Today it is increasingly popular for businesses to employ foreign nationals in South Africa. Whether for specific skill sets or other reasons, these can prove to be an invaluable asset. A key question for employers then, is what compliance is required by law to employ foreign nationals. How can businesses limit potential liability? How can the risk of unknowingly employing illegal foreign nationals be mitigated? This article will discuss what you need to know before employing foreign nationals.
As a point of departure, several statutes regulate the employment of foreign nationals in South Africa. The Immigration Act,13 of 2002 (hereafter referred to as “The Immigration Act”), as amended, states in Section 38 thereof, that it is unlawful for any employer to employ any foreigner in South Africa without the requisite status. Such status must authorize him to be in the Republic and must be consistent with the terms of his employment. Furthermore, the Employment Services Act, 4 of 2014, as amended defines foreign nationals as follows:
‘‘foreign national’’ means an individual who is not a South African citizen or does not have a permanent residence permit issued in terms of the Immigration Act; “
Section 8(1) further states that:
“An employer may not employ a foreign national within the territory of the Republic of South Africa prior to such foreign national producing an applicable and valid work permit, issued in terms of the Immigration Act.“
Types of work permits
Work permits are sometimes known as work Visas and take various forms. They are defined in Section 19 of the Immigration Act as follows:
General work Visa
This is the most common type of work Visa and perhaps the most difficult to obtain, as it will only be granted if the employer has exhausted efforts to employ South African citizens first.
Critical skills Visa
This type of Visa is granted where specific specialised and often scarce skill sets are required, and where such skills are scarce. The aspirant job seeker must register with the specialized South African professional group and their qualifications will be evaluated based on South African standards and must present some form of proof such a as a degree or diploma showing that they have such skills as may be required.
Intra Company transfer work Visa
This type of Visa is for where a foreign parent company has business interests in South Africa, and the employer is transferred to the South African employer. This type of Visa is limited in that it is not transferrable and that the employee must have worked for the parent company for at least six months.
A Corporate Visa is granted to a Corporation rather than an Individual after confirmation from the Departments of Labour and Trade and Industry and only if it benefits South African interests. It also focused towards a specific skill set.
Liability and sanctions
In South Africa, the employer, to a significant extent, bears at least some liability for the immigration status of their foreign employees. Section 38 of the Immigration Act states that:
“(1) No person shall employ-
(a) an illegal foreigner;
(b) a foreigner whose status does not authorize him or her to be employed by such 20
(c) a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.
(2) An employer shall make a good faith effort to ascertain that no illegal foreigner is employed by him or her or to ascertain the status or citizenship of those whom he or she 25 employs.
(3) If it is proven, other than by means of the presumption referred to in subsection (5).that a person was employed in violation of subsection (1), it shall be presumed that the employer knew at the time of the employment that such person was among those referred to in subsection (1), unless such employer proves that he or she-
(a) employed such person in good faith; and
(b) complied with subsection (2), provided that a stricter compliance shall be required of any employer who employs more than five employees or has been found guilty of a prior offence under this Act related to this section.
(4) An employer employing a foreigner shall -
(a) for two years after the termination of such foreigner’s employment, keep the prescribed records relating thereto: and
(b) report to the Department-
(i) the termination of such foreigner’s employment; and
(ii) any breach on the side of the foreigner of his or her status.
(5) If an illegal foreigner is found on any premises where a business is conducted. It shall be presumed that such foreigner was employed by the person who has control over such premises. unless prima facie evidence to the contrary is adduced.”
Section 38(2) of the Immigration Act places a clear duty on employers to ascertain the status of any employee or prospective employee. Furthermore, if an employer is found to have employed a person in violation of Section 38(1), it shall be presumed that such employer did so knowingly contravening the Act. Thus, the employer bears the onus to prove that an employee was lawfully employed.
It is therefore advisable to have a contractual clause, in which the employee in good faith, warrants that their status is in order in the event that it later transpires an employee’s status is unlawful. Furthermore, it is advisable for employers to insist on and keep copies of records of their employees’ documents and regularly check their status. In this manner, a stricter requirement can be contractually set in terms of Section 38(3)(b). A further step is to strictly control access to the workplace premises, allowing in only verified employees and thus avoiding the rebuttable presumption created by Section 38(5).
An employer failing to comply with Section 38 of the Immigration Act may face a fine or prison sentence not exceeding one year in terms of Section 49 of said Act. An arguably greater dilemma for the employer is that the employee is protected insofar as all provisions of the Labour Relations Act, 65 of 1995, as amended of and other law will still apply. This means that if an employer is found to be illegally employing a foreign national, due process must still be followed to terminate the employment.
It is clear that South African legislation tries to sway employers towards employing South African citizens. When seeking to employ foreign nationals, it is crucial to establish their lawful status before commencing employment. This is due to the fact that the Employee protections created by the Labour Relations Act and other statutes, may make it difficult to terminate the employment relationship later on if the employee is found to be working illegally. Contact SchoemanLaw for expert assistance in all employment-related matters.
This article was written by SchoemanLaw, partners of Workshop17, for publication on the Workshop17 blog.