If you unknowingly employ foreign worker who doesn't have the right papers or has entered the country illegally, you're committing a criminal offence and could face a fine or even imprisonment.
'For the purposes of employing foreigners, only people who are neither citizens nor permanent residents are regarded as foreign nationals. All foreign nationals need a work permit to work,' explains The Labour Law for Managers Loose Leaf Service.
So if you hire foreign nationals, make sure you look at the permit in his passport and ascertain the exact ambit of the permit. You can call the temporary residence department of your local Department of Home Affairs if you're uncertain.
What different work permits are available to foreign nationals?
According to The Labour Law for Managers Loose Leaf Service, there five categories of work permits available:
#1: A general work permit: Any foreigner may apply for this permit and it's valid for three years. For this type of work permit, the Department of Home Affairs needs to be satisfied that a South African citizen or permanent resident isn't being deprived of employment by the appointment of the foreigner.
To satisfy this requirement, you must show that despite a diligent search you've been unable to employ a person in South Africa with equivalent qualifications.
#2: A quota work permit: This permit is granted to a limited number of applicants per year in certain industry sectors, which are determined by the Minister of Home Affairs.
In the case of a quota work permit, you don't have to furnish proof that no South African citizen or resident was available to fill the position. You must, however, pay over 2% of the taxable remuneration of the foreigner directly to the Department as a training fee.
#3: An intra-company transfer permit: This permit may be issued for a period of two years in cases of secondment (where employees are temporarily transferred between offshore companies and their South African branches or affiliates).
There are some conditions attached to this type of permit, for example, furnishing financial guarantees to pay deportation costs.
#4: An extraordinary skills permit: This permit may be issued to a foreigner who possesses exceptional skills or qualifications based solely on such abilities or qualifications.
These applications must, however, be well motivated by proof of the scarcity of the skills in South Africa and the applicant's talent. The immediate family members of the holder of an extraordinary skills permit will also be issued with appropriate permits to remain in South Africa to accompany the foreign employee.
#5: A corporate permit: Your company can obtain this type of permit, allowing the organisation to employ a certain number of foreigners provided it can justify its need for foreign employees.
The Departments of Labour and Trade and Industry will determine the maximum number of foreigners who may be employed in terms of this permit and the terms and conditions that must be complied with before the permit will be issued.