Employing foreign nationals

Before day one: the visa must match the job

The Immigration Act draws three lines, and an employer can cross any of them without meaning to. You may not employ someone who is in the country unlawfully; you may not employ a foreigner whose visa does not allow them to work for you; and you may not employ a foreigner on terms or in a job different from what the visa contemplates. The third line is the one that catches businesses that did check the visa.

The Act also puts a duty of enquiry on you. An employer must make a good-faith effort to establish that it is not employing an illegal foreigner and to check the status of the people it employs. If it turns out that someone was employed unlawfully, the Act presumes you knew — unless you prove that you employed the person in good faith and made that effort. And the bar rises with size.

Two paperwork duties follow. You must keep the prescribed records for two years after the foreigner’s employment ends, and you must report the termination — and any breach of the person’s status — to the Director-General of Home Affairs. The Employment Services Act adds a plain rule of timing: no foreign national may be employed before producing a valid work permit, and no employer may require or permit a foreign national to do work the permit does not cover.

The main work visas

Three categories cover most private-sector hires. Each is issued under section 19 of the Immigration Act, and each ties the holder to a particular kind of work:

• General work visa — for a specific job with a specific employer, on proof that the position could not be filled locally. Change the job or the employer and the visa no longer fits.
• Critical skills work visa — for people with skills or qualifications on the Minister’s gazetted critical skills list. It is tied to the skill, which gives more room to move between employers within that field.
• Intra-company transfer work visa — for a transfer from a foreign branch or affiliate to the South African company. The holder may work only for that employer, and only in line with the visa’s conditions.

Other documents — study visas, spousal visas, asylum and refugee documents — may or may not carry a right to work, and sometimes carry a restricted one. Read the endorsement rather than assume. The work visas guide in the Doing Business hub sets out the categories, requirements and processing routes in more detail.

The penalties

Employing an illegal foreigner, or employing a foreigner in breach of the Act, is a criminal offencewhen done knowingly — and remember that the Act presumes knowledge unless you prove good faith and a proper check.

The same subsection escalates: a second conviction carries up to two years, and a third or later conviction up to five years without the option of a fine. Failing the record-keeping and reporting duties in section 38 is a separate offence. And if an illegal foreigner is found on premises where a business is run, the Act presumes the person who controls the premises employed them, unless there is evidence to the contrary.

Beyond the criminal exposure, a business that employs foreign nationals without proper status is a poor candidate for tenders, licences and due diligence in a sale. The cheapest time to fix the file is before the person starts.

The worker’s rights remain

Here is the part that surprises employers. An unlawful employment does not make the person a non-employee. The Labour Court decided the point in Discovery Health: a man employed without a valid work permit was still an employee under the Labour Relations Act, and could refer his dismissal to the CCMA, because the definition of employee does not depend on a valid contract.

Parliament later wrote the same principle into the Employment Services Act.

So a foreign national without status, or whose status has lapsed, can still claim unfair dismissal, unpaid wages, leave pay, notice and the national minimum wage. Non-compliance with the Immigration Act is your problem with Home Affairs; it is not a defence at the CCMA.

Tie the contract to the permit

A work visa runs for a defined period. The Labour Relations Act treats that as a good reason for a fixed-term contract — one of the nine listed justifications in section 198B.

That matters because, for an employee earning below the threshold of R269 600,90 a year, a fixed term longer than 3 months at an employer with 10 or more employees is only allowed for a justifiable reason, and the offer must be in writing and state the reason. Without that, the law deems the employment permanent. Above the threshold section 198B does not apply, but the discipline is the same: write the term down, state why, and set the end date at or before the permit’s expiry.

Draft the contract so that it ends on the earlier of the stated date and the day the permit ceases to be valid, and so that a renewal of the permit is followed by a fresh written offer. The fixed-term contracts guide explains the three-month rule, the written-reason requirement and the trap of repeated renewals creating an expectation of a permanent job.

Figures last reviewed 9 September 2026.

What is coming: quotas (not law)

The Employment Services Amendment Bill [B16—2026] was introduced in the National Assembly in 2026. If enacted as introduced it would let the Minister of Employment and Labour set a maximum quota for the employment of foreign nationals by sector, by occupational category, nationally or by region, after publishing a draft notice for at least 30 days of public comment. A notice would have to give existing and new employers time to comply, and would have to exclude small employers — those with fewer than 10 employees. The Bill would also extend the Act to “workers” as the National Minimum Wage Act defines them, and strengthen the ability of a foreign national employed in breach of the law to enforce claims, including through labour inspectors.

None of this is law. As at 9 September 2026 the Bill is before Parliament; no quota can apply to any employer until the Bill is passed, signed, brought into force and a sector notice is published. The rules on this page — section 38, the penalties, the worker’s retained rights — are the law now. The what is changing page tracks the Bill with the other pending amendments.

Frequently asked questions