by Danielle Statham
In South Africa’s dynamic recruitment industry, the concept of “candidate ownership” is both widely misunderstood and frequently misapplied. Many agencies operate on outdated assumptions or unwritten rules, believing they can claim indefinite control over a candidate once that person registers with their agency. However, the legal and ethical landscape tells a different story, one that prioritises candidate rights and process compliance over territorial claims. While you cannot legally “own” a candidate, you can secure your right to a placement fee, if you can demonstrate that your agency was the effective cause of the hire.
Candidate ownership, as often referred to in recruitment, is not a legally recognised term in South African law. The Constitution and the Labour Relations Act are clear: individuals enjoy the right to freedom of movement and association. These rights ensure that job seekers can engage with multiple agencies, apply directly to employers, and move freely within the labour market. Agencies must therefore shift their understanding of ownership away from control and towards entitlement through action. Specifically, the focus should be on establishing a causal and documented link between the agency’s introduction of a candidate and the candidate’s eventual appointment. This link, known as “effective cause”, is what creates a right to claim a fee.
The APSO Code of Professional Practice echoes this position. It firmly states that members must not prevent candidates from seeking employment through other sources. This ethical guideline eliminates the outdated idea that an agency can prevent a candidate from being represented elsewhere simply because they have a prior relationship. Instead, it underscores the importance of transparent, professional representation grounded in informed consent and proper documentation.
Many persistent myths continue to circulate within the recruitment industry. A common one is the belief that registering a candidate first gives an agency permanent right to that candidate, or that submitting a CV automatically bars the candidate from working with competitors. In reality, candidates are always entitled to engage other agents or apply directly for roles. The only time an agency can legitimately claim a fee is when it can prove that it introduced the candidate to the client in connection with the specific position and that this introduction led to the placement. Agencies must also understand that candidates retain the freedom to accept job offers independently. What agencies can and should protect is the investment made in the recruitment process through proper terms, protocols, and paperwork.
This brings us to one of the most essential tools in any recruitment agency’s arsenal: the signed Service Level Agreement (SLA). A well-drafted SLA outlines the commercial terms of engagement between agency and client. It should define fee structures, payment terms, the scope of work, CV submission procedures, and critically, the introduction period and effective cause clauses. It’s also good practice to include rebate terms, dispute resolution processes, and confidentiality obligations. If a signed SLA isn’t in place, then at the very least, agencies must ensure that their Terms and Conditions are attached to every CV submission and that clients acknowledge receipt.
Beyond contracts, agencies must ensure that every CV submission follows a compliant and professional process. This means disclosing all relevant details of the vacancy to the candidate, including the client’s identity, the job title, salary range, working arrangements, and reporting lines, before any CV is sent out. Following disclosure, agencies must obtain written consent from the candidate to be represented for that specific role and that specific client. Blanket permissions or verbal consents are not sufficient. Every stage of this process should be documented, date and time of disclosure, method of communication, the candidate’s response, and a copy of the signed consent.
The CV itself should carry a confidentiality notice, making it clear that the information contained within is to be treated as private and may not be shared with third parties or used without the candidate’s permission. The agency’s contact details must be visible, and any approach to the candidate’s current employer or referees must only be made with the candidate’s express approval. Under no circumstances may agencies include liability clauses targeting the candidate or charge them a fee for placement services.
To enforce a fee claim with the client, agencies must be able to establish themselves as the effective cause of the placement. This involves being the first to submit the candidate to the client, following a compliant submission process as above, and triggering some form of client action, such as an interview request, direct contact with the candidate, or ongoing engagement that leads to the hire. Agencies should maintain thorough documentation, including time-stamped email records, follow-up communications, and client acknowledgments to support their claims. The more detailed the audit trail, the stronger the position in the event of a dispute.
When fee disputes arise, and direct resolution efforts have been exhausted, APSO’s Ethics Committee provides a structured avenue for escalation. To make use of this process, at least one of the parties must be an APSO member in
good standing. The agency must submit all relevant documentation, including the SLA, communications, evidence of effective cause, and a timeline of events. While this process is not a substitute for legal action in complex cases, it offers a credible, industry-based mechanism for resolving many fee-related disagreements.
Ultimately, the recruitment industry must continue evolving away from the notion of candidate ownership as control, and instead embrace a model based on transparency, consent, documentation, and professional engagement. Agencies who adopt this mindset, while ensuring that their legal and ethical foundations are strong, are not only protecting their fees, but also building trust with clients and candidates alike.
Signed terms protect your work. Compliance empowers your process. And effective cause remains your strongest claim to a rightful fee.