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

  • Pungi

    Good article but please correct the following:

    1. a person with a study permit is not allowed to take full-time employment. They may however be allowed to take part-time employment in one of the following conditions: a) as practical assignment/project/attachment/in-service training as required in their field of study; b) if they want to undertake an employment to supplement they living costs, but where the employment does not exceed 20 hours per week.

    2. a person with a spouse permit is allowed to conduct any kind of employment and do business in South Africa just like any south African citizen or permanent resident is.

    3. a person with a relative permit is not allowed to take employment UNLESS their permit is endorsed to take employment (usually for a specific company). The person is allowed to change employers only in the same field or industry (and get another endorsement). For example: a foreigner who has a relative permit with endorsement to work for Woolworths may get another endorsement to work for Foschini Retail Group (because both Woolworths and Foschini are retail companies), but they cannot work for Murray & Roberts (because that is a different industry). However, in the event that they get an employment offer in a totally different industry, they will not get an endorsement but will be required to file a new permit application as they did when applying for their relative permit initially.

    Please note that a spouse permit is also a kind of a relative permit, the only difference is that a spouse permit is endorsed “to reside with SA spouse” whereas a general relative permit is endorsed the title of that particular relative (brother/father/child/etc.). Also, Home Affairs does not charge any fee for a spouse permit, but for a relative permit there is a fee attached. However, one may file and submit an application for permanent residence at the same time when applying for a relative permit, but with a spouse permit that’s a different story.

    Hope this will help.