Labour Migration Policy - South Africa

Overview

South Africa's labour migration framework is undergoing significant reform. The National Labour Migration Policy (NLMP) 2025 White Paper, approved by Cabinet on 28 May 2025, is the country's first comprehensive national labour migration policy. It is being operationalised through the Employment Services Amendment Bill (ESAB), which amends the Employment Services Act 4 of 2014. Together, these instruments reshape how foreign nationals are employed, how employers are regulated, and how the Department of Labour interacts with the immigration system.

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National Labour Migration Policy (NLMP) 2025 White Paper

Background

• Approved by Cabinet on 28 May 2025
• First comprehensive national labour migration policy for South Africa
• Developed by the Department of Employment and Labour (DEL) in consultation with NEDLAC social partners
• Responds to decades of ad hoc labour migration management and growing public concern over foreign labour competition

Core Objectives

1. Brain gain - attract scarce and critical skills to address gaps in the South African labour market
2. Brain drain mitigation - retain skilled South African workers who might emigrate, by improving domestic conditions
3. Employment protection - safeguard South African workers from displacement by foreign nationals, particularly in low-skill and semi-skilled sectors
4. Data-driven management - establish integrated labour migration data systems to inform evidence-based policy decisions

Key Policy Positions

• Labour migration must be managed as a component of the broader employment policy framework, not solely through immigration law
• The Department of Employment and Labour must play a central role in regulating the labour market participation of foreign nationals
• Sector-specific quotas may be set where evidence shows displacement of South African workers
• Employers bear primary responsibility for compliance and skills transfer
• Digital labour platforms must be brought under regulatory oversight

White Paper Endorsement of Existing Reforms

• Endorses the Trusted Employer Scheme as a mechanism for incentivising compliant employers
• Supports the Points-Based System introduced in October 2024 as the primary adjudication framework for work visas
• Calls for enhanced inter-departmental cooperation between DHA, DEL, SARS, and CIPC

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Employment Services Amendment Bill (ESAB)

Legislative Process

• Amends the Employment Services Act 4 of 2014
• Introduced under Section 75 of the Constitution (ordinary Bill not affecting provinces)
• Currently in the public participation stage - written submissions invited from stakeholders
• Expected to proceed to Parliamentary committee deliberation after public comment period closes

Purpose

• Gives legislative effect to the NLMP White Paper
• Expands the regulatory powers of the Department of Employment and Labour over foreign national employment
• Introduces employment quotas, employer verification obligations, and penalties for non-compliance

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Key ESAB Provisions

Employer Restrictions on Hiring Foreign Nationals

• No employer may knowingly employ a foreign national who does not hold a valid work visa
• Employers must take reasonable steps to verify the immigration status of every employee before and during employment
• Verification must be conducted against DHA databases where available

Verification Obligations

• Employers must verify immigration status at the point of hiring and at regular intervals thereafter
• Records of verification must be maintained and made available to labour inspectors upon request
• Failure to verify constitutes a separate offence from employing an illegal foreigner

Skills Transfer Plans

• Employers hiring foreign nationals on work visas must submit a skills transfer plan to the Department of Employment and Labour
• The plan must include:
  • A timeline for skills transfer (typically aligned with the visa duration)
  • Identification of South African trainees who will receive the transferred skills
  • Measurable milestones and outcomes
  • Reporting obligations to the employer's Sector Education and Training Authority (SETA)
• Skills transfer is already mandatory for Intra-Company Transfer (ICT) visas under the Immigration Regulations; the ESAB extends this requirement more broadly

Record-Keeping Requirements

• Employers must maintain records of all foreign national employees for a minimum of 2 years after employment ends
• Records must include copies of passports, visas, employment contracts, and skills transfer documentation
• Records must be stored securely and made available to inspectors on demand

Small Business Restrictions for Foreign Nationals

• The ESAB proposes restrictions on foreign nationals operating small businesses in certain sectors
• Aimed at addressing concerns about foreign-owned spaza shops and informal sector businesses
• Details of sector-specific restrictions to be prescribed by regulation

Digital Labour Platform Regulation

• Extends labour market regulation to digital and platform-based employment
• Platform operators must verify the immigration status of workers providing services through their platforms
• Addresses the gig economy gap where foreign nationals may work through apps and platforms without traditional employment relationships

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Proposed Employment Quotas (Section 12B)

Ministerial Powers

• The Minister of Employment and Labour may set employment quotas by:
  • Economic sector
  • Occupation or job category
  • Geographic region

Targeted Sectors

The following sectors have been identified for potential quota application:

• Agriculture - seasonal and permanent farm workers
• Hospitality - hotels, restaurants, tourism operators
• Construction - general labourers and semi-skilled trades
• Domestic work - household and care workers

Exemptions

• Critical skills occupations listed on the Critical Skills List are exempt from quotas
• Exemptions may be granted where an employer demonstrates inability to fill positions with South African workers after documented recruitment efforts
• The Minister may grant sector-wide exemptions by gazette notice

Quota Determination Process

• Quotas to be determined based on labour market data, unemployment statistics, and sector-specific studies
• NEDLAC must be consulted before any quota is gazetted
• Quotas are subject to periodic review (at least every 3 years)

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Penalties Under the ESAB

Offence	Maximum Fine	Maximum Imprisonment
Employing a foreign national without a valid work visa	R100,000	24 months
Failure to verify immigration status	R100,000	24 months
Failure to maintain required records	R100,000	24 months
Failure to submit skills transfer plan	R100,000	24 months
Obstructing a labour inspector	R100,000	24 months

• Penalties are per offence and may be imposed cumulatively
• Repeat offenders face escalating penalties
• Directors and officers may be held personally liable

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Department of Labour Role

Historical Function

• The Department of Employment and Labour historically issued certification letters confirming that no suitable South African worker could be found for a position
• These letters were required as part of General Work Visa applications under the old system
• Since the introduction of the Points-Based System in October 2024, the certification letter requirement has been waived

Expanding Role Under the ESAB

• Quota administration - setting, monitoring, and enforcing employment quotas by sector
• Inspections - labour inspectors empowered to conduct workplace inspections specifically targeting immigration compliance
• Enforcement - the Department gains direct enforcement powers, complementing DHA's existing authority
• Data collection - building an integrated foreign worker database linked to UIF, SARS, and CIPC records
• Skills transfer oversight - monitoring compliance with skills transfer plans

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2025 Enforcement Statistics

Metric	Number
Employer arrests	68
Average fine per employer	R10,000
Employee arrests (undocumented workers)	322

• Joint operations conducted by DHA, SAPS, and the Department of Employment and Labour
• Enforcement concentrated in Gauteng, KwaZulu-Natal, and Western Cape
• Sectors most targeted: agriculture, construction, hospitality, and retail

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Employer Obligations Under the Immigration Act

Section 38 Obligations

Employers have the following legal obligations under Section 38 of the Immigration Act 13 of 2002:

1. Verify immigration status - confirm that every employee is legally authorised to work in South Africa
2. Good faith efforts - make reasonable, good faith efforts to ensure compliance; ignorance is not a defence
3. Record-keeping - maintain records of all foreign employees for a minimum of 2 years after employment ends, including:
   • Passport copies
   • Visa/permit copies
   • Employment start and end dates
   • Position and duties
4. Reverse onus - if an illegal foreigner is found on business premises, the employer is presumed to have employed that person unless the employer can prove otherwise
5. Notification of terminations - must notify DHA when a foreign employee's employment terminates or their visa expires
6. Section 38 undertakings - when sponsoring a work visa, the employer signs an undertaking accepting responsibility for the foreign employee, including potential deportation costs

Penalties for Employing Illegal Foreigners

Conviction	Penalty
1st conviction	Imprisonment up to 1 year or a fine
2nd conviction	Imprisonment up to 2 years or a fine
3rd conviction	Imprisonment up to 5 years with NO option of a fine

• Penalties escalate with each subsequent conviction
• The third-conviction mandatory imprisonment provision is one of the harshest employer penalties in South African labour law

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Skills Transfer Requirements

Mandatory for ICT Visas

• All Intra-Company Transfer visa applications must include a skills transfer plan
• The plan must detail:
  • Specific skills to be transferred
  • Timeline aligned with the visa duration
  • Identified South African trainees by name and position
  • Measurable outcomes and assessment criteria
  • Reporting schedule

Broader Application Under ESAB

• The ESAB extends skills transfer requirements beyond ICT visas to other work visa categories
• Employers must demonstrate commitment to developing local talent as a condition of employing foreign nationals
• SETAs will play an oversight role in monitoring compliance

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Trusted Employer Scheme

Launch and Development

• Launched at the 2023 Investment Summit by the Minister of Home Affairs
• Designed to incentivise employer compliance and streamline work visa processing for reputable employers
• Underwent a digital overhaul in 2025 to enable online registration and management
• Endorsed by the NLMP White Paper as a key component of the labour migration management framework

Membership

• 5-year membership period
• Employers must apply and demonstrate compliance with Immigration Act and labour legislation
• Renewable upon continued compliance

Benefits

Benefit	Detail
PBS points	30 points awarded to applicants employed by a Trusted Employer
Documentary requirements	Certain documentary requirements waived for applications
Processing speed	Faster adjudication of work visa applications
Dedicated channel	Access to dedicated DHA liaison for visa matters

Compliance Obligations

• Trusted Employer status does not exempt employers from any statutory obligation
• All Section 38 obligations continue to apply in full
• Membership may be revoked for non-compliance
• Regular audits may be conducted by DHA

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BEE and Foreign Workers

General Rule

• Foreign nationals generally do not count toward Broad-Based Black Economic Empowerment (B-BBEE) scorecard targets
• This affects multiple elements of the BEE scorecard:

BEE Element	Foreign National Treatment
Management control	Excluded - foreign nationals not counted toward management diversity targets
Skills development	Excluded - training spend on foreign nationals does not count toward skills development targets
Employment equity	Foreign nationals not counted toward employment equity targets
Enterprise development	Not affected - foreign-owned enterprises may still qualify

Exceptions

• Naturalised citizens - foreign nationals who have obtained South African citizenship are counted as South African for all BEE purposes
• Permanent residents - treatment varies; some verification agencies accept permanent residents for certain elements

EEA4 Reporting

• Employers must still include foreign national employees in EEA4 workforce profile reports submitted to the Department of Employment and Labour
• Foreign nationals are reported separately in the workforce profile
• Non-compliance with EEA4 reporting carries separate penalties under the Employment Equity Act

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Minimum Salary Thresholds (Points-Based System)

The Points-Based System introduced in October 2024 assigns points based on the offered gross annual salary:

Salary Band	Gross Annual (ZAR)	Points Awarded
Below threshold	Below R650,796	0 points
Medium band	R650,796 - R976,194	20 points
Upper band	Above R976,194	50 points

• Salary must be reflected in a bona fide employment contract
• The salary thresholds may be adjusted periodically by the Minister
• Below the minimum threshold, applicants receive no salary points and must accumulate 100 points from other criteria

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Sources

• National Labour Migration Policy White Paper (2025): https://www.labour.gov.za/
• Employment Services Amendment Bill: https://www.parliament.gov.za/
• Immigration Act 13 of 2002, Section 38: https://www.gov.za/documents/immigration-act
• Employment Services Act 4 of 2014: https://www.gov.za/documents/employment-services-act
• DHA enforcement statistics (2025): https://www.dha.gov.za/
• Trusted Employer Scheme guidelines: https://www.dha.gov.za/
• B-BBEE Codes of Good Practice: https://www.dti.gov.za/
• Points-Based System Regulations (October 2024): Government Gazette