Making your bed as an independent contractor but refusing ‘to lie on it’: freelancer opportunism

Authors Tumo Charles Maloka & Chuks Okpaluba

ISSN: 1996-2185
Affiliations: Associate Professor, Department of Mercantile and Labour Law, University of Limpopo, BA LLB LLM (UCT) LLD (UFH); Research Fellow, Centre for Human Rights, University of the Free State, LLB LLM (London) PhD (West Indies).
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 54 – 75


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 entrepreneurship: 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.