Ricochet News

Foreign Workers and Work Permits in South Africa

By Eli Unterslak - May 18, 2018
Foreign Workers and Work Permits in South Africa

The employment of foreign nationals is governed by the Immigration Act 13 of 2002, as amended, along with its Regulations, the latest being published in May 2014 as well as the Employment Services Act 4 of 2014 (“ESA”).

The Immigration Act and its Regulations provides in Section 38 that 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.

When reading Section 38(2) of the Immigration Act it is therefore clear that a duty is placed on the employer to make an effort to ascertain the status of citizenship of the persons it employs.

Should it be found that the employer knowingly employed an illegal foreigner, the Immigration Act stipulates in Section 49(3) that the employer would then have made themselves guilty of an offence and could be fined or even imprisoned.

When it comes to instituting disciplinary action against foreign employees, employers must understand that the Labour Relations Act protects this category of employees and that the same legal rights are afforded to foreign employees even in the event that they do not have valid working visas. Should an employer therefore unfairly dismiss an employee who is a foreign national, compensation can be awarded against the employer.

Types of work visa’s:

  • Work Visa – applied for through the Visa Facilitation Services Centres (VFS) or the nearest South African embassy, mission or consulate abroad. Only issued to foreigners where South African Citizens with the relevant skills are not available for appointment. Only issued for a set duration.
  • General Work Visa – Valid for the period and duration of contract of employment but not exceeding five (5) years.
  • Critical Skills Work Visa – Issued for a period of no longer than five (5) years.
  • Intra-company Transfer Work Visa – Maximum duration of four (4) years and cannot be extended or renewed. This visa is issued where a multi-national company decides to transfer an employee from one country to another. It is not necessary to submit proof that the employer tried to obtain the services of a South African citizen in this case.
  • Corporate Visa – This visa allows a corporate entity to employ a pre-determined number of skilled/semi-skilled/unskilled workers. Issued for a period not exceeding three (3) years.
  • Study Visa – Issued for the duration of study. The holder of a study visa may conduct part time work for a period not exceeding twenty (20) hours per week.
  • An Asylum Seeker’s Permit – the holder of a section 22 (of the Refugee Act) may work and study in South Africa for the duration of the permit
  • Refugee Permit – When granted asylum, an asylum seeker can apply for a section 24 permit which allows such a person to remain for a specified period of two (2) years. This permit can be renewed and the person may work and study in South Africa whilst the permit is valid.

UIF Contributions

When taking into consideration that a foreign employee enjoys the same rights as a South African employee in terms of labour legislation, it would then be reasonably implied that they should then also be liable for employee obligations such as contributing to the Unemployment Insurance Fund which would then mean that foreign employees have the right to claim such benefits.

Section 4 (1)(d) of the UIF Contributions Act 4 of 2002 does however exclude some foreign employees from contributing towards and claiming from UIF, such as:

  • Foreign employees with a contract of service;
  • For the purpose of an apprenticeship/learnership; or
  • On a fixed-term contract

What if the employee’s work permit expires?

In the event that the employee’s work permit expires the employer should give the employee reasonable time to obtain a new work permit (the resulting time off may be unpaid).

If the employee fails to submit a valid work permit before or on the established deadline, an incapacity procedure should be embarked on, upon which conclusion the employee’s contract of employment may be terminated based on the employee failing to produce a valid document to legalise his/her work in South Africa.

These permits should be verified by the Department of Home Affairs and should it be found that the permit is fraudulent, the employee may be subjected to a disciplinary hearing which could also lead to the termination of the employee’s contract as well as criminal prosecution.

Sources:

http://www.home-affairs.gov.za/index.php/refugee-status-asylum

http://www.dha.gov.za/index.php/immigration-services/types-of-visas