According to the Labour Law experts at the Labour Law for Managers Loose Leaf
, foreign nationals are defined as people who are neither citizens nor permanent residents in the country. A foreign national can apply for a work permit after they have entered the country.
Be aware of these Immigration Act rules when employing foreign nationals
You must ensure that the foreign national hasn't entered South Africa illegally and/or if she or he has entered into the country legally, you must ensure that the foreign national has valid papers, for example a valid work permit or permanent residence permit.
You also have to comply with certain obligations contained in the Immigration Act, which prohibit you from employing foreigners who aren't in possession of the relevant permit from the Department of Home Affairs. If you don't fulfil these obligations you will be in danger of violating the Immigration Act.
You must meet these four obligations under the Immigration Act
Establish that no illegal foreigner or foreigner without a work permit is employed in your organisation;
Determine accurately the status or citizenship of all the employees in your organisation;
Keep foreign national employment records for two years after their services have been terminated; and
Report the termination of any foreign worker's employment or any breach on the part of the foreigner of his or her status to the Department of Home Affairs.
If you're found employing an illegal foreigner, it'll be presumed you knew you were employing the foreign worker illegally when you hired him or her, unless you can prove that:
- You employed this person in good faith, and
- You have complied with points one and two above.
If an illegal foreigner is found on your business premises it will be presumed s/he is working for you, unless you can offer sufficient evidence to the contrary.
It's a good idea to establish the nationality of your prospective employees before
employing them. Ask for the prospective employee's identity document, passport, residence permit etc. You can verify the information with the Department of Home Affairs which has offices in all the provinces in South Africa. Each provincial office has a hot-line for enquiries. You can get the hot-line numbers from the following link to the Department of Home Affairs website: www.home-affairs.gov.za/immigration_hotlines.asp