South African employers should take note of the renewed focus by Government on the employment of foreign nationals, particularly in circumstances where employees may not have valid documentation authorising them to work in South Africa.
On 7 June 2026, President Cyril Ramaphosa addressed the nation on migration and illegal immigration. The President confirmed that Government intends to strengthen enforcement against the employment of undocumented foreign nationals and that the Employment Services Amendment Bill has been introduced to Parliament. The Bill forms part of a broader policy shift under the National Labour Migration Policy, which seeks to regulate the employment of foreign nationals more closely and improve enforcement against employers who do not comply with immigration and labour laws.
Although certain proposed penalties and quota rules are not yet final law, employers should not wait for the legislation to be enacted before reviewing their compliance position. Existing immigration legislation already places clear obligations on employers who employ foreign nationals.
1. The current legal position
The starting point is the Immigration Act, 2002. In broad terms, an employer may not employ a foreign national unless that person is lawfully entitled to work in South Africa.
This means that an employer should not employ:
- a foreign national who is in South Africa unlawfully;
- a foreign national who does not have a visa, permit, exemption, refugee document or other authorisation allowing employment;
- a foreign national whose visa or permit does not authorise the particular type of work being performed; or
- a foreign national whose visa or permit has expired and has not been validly extended or regularised.
The obligation is not merely a once-off check at the time of appointment. Employers are expected to take reasonable steps to verify the employee’s status and to retain records supporting the employee’s right to work.
2. What is changing?
The Employment Services Amendment Bill is intended to amend the Employment Services Act and introduce a more formal labour-migration framework. The Bill proposes, among other things, to regulate the employment of foreign nationals in a manner aligned with the Immigration Act and the Refugees Act, and to give the Minister of Employment and Labour wider powers to regulate labour migration.
One of the most important proposed changes is the ability to prescribe quotas for the employment of foreign nationals in specific sectors, occupations or geographic areas. This means that, in future, certain industries may be limited in the number or percentage of foreign nationals that may be employed.
The policy direction is also clear: Government intends to increase inspections and enforcement. Public statements have referred to joint inspections involving the Department of Employment and Labour, the Department of Home Affairs and, where relevant, the South African Police Service.
3. Why this matters for employers
Many businesses, farms, restaurants, retailers, construction businesses, domestic employers and owner-managed companies employ foreign nationals. In many cases these employees are lawfully employed and contribute meaningfully to the business. The compliance risk arises where documentation is missing, expired, incomplete, inconsistent with the job being performed, or not monitored properly.
The risk for employers is not limited to large companies. Small businesses and households that employ domestic workers, gardeners, carers or other staff may also be affected.
Employers should also be careful not to assume that the issue is only a “Home Affairs problem”. Where a foreign national is employed, the employer carries compliance obligations and may be required to prove that reasonable verification steps were taken.
4. Practical employer obligations
As a minimum, employers should have the following on file for each foreign national employee:
- A certified copy of the employee’s passport or recognised travel document.
- A copy of the employee’s visa, permit, refugee document, asylum seeker document, exemption permit, permanent residence certificate or other authorisation.
- Evidence that the document authorises employment in South Africa.
- Confirmation that the work being performed is consistent with the conditions of the visa or permit.
- A record of the expiry date of the document.
- Proof that renewal or regularisation steps have been taken before expiry, where applicable.
- A copy of the employee’s employment contract.
- Payroll and UIF records, where applicable.
- A calendar or internal monitoring system to flag expiry dates well in advance.
Employers should not only collect documents at the start of employment. Immigration documents should be monitored on an ongoing basis, particularly where permits are temporary or subject to expiry.
5. Zimbabwean Exemption Permit holders
Employers with Zimbabwean Exemption Permit employees should note that the Minister of Home Affairs has extended the validity of existing ZEPs until 28 May 2027.
This extension is important, but it should not be treated as a reason to ignore compliance. Employers should still keep copies of the relevant ZEP documentation on file and should monitor developments before the 2027 expiry date.
Where an employee is relying on a ZEP, the employer should request confirmation of the employee’s intended regularisation path before expiry. This may include evidence of an application for another visa category, proof of appointment, correspondence with Home Affairs, or other documentation showing steps taken to maintain lawful status.
6. Expired documents and pending applications
A common practical issue is where an employee’s visa, permit or exemption has expired, but the employee says that a renewal application has been submitted.
Employers should not simply accept a verbal assurance. The employee should be asked to provide documentary proof, such as:
- proof of submission of the renewal application;
- Home Affairs receipt or reference number;
- VFS appointment confirmation, where applicable;
- correspondence from Home Affairs;
- proof of appeal or review process, if relevant; and
- legal advice where the status is unclear.
Where the documentation is uncertain, the employer should obtain proper advice before making a decision. Employers must balance immigration compliance with labour law obligations and should avoid acting hastily in a way that may create an unfair dismissal or unfair labour practice dispute.
7. Labour law still applies
Employers should be cautious about assuming that a foreign national without valid documents has no labour rights. South African labour law may still protect a person who has worked as an employee, even where there is a problem with immigration status.
This creates a difficult compliance balance. On the one hand, the employer may not lawfully employ a person who is not authorised to work. On the other hand, the employer should still follow a fair process if employment is to be suspended or terminated due to documentation issues.
In practice, this means that employers should:
- notify the employee of the compliance issue;
- give the employee a reasonable opportunity to produce valid documents or proof of regularisation;
- consider whether the employee has applied for renewal or another status;
- document all communications;
- obtain advice before termination where the facts are unclear; and
- avoid discriminatory treatment of foreign national employees.
8. Recommended internal audit
Employers should conduct an internal audit of all employees who are not South African citizens or permanent residents.
The audit should answer the following questions:
- Do we have a copy of the employee’s passport or identity document?
- Do we have a copy of the visa, permit, exemption, refugee document or other authorisation?
- Does the document allow the employee to work in South Africa?
- Is the employee working in the role or sector permitted by the document?
- Has the document expired?
- If it is close to expiry, has the employee applied for renewal?
- Do we have proof of renewal or regularisation?
- Is the employee recorded correctly on payroll?
- Are UIF, PAYE and other employment records up to date?
- Is there a diary system to monitor future expiry dates?
Where gaps are identified, employers should address them urgently and carefully.
9. Suggested employer process
A practical process would be as follows:
Step 1: Identify all foreign national employees – Prepare a list of all employees who are not South African citizens or permanent residents.
Step 2: Collect documents – Request certified copies of passports, visas, permits, exemption documents and any proof of renewal applications.
Step 3: Check authorisation – Confirm whether the documents authorise the person to work in South Africa and whether there are any restrictions on employer, occupation, sector or duration.
Step 4: Record expiry dates – Create a central register with all permit and visa expiry dates.
Step 5: Follow up early – Require employees to start renewal or regularisation processes well before expiry.
Step 6: Keep records – Retain copies of all documents and communications on the employee’s personnel file.
Step 7: Obtain advice where needed – Where documentation is expired, unclear or disputed, obtain labour and immigration advice before taking action.
10. Conclusion
The direction of travel is clear: employers can expect increased scrutiny of the employment of foreign nationals. The Employment Services Amendment Bill and the National Labour Migration Policy indicate that Government intends to introduce tighter controls, potential quotas and stronger enforcement mechanisms.
For employers, the most important practical step is to ensure that all foreign national employees are properly documented and that those records are kept up to date.
Employers should not wait for an inspection before reviewing their files. A proactive audit now may significantly reduce future legal, financial and operational risk.
This article is intended as a general guide only. Employers should obtain specific advice where they employ foreign nationals and there is uncertainty regarding the employee’s immigration or employment status.
