What Should Be in an Employment Contract in South Africa?

Published by the Lawly team · Published · Sources last checked

General information, not legal advice. Written by the Lawly team from the official sources listed at the end of this guide.

When someone starts working for you, section 29 of the Basic Conditions of Employment Act (BCEA) says you must give them certain details in writing: who you are, what the job is and where it's done, the hours, the pay and any deductions, leave, notice, and any other documents that form part of the contract. The Act calls these the particulars of employment. Most employers put them into a written employment contract.

What does section 29 of the BCEA list?

Section 29(1) of the BCEA lists 16 particulars, which the employer must supply in writing "when the employee commences employment". The Department of Employment and Labour's official summary of the BCEA, last replaced in January 2020, repeats the same list.

The parties and the job

  1. The employer's full name and address.
  2. The employee's name and occupation, or a short description of the work they're employed to do.
  3. The place of work, or an indication that the employee works at various places.
  4. The date the employment began.

Working time

  1. The employee's ordinary hours and days of work.

Pay

  1. The wage, or the rate and method used to calculate it.
  2. The overtime rate.
  3. Any other cash payments the employee is entitled to.
  4. Any payment in kind and its value, such as accommodation or meals provided as part of pay.
  5. How often the employee will be paid.
  6. Any deductions from the employee's pay.

Leave and ending the employment

  1. The leave the employee is entitled to.
  2. The notice period needed to end the employment, or, for a fixed-term contract, the date it ends.

Other particulars

  1. Any council or sectoral determination that covers the employer's business. A council here means a bargaining council or statutory council, which can set conditions for a sector.
  2. Any time worked for a previous employer that counts towards the employee's period of employment.
  3. A list of any other documents that form part of the contract, such as workplace policies or a disciplinary code, and a place reasonably accessible to the employee where they can get a copy of each.

The BCEA also sets its own minimums for leave and notice. Our guides on annual leave and notice periods cover those sections.

Who do these rules apply to?

Very part-time employees fall outside them. Section 28(1) of the BCEA says Chapter Four, which contains section 29, "does not apply to an employee who works less than 24 hours a month for an employer."

Small employers get a partial exemption under section 28(2). If you employ fewer than five people, items 14 to 16 above don't apply to you, and neither do sections 30, 31 and 33. The rest of the list still does.

The original 1997 Act also exempted the employment of domestic workers from those provisions. The Basic Conditions of Employment Amendment Act 11 of 2002 deleted that exemption, so the fewer-than-five rule is the only one left in section 28(2).

What happens when the terms change?

If any of the particulars change, for example a pay increase or a move to a new place of work, section 29(2) says the written particulars must be revised and the employee given a copy of the document showing the change.

Section 29(3) covers language. If an employee can't understand the written particulars, the employer must make sure they're explained "in a language and in a manner that the employee understands."

Section 29(4) says the employer must keep the written particulars "for a period of three years after the termination of employment."

How does the contract relate to the BCEA itself?

Sections 4 and 5 of the BCEA set out how the Act and your contract fit together.

Section 4 says a basic condition of employment "constitutes a term of any contract of employment". The exceptions are where another law or a term of the contract is more favourable to the employee, or where the condition has been replaced, varied or excluded in line with the Act. Section 5 says the Act "takes precedence over any agreement, whether entered into before or after the commencement of this Act."

So the contract records what you and the employee agreed, and the BCEA sets the minimum underneath it. If you're unsure whether a particular clause departs from the Act in a way the Act allows, ask the Department of Employment and Labour or an attorney.

What else do employment contracts commonly include?

Section 29 is a list of particulars, not a full contract. Depending on the role, many employers add clauses such as:

  • a probation period for new employees, and how performance will be reviewed during it
  • a fuller job description, with duties and reporting lines
  • confidentiality of business information the employee will see
  • the use of company property, such as laptops, vehicles and phones
  • who owns the work, for roles that produce designs, code or written material
  • a reference to workplace policies and the disciplinary code (which ties in with item 16)
  • a restraint of trade, limiting work for competitors after the employee leaves

A restraint of trade is a specialised clause, and whether one can be enforced depends on the facts. An attorney review before you include one is sensible.

Displaying employee rights at the workplace

Section 30 of the BCEA says an employer must display at the workplace, where employees can read it, "a statement in the prescribed form of the employee's rights under this Act in the official languages which are spoken in the workplace."

The prescribed form is the summary of the BCEA (form BCEA 1A). The Department of Employment and Labour replaced it with an updated version in Government Notice R. 39 of 22 January 2020, and you can download it from the Department's website. Employers with fewer than five employees don't have to display it (section 28(2)).

Common mistakes

Leaving out deductions. Section 29(1)(k) lists deductions among the written particulars. Section 34(1) adds a separate rule: an employer may not deduct from pay unless the employee agrees in writing to a deduction for a specified debt, or the deduction is required or permitted by a law, collective agreement, court order or arbitration award.

Not recording payment in kind. If accommodation, meals or similar benefits are part of pay, section 29(1)(i) lists them and their value as particulars.

Forgetting to update the particulars. A raise, a new role or new hours all change them, and section 29(2) calls for a revised version, with a copy for the employee, each time.

Throwing the file away when someone leaves. Section 29(4) requires the written particulars to be kept for three years after the employment ends.

Referring to policies the employee can't get hold of. Section 29(1)(p) requires the list of contract documents to say where the employee can get a copy.

Frequently asked questions

Does an employment contract have to be in writing in South Africa?

Section 29 of the BCEA requires the employer to give the employee the listed particulars of employment in writing when they start work. Strictly, the section asks for written particulars rather than a signed contract, but most employers put the particulars into a written contract that both sides sign. Employees who work fewer than 24 hours a month for the employer are excluded by section 28(1).

How long must an employer keep an employment contract?

Section 29(4) of the BCEA says the employer must keep the written particulars of employment for three years after the employment ends. Section 31 requires a separate record of time worked and pay, kept for three years from the date of the last entry. Other laws, such as tax legislation, can set their own retention periods for payroll records.

Do these rules apply to part-time employees?

Yes, unless the employee works very few hours. Section 28(1) of the BCEA says Chapter Four, which includes the written particulars in section 29, does not apply to an employee who works less than 24 hours a month for an employer. Part-time employees above that level are covered by section 29 like anyone else.

Can an employment contract give less than the BCEA?

Section 5 of the BCEA says the Act takes precedence over any agreement. Section 4 makes each basic condition of employment a term of every contract, except where another law or the contract is more favourable to the employee, or the condition has been varied in line with the Act. Whether a specific variation is allowed depends on the facts, so check with the Department of Employment and Labour or an attorney.

What changes when I have five or more employees?

Section 28(2) of the BCEA exempts employers with fewer than five employees from three of the section 29 particulars: the council or sectoral determination, previous employment that counts, and the list of other contract documents. It also exempts them from sections 30, 31 and 33. Once you employ five or more people, all of these apply.

Drafting the contract

Lawly's Employment Contract is drafted using South African labour law frameworks, with sections for the particulars in section 29 of the BCEA and room for common additions such as probation and confidentiality. Check the draft against section 29 and your own arrangements before signing. For significant or unusual arrangements, such as senior roles or a restraint of trade clause, an attorney review is sensible.

If this is your first hire, our guide to registering as an employer covers the registrations that go with it.

Sources

  1. Basic Conditions of Employment Act 75 of 1997 (sections 4, 5, 28, 29, 30, 31 and 34), Department of Employment and Labour
  2. Basic Conditions of Employment Amendment Act 11 of 2002, South African Government
  3. Basic Conditions of Employment Act: amended summary and forms (Government Notice R. 39, 22 January 2020), Department of Employment and Labour

Disclaimer: This guide is general information about business documentation in South Africa, not legal advice. Lawly is an AI business document generation service, not a law firm. Review any document before you use it, with the depth of review matching what it carries for your business. For advice on your specific situation, speak to a qualified attorney.