In recent times the Department of Labour have been more vigilant around monitoring businesses for various reasons but there has been a noticeable increase in their presence and restraint on Employers who have ignored various legislation that prohibits the employment of foreign nationals who are not eligible to work within the South African boarders.
The Covid-19 pandemic has exacerbated the effects of unemployment and the Department of Labour is taking a no-nonsense approach to Employers who continue to defy legislation and illegally employ foreigners who do not possess the required and necessary documentation.
APPLICABLE LEGISLATION – GOVERNING FOREIGN NAIONALS IN SOUTH AFRICA
DEFINITION OF A FOREIGN NATIONAL
The Employment Services Act 4 of 2014, defines a Foreign National as “an individual who is not a South African citizen or someone that does not have a permanent residence permit issued in terms of the Immigration Act”. A ‘permanent resident’ means a person who has been issued with a permanent residence permit. A foreign national also includes individuals that have not been granted recognition as a refugee in terms of the Refugees Act.
PRACTICAL APPLICATION FOR FOREIGN NATIONALS WANTING TO WORK LEGALLY IN SOUTH AFRICA
They must have in their possession a valid work permit or be a permanent resident holder. Work permits or temporary visas for work are issued by the Department of Home Affairs with the following contact details:
EMPLOYERS RESPONSIBILITY WHEN EMPLOYING FOREIGN NATIONALS
Employers bear the onus of ensuring that any foreign national who presents a work permit is valid by
contacting the following:
Employers are restricted to only employ a foreigner who is in possession of a valid work visa. Various
factors including xenophobia, work stoppages and other protest marches, are all factors that have
increased a drive to limit foreigners who possess critical skills into the country and only issue work
permits to such foreigners. Foreign nationals seeking work or employers wanting to employ employees
who are foreign nationals and who do not possess critical skills such as truck drivers, waiters, chefs,
domestic workers, labourers, etc. will therefore find it increasingly challenging to obtain work visas in
future. Foreign nationals may only start working once they have received their valid work visa.
Furthermore, should an employer want/need to apply for a work permit for a foreign national, despite
a diligent search, it must be proven that the employer has been unable to find a suitable citizen or
permanent resident with qualifications or critical skills and experience equivalent to those of the
applicant. ‘Critical skills’ means skills determined to be critical for the Republic in accordance with the
provisions of section 19(4) of the Immigration Act.
It must be proven that the Applicant has qualifications or proven critical skills and experience as per
Government Gazette 45860 Dated 2nd February 2022, and in line with the job offer for example, Civil
Engineer, Industrial Engineer, Chemist, Geologist, Actuary, etc.
THE SIGNIFICANCE OF THE IMMIGRATION ACT, 13 OF 2002
It is illegal to employ a foreigner who is not in possession of a valid work permit and passport. The
employment of foreigners in South Africa is regulated by the Immigration Act, 13 of 2002 (as amended).
The possible fines that could be imposed are set out in the Immigration Act and range from R7 000 to
a possible R50 000 per person (employee who is found to be working illegally in South Africa) and
R100 000 per employer, depending on the contravention. Furthermore, section 49(3) of the Immigration
Act provides that anyone who knowingly employs an illegal foreigner or a foreigner in violation of the
Immigration Act shall be guilty of an offence and liable to a fine or a period of imprisonment not
exceeding one year for a first offence.
The Immigration Act, provides that no person shall employ
The Employment Services Act, 4 of 2014, provides in section 8(4) that an employee who is employed without a valid work permit is entitled to enforce any claim that the employee may have in terms of any statute or employment relationship against his or her employer or any person who is liable in terms of the law. To be legally in South Africa, you must have a valid visa in your passport. If you find yourself in South Africa without a valid visa, it is important to have documentation in place to show you are in the process of remedying your status, which may provide you with some relief from an immigration official.
LIMITATION ON THE EMPLOYMENT OF FOREIGN NATIONALS
(1) No person may employ a foreign national to work within the territory of the Republic of South Africa, unless that foreign national—
(a) Has the right to be so employed in terms of a visa issued under the Immigration Act;
(b) Has been issued with an asylum seeker visa, which is endorsed, with the right to work; or
(c) Is permitted to work within the territory of South Africa in terms of any other legislation or international agreement binding upon the Republic in terms of section 231 of the Constitution.
(2) Any person who employs a foreign national to work within the territory of the Republic of South Africa must—
(a) Ascertain that the foreign national is entitled to work in the Republic and is entitled to perform the
work in which they are employed;
(b) Satisfy them that there are no persons in the Republic, other than foreign nationals, with the requisite
critical skills to fill the vacancy, before recruiting a foreign national to occupy such vacancy;
(c) Prepare a skills transfer plan in respect of any position in which a foreign national is employed;
(d) Employ such foreign national on terms and conditions of employment that are not inferior to those
which would be provided to a South African citizen, permanent resident or refugee; and
(e) Retain copies of all documents reflecting that the foreign national is lawfully entitled to be employed
in the Republic.
(3) An employer may only employ a greater percentage of foreign nationals as employees or workers in its workforce or in any occupational category than are permitted in terms of a quota that is applicable to it in terms of this section if a foreign national is employed to fill a position in respect of which critical skills are required; or in respect of any other position, the employer has applied, in the prescribed manner, for an exemption from the applicable quota or prohibition and such exemption has been granted by the Minister.
(4) The Minister may, after consulting the Board, make regulations concerning the employment of
foreign nationals, which regulations may include the following:
(a) The measures that employers must take to satisfy themselves that there are no other persons in the Republic with suitable skills to fill a vacancy, before recruiting a foreign national;
(b) Requirements for employers to make use of public employment services or private employment agencies to assist employers to recruit suitable employees or workers who are South African citizens, permanent residents or refugees;
(c) Requirements for the preparation of a skills transfer plan by employers in respect of a position in which a foreign national is employed;
(d) The criteria and procedure for applying for an exemption by the Minister in respect of any provision of this Chapter; and
(e) The records that employers are required to keep in respect of foreign nationals in their employment.
UIF – Unemployment Insurance Fund
Employers don’t have to register a foreign national with a work permit for UIF because these workers cannot claim UIF, they do not contribute to the fund and at end of contract they must be repatriated to their countries of origin. Only if the employee is a permanent resident holder, then employers must register them for UIF purposes.
COIDA – Compensation for Occupational Injuries and Diseases Act
With reference to the Compensation for Occupational Injuries and Diseases Act (“COIDA”)
Amendments Act, applicable as from 1 March 2021, all employers who employ one or more part-time / casual / temporary or full-time employees for the purpose of his / her business / farming / organisation’s activities and domestic workers must register with the Compensation Fund and pay annual assessment fees based on their workers’ earnings and the risks associated with the type of work being done.
COIDA applies to an employee who is a person who has entered into or works under a contract of service with an employer, whether the contract is expressed or implied, oral or in writing, and whether remuneration is calculated by time or work done or is in cash or in kind and includes a casual / temporary employee employed for the purpose of the employer’s business. Domestic and farm workers are now able to claim compensation for injuries or illnesses contracted while on the job if the employer is registered with the Compensation Commissioner.
An employer should register with the Compensation Fund within seven (7) days after the first employee was employed. An employer shall within 7 days of any change in the particulars so furnished notify the Compensation Commissioner of such a change.
DISMISSING UNAUTHORISED FOREIGN NATIONALS
Both the Constitution and the Labour Relations Act are unwavering on the element related to procedural and substantive fairness being followed when an Employee is dismissed. The law is clear that while someone who is not authorised to work in South Africa is dismissed, they are protected in terms of the LRA and are regarded as an employee for this purpose. It is therefore imperative that when the Employer is made aware that the employee is an unauthorised foreign national, they follow the correct steps in dismissing the employee.
In the event the Employer fails to abide by the rules governing a fair dismissal and the Employee wishes to approach the CCMA they are within their rights to do so based on reasons of unfair dismissal. The Labour Court in Discovery Health Limited v CCMA  ZALC 24; 2008 7 BLLR 633 (LC) has confirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees.
NATIONAL LABOUR MIGRATION AND EMPLOYMENT SERVICES BILL
Although the Bill is not yet legislation the South African Authorities have drafted a Bill that sets out to restrict the employment of Foreign Nationals by implementing a quota system.
Once the Bill is passed and becomes law, both the employer and the foreign nationals will be faced with an additional obligation. The Employer will need to ensure that they comply with the quota set for their sector, occupation, or based on the region in which they work.
At first glance the Bill seems like an additional burden that Employers do not need to be hampered with.However, the draft Bill was premised on effects spurred on by the Covid-19 andemic that has seen job losses at an unprecedented high. Statistics SA recorded the first quarter of 2022, as high as 34.5%. The Authorities have modelled the Bill on other African countries who have adopted a similar approach in order to protect the jobs and workforce of the citizens of South Africa.
ALTITUDE EMPLOYMENT ASSISTANCE – CONTACT US
We recognise the urgency of ensuring that your workforce consists of Employees who are legally permitted to continue working for you. In the event you require further details and/or assistance with dealing with employees who are unauthorised foreign nations within your employ our business partners offer bespoke advice and will gladly be of assistance.
We look forward to ensuring your company is overall labour compliant.