Employing a foreign national

August 2nd, 2011, Published in Articles: Vector

This is a description of a situation that sometimes occurs. A contractor wants to employ someone but that person doesn’t have the right “papers” that allow him/her to work legally in South Africa.

Question:
I am contemplating hiring a few Zimbabweans at my company.  Are there any requirements or restriction when employing foreign nationals?

Answer:
Firstly, it is important to understand that a foreign national is anyone who is not a citizen of South Africa.

You may employ foreign nationals only if that person is in RSA legally and has a valid work permit from the Department of Home Affairs permitting them to work, either for you specifically or in the Republic generally. The Immigration Act 13 (2002) states that an “an employer is not permitted to employ an illegal foreigner, or a foreigner whose status does not permit him to be employed.”

In other words a foreigner who has a study permit, spouse permit or relative’s permit is not allowed to work in South Africa. In addition a foreigner who is in possession of a work permit that allows him to work for one specific company cannot work for any other company.

When you employ a foreign national without a valid work permit you are in contravention of the Immigration Act and the consequences of this are that the employee could be deported and never permitted to return to South Africa. You as an employer could incur a fine and/or imprisonment if the Department of Home Affairs became aware of your conduct.

PS: In September 2010, the South African government introduced a moratorium on the deportation of Zimbabwean nationals, and gave them until 31 December 2010 to regularise their stay by applying for work, business or study permits.  Recent reports from the Department of Home Affairs showed that deportations of Zimbabaweans without valid permits allowing them to stay in South Africa would commence on 1 August 2011.

Remember, it is a criminal offence to knowingly employ a foreign national without valid work permits. If you are employing Zimbabweans or other foreign nationals you must make sure they have valid work permits.

Shantonette Naidoo