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What legislation governs the employment of foreigners in South Africa?

Foreign Nationals are no stranger to the South African labour market. Even though certain industries might be more likely to employ foreigners based on the nature of their trade, legislation governing the employment of foreigners is enforceable throughout all labour sectors.

Section 38(1) of the Immigration Act, Act 13 of 2003, reads as follows:

(1) No person shall employ –

  • an illegal foreigner;
  • a foreigner whose status does not authorise him or her to be employed by such person; or
  • a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.

Because of section 38(1), employers are cautioned to conduct thorough background searches on potential employees to be sure they have the necessary working permits (if applicable). Employing an “invalid” foreigner not only exposes the employer to prosecution and fines, but they will also have to deal with labour procedures to dismiss the employee. If employment is offered to a foreigner who does not have the correct permit, the contract of employment is not necessarily void, but the underlying employment relationship would still be the main factor to consider.

What is the definition of an employee as per Labour Legislation Act?

The Labour Relations Act (LRA) defines an employee as “any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer”, and “employed” and “employment” have meanings corresponding to that of “employee”.

What then if a foreign national’s work permit is invalid or has expired?

As seen above, foreign nationals will enjoy the protection afforded by the Labour Relations Act if they fall under the definition of employee. The contract of employment will not be the deciding factor. Where an employee’s work permit expires, an employer will have to follow fair labour practices before disciplining or dismissing the employee. If any misconduct is present, the employer will have to follow disciplinary procedures. If, however, there is no misconduct, the employer will be advised to follow the incapacity process. This should be differentiated from medical incapacity.

This article is by Stefan Fourie with compliments and thanks to Audrey Cloete.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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