The Immigration Act of 2002 mainly considers whether the employer can demonstrate that a South African Citizen or permanent resident is not available for a the position when considering issuing out of work permits. The employer is also required to demonstrate that the terms and conditions of employment will not be inferior to those applicable for citizens. The South African labour legislation assumes that foreign employees are legal under the Immigration Act. Thus the legislation does not distinguish between citizens and non-citizens.
It is thus important for the employer to be cognisant of the various types of permits required of foreign employees for various vocations and employment, as there is not a blanket “one size fits all” permit for all foreign employees.
- Voluntary or Charity Work
Should a foreign national wish to partake in voluntary or charity work in South Africa, they can obtain a visitors permit for a period of up to three (3) years. There is however no possibility to obtain permanent residence. It is in the general definition that such activities may not be remunerated.
The requirements that have to be fulfilled are as follows:
Proof of sufficient funds to sustain the applicant;
An undertaking by the charitable organisation to cover the necessary expenses.
- Studies or Research work
Should the foreign national wish to obtain a study permit for higher education, they may take up part time work of up to twenty (20) hours per week.
The requirements that have to be fulfilled are as follows:
- Foreign nationals wishing to attend learning organisations in South Africa such as University’s or schools need to obtain a letter by the learning institute confirming the applicant’s provisional acceptance and the minimum period of the studies or the course;
- Medical cover by a medical provider registered and recognised in South Africa;
Foreign nationals younger than twenty one (21) need to have a local guardian authorised by the applicant’s holders of custodial rights.
- Internship, Articles, Practical Year
Foreign nationals, wishing to work or study for a period of longer than three (3) months, require a study or work permit. Activities conducted as part of a course or training in South Africa will require a study permit. The same requirements for studies or research work, will apply.
Those outside the official course or training will require a work permit. Applicants under the age of twenty five (25), may apply for an exchange permit valid for one (1) year and precludes the applicant from obtaining any other temporary residence permit for a period of two (2) years after its expiry.
- Work in employment
Foreign nationals seeking to take employment need to obtain a work permit. There are a variety of work permits, which can be taken, but will however depend on the applicant’s:
- Type and duration of post;
- Applicant’s qualifications or experience.
The applicant needs to provide a valid air return ticket or a deposit to the value of such a ticket. However in some instances, the deposit can be replaced by a written undertaking from the national’s prospective employer to cover their costs to their country of usual residence, should the need arise.
The different types of permits that exist are as follows:
4.1 General work permit
For a foreign national to obtain this type of permit, the prospective employer needs to motivate his need for the foreign national’s specific qualifications, skills or experience and also submit proof of his efforts to recruit a local candidate. For example, having an advertisement of the position in a local newspaper. The South African evaluation authorities will then evaluate the foreign national’s qualifications.
4.2 Quota work permit
This type of permit issued to a prescribed number of foreigners who possess certain academic degrees and /or at least two (2) years of professional experience. In this instance the prospective employer does not need to motivate or prove that a South African citizen or permanent resident cannot fill the position.
The permit can be issued in the absence of a contract of employment or job offer. It will however need to be submitted to the Department of Labour within ninety- (90) days of issuing the permit.
4.3 Exceptional Skills permit
This permit can be granted to foreign nationals purely on the grounds of those particular skills or qualifications and independently of the particular job offer or position to be taken. Their “exceptional skills” needs to be confirmed by a South African or foreign organ of state or an established South African academic, cultural or business body.
This type of permit is valid for a period of up to three (3) years and may be extended.
4.4 Corporate permit
Companies with a proven need for foreign employees on an ongoing basis need to obtain a corporate permit. The company needs to motivate and prove its need for foreign staff. This permit is issued to the employer and not individual worker.
- Employment Equity
Affirmative action principles do not apply to foreign nationals, as they are not classified as members of designated groups. However, should a foreign national be elected as part of the employment equity committee, they would represent non-designated groups in the workplace. Thus they are not exempt from being part of such committees.
It is important for employers to be mindful of the fact that foreign nationals seeking general work and exceptional work permits, may apply for permanent residence on grounds of permanent employment. Quota work permit holders however, may not apply for permanent residence
- Penalties for employing an illegal foreigner
Section 38 of the Immigration Act of 2002 states that no person shall employ an illegal foreigner.
Should the employer be in violation of the above it will be presumed that the employer knew at the time of employment that the employee was an illegal immigrant.
An employer employing a foreigner shall:
- For two (2) years after the termination of such a foreigner's employment, keep the prescribed records.
- Report to the department of home affairs the term of such foreigner’s employment and any breach on the side of the foreigners about his or her status.
An employer shall make a good faith effort to ascertain that they employ no illegal foreigners and to ascertain the status or citizenship of those whom he or she employs.
Section 49(3) of the Immigration Act 2002 states that anyone who knowingly employs an illegal foreigner shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one (1) year, provided that such person's second conviction of employing an illegal national shall be punishable by imprisonment not exceeding two (2) years or a fine. The third and subsequent convictions of employing an illegal foreigner will be punishable by imprisonment not exceeding three (3) years without the option of a fine.
For advise and assistance in respect of the above or any other labour related issued please contact the Labournet Helpdesk on 0861 522638 or your allocated consultant.
Disclaimer
The information published in these articles or newsletter is of general nature and should not be used without obtaining specific advise as to its application in your business or under your specific circumstances. LabourNet™ will accept no liability if the information is used without first obtaining specific advise from one of our consultants.