In Eswatini, the law doesn't provide a single, codified definition for employees and independent contractors. Instead, the courts have established a common law framework to distinguish between the two, primarily based on the dominant impression test. This test considers several factors to determine the nature of the working relationship.

Control

An employer exercises a significant degree of control over an employee's work. This includes aspects like the manner of work performed, hours of work, tools and equipment used, and supervision. On the other hand, an independent contractor has more autonomy and control over how they perform the work. They are typically judged on the end result, not the specific methods used.

Integration

An employee is integrated into the organization's structure. They may wear uniforms, work set hours at a designated workplace, and participate in company functions. Conversely, an independent contractor operates as a separate business entity. They are not beholden to the organization's structure and may work for multiple clients simultaneously.

Financial Arrangements

An employee receives a regular salary or wages, often with benefits like paid leave, medical aid contributions, and social security contributions deducted by the employer. In contrast, an independent contractor invoices for their services and is responsible for their own taxes and benefits.

Independent contracting is a viable option for businesses and skilled individuals in Eswatini. However, understanding the legalities and best practices is crucial due to the unique nuances within the country's context.

Contract Structures

Eswatini law doesn't have a specific legal framework for independent contractor agreements. However, common law principles and relevant judicial decisions inform how these agreements are structured. Key elements to consider when drafting an independent contractor agreement in Eswatini include:

• Scope of Work: Clearly define the services to be provided, deliverables, timelines, and acceptance criteria.
• Compensation: Specify the payment terms, including rates, milestones, and payment methods.
• Confidentiality: Include clauses protecting sensitive information disclosed during the course of the engagement.
• Termination: Establish clear grounds and procedures for terminating the agreement by either party.

Negotiation Practices

Negotiating an independent contractor agreement in Eswatini requires a balanced approach. Key considerations include:

• Clarity of Terms: Ensure all terms are clearly defined and leave no room for misinterpretation.
• Dispute Resolution: Establish a mechanism for resolving any disagreements that may arise during the project.

Building trust and rapport with the potential contractor can go a long way in fostering a smooth negotiation process in Eswatini, a relationship-driven society.

Common Industries for Independent Contracting

Several industries in Eswatini commonly utilize independent contractors. These include:

• Information Technology (IT): Software developers, web designers, and IT consultants are in high demand as Eswatini businesses increasingly embrace technology.
• Construction: Specialized contractors like electricians, plumbers, and carpenters often work on a freelance basis.
• Creative Industries: Graphic designers, writers, and photographers frequently find opportunities as independent contractors.

Independent contracting opportunities exist across various sectors in Eswatini's economy.

Intellectual property rights can be a significant aspect for independent contractors in Eswatini. These rights can encompass various forms, including copyright, trademarks, and patents.

Copyright

Copyright safeguards original literary, artistic, dramatic, musical, and other intellectual works. This protection can extend to source code, website content, graphic designs, and other creative materials produced by an independent contractor.

Trademarks

Trademarks safeguard words, symbols, designs, or a combination of these used to identify and distinguish the source of goods or services. An independent contractor may develop a trademark for their services, such as a logo or tagline.

Patents

Patents safeguard inventions, new products, processes, or improvements. An invention created by an independent contractor in the course of their work may be patentable.

Ownership of Intellectual Property

The ownership of intellectual property rights created by independent contractors is typically determined by the terms of their agreement with the client. In the absence of a written agreement, the following general principles may apply:

Copyright

By default, the copyright in a work created by an independent contractor belongs to the independent contractor. However, the client may negotiate for ownership of the copyright in the agreement.

Trademarks

The ownership of a trademark generally belongs to the party that uses the mark in the course of trade. If the independent contractor develops a trademark for their services, they will likely retain ownership.

Patents

The ownership of a patent generally belongs to the inventor. An independent contractor who invents something in the course of their work may be the rightful owner of the patent.

Importance of Written Agreements

A well-drafted written agreement between an independent contractor and a client is crucial to clarify ownership of intellectual property rights. The agreement should address which party owns the copyright in the work created by the independent contractor, whether the client has the right to use the independent contractor's trademarks, ownership of any patents arising from the independent contractor's work, and how the independent contractor will be compensated for the use of their intellectual property.

Additional Considerations

Confidentiality

Independent contractors may also be exposed to confidential information of their clients. The agreement should include confidentiality provisions to protect such information.

Moral Rights

The Copyright Act recognizes the moral rights of creators, such as the right to attribution of authorship and the right to object to derogatory treatment of their work. Independent contractors should be aware of these rights and how they may apply to their work.

Freelancers and independent contractors in Eswatini are subject to the same tax system as any other business entity.

Income Tax

Freelancers and independent contractors earning income above a threshold set by the Eswatini Revenue Authority (SRA) must register for income tax. Registered freelancers are required to file annual income tax returns with the SRA, typically by September 30th of each year. Eswatini operates a progressive income tax system, with tax rates increasing as income levels rise. The specific rates are published annually by the SRA.

Value Added Tax (VAT)

Freelancers and independent contractors who provide goods or services exceeding a VAT registration threshold set by the SRA must register for VAT. Registered VAT vendors are required to collect VAT on their taxable supplies and remit it to the SRA on a quarterly basis.

Insurance Options for Freelancers and Independent Contractors

Freelancers and independent contractors are not covered under any mandatory state insurance programs in Eswatini. However, considering the financial risks associated with being self-employed, securing some form of insurance is highly recommended.

Professional Indemnity Insurance

This insurance protects freelancers and independent contractors from financial liability arising from negligence claims made by clients due to errors or omissions in their work.

Public Liability Insurance

This insurance covers freelancers and independent contractors for legal costs and compensation payouts in case someone is injured or their property is damaged due to their business activities.

Business Interruption Insurance

This insurance reimburses freelancers and independent contractors for lost income if their business is forced to close temporarily due to unforeseen circumstances.

Health Insurance

Freelancers and independent contractors are responsible for their own health insurance in Eswatini. They can opt for individual health insurance plans offered by private insurance companies.