SUMMARY

The new Immigration Regulations of 2014, published under Government Notice R413, in Government Gazette 37679, came into effect on May 26. The Regulations introduce material changes relevant to the employment of foreign nationals. In particular, these include the following:

All applications for work visas will now require a certificate from the Department of Labour confirming that:

1. despite a diligent search, the prospective employer has been unable to find a suitable citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant;
2. the applicant has qualifications or proven skills and experience in line with the job offer;
3. the salary and benefits of the applicant are not inferior to the average salary and benefits of citizens or permanent residents occupying similar positions in the Republic; and
4. the contract of employment stipulating the conditions of employment and signed by both the employer and the applicant is in line with the labour standards in the Republic and is made conditional upon the general work visa being approved.

The Regulations also stipulate that if a person is in South Africa on another type of visa (for example a visitor’s visa or a study visa), they must return to their home country to apply for a work permit from the South African Embassy or Consulate in that country. The same applies to those that do have valid work permits that are about to expire; these can only be renewed from the person’s home country. This will inevitably make it more difficult for employers to hire foreign students and may also make it more difficult for existing foreign employees to have their permits renewed.

Written by Jacques van Wyk, Director; and Andre Van Heerden, Associate at Werksmans Attorneys