When an independent contractor agreement fits
A contractor agreement is the right instrument for a contract of work: you are buying a result, not a person’s time. The classic marks are a defined deliverable, a fee tied to it, freedom for the contractor to decide how and when to do the work, the contractor’s own tools and premises, the right to send someone else, and other clients. The Labour Appeal Court’s summary in McKenzie remains the clearest statement of the difference.
Whether those marks are present is a question of fact, and the law tests the facts twice. Below R269 600,90 a year (from 1 May 2026), section 200A of the Labour Relations Act presumes the person is an employee if any one of seven factors is present — control over how they work, control over their hours, being part of your organisation, an average of 40 hours a month over three months, economic dependence, your tools, or working for you alone. The burden then shifts to you to prove the opposite. Above the line the presumption falls away and the courts apply the dominant-impression test, weighing control, integration and economic dependence.
Before you draft, run the facts through the employee-or-contractor test. If the honest answers point to employment, no agreement will save the arrangement; use an employment contract or a fixed term instead. The guide to the two tests explains each factor.
Figures last reviewed 9 September 2026.
What the agreement must contain
The agreement cannot manufacture contractor status, but it can record the facts accurately, allocate risk, and remove the ambiguities a CCMA commissioner or a SARS auditor would otherwise resolve against you. Every clause should describe something that is actually true.
Checklist — what the agreement must record
- A defined result. The deliverable, the specification, the acceptance test and the date. Not “such duties as the client may assign”.
- A right to substitute or subcontract, with the contractor responsible for anyone they bring in.
- No control of manner or hours. The contractor decides how, when and where, subject only to the deadline and reasonable access needs.
- The contractor’s own tools, equipment, software licences and premises, unless site access is inherent in the work.
- Non-exclusivity. An express right to work for others, with a confidentiality clause — not an exclusivity clause — protecting your information.
- Fees per deliverable or milestone, invoiced by the contractor, with VAT charged only if the contractor is registered — compulsory above R2 300 000 in taxable supplies in any twelve months.
- A written copyright assignment (or licence) signed by the contractor — see who owns the work.
- Termination on completion, on breach or on agreed notice — not on the BCEA notice periods.
- No leave, overtime, bonus, pension or medical-aid entitlements. The contractor carries their own insurance and the risk of non-payment for defective work.
- The contractor’s own tax position, with a warranty that they trade independently and an indemnity if that proves untrue.
A clause requiring the work to meet a proper standard does not, on its own, tip the relationship into employment. Clients are entitled to quality, and the Labour Court has said so.
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.
The independent contractor agreement explainer walks through each clause, and the template guide shows the structure.
Who owns the work: copyright
This is the clause most often missing, and the most expensive omission. The Copyright Act gives the employer the copyright in work an employee makes in the course of employment. It says nothing of the kind about contractors. A contractor’s software, designs, reports and written material belong to the contractor unless assigned to you in writing, signed by the contractor. Paying the invoice does not transfer ownership; it buys you, at most, an implied licence to use the work for the purpose you commissioned it. The Act’s short list of commissioned works — photographs, portraits, films and sound recordings paid for by the commissioner — is the only exception.
(d) Where in a case not falling within either paragraph (b) or (c) a work is made in the course of the author's employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4. (e) Paragraphs (b), (c) and (d) shall in any particular case have effect subject to any agreement excluding the operation thereof and subject to the provisions of section 20.
No assignment of copyright and no exclusive licence to do an act which is subject to copyright shall have effect unless it is in writing signed by or on behalf of the assignor, the licenser or, in the case of an exclusive sublicence, the exclusive sublicenser, as the case may be.
The assignment must be in the agreement or in a separate signed document, and it can cover future work, so one clause at the start covers everything the contractor produces under the agreement. Make it an assignment, not a licence, if you need to own the result; deal with the contractor’s pre-existing material and any open-source components separately; and provide for moral rights. Even for employees the “course of employment” question is factual, so the same assignment clause belongs in employment contracts too — see restraints, confidentiality and IP.
Freelancers
A freelancer is an independent contractor whose facts are, by design, the opposite of employment: several clients, output-based fees, their own tools and their own hours. The freelancer agreement is therefore a lighter contractor agreement with three emphases: pricing per piece or per deliverable, an express record of non-exclusivity, and a copyright assignment for each work (or a licence where the freelancer keeps ownership and licenses use, which is common in photography and design).
Two cautions. Non-exclusivity has to be real. If the freelancer’s hours and workload leave no room for other clients, the clause is a fiction and the courts treat it as one.
And if the “freelancer” is in truth a worker — one person, working for you alone, paid per piece — the National Minimum Wage Act still applies, and output-based pay may not fall below the minimum wage for ordinary hours. See commission and piece-work.
if the worker is paid on a basis other than the number of hours worked, the worker may not be paid less than the national minimum wage for the ordinary hours of work.
The freelancer agreement explainer covers per-deliverable pricing and licensing options.
When the contractor invoices through a company
Many contractors ask to be engaged through a private company or trust. For labour law it changes little; for tax it can change a great deal.
Labour law looks through the company. The Code of Good Practice and the Labour Appeal Court both say that providing services through a legal entity does not stop the relationship being employment if the individual is, in reality, controlled, integrated and dependent.
The fact that a person provides services through the vehicle of a legal entity such as a company or a closed corporation does not prevent the relationship being an employment relationship covered by labour legislation.
Tax looks at the company and asks whether it is a personal service provider (PSP). The Fourth Schedule to the Income Tax Act treats a company or trust as a PSP where a connected person (typically the owner) renders the service personally and any one of three limbs is met: the person would be your employee if engaged directly; the work is done mainly at your premises under your control or supervision; or more than 80% of the entity’s service income comes from you and your associated institutions. The exception is an entity that employs three or more full-time staff in the service business who are not shareholders, beneficiaries or connected persons — and SARS does not count auxiliary staff such as cleaners.
"personal service provider" means any company or trust, where any service rendered on behalf of such company or trust to a client of such company or trust is rendered personally by any person who is a connected person in relation to such company or trust, and— (a) such person would be regarded as an employee of such client if such service was rendered by such person directly to such client, other than on behalf of such company or trust; or (b) where those duties must be performed mainly at the premises of the client, such person or such company or trust is subject to the control or supervision of such client as to the manner in which the duties are performed or are to be performed in rendering such service; or (c) where more than 80 per cent of the income of such company or trust during the year of assessment, from services rendered, consists of or is likely to consist of amounts received directly or indirectly from any one client of such company or trust, or any associated institution as defined in the Seventh Schedule to this Act, in relation to such client, except where such company or trust throughout the year of assessment employs three or more full-time employees who are on a full-time basis engaged in the business of such company or trust of rendering any such service, other than any employee who is a holder of a share in the company or settlor or beneficiary of the trust or is a connected person in relation to such person;
If the company is a PSP, you must withhold employees’ tax from every payment to it — at 27% for a company and 45% for a trust — and the PSP’s own deductions are limited by section 23(k). The one relief is for the 80% limb: if the company gives you an affidavit that the 80% test does not apply and you rely on it in good faith, you need not withhold on that ground. The affidavit does not protect you against the other two limbs, and it does not protect the contractor.
Personal service providers that are companies: 28% · Personal service providers that are trusts: 45% · Labour brokers: the tax tables applicable to natural persons
Note — IN 35’s footnote records the company rate as 27% for years of assessment ending on or after 1 March 2023, which is the rate that applies today.
If it later emerges that the company, close corporation or trust is, in fact, a personal service provider, then employees' tax will not be recoverable from the client. However, the prohibition of deductions under section 23(k) will apply as far as that personal service provider is concerned.
Run the entity through the personal service provider test before the first invoice. Where the company supplies you with several people whom it pays, it is a temporary employment service and a different set of rules takes over. The consultancy agreement explainer covers the entity-side clauses.
Tax, invoicing and what does not apply
For an individual contractor, SARS applies its own two-part test before agreeing that an amount is not “remuneration”. A person is deemed not to be independent if the services must be performed mainly at your premises and you control or supervise the manner of the work or the hours. A person is deemed independent if they employ three or more unconnected full-time staff in the service business throughout the year — SARS treats this as the overriding test. Where neither deeming rule applies, SARS falls back on the common-law dominant impression, using a grid of indicators it warns is a guide rather than a scorecard.
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
The Grid is a guide and should not be used as a checklist to determine a certain "score"
If SARS’s tests make the contractor’s fees “remuneration”, you must register as an employer if you are not one already, deduct PAYE and report it on an IRP5 under code 3616, which preserves the contractor’s ability to claim business expenses. If they do not, the contractor invoices you, charges VAT if registered (compulsory above R2 300 000 in any twelve months, from 1 April 2026), and pays provisional tax. See registrations and returns for the employer side.
What a true contractor does not get: UIF contributions (the Unemployment Insurance Contributions Act covers employees), leave or overtime under the BCEA, or Compensation Fund cover. The Compensation Act covers people under a contract of service, apprenticeship or learnership and expressly excludes a contractor who engages others to do the work, so a genuine contractor carries their own injury risk — while a contractor who is in truth an employee is covered whether or not you registered them.
a person who contracts for the carrying out of work and himself or herself engages other persons to perform such work
If the status turns out to be wrong, the consequences run in both directions at once — CCMA jurisdiction and back-pay on one side, absolute liability for the PAYE you did not withhold on the other. Getting it wrong sets them out.
Frequently asked questions
No. The Code of Good Practice says a label in the contract is not conclusive proof of status, and the courts look at the realities of the relationship. Below R269 600,90 a year the person is presumed an employee if any one of seven factors is present — control of how they work, control of hours, being part of your organisation, 40 hours a month on average, economic dependence, your tools, or working for you alone — and you must then prove otherwise.
You can require site access where the work itself needs it. But fixed hours and control over how the work is done are the first two factors in the labour-law presumption, and work performed mainly at your premises under your control or supervision is exactly the combination that makes SARS deem the person not to be trading independently. Fix the deadline and the deliverable, not the hours.
Only if the contractor assigns the copyright to you in writing, signed by the contractor. The Copyright Act gives an employer the copyright in an employee’s work made in the course of employment; it gives a client nothing of the kind in a contractor’s work except for a short list of commissioned works such as photographs and films. Without a signed assignment the contractor keeps the copyright and you have, at most, a licence to use the work for the purpose you paid for.
Yes. If the company is a personal service provider — the owner does the work personally and would be your employee if engaged directly, or works mainly at your premises under your control, or earns more than 80% of its service income from you — you must withhold employees’ tax at 27% (45% for a trust) unless the company employs three or more unconnected full-time staff in that business. An affidavit from the company protects you only against the 80% limb.
Only if the contractor is registered for VAT. Registration is compulsory once taxable supplies exceed R2 300 000 in any twelve-month period (the threshold SARS applies from 1 April 2026); below that it is voluntary above a lower floor. Ask for the VAT number and check it before paying the VAT portion.