MASANGO v FARMERS' COMMODITY STOCK EXCHANGE (PVT) LTD & RELATED CASES 2013 (2) ZLR 163 (H)

Flynote

Employment — employee — who is — distinction between employee, agent and independent contractor — test of control and supervision as showing whether person is an agent or independent contractor

Headnote

An employee, an agent and an independent contractor all render service to another person for remuneration, but there are differences. An accurate test for distinguishing the agent from the independent contractor is that the agent has authority to bind his principal in contract, whereas the independent contractor has no such power. The degree of control, supervision and freedom also helps in determining whether a particular contractual relationship is one of master and servant or one of an independent contractor and principal. "Control" is a wide concept. It includes, inter alia, the right of an employer to decide what work is to be done by the employee, the manner in which it is to be done by him, the means to be employed by him in doing it, the time when and the place where it is to be done by him. Supervision implies the right of the employer to inspect and direct the work being done by the employee.

The difference between an agent and an independent contractor is that an agent is bound to act in the matter of the agency subject to the directions and control of the principal, whereas an independent contractor merely undertakes to perform certain specified work, or produce a certain specified result, the manner and means of performance or production being left to his discretion, except as far as they are specified by the contract. The contract between master and servant is one of letting and hiring of services (locatio conductio operarum), whereas the contract between a principal and a contractor is the letting and hiring of some definite piece of work (locatio conductio operis).

The fact that the employer provides a motor vehicle or an office or a telephone, or that restrictions are placed upon the work the person does for the employer, does not necessarily make the person an agent.