AUTHOR: SANELISIWE NYASULU
PUBLICATION DATE: AUG 25, 2025
South Africa hosts an estimated number of 250 000 legal refugees with employment being one of the rights that is afforded to refugees in the Republic. The Immigration Act 13 of 2002 (“the Immigration Act”), Employment Services Act 4 of 2014, (“ESA”), Labour Relations Act 66 of 1995 (“the LRA”), Refugees Act 130 of 1998 and the soon to be implemented National Labour Migration Policy 2025 White Paper, are just some of the laws that employers need to familiarize themselves with when employing foreign nationals who reside in the Republic, with legal refugee permits.
The Immigration Act and Regulations
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.
This section places the responsibility on the employer to ascertain the status of foreign nationals in their employ and to ensure that they do not employ illegal foreigners, at least not knowingly. In addition, section 49(3) stipulates that anyone who intentionally employs an illegal foreigner or a foreigner in contravention of the Immigration Act shall be guilty of a criminal offence and liable to a fine or a period of imprisonment not exceeding one year for a first offence.
The Labour Relations Act
Foreign nationals are covered by the definition of “employee” in section 213 of the LRA and employers are cautioned that all protections under the LRA, apply to all foreign nationals, in their employ, whether legal or not, as they do to South African citizens. It is the illegal employment of a foreigner which assigns liability to the employer and the foreigner who has undertaken the work offered is not held accountable. Therefore, invalidity of the employment contract may not be used as a defense.
This means that legal and illegal foreigners may not be unfairly dismissed, neither may they be subjected to unfair labour practices, and if so subjected, they can exercise any and all protection and recourse under the LRA, including accessing the bargaining councils and Labour Courts.
The matters of Discovery Health Limited v CCMA & Others and Samual Nyakudya v OR Tambo District Municipality have corroborated these principles, finding that the employee’s dismissal had been unfair and that a foreign national enjoyed the protection afforded by the LRA.
The National Labour Migration Policy 2025 White Paper and the Employment Services Amendment Bill
On the 28th May 2025, Cabinet approved both the National Labour Migration Policy (NLMP) 2025 White Paper and the Employment Services Amendment Bill, 2021 (ESAB) for submission to Parliament.
The NLMP is aimed at regulating the movement and employment of foreign nationals, by introducing quotas on the number of foreign workers in specific sectors, restricting business visas, and limiting the number of foreign nationals establishing small businesses in certain sectors.
The aim of the ESAB is to create a balance between the need for economic growth and skills development, ensuring that foreign nationals are employed in a manner that does not undermine labour standards or the rights of South African workers. Once the Bill is approved employers in the chosen sectors should review their employee and recruitment structures to ensure that they keep abreast of the new requirements.
Conclusion
The law places the onus on the employer to comply with the relevant legislation, holding the employer liable for non-compliance. Employers are urged to give due consideration to the responsibility placed on them, and to attend to the necessary due diligence when seeking to employ foreign nationals. It is now a priority of the South African Government to correctly balance the need for the protection of legal refuges and to afford them employment, without adversely effecting employment seeking South African citizens.
Telephone: +27 31 570 5350
Email: sanelisiwe.nyasulu@gb.co.za