That is the subject of its own test and guide.
What actually decides it
Strip out the theory and a handful of facts do most of the work. The recent Labour Court decisions are useful precisely because they go both ways.
| Points to employment | Points to an independent business |
|---|---|
| You direct how the work is done, not just what the result must be | You specify a result and leave the method to them |
| You set the hours | They choose when to work, within a deadline |
| A title, an internal email address, a desk, a reporting line | They appear as an outside supplier |
| Fixed monthly pay regardless of output | Invoices per deliverable or milestone |
| Paid leave, pension or medical aid | No benefits; they price for their own |
| Your disciplinary code applies to them | Breach is a contractual matter, not a disciplinary one |
| You supply the laptop, vehicle and tools | They supply their own equipment |
| They work only for you, or may not take other clients | They serve other clients, in practice and not just on paper |
| They must do the work personally | They may send a substitute or their own staff |
| You carry the cost of rework and overruns | They carry the cost of their own mistakes |
| They used to be your employee doing the same work | They ran this business before you engaged them |
Two cases show the extremes. Where staff were persuaded to resign and sign a standard-form contractor agreement while nothing about the work changed, the Labour Court was blunt about what it was looking at:
At the other end, owner-drivers who resigned, incorporated their own close corporations, employed their own staff and bore their own risk successfully rebutted the presumption; the court described the conclusion that this was a contract for work as unassailable, and held that operational controls over routes, hours and branding were intrinsic to the service rather than badges of employment. Between those poles, the modern Labour Court has been clear that paperwork alone will not carry an employer:
— it is likely to carry little weight. But where the parties were of roughly equal standing and the consultancy was genuine, the Labour Appeal Court has enforced the agreement on its terms, holding that neither a tribunal nor a court may ignore them. And a commission-only estate agent who was exclusive to one agency, given an office and required to attend meetings was held to be an employee, while a sales consultant who registered as a micro business, was paid for results and was never put on the payroll was not.
If the facts point to employment, the instrument you need is an employment contract — see which contract do I need? If they point to a genuine independent business, the agreement still has real work to do on scope, substitution, tools, exclusivity and copyright: see contractor, freelancer and consultancy agreements.
Common questions
You can agree it, but agreement does not settle it. Below the threshold the Act presumes employment “regardless of the form of the contract” if any one of seven factors is present, and above it the courts look at the reality. A clause saying the person is not an employee is not conclusive proof of anything.
Exclusivity coupled with economic dependence. The Labour Appeal Court treats a contractual requirement to serve a single client as a very strong indication of economic dependence, which is one of its three primary criteria. Control over how the work is done runs it close.
Not for labour law — the Code says providing services through a company does not prevent the relationship being employment. For tax it changes everything: the personal service provider rules may require you to withhold at 27%, or 45% for a trust. Run the personal service provider test.
Rarely, and it is the highest-risk version of this question. The Code treats previous employment in the same work as a very strong indication that the person remains an employee, and the Labour Court has held such an arrangement remains a sham even where the worker consented. If the work does not change, the label will not survive.
A CCMA commissioner or the Labour Court decides it when a dispute is referred — usually years later. To settle it early, 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 (LRA s 200A(3)).