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South Africa’s debate about foreign nationals has moved well beyond politics and into day-to-day business risk. Anti-immigration protests and marches have taken place in several major centres including Johannesburg, Pretoria and Durban since April this year, and Human Rights Watch reported that some demonstrations were accompanied by violence and intimidation directed at foreign nationals. At the same time, the courts have drawn a firm line against vigilantism: In November 2025 the Gauteng High Court held that Operation Dudula’s conduct in blocking foreign nationals from hospitals, schools and other services was unlawful and xenophobic, and confirmed that private individuals cannot demand passports or IDs from people in public as if they were law enforcement officers.

Government has responded by trying to occupy the middle ground between enforcement and constitutionalism. President Cyril Ramaphosa said on 7 June 2026 that public concern about jobs, public services and the rule of law is real and must be addressed, but warned that illegal immigration is not the cause of all South Africa’s economic problems and that no one may take the law into their own hands. In the same address and follow-up government communications, he said that inspections of workplaces to check for those employing undocumented foreign nationals would be intensified by the Department of Employment and Labour (DoEL), the Department of Home Affairs and the South African Police Service, with tougher penalties for employers who knowingly break immigration and labour laws.

For employers, the significance of this moment lies in the fact that workplace enforcement has now become one of government’s main answers to public pressure. That is the context in which the Employment Services Amendment Bill (ESAB) was introduced in the National Assembly on 29 May 2026 and remains under consideration. The Bill is expressly designed to amend the Employment Services Act so that it can regulate the employment of foreign nationals more directly, align with the Immigration Act and Refugees Act, and strengthen enforcement mechanisms.

Why the ESAB matters

The Bill does not yet change the law simply by being introduced, but it gives a very strong indication of where regulation is heading. It empowers the Minister of Employment and Labour, after consulting the Employment Services Board and considering public comments, to set quotas for the employment of foreign nationals by sector, occupation and even geographical area. Government has repeatedly linked this to the National Labour Migration Policy, which aims to manage labour migration while prioritising employment opportunities for South African citizens, permanent residents and recognised protection-holders.

Practical Obligations for Employers

The proposed framework will affect employers in practical, document-heavy ways. According to government and legal analyses of the Bill, employers who want to employ a foreign national will be required to:

• Verify that the person is legally entitled to work and to perform the particular work in question;
• Satisfy themselves that no suitably qualified South African citizen, permanent resident, refugee or asylum seeker is available for the role;
• Prepare a skills transfer plan unless exempted;
• Keep prescribed records; and
• Ensure that the foreign national’s terms and conditions are no less favourable than those of comparable local employees.

The Bill also contemplates substantially heavier penalties, including fines beginning at up to R100 000 for a first contravention and rising to as much as R1 million or 10% of annual turnover for repeated non-compliance.

A Closer Look at the Definition

A detail that employers should not miss is the Bill’s wording on who counts as a ‘foreign national’ for purposes of the new chapter. In the version introduced to Parliament, a foreign national is defined as someone who is not a South African citizen, permanent resident, refugee or asylum seeker. That means permanent residents, refugees and asylum seekers are not simply folded into the same category for quota purposes, and the recruitment preference pool that the employer must consider before hiring a foreign national expressly includes those groups.

The compliance message is therefore clear even before the Bill becomes law. Employers should already be auditing immigration status records, visa conditions, recruitment practices and job-spec records, because the current enforcement climate is tightening and the proposed legislation will reward employers who can show a proper paper trail. Government has said plainly that businesses exploiting undocumented workers distort the labour market, undercut lawful wages and contribute to social tension.

The Constitutional Position

None of this means that foreign nationals become rightless employees though. The Constitution’s Bill of Rights applies to all people in South Africa, and the DoEL has expressly stated that all labour laws accord the same standards and rights to citizens and foreign nationals who work in the country. The Department has also repeatedly emphasised that the unlawful employment of undocumented workers is prohibited, and that the rights of workers in the Republic remain constitutionally protected.

The labour courts have reinforced that principle. In Discovery Health v CCMA, the Labour Court held that a foreign national without a valid work permit could still qualify as an employee for purposes of the Labour Relations Act (LRA) and could pursue an unfair dismissal dispute; the Court reasoned that the Immigration Act should not be interpreted in a way that strips vulnerable workers of fair labour protections and invites exploitation by employers. More recently, in Nyakudya v O.R. Tambo District Municipality, the Eastern Cape High Court held that even though employing a foreign national without a valid work visa contravenes Section 38 of the Immigration Act, that did not erase the employee’s right to fair labour practices or justify a procedurally unlawful dismissal.

Arguably the most important point for employers dealing with current political pressure is that immigration non-compliance and labour law fairness are not mutually exclusive concepts. While an employer may have immigration-law obligations, and may even face sanction for continuing to employ someone unlawfully, the employer still cannot assume that an expired visa or a politically sensitive workforce profile authorises a shortcut dismissal. The legal position is that the reason for termination must still be legally sustainable and the process must still be fair.

The Fairness Test in Practice

Where dismissal is being considered, foreign nationals retain the core protections that attach to employees generally. At a minimum, they are entitled to a proper procedure, notice where required, and a dismissal process that is based on a recognised legal ground rather than panic, public pressure or assumptions about nationality. In Nyakudya, the Court found the dismissal unlawful because the municipality failed to follow proper procedure and dismissed the employee without proper notice, even though his work visa had long expired.

If an employer is contemplating dismissal because of restructuring, future quota pressure, or a decision to reduce a category of foreign national employees, the ordinary rules on operational-requirements dismissals still apply. Section 189 of the LRA requires consultation when an employer contemplates dismissals for operational requirements, and that consultation must be a meaningful joint consensus-seeking process aimed at, among other things, avoiding dismissals, minimising their number, changing timing, mitigating adverse effects, agreeing on selection criteria, and discussing severance pay. The employer must also issue written notice and disclose the relevant information behind the proposal.

This matters because the ESAB does not create an automatic termination mechanism for existing employees. It regulates future employment and compliance, and it strengthens the hand of the Minister and labour inspectors, but it does not displace the LRA’s unfair-dismissal protections. So, if quotas are eventually implemented in a way that requires workforce changes, employers should assume that any resulting dismissals will still have to pass the usual test of substantive and procedural fairness.

Foreign nationals also have access to labour law forums when they believe those protections have been breached. Discovery Health confirms that the Commission for Conciliation, Mediation and Arbitration can have jurisdiction even where a work permit problem exists, and Nyakudya confirms that courts will intervene where an employer bypasses proper process. The remedy will always depend on the facts – reinstatement may be impractical where the employee is not legally permitted to work, as the High Court noted in Nyakudya – but the absence of a practical reinstatement remedy does not mean the dismissal was fair in the first place.

Translating Policy into Practice

The current South African position is therefore not ‘open season’ on foreign national employees. It is a more complex and more demanding position: Government is tightening enforcement against undocumented work, Parliament is considering a Bill that would impose quotas and heavier compliance duties, and public pressure is clearly shaping the policy conversation. At the same time though, the Constitution, the LRA and the case law still require employers to act lawfully, rationally and procedurally fairly when employment is at stake.

Foreign nationals may be at the centre of a heated national debate, but they remain bearers of labour rights, and employers who ignore that reality risk turning an immigration problem into a labour law dispute as well.