A Shifting Workforce in a Globalised Economy
Foreign nationals form a critical, often invisible, backbone in many South African organisations. But let me clarify, this isn’t just about agricultural labourers or informal traders, although they too deserve our attention. I’m talking about the Nigerian chemical engineer on your refinery floor, the Moroccan systems architect in your tech stack, the Ghanaian cardiologist in a provincial hospital, or the Namibian actuary running the risk models in your insurance firm.
They arrive qualified, experienced, and ready to contribute at the highest levels. And more often than not, they do so quietly – understanding that their place in the company, and the country, is fragile. Behind every high-performing, foreign-born professional in your workforce is a stack of visa applications, credential verifications, professional body endorsements, and deadlines that if missed – can unravel not just a career, but a key operational function in your business.
We’ve seen it firsthand. A global FMCG company we’ consulted’ve previously consulted, had recruited a brilliant supply chain analyst from Kenya. Two years into transforming their logistics processes, his South African critical skills visa was suddenly rejected during renewal. The company hadn’t updated its corporate registration details with the Dept. of Home Affairs. One administrative oversight. The fallout cost them months in project delays and nearly R1.5 million(ZAR) in temp contracts and consultancy fees, just to stabilise operations.
These aren’t rare stories. They’re increasingly common in boardrooms and HR departments across the country – especially as skills shortages worsen and South African companies compete globally for talent. The problem?… Immigration compliance is often still treated as a check-box function, not a strategic risk or competitive differentiator.
If you’re in the seat of a CEO, HR executive, or Operations Director, you may not be directly involved in processing visa paperwork – but the responsibility for legal compliance still ultimately sits with you. When issues arise, it’s not just a departmental matter. Regulatory bodies like Home Affairs assess the organisation as a whole, and leadership accountability becomes central to any investigation.
This guide isn’t here to throw the book at you. It’s here to open the book -page by page – so that you can understand not just what’s required, but why it matters, and how to build a system that is both human and lawful.
Because in a country battling both unemployment and a shortage of critical skills, knowing how to lawfully employ foreign talent isn’t just compliance – it’s about enabling growth and stability.
According to the 2022 census by Statistics South Africa, approximately 2.4 million documented immigrants reside in the country. However, the actual number is likely higher when accounting for undocumented individuals. Economic hubs such as Gauteng (including Johannesburg and Pretoria), KwaZulu-Natal and the Western Cape are key destinations for migrant workers due to economic activity and job availability in agriculture, construction, logistics, FMCG and others.
For South African employers, this presents both opportunity and risk. While migrant labour fill vital gaps in the workforce, employing undocumented foreign nationals result in severe legal, ethical and reputational consequences.
Let’s go deeper…
Understanding the Landscape: Legal vs. Undocumented Employment
Foreign nationals can legally work in South Africa only if they possess a valid South African Work Visa. Individuals without a valid Work Visa that are working in the Republic (whether due to illegal entry, working while on a non-Work Visa, or overstaying and working on an expired Work Visa) are classified as undocumented and may not be lawfully employed.
Employing undocumented migrants is a criminal offense and a breach of Section 49(3) and Section 38(1) of the Immigration Act No. 13 of 2022 (as amended), which governs the entry, sojourn and employment rights of non-citizens in South Africa. Employers found guilty may face a fine or up to one year in prison for a first offense.
At a practical level, employers in all regions, often turn to foreign nationals due to a shortage of local skilled or willing workers, particularly in sectors requiring intensive manual labour or hard-to-fill positions. However, skills shortages do not exempt employers from the law.
“This is an important aspect that many employers often overlook: for an employee to hold a valid work visa, the employer must be actively involved in the application process – this includes providing specific documents and formal undertakings as part of the visa requirements.” – Gerhard Rautenbach
Strategic Legal Framework: What Every Employer Must Know
Key Legislation and Policies:
- Immigration Act (13 of 2002) as amended: Outlines visa and permit categories, conditions of stay, and enforcement penalties
- Refugees Act (130 of 1998): Protects asylum seekers and refugees, some of whom may have temporary work rights
- Employment Services Act (4 of 2014)
- Labour Relations Act (1995)
Offense and Penalty (Section 49 (3) Immigration Act):
Practically, these are purely narrow examples that can follow legal process, and are not guaranteed.
- 1st Offense: Fine or imprisonment of up to 1 year
- 2nd Offense: Up to 2 years’ imprisonment
- 3rd or more: Up to 5 years’ imprisonment (no fine option)
Work Visa Types & Eligibility
| Visa Type | Eligibility | Duration |
|---|---|---|
| General Work Visa | Applicant must have a local job offer. The Points Based System is used to qualify the applicant, replacing the previous need for “Labour Market Testing”. | Up to 5 years; Renewable |
| Critical Skills Work Visa | Based on South Africa’s national Critical Skills List. Requires SAQA evaluation of foreign qualifications and registration/endorsement by the relevant professional body. | Up to 5 years; Renewable |
| Intra-Company Transfer Work Visa | Transfer between branches, affiliates, or subsidiaries of a multinational company operating in South Africa. Requires transfer of skillk/knowledge to a local employee. | Maximum 4 years; Not Renewable |
| Spousal/Life Partner Permit (with Work Endorsement) | Foreign spouse or life partner of a South African citizen or permanent resident. Must apply for a work endorsement tied to a specific role. | 3 years; Renewable |
| Visitor’s Visa – Section 11(2) (Short Term Work Visa) | For short-term work engagements such as consultants, technical specialists, or training professionals. | Up to 180 calendar days per year; Renewable |
| Trusted Employer Scheme | Available to pre-approved employers who meet Home Affairs’ criteria for immigration compliance, governance, and training investments. Allows for streamlined visa processing and reduced paperwork for qualifying positions. | Variable, aligned to visa category granted (e.g., Critical Skills, General Work) |
Practical Compliance: What CEOs and HR Executives Must Do
1. Due Diligence in Hiring
- Ensure every foreign national has a valid visa or permit, that permits work.
- Confirm that the visa type matches the job description.
2. Maintain Full Documentation
- Certified passport copies
- Work visa or permit (must be valid for the employment period)
- Employment contract and IRP5 forms
- Termination notices and visa compliance history
3. Record-Keeping and Reporting
- Keep all employee records for at least two years after employment ends.
- Notify the Department of Home Affairs (“DHA”) of employment terminations or visa breaches.
- Apply timeously for amendment of visa conditions should company structure or employment structure change
- Ensure that renewal is begun on time
4. Periodic Audits
- Establish an internal HR compliance calendar.
- Review visa statuses and expiration dates bi-quarterly.
- Flag anomalies and update HR systems with renewal timelines.
5. Consult Relevant Departments
- Use DHA’s regional offices (e.g., Marabastad in Pretoria, Harrison Street in Johannesburg, Barrack Street in Cape Town) for in-person verifications.
- Leverage support from the Department of Employment and Labour, and IOM for technical queries and support.
Risks of Non-Compliance
Failing to verify immigration status doesn’t just expose a business to fines or imprisonment, it can also damage brand reputation, reduce investor confidence, and even threaten license renewals or tenders in regulated industries.
Risks include:
- Legal liability for executives (not just line-managers)
- Reputational damage due to negative media coverage
- Civil unrest in areas where local jobseekers feel bypassed
- Strained community relations, especially in urban townships or informal settlements near job sites
Strategic Recommendations for Business Leaders
To navigate this landscape effectively, CEOs and HR Directors should:
- Integrate immigration compliance into your ESG and corporate governance frameworks
- Create a dedicated compliance function within HR or Legal teams
- Engage immigration specialists or external advisors for complex visa/ permit categories
- Use technology (HRIS systems) to track, monitor, and audit work visa statuses
Case Reflection: From Western Cape to Gauteng
While rural agriculture in the Western Cape has been under scrutiny due to incidents involving undocumented labour, Johannesburg presents a different dimension: urban labour markets where undocumented migrants fill roles in construction, domestic work, retail and logistics. The same laws apply, but enforcement can differ depending on local pressures, metro-police engagement, or union activity.
Thus, a national approach to compliance is vital. Whether in Cape Town, Durban, Johannesburg, or Polokwane, businesses must act uniformly and proactively.
CEO & HR Executive Takeaways: What You Must Do
| Action Item | Why It Matters |
| Only hire foreign nationals with valid work visas/permits. | Compliance with Immigration Act and labor regulations. |
| Verify and document employment status. | Avoid criminal liability and fines. |
| Keep records for two years post-employment. | Legal requirement under Immigration Act. |
| Regularly audit visa statuses and expiry dates. | Ensure ongoing compliance and renewals. |
| Report terminations or breaches to DHA. | Avoid liability for enabling undocumented work. |
| Train HR teams on immigration law. | Reduce risk and create a culture of compliance. |
| Use legal counsel or immigration experts. | Navigate complex applications and avoid or pre-empt processing delays. |
| Establish links with DHA and DoEL. | Ensure fast verification and smoother audits. |
| Plan workforce strategies to reduce dependence. | Build local capacity and align with national development goals. |
In Closing…
The employment of foreign nationals is a sensitive but essential part of South Africa’s labour market. When handled within the bounds of the law, it offers value, productivity and global skills transfer. Now, when mishandled – especially through undocumented employment – it risks financial loss, reputational harm, and social unrest.
For business leaders across South Africa, from the agricultural lands of Limpopo to the boardrooms of Sandton, compliance is not optional. It is a strategic imperative.
Perhaps that’s the real takeaway here. This hasn’t just been a list of laws and penalties. This a mirror held up to the reality of doing business in a country that is both a destination and a crossroads. South Africa’s economy doesn’t operate in isolation. It hums, moves and grows because people cross borders, legally or otherwise, in search of work, purpose and contribution.
The employers who get this right, those who invest in proper compliance systems, who understand the rules not as red tape but as a framework for sustainable growth, are the ones who will build resilient organisations. More than that, they build trust: with government, with local communities, with regulators, and yes, with the very people they employ, whether they come from Kenya or Lagos.
The organisations that approach compliance not as a bureaucratic hurdle, but as a foundation for operational resilience and long-term growth, position themselves to lead with integrity. In doing so, they foster trust – not just with regulators and government institutions, but with their employees, communities, and partners across borders.
The law is clear. The stakes are high. But the opportunity for ethical leadership, operational excellence, and regional talent integration is even greater.
If you ask me, that’s a future worth planning for.
Written by Kristin Rasool – Director, South Africa & Gerhard Rautenbach – Business Development Manager
Edited by Xabisa Mxokozeli – Creative Marketing Assistant
