Who is a foreign national?
A foreign national is any person is who not a national of the country in which he/she is residing.
Who is a refugee?
A refugee is a person who “flees “their country seeking protection in another country due to violence or harm which is taking place in their own country.
Who may be employed?
Any person who has a right to be in the Republic of South Africa and holds a valid work permit issued by the Department of Home Affairs.
May I employee a Refugee?
If a person has entered the borders of South Africa, that person is given a permit in terms of Section 23 of the Immigration Act. The person would receive an asylum transit permit which is valid for 14 days only.
The refugee / asylum seeker would need to apply for a permit in terms of Section 22 of the Refugee Act, which would allow the person to reside and work within the country for a period of 6 months.
What happens when the refugee’s permit expires?
The employee would be required to make an application to the Department of Home Affairs for a second permit.
What if the employee cannot obtain a permit?
If the employee cannot obtain a permit, you cannot employ the person.
What if the employee’s permit has expired and the employee refuses to obtain a second permit or cannot obtain it from the Department of Home Affairs?
An employer is not allowed to employ a foreign national who does not have a valid work permit. Therefore, the employer must follow General Incapacity proceedings.
What is incapacity proceedings?
The employer would need to hold a general incapacity enquiry. Schedule 8 of the Labour Relations Act indicates that each case of incapacity must be dealt with on its own merits. The employer would be required to prove that the employee is incompatible and that the employer has made efforts to rectify the situation.
What are the consequences of employing a person who does not have a valid work permit?
An employer may face a penalty of a fine or risk imprisonment.
ABOUT THE AUTHOR:
Ronallda Pillay graduated with an LLB from the University of Kwazulu Natal, Howard College. After completing her articles, Ronallda joined a firm of Attorneys as a Professional Assistant and later became an Associate of the firm. She practised civil litigation, labour law and various other areas of law for 3 years. Ronallda joined SEESA in 2013 as a legal advisor having a wealth of legal knowledge from private practice.