Wednesday, 02 November 2016.
EMPLOYMENT OF FOREIGN NATIONALS – IMMIGRATION ACT
We at Indgro Multi Service Group pride ourselves on the quality of Products and Services we provide to our values Clients, and deem it necessary to introduce the following brief to all our Clients in respect of the employment of foreign nationals and the risks associated to service providers who do not legally comply with the Immigration Act 13 of 2002 as it has come to our attention, that certain service providers are securing service level agreements with companies on the basis of providing foreign nationals as “cheap” labour.
The repercussions of not complying with the Immigration Act:
If it is found that an employer is employing illegal foreigners or employing foreigners outside of the allowances of their visa or permit (also the validity of the aforesaid is very important, and verification thereof), the employer could face a prison sentence, or a hefty fine. The fines have been noted in the Act and range from R7 000 (Seven thousand) to a possible R50 000 (Fifty thousand) per person, depending on the contravention. Taking into consideration the attitude of the Department of Home Affairs, one can be certain that the fines will be enforced and they will be harsh. Therefore, again, when presented with a visa or permit, please ensure that it is valid, not a false document (as in our experience we find that many of these documents are false) and has been verified as the original document.
Your responsibilities as a South African employer:
1. To comply with South African immigration legislations, an employer has two main responsibilities:
1.1 To not employ illegal foreigners.
1.2 To not employ a foreigner in any position or allow a foreigner to perform a work function not allowed by his or her visa or permit.
2. Changes to the General Work Visa allow foreigners to compete in the open labour market, however in this regard, (important_) the employing company must show and motivate why a South African citizen or permanent resident could not fill the position and demonstrate efforts made to obtain the services of a citizen or permanent resident.
3. In practice this means ascertaining the status or citizenship of employees. In the case of temporary and permanent citizens, but especially those on temporary visas, it will require asking for the visa or permit, and knowing what the documentation in front of you means.
4. The employer is further required in terms of section 38 of the Act to keep on record a certified copy of the passport of the foreigner reflecting his or her personal particulars; a copy of the relevant visa or permanent residence permit of that foreigner; proof of the capacity in which the foreigner is or was employed and a copy of the foreigner’s IRP5 form or certificate of earnings and job description, respectively.
1. Accordingly, in conclusion were the service provider and or Client are not able to demonstrate why a local employee could not be employed for the position, the service provider and or Client would be in breach of the provisions of the Act. Furthermore, were the service provider and or Client to merely accept the work visa from the foreign national, this too would be in breach of the Act as the service provider and or Client knowingly are employing an individual who is not legally permitted to work in the Republic for that specific employer.
- It has further been our experience that labour brokers are not able to obtain work visas on behalf of foreign nationals (unless employed directly by the labour broker) and that any application for a such a visa must be obtained by the Client for whom the foreign national will be tendering his or her services. We trust that you have found the above to not only be informative, but also assuring knowing the Indgro Multi Services Group are fully compliant. We further urge you to be sensitive to the above as it might have serious implications to one if one is in conflict to the Act.
Thank you for the trust that you have placed in us thus far, we look forward to an ongoing, long and mutually beneficial relationship.
ANDRÉ NAUDÉ PH.D.
CHIEF COMMERCIAL OFFICER