RISKS ASSOCIATED WITH HIRING FOREIGN NATIONALS IN THE SOUTH AFRICAN HAIR & BEAUTY INDUSTRY

Written by Nkosana Mazibuko

Walk into almost any establishment, and there is a reasonable chance that the technician working on your cuticles is not a South African citizen. This is not an observation meant to alarm; it is simply the reality of our industry.

The industry has, over the years, become a significant employer of foreign nationals. Some hold valid work visas and relevant qualifications. Others, regrettably, do not. And somewhere in the middle sits the well-meaning establishment owner who hired someone without fully understanding the legal minefield they had just walked into.

Setting the Scene: Why Foreign Nationals End Up in Beauty Salons

South Africa's hair and beauty industry is labour-intensive and often operates on slim margins. The demand for specialised skills, particularly in nail technology, threading, eyelash extensions, and certain skin treatments, sometimes outpaces the local supply of trained therapists and/or technicians.

Foreign nationals, particularly from Zimbabwe, Nigeria, Ethiopia, the Democratic Republic of Congo, and several Asian countries, often present with strong technical skills, a strong work ethic, and a willingness to work hours that some local candidates decline.

The problem is not that employers are malicious. The problem is that they are often uninformed. And in South African labour and immigration law, ignorance is not a defence.

The Legal Landscape: What the Law Actually Requires

South Africa's Immigration Act 13 of 2002, together with its Regulations, is unambiguous: every person employed in the Republic must be legally entitled to work here. This obligation does not rest with the foreign national alone; it rests squarely with the employer.

Under section 38 of the Immigration Act, an employer who employs a foreigner without a valid work permit or visa authorising work commits a criminal offence. The penalties are significant:

• A fine of up to R37 500 per undocumented employee

• Possible criminal prosecution of the employer or responsible manager

• Reputational damage that can be devastating in a client-facing industry

Beyond the Immigration Act, there are additional layers of compliance that apply, including the Basic Conditions of Employment Act (BCEA), the Employment Equity Act, and, critically for our sector, the Hairdressing, Cosmetology, Beauty & Skincare Sectoral Determination and any applicable Bargaining Council agreements.

Documented vs Undocumented: Not All Foreign Employees Are the Same

This is where many employers make their first critical mistake: treating all foreign employees as either “legal” or “illegal” without understanding the spectrum in between.

Documented Foreign Nationals

A foreign national with valid documentation may hold one of the following:

• A General Work Visa (tied to a specific employer and occupation)

• A Critical Skills Visa (for skills listed on the Department of Home Affairs Critical Skills List)

• A Spousal or Life Partner Visa with an endorsement permitting work

• A Refugee or Asylum Seeker Permit, with specific conditions that must be carefully checked

The mistake employers make here is assuming that because someone has a document, they are free to work anywhere, in any role. This is incorrect. A General Work Visa, for instance, is employer-specific and occupation-specific. If a nail technician on a General Work Visa is moved to a reception role, that change may constitute a breach of their visa conditions, and, by extension, a breach by the employer.

Undocumented Foreign Nationals

An undocumented foreign national is any person who is in South Africa without a valid permit or visa, or whose permit has lapsed. Employing such a person, even unintentionally, exposes the employer to all the risks noted above.

A particularly painful scenario that arises regularly in our sector involves employers who were never shown the relevant documentation at the time of appointment, or who were shown documentation that has since expired. The law does not distinguish between deliberate non-compliance and negligent non-compliance. Both carry risk.

The Mistakes Employers Make, A Closer Look

Having advised members across the Eastern Cape and KwaZulu-Natal and having chaired disciplinary hearings in establishments where this issue has intersected with employment disputes, a number of recurring mistakes stand out.

1. Failing to Conduct Proper Pre-Employment Verification

The most common mistake is straightforward: the employer simply does not ask for, or properly verify, the foreign national’s documentation before employment commences.

Checking that a document “looks valid” is not sufficient. Employers should:

• Request the original permit or visa, not a copy

• Verify the type of visa and confirm it authorises work in the specific role

• Check the expiry date and diarise a follow-up

• Where possible, use the Department of Home Affairs’ Visa Verification System or request a certified copy from a lawyer or commissioner of oaths

2. Not Tracking Visa Expiry Dates

An employee who was fully documented on the day of hiring may become undocumented six months later if their visa expires and is not renewed. The employer’s obligation to verify legal work status does not end at appointment; it is an ongoing duty.

A simple expiry-date tracking system, whether on a spreadsheet or in an HR system, can prevent what becomes a very awkward and legally risky conversation later.

3. Misunderstanding Refugee and Asylum Seeker Permits

This is an area of significant confusion. A person holding an asylum seeker permit issued in terms of the Refugees Act 130 of 1998 is entitled to work in South Africa, but the permit must be valid and must not have been withdrawn or expired.

Employers frequently either refuse to employ asylum seekers out of unfounded caution or employ them without properly confirming that the permit is current. Neither approach is ideal. The correct approach is to verify the specific permit, confirm its validity period, and treat that expiry date with the same seriousness as a work visa expiry.

4. Assuming a Foreign National Cannot Be Dismissed or Disciplined

This misconception causes enormous disruption in the workplace. Some employers, fearing legal retaliation or reputational issues, avoid managing foreign employees in the same manner as South African citizens, allowing misconduct to go unaddressed, or issuing final written warnings where dismissal would otherwise be warranted.

The Labour Relations Act applies equally to all employees, regardless of nationality or immigration status. A foreign national who is employed, whether documented or not, enjoys the same rights to a fair hearing and the same obligation to meet the standards of conduct and performance required by the employer. The existence of an undocumented status does not nullify the employment relationship; it creates an additional complication, but the employee still has substantive rights during the period of employment.

5. Conflating Foreign National Status with Poor Performance

It is unfortunately not unheard of for an employer, faced with a difficult employment dispute, to suddenly “discover” that the employee in question is foreign and undocumented, and to attempt to use this as a basis for dismissal. This approach is legally unsound and potentially constitutes an unfair dismissal.

The issue of documentation compliance must be dealt with separately from any conduct or performance issues. Attempting to merge the two creates confusion, undermines procedural fairness, and weakens the employer’s position at the CCMA or Bargaining Council.

6. Ignoring the Sectoral Determination and Bargaining Council Obligations

The Hairdressing, Cosmetology, Beauty & Skincare sector is covered by both a Sectoral Determination (setting minimum wages and conditions) and, in applicable areas, by the HCSBC Bargaining Council. These instruments apply to all employees covered by their scope, regardless of nationality.

An employer who pays a foreign national below the prescribed minimum wage, denies them leave, or fails to register them with the Council is not only breaching immigration law, but they are also in breach of these sectoral instruments, which carry their own penalties and enforcement mechanisms.

What Employers Should Do: A Practical Checklist

Compliance does not have to be complex. A structured approach goes a long way:

• Implement a documented onboarding checklist that includes immigration status as a non-negotiable item

• Retain certified copies of all permits and visas on the employee’s file

• Set calendar reminders for permit expiry dates, no less than three months before expiry

• When in doubt, seek advice from an EOHCB labour relations officer or a qualified immigration attorney before making a hiring decision

• Apply all disciplinary and performance management processes consistently, regardless of nationality

• Ensure all employees, including foreign nationals, are registered and compliant under the applicable Bargaining Council or Sectoral Determination

The Bigger Picture: Compliance as a Business Imperative

It is tempting to view immigration compliance as a matter of bureaucratic box-ticking. But in an industry built on client trust and personal interaction, the reputational fallout from a Department of Home Affairs inspection, particularly one that results in the removal of staff mid-shift, is both commercially and humanly disruptive.

Equally, the foreign nationals who come to work in our establishments deserve to work in environments that take their rights seriously, pay them correctly, and do not exploit their vulnerability. Employers who get this right are not only protecting themselves, but they are also contributing to a more stable and ethical industry.