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. StatsSA indicated in 2016 that Zimbabwe, Mozambique, Lesotho, Malawi, Swaziland and Namibia were among the top 10 “sending countries” (countries of origin of migrants).
Sending country is the country whose citizens leave to migrate to other countries generally to find employment. The migration may be temporary or permanent. Generally, studies of immigration show that these migrants often send money home, enhancing their families’ standards of living and thereby contributing both to the home and host economy and the nations respective trade balance.
The major sectors these migrants work for include mining, transport, commerce, agriculture – and the employment of foreign nationals in these sectors is quite popular.
Unfortunately, employers are often faced with instances of not knowing what compliance is required by law to employ foreign nationals.
The use of illegal migrants is clearly problematic and could lead to employers being fined with less than ideal consequences. Section 49(3) of the Immigration Act also makes provision for a fine or imprisonment of an employer who knowingly employs a foreign national without a valid work permit.
It is important that prior to employing any foreign national, they should be in possession of an applicable and valid work permit, issued in terms of the Immigration Act of 2002 as amended.
The law clearly places the responsibility on the employer to comply with the relevant legislation and holds the employer liable for non-compliance. The employer is responsible to ensure that they, as an organisation adhere to the regulations and legislation when employing a foreign national as per the Immigration Act of 2002, as amended (The Act).
The Act in Section 38 stipulates as follows –
“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 Corporate Visa provides an excellent way for companies to manage their workforce and staffing needs. The visa allows a corporate entity (e.g. a mining group, farmer, etc.) to employ a pre-determined number of skilled/semi-skilled/unskilled workers. A Corporate Visa is issued for a period not exceeding three years. When the Corporate Visa has been approved by the Department of Home Affairs, the individual employees may obtain work permits in a quick and cost-saving procedure as the positions are pre-approved.
The company applying for a Corporate Visa must provide proof to the Department of Labour and the Department of Trade and Industry that at least 60% of the total staff complement are citizens or permanent residents employed permanently in various positions.
Employers must be cognisant that after obtaining a Corporate Visa, the Departments of Home Affairs and the Departments of Labour will continue routine inspections in an attempt to protect all workers, illegal or not, from employers who exploit this type of visa.