1 October 2009 by

Issues to consider when considering employing foreign staff

The Department of Home Affairs are notoriously strict in issuing work permits to foreigners seeking employment in South Africa. Given our levels of unemployment, their attitude in this regard begs understanding. Foreigners with special skills or expertise may also find a more receptive ear at the Department. However, multinational companies or local businesses wishing to import foreign expertise should consider the various routes that are open to them in securing a work permit. Identifying the nature of appropriate permit and the requirements of the Immigration Act 13 of 2002 (the Act) are critical to ensuring that the necessary permit is timeously secured. In this article, we look at the differences between a General Work Permit and an Intra-Company Transfer Work Permit.

General work permit

The Act allows South African companies to employ foreigners for a maximum of five years on a general work permit. The following requirements must be satisfied for a general work permit:

  • the foreigner must have a job offer in South Africa;
  • the company offering the position must show that it has advertised the position in an attempt to employ a South African citizen;
  • the foreigner must show that his/her qualifications and work experience meet the requirements of the job offer;
  • the qualifications must be evaluated by the South African Qualifications Authority;
  • the foreigner must secure a police clearance certificate from his/her country of origin and all countries where he/she has lived in the five years immediately prior to applying for the permit; and o he/she must submit the necessary medico-legal reports.

There are further requirements relating to the offer of employment and the application itself that must be met. We will discuss the details of this in future articles, but practitioners are cautioned to consider the technical requirements relating to the offer and application.

Intra-company transfer work permit

In terms of the Act, an intra-company work permit can be obtained, which permits a company to transfer a foreigner from its offshore offices to its South African offices for a maximum of two years. Unlike the general work permit, it is not necessary to show that a suitable South African citizen or permanent resident could not be found to fill the position.

The foreigner must be employed by the company abroad, before coming to South Africa. He/she may only be employed in the position for which the permit has been issued. An application for an intra-company work permit must be supported by written confirmation of the transfer from both companies.

The application must be supported by a police clearance certificate, medico-legal reports and an undertaking that the employer will pay all deportation costs in the event that the foreigner fails to leave South Africa when the permit expires.

General

It is possible to apply to the Director-General of the Department of Home Affairs to waive any one of the abovementioned prescribed requirements if good cause is shown. Care should be taken to ensure that sufficient time is permitted for the processing of the application.

The facts of each case will determine which of the processes is more appropriate for the employer and employee.

Gillian Lumb,
Director, Regional Practice Head: Employment law

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