Ben Makhalemele, deputy director of corporate accounts at the Department of Home Affairs, has announced that South Africa is adopting a zero-tolerance policy on any illegal foreign workers hired in South Africa.
All employers are advised to ensure that foreign nationals in their employ have the necessary legal documents to fulfill the role they are hired for.
If illegal foreigners are found to be employed, a fine not exceeding R100 000 and possible imprisonment may be faced by the head of HR and the owner/chief executive of the company. A no-mercy approach is being followed and business representatives along with illegal foreigners are being arrested for any contraventions.
The National Labour Migration Policy currently under consideration as well as the Employment Services Amendment Act of 2021 introduce the imposition of quotas on the number of foreign nationals that may be employed in major economic business sectors.
Section 12B of the Employment Services Amendment Act sets out the Minister may specify a maximum quota for the employment of foreign nationals by employers in any sector. A notice in terms of such quotas must:
- Specify the period within which existing employers must comply with the quotas in the notice.
- Specify the period within which newly established employers must comply with the quotas; and
- Exclude small employers, as defined in that notice, from complying with the specified quotas.
In determining quotas, the Minister may consider any relevant factor including:
- The availability of the requisite skills, including critical skills, among South African citizens, permanent residents, or refugees who are available to work in the sector; or
- The Republic’s obligations to permit foreign nationals to work in terms of any international agreement which is binding upon the Republic in terms of section 231 of the Constitution.
Quotas may only be exceeded if a foreign national is employed to fill a position in respect of which critical skills are required, or in any other position if the employer has been granted exemption from the applicable quota or prohibition by the Minister.
In summary, the National Labour Migration policy aims to achieve a balance between the following:
- The population’s expectations regarding access to jobs for South Africans, considering the ever-increasing unemployment rate and a perception that undocumented foreigners are flooding the job market.
- South Africa’s labour market needs for critical skills not available locally.
- The protection of foreign nationals and their families in accordance with international standards and guidelines; and
- Regional integration and cooperation imperatives.
Chapter 3A of the Employment Services Amendment Act at section 12A sets out that no person may employ a foreign national to work within the territory of the Republic of South Africa, unless that foreign national:
- Has the right to be so employed in terms of a visa issued under the Immigration Act.
- Has been issued with an asylum seeker visa, in terms of section 22 of the Refugees Act, which is endorsed, with the right to work; or
- 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.
The Bill further sets out the duties of an employer who employs foreign nationals as follows:
- Employers must confirm that the foreign national is entitled to work in the Republic and is entitled to perform the work in which they are employed.
- Employers must ascertain that there are no persons in the Republic other than foreign nationals with the requisite skills available to fill the vacancy, before recruiting a foreign national to occupy such vacancy.
- Employers must prepare a skills transfer plan in respect of any position in which a foreign national is employed.
- Employers must employ foreign nationals 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
- Employers must retain copies of all documents reflecting that the foreign national is lawfully entitled to be employed in the Republic.
Border management security is being strengthened to secure porous borders. This aims to stop the influx of illegal foreigners into South Africa through our borders and ports of entry. Legislation is also being reviewed and adjusted. Inspections will be ramped up and existing labour and immigration legislation will be enforced.
A blanket approach excluding all foreign nationals from employment should not be taken. Employers should check their foreign nationals and prospective foreign national employees’ documents and confirm the validity thereof as far as possible. If a foreign national has a valid work permit, they may enter the workforce and the employer will not be at risk.
There is a legal duty on employers to ensure that their foreign national employees have valid work visas for them to be lawfully employed.
You can check a foreign national’s work permit/visa by:
- Emailing the verifications department: Missions@dha.gov.za.
- Calling the verifications department: 012 406 4432.
- Attending the Department of Home Affairs to find out directly from an immigration officer.
Should you employ any Foreign National without a valid work visa it is important to follow the correct procedure to terminate the employee. A proper incapacity process will need to be initiated as soon as possible to ensure your rights as employer and the rights of the employee are protected.
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