LAWFUL EMPLOYMENT COMPLIANCE: PROTECTION OF FOREIGN NATIONAL EMPLOYEES
Written by Errel Mbuyisa
Imagine a busy establishment in Durban. A talented hairdresser, who has been with the team for two years, mentions in passing that her permit “runs out next month”. The owner has never looked at the document beyond the photocopy filed on her first day. Is she still allowed to work? Can she be moved to another establishment within the same group? And what happens to the establishment, and to her, if the answer is no?
Questions like these are reaching employers more often, with a new Bill before Parliament and the Department of Home Affairs regularly issuing directives. This article explains what the law requires today, what may be coming, and how employers in the Hairdressing, Cosmetology, Beauty and Skincare Industry can protect their establishments and their people.
Two duties that already apply
Two laws already apply to employers who employ, or intend to employ, foreign nationals.
Section 8 of the Employment Services Act, 2014 prohibits an employer from employing a foreign national before that person produces an applicable and valid work permit issued under the Immigration Act. Section 38 of the Immigration Act, 2002 goes further: it prohibits employing an illegal foreigner, a foreigner whose status does not authorise employment, or a foreigner on terms, conditions or in a capacity different from those allowed by that status.
In practice, an employer’s exposure under section 38 depends heavily on whether it took genuine, documented steps to verify the person’s immigration status. An employer who has made a bona fide effort to verify entitlement to work is better placed to avoid the presumption of knowing employment.
The lesson is that there are two questions, not one. May this person work in South Africa at all? And may they do this particular job, for this employer, under these conditions? A permit that answers the first question can still fail the second.
What counts as permission to work
The Employment Services Amendment Bill [B16-2026] proposes a new Chapter 3A that sets out three gateways to lawful employment. If passed as drafted, a foreign national may be employed if they:
hold a visa issued under the Immigration Act that permits the work;
hold an asylum-seeker permit under section 22 of the Refugees Act that is endorsed with the right to work; or
are permitted to work under other legislation or a binding international agreement.
Recognised refugees, who have been granted asylum under section 24 of the Refugees Act, would, if the Bill is passed in its current form, fall outside the proposed definition of “foreign national”. This means they would have the same employment status as citizens and permanent residents. A sensible employer should still sight and file their documents.
The position of asylum seekers requires careful checking against the final version of the Bill. The Bill text excludes asylum seekers from the definition of “foreign national”, but the explanatory memorandum describes the definition as including asylum seekers. The final Bill text, explanatory memorandum and any committee amendments must be checked together before employers treat asylum seekers as either inside or outside the proposed definition. Until the final position is clear, employers should verify whether a section 22 permit has been endorsed for work before allowing an asylum seeker to start employment.
Visa conditions matter. A work visa may be tied to a specific employer, role, or conditions, so moving a hairdresser to another establishment or changing their job without checking the permit can put both parties on the wrong side of the law. Asylum-seeker permits are short-term, so read the endorsement carefully.
Zimbabwean and Lesotho exemption permits
Many people in our industry hold a Zimbabwean Exemption Permit (ZEP) or Lesotho Exemption Permit (LEP). Home Affairs extended both to 28 May 2027 through Immigration Directives 21 and 20 of 2025, respectively. What happens afterwards has not been decided.
Employers should list every ZEP and LEP holder now, with their site and role, rather than scramble next year.
What the Bill would change
The Employment Services Amendment Bill [B16-2026] was introduced in the National Assembly on 29 May 2026. The Portfolio Committee on Employment and Labour has opened it for public comment, with submissions closing on 6 November 2026. It is not yet law: it must still pass Parliament, be assented to, published and brought into operation. Employers should check its status before relying on any proposed provision.
If passed as drafted, employers of foreign nationals would also have to:
Test the local market: be satisfied, in the prescribed manner, that no suitable South African citizen or permanent resident is available before recruiting a foreign national.
Prepare a skills-transfer plan for any position held by a foreign national, unless the Minister excludes that category.
Offer equal terms: conditions must not be inferior to those that would be provided to South African citizens.
Keep records proving that the person is lawfully entitled to work.
The Bill would also let the Minister set maximum quotas by sector, occupation or region, with exceptions for critical skills. Penalties would rise sharply: up to R100,000 for a first contravention, R200,000 for a repeat contravention within the previous three years, and, after two or more previous contraventions, the greater of R1 million or 10% of the employer’s turnover in the previous financial year. These figures reflect the Bill as drafted and are not current penalties.
Rights do not disappear with the paperwork
Employers sometimes assume that an employee without valid papers has no rights. The courts say otherwise. In Discovery Health Ltd v CCMA (2008) 7 BLLR 633 (LC), the Labour Court held that a person without a valid work permit was still an employee who could pursue an unfair dismissal claim.
Under proposed section 12D, a person employed in breach of Chapter 3A could enforce any claim under a statute, collective agreement or contract, and a labour inspector or bargaining council agent could enforce it on their behalf.
Fairness also applies to discipline. In Erarite (Pty) Ltd t/a Khayelitsha SuperSpar v CCMA and Others [2026] ZALCCT 53, the Labour Court dismissed the employer’s review of an arbitration award that found dismissal too harsh. That case concerned a provocative WhatsApp message posted during workplace xenophobic tensions, not an immigration-status dispute. Its relevance here is the general principle: misconduct and sanction must be assessed in context, and a fair procedure followed, although that does not mean every similar case ends the same way.
In Nyakudya v OR Tambo District Municipality [2025] ZAECMHC 40, the Eastern Cape High Court confirmed that employing a foreign national without a valid work visa is prohibited, but held that this does not remove the employee’s constitutional right to fair labour practices or statutory employment rights.
When an employee cannot lawfully work: incapacity, not misconduct
Whether a visa has expired or an employee was hired by mistake because checks were skipped, this is not misconduct. The employee has done nothing wrong; the law simply stops the employer from allowing them to work. South African authority and established practice treat the loss of the legal right to work as an incapacity issue, rather than misconduct, absent dishonesty such as a forged document. Because the contract is not automatically void, the employee stays protected against unfair dismissal.
The employer cannot simply carry on, though: letting the person keep working risks contravening section 38 of the Immigration Act, and the Bill would add its own prohibition. A fair approach looks like this:
Stop the work, not the process
Take the employee off duty promptly, explain why in neutral written terms, and agree in writing how the waiting period will be treated (for example, unpaid leave, or accrued leave with the employee’s consent). Take advice on pay.
Ask for proof within a fixed time
Invite the employee to produce a valid permit or visa, or proof that an application was lodged before expiry, within a reasonable period recorded in writing. Confirm with Home Affairs or a registered immigration practitioner whether a pending application allows work to continue.
Offer reasonable help
Letters confirming employment and time off for appointments show good faith.
Hold an incapacity hearing
If proof does not arrive, invite the employee in writing, allow a representative, hear their explanation, and consider alternatives such as more time.
Decide fairly and document everything
If valid proof is provided, the employee returns to work. If not, termination on notice for incapacity may be fair, but only as the considered end of a fair process. Where continued employment would itself be unlawful, payment in lieu of notice may be appropriate.
Fix the gap
Where checks were skipped, the responsibility is the employer’s. Verify every employee’s status, do not blame the employee, and remember they can still claim for work already done.
A practical checklist for establishment owners
Build a status register with each person’s category, document number, expiry date, conditions, site and role.
Sight originals, keep certified copies, and check the status through Home Affairs channels. Keep these records for as long as the person works for you and for a sensible period afterwards; three years is a prudent minimum, subject to any longer record-keeping obligations under tax, employment or sectoral rules.
Match the permit or visa to the placement: employer, occupation, site, region and period must all fit before you move anyone.
Diarise expiry dates, including 28 May 2027 for ZEP and LEP holders, and keep submission receipts for pending applications.
Compare pay and conditions with South African colleagues in the same role, including those set by council agreements and sectoral determinations.
Write it into contracts: lawful status as a condition of employment, a duty to disclose changes, and a fair process if status lapses.
The sensible step is simple. The employer sits down with the employee, checks the original permit, its conditions and expiry, files a certified copy, and diarises the renewal. That small conversation protects the establishment from penalties and gives the employee security and dignity. Checking the paper is part of looking after the people.
This article is general information, not legal or immigration advice. For specific assistance, consult an immigration attorney or practitioner.
