The employment of non-South African citizens who are not asylum seekers, refugees or permanent residents (foreign workers) is governed by the Immigration Act 2002 (IA), as well as the regulations thereto.
The IA and regulations impose obligations on any person or organisation that employs a foreigner, regardless of the business’s size or number of employees, although stricter compliance is required of any employer with more than five employees or who has been found guilty of a prior offence under the IA.
There is no restriction on the number of foreign workers that an employer may employ or on the number of categories under which work visas may be applied for. Nonetheless, the work visa process guards against employing foreign workers in positions that can be filled by locals.
By way of example, the regulations provide that a company wishing to obtain a Corporate Visa or a business visa must employ at least 60% South Africans and that an application for a general work visa must include a certificate from the Department of Labour confirming that despite a diligent search the employer has been unable to find a South African citizen or permanent resident with equivalent qualifications and skills or experience.
Any foreigner worker needs to obtain a work visa to render services in South Africa irrespective of the time frame for which they are required to render services locally, and notwithstanding the fact that they may be employed through a foreign entity. Foreign workers and their employers can be fined, jailed, or both, for non-compliance with their obligations in this regard.
To ensure regulatory compliance, an employer in South Africa must maintain documentary records for each foreign employee for two years after the termination of employment. The employer must also report to the authorities the termination of a foreign worker’s employment and any breach by the worker of his or her status.