Making your bed as an independent contractor but refusing 'to lie on it': Freelancer opportunism

• Jurisdiction: South Africa
• Citation: (2019) 31 SA Merc LJ 54
• Date: 27 November 2019
• Published date: 27 November 2019
• Pages: 54-75

MAKING YOUR BED AS AN INDEPENDENT

CONTRACTOR BUT REFUSING ‘TO LIE

ON IT’: FREELANCER OPPORTUNISM

TUMO CHARLES MALOKA*

Associate Professor, Department of Mercantile and Labour Law,

University of Limpopo

CHUKS OKPALUBA**

Research Fellow, Centre for Human Rights, University of the Free State

Abstract

The ‘freelancer migraine’ demonstrates that the long-standing and

deeply embedded distinction between employment and independent

contracting (self-employment) is challenged by the reality of the

contemporary work environment which does not readily conform to

such binary categories. The inescapable inference from the freelancer

jurisprudence is that a significant number of the self-employed are in a

position of economic dependence analogous to subordinate employees

in that many, if not all, lack distinguishing features of entre-

preneurship: ownership, autonomy, or control overproduction.

Somewhere in between genuinely subordinate workers and genuinely

independent entrepreneurs, a third category is emerging — that of

workers who are legally independent (ie, self-employed) but

economically dependent. The freelancer decisions provocatively raise

fundamental questions about the opacities of form engendered by the

fragile boundary between genuine entrepreneurial self-employment,

dependent self-employment, and disguised employment. Rather than

ushering in the fabled entrepreneurial independence, for many of the

recruits into the ranks of freelancers, self-employment often heralds a

descent into a state of precarity.

I INTRODUCTION

Writing in 1944, United States (‘US’) Supreme Court Justice, Wiley

Blount Rutledge, observed that:

* BA LLB LLM (UCT) LLD (UFH).

** LLB LLM (London) PhD (West Indies).

Thanks to the reviewers for careful reading, thoughtful feedback, and editorial suggestions.

The usual disclaimer applies.

54

(2019) 31 SA Merc LJ 54

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‘Few problems in the law have given greater variety of application and

conf‌lict in results than the cases arising in the borderland between what is

clearly an employer-employee relationship and what is clearly one of

independent, entrepreneurial dealing.’

1

Despite many legislative developments, judicial pronouncements,

and academic discourse over the subsequent 75 years, this position

remains fundamentally correct. An illuminating summary of the current

position is that: ‘Abantu badidekile’.

2

The distinction between employ-

ees and independent contractors is no clearer after Hearst than before.

3

If there is a consensus in the overall body of scholarship

4

regarding

anything associated with the conceptual focus on who is an employee, is

that it is a vexing question. ‘Like the yogi contemplating his navel’,

observes Drake, ‘although without the same apparent satisfaction, the

labour lawyer is necessarily drawn to the contemplation of the mystery

in the word ‘‘servant’’ or ‘‘employee’’’.

5

Indeed, the serious problem of

who is an employee is a recurring question.

6

The distinction between independent contractors and employees

remains unsettled. All jurisdictions have struggled with the issue of how

to distinguish between ‘employees’ and ‘independent contractors’ — or

worse, navigate the zone of ambiguity between genuine self-

1

NLRB v Hearst Publications Inc 322 US 111 (1944) 121 (‘Hearst’).

2

A Xhosa expression meaning people are confused. For further engagement, see Bosch

‘Abantu badidekile: When must an applicant prove that he is an employee?’ (2010) 31 ILJ 809.

3

According to Zimmerman, The Law of Obligations: Roman Foundations of the Civilian

Tradition (OUP 1996) 395, even under Roman law, the distinction between the locatio

condictio operarum and the locatio conductio operis was far from clear.

4

For an overview of South African literature see: Mureinik, ‘The contract of service: An

easy test for hard cases’ (1980) 97(3) SALJ 246; Christianson, ‘Def‌ining who is an employee: A

review of the law dealing with the differences between employees and independent contrac-

tors’ (2001) 11(3) CLL 21; Manamela, ‘Employee and independent contractor: The distinc-

tion stands’ (2002) 14(1) SA Merc LJ 107; Benjamin, ‘An accident of history: Who is (and who

should be) an employee under South African labour law’ (2004) 25(4) ILJ 787; Mills, ‘The

situation of the elusive independent contractor and other forms of a-typical employment in

South Africa: Balancing equity and f‌lexibility?’ (2004) 25(4) ILJ 1203; Van Niekerk,

‘Employees, independent contractors and intermediaries: The def‌inition of employee revis-

ited’ (2005) 15(2) CLL 11 and ‘Personal service companies and the def‌inition of ‘‘employee’’’

(2005) 26(1) ILJ 1904; Bosch, ‘Can unauthorised workers be regarded as employees for the

purpose of the Labour Relations Act?’ (2006) 27 ILJ 1342; Bosch & Christie, ‘Are sex workers

employees?’ (2007) 28 ILJ 804; Theron, ‘Who’s in and who’s out: Labour law and those

excluded from its protection’ (2007) 11(1) LDD 25; Le Roux, ‘The worker: Towards labour

law’s new vocabulary’ (2007) 124(3) SALJ 469 and Le Roux, ‘The meaning of ‘‘worker’’ and

the road towards diversif‌ication: Ref‌lecting on Discovery, SITA and Kylie’ (2009) 30 ILJ 49.

5

Drake, ‘Wage slave or entrepreneur?’ (1968) 31 MLR 408. Steenkamp J in Melomed

Hospital Holdings Ltd v CCMA (2013) 34 ILJ 920 (LC) para 46 echoed the same sentiments:

‘The question of the true nature of the employment relationship has vexed labour law scholars

for decades.’

6

Smith v Castaways Family Dinner 453 F 3d 971 (7th Cir 2006) 975.

MAKING YOUR BED AS AN INDEPENDENT CONTRACTOR 55

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