When it comes to the provisions of the employment of a foreign national, the key Act’s concerning this practice is the Immigration Act 13 of 2002 and the Employment Services Act 4 of 2014.
Section 38 of the Immigration Act clearly states that no person shall employ an illegal foreigner, a foreigner whose status does not authorise him or her to be employed by such a person, or a foreigner on terms and conditions in a capacity different from those contemplated in such a foreigner’s status.
What is important to note here is that the law does not prohibit employment contracts concluded between employers and foreign nationals. The law furthermore does not declare that a foreign national who accepts work without a valid work permit is guilty of an offence. Instead, it places the onus squarely on the shoulders of the employer as that the employment of a foreign national is prohibited by law. Section 49(3) of the Immigrations Act also makes provision for a fine or imprisonment of an employer who knowingly employs a foreign national without a valid work permit. The employer could be held liable for a fine or imprisonment of up to one year for a first offence and for a third offence imprisonment not exceeding three years without the option of a fine. This Act, therefore, allows for strict action that may be taken by the Department of Labour and Home Affairs against employers who do not adhere to these guidelines.
What is also important to note is that from a UIF perspective the Unemployment Insurance Contributions Act made amendments that came into effect from the 1st of March 2018. This effect means that essentially both employers and foreign national Employees will be required to contribute towards UIF from the 1st of March 2018.
It is therefore key for employers to note that they will be held responsible by law for employing foreign nationals without a valid work permit and could be held liable for a fine or imprisonment. Employers, therefore, need to ensure that they are in possession of valid work permits for all their foreign national employees.
Employers need to take note of the draft regulations on the employment of foreign nationals with regards to the Employment Services Act 4 of 2014 that was published for public comment on the 28th of December 2018. These regulations cover essentially work visas, corporate visas and a skills transfer plan. The skills transfer plan essentially makes way for the transfer of skills between foreign nationals and the South African employees in the workplace. Employers are therefore encouraged to, where applicable, keep abreast of these new regulations should they be promulgated into law to ensure they meet the requirements of this Act.
Dispute Resolution Official – Nelspruit