The Evolution of the Contract of Employment in South Africa

Abstract

This article explores the evolution of the contract of employment as well as the development of the employee/independent contractor dichotomy in South Africa with reference to six broad themes: the Master and Servant laws, social welfare legislation, the control test, Roman-Dutch law, tax legislation and industrial relations legislation. Using a comparative approach, this article shows that the contract of employment in South Africa is in a relative state of unification. This article further shows that some of the assumptions about the historical evolution of the contract of employment and the influence of Roman and Roman-Dutch law are overstated and that more recent developments, such as tax legislation, arguably had a greater influence on the dichotomising of labour law. Finally, the article asks whether this state of unification is not responsible for the processes, such as casualisation and externalisation, that alienate employees from statutory protection.