Employment of Foreign Nationals on Farms in South Africa

Employment of Foreign Nationals on Farms in South Africa

 Agriculture in South Africa is a labour intensive activity and the commercial agricultural sector employs approximately 821 967 million people; of this, 7 per cent are believed to be foreign born.

South Africa is a popular destination for foreign-born migrants in search of better socio-economic opportunities. Good infrastructure, economic stability and a relatively stable democracy are some of the attracting factors.  Africa Check reported in August 2016 that more than 75% of international migrants living in South Africa came from the African continent of which 68% originating from SADC countries. StatsSA indicated in 2016 that Zimbabwe, Mozambique, Lesotho, Malawi, Swaziland and Namibia were among the top 10 “sending countries” (countries of origin of migrants).

Legislation governing the employment of foreign nationals in South Africa.

The employment of foreigners in South Africa is mainly regulated by three Acts.

The Immigration Act 13 of 2002, as amended (“the Immigration Act”) provides for the admission of foreigners to their residence in, and departure from, South Africa and matters connected therewith including the ability of foreigners to work in South Africa. There are a number of permits under this legislation relevant to foreign nationals being employed in South Africa. Of these the General work permit and the Exceptional skills work permit are most relevant.

In terms of section 38(2) of the Immigration Act, a duty is placed on an employer to make an effort, in good faith, to ensure that no illegal foreigner is employed by it and to ascertain the status or citizenship of the persons it employs.

Section 38 of the Immigration Act provides 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.

The Employment Services Act 4 of 2014 (“ESA”), which came into effect in August 2015, further regulates the employment of foreigners. ESA has been introduced to promote employment, encourage productivity, decrease levels of unemployment and provide training for unskilled workers.

The Employment Services Act requires of employers to comply with the following obligations:

• If you employ a foreign national, you must make sure he has a valid work permit.
• The employment of foreign nationals must be according to the provisions of the Immigration Act, in conjunction with the Employment Services Act.
• You can’t ask a foreign national to do any work he isn’t authorised to do in terms of his work permit. Or, expect him to do work that conflict to the terms of his work permit.
• You may use public employment services or private employment agencies to assist you in recruiting a suitable employee who’s a South African citizen or a permanent foreign resident.

 There is a misguided view amongst employers that they can side-step labour regulations when it comes to employing foreigners.  The Labour Relations Act 66 of 1995, as amended (“the LRA”) is applicable regardless of the legal status of the employee. It is important to note that foreign employees, including those who do not have valid working visas, are afforded legal protection from unfair dismissal under the Labour Relations Act 66 of 1995, as amended (“the LRA”). Both the LRA in Section 213 as well as The Constitution of the Republic of South Africa, Act 5 of 2005 (“the Constitution”) Section 23(1), confirm that everyone has the right to fair labour practices and not only citizens.

The law does not declare that a contract of employment concluded without the required permit is void, nor does it provide that a foreigner who accepts work without a valid permit is guilty of an offence. What is prohibited is the act of “employing” a foreign national in violation of the law. All of the liability is therefore attributed to the employer and the law does not penalise the action of the foreign person who accepts work or performs work without valid authorisation. Therefore, a foreign national whose work permit expires whilst employed, or who is employed without a relevant work permit, is still an ‘employee’ for the purposes of the LRA.

The responsibility of the employer

To comply with South African immigration legislations, a farmer has two main responsibilities as an employer:

• Do not employ illegal foreigners.
• Do not employ a foreigner in any position or allow a foreigner to perform a work function not allowed by his or her visa or permit.

In practice, this means ascertaining the status or citizenship of employees. In the case of temporary and permanent citizens, but especially those on temporary visas, it will require asking for the visa or permit, and knowing what the documentation in front of you mean.

Once an appointment was made, your responsibility will be to ensure that the employee are treated fairly in alignment to the relevant Labour Legislation.

The repercussions of not complying with the Immigration Act

With the official unemployment figure rising to a 14-year-high of 27.7% in the first quarter of 2017, it is understandable that the Department of Home Affairs has in the past three years bolstered its immigration inspectorate to investigate the employment of foreign nationals without the correct documentation. The main motivation behind the changes was protecting the South African workforce.

If it is found that you are employing illegal foreigners or employing foreigners outside of the allowances of their visa or permit, you could face a prison sentence or a hefty fine. The fines have been noted in the Immigration Act and range from R7 000 to a possible R50 000 per person, depending on the contravention.