As South Africa grapples with tightening immigration controls and rising pressure to prioritise local employment, the agricultural sector must pay close attention to the legal framework governing the employment of foreign nationals. For many commercial and small-scale farmers, foreign labour is a reality. However, employing foreign workers without understanding the legal implications can expose employers to severe consequences, including fines, arrest, and reputational damage.
Agricultural employers are legally obligated to ensure that every foreign national in their workforce is lawfully employed and that all immigration and labour laws are strictly followed. This responsibility extends beyond simply accepting a work permit at face value.
At the heart of these requirements is the Immigration Act, which places a clear duty on employers to confirm the legal status of their employees. Section 38(2) of the act requires a good-faith effort by the employer to verify that a foreign national is legally in the country and authorised to work. Failure to do so carries severe penalties. Section 49(3) outlines criminal consequences for knowingly hiring an illegal foreigner or for employing a foreign national in violation of the act’s terms. An employer could face a fine or up to one year in prison on a first offense. Repeat offenses carry stiffer penalties of up to five years imprisonment without the option of a fine.
To avoid violating these regulations, employers must actively verify the validity of a worker’s permit or visa. This can be done by emailing the Department of Home Affairs or by visiting a local Home Affairs office with the original documentation. However, employers should be aware that forged permits are becoming increasingly sophisticated. With limited response from Home Affairs to email inquiries, many employers, particularly in rural areas, struggle to obtain official confirmation.
In this environment, using professional verification services, while costly, could be a necessary safeguard. Just as critical is the need to document and retain evidence of every effort to verify an employee’s status. Copies of emails, delivery confirmations, stamped Home Affairs receipts, and service provider reports should all be kept on file. These records are a vital form of protection in the event of an inspection or legal dispute, showing that the employer took reasonable steps to comply with the law.
Further complicating the landscape is the Employment Services Amendment Bill of 2021, which will allow the Minister of Employment and Labour to introduce quotas on the number of foreign nationals employed in specific economic sectors. This move, outlined in the draft National Labour Migration Policy, is intended to protect job opportunities for South Africans, especially in industries that employ large numbers of foreign workers. The minister may exempt employers in cases where the position is listed as a critical skill or where the employer can demonstrate the need for an exemption.
Beyond immigration compliance, foreign workers are entitled to the same protections as South African employees. This includes adherence to the Basic Conditions of Employment Act, the Labour Relations Act, the National Minimum Wage Act, and other labour laws. Employers must also implement skills transfer plans to ensure that knowledge and experience are passed on to local employees or residents. Keeping proper records of employment status and notifying Home Affairs when employment ends are further obligations often overlooked – but essential to remaining on the right side of the law.
Recent increases in farm inspections – often conducted jointly by the Department of Employment and Labour and the Department of Home Affairs – highlight the urgency of compliance. Although Home Affairs must schedule inspections in advance, the Department of Employment and Labour may conduct unscheduled ‘blitz inspections’ and frequently uses this mechanism to include Home Affairs officials. As such, employers must know how to identify officials correctly and understand the legal basis of their inspection authority.
The consequences of non-compliance are steep. Not only are fines and jail time a possibility, but company directors, human resource managers, and farm owners may be held personally liable. Authorities have already arrested employers and undocumented workers during inspections, taking a zero-tolerance approach.
AgriSA continues to engage with both departments to highlight challenges around permit verification, visa processing, scarce skills, and quota implementation. In the meantime, agricultural employers are urged to be proactive, prioritise compliance, seek professional advice where necessary, and ensure that every foreign employee on their farm or operation is legally entitled to work.
Due diligence is not just a legal duty in a complex regulatory environment; it is essential to protect your business, your workforce, and the future of agriculture in South Africa.
