The first question to be asked, when seeking to resolve any labour law problem, is whether the parties are indeed “employees” and “employers” within the meaning of the applicable statute or the common law.

This has long been a difficult task in South Africa, as it is not always immediately apparent whether the parties have entered into the locatio conductio operarum (contract of employment) or merely the locatio conductio operis (contract of work).

Distinguishing between these two kinds of contracts is critically important, as different legal consequences flow from the various forms of contract. Most important is that South African labour legislation applies only in respect of employees, who are entitled to social security benefits and have access to the statutory mechanisms if they wish to seek remedies for violations of their employment rights. Similarly, only employers are bound by the labour statutes, and are vicariously liable for the delicts of their employees.