Two developments have moved foreign-national employment compliance to the top of the HR risk agenda. First, the Portfolio Committee on Employment and Labour has invited public comment on the Employment Services Amendment Bill (the “Bill”) by 6 November 2026. Second, the Department of Employment and Labour reported multidisciplinary blitz inspections in August 2026, signaling heightened labour and immigration enforcement. Reported outcomes have included severe penalties and the arrest of a director.
An employer needs a documented compliance operating system—not a last-minute personnel-file exercise.
The Employment Services Act 4 of 2014 operates alongside the Immigration Act 13 of 2002, the Labour Relations Act 66 of 1995 (“LRA”) and the Basic Conditions of Employment Act 75 of 1997 (“BCEA”). Employers must ensure that foreign national employees hold applicable and valid documentation authorising the work they actually perform on a day to day basis.
This guide provides a six-phase action plan to help employers prepare for an unannounced inspection, manage individual cases fairly and get ready for the Bill’s proposed regime.
The three questions every employer should answer
- WHO is working for us—including Temporary Employment Service (“TES”), contractor and seasonal workers?
- WHAT is each person legally authorised to do, for which employer and at which location?
- WHERE is the evidence—and can it be produced quickly during an inspection?
Phase 1 — Know your workforce
- Create one reconciled register of every employee who is not a South African citizen or permanent resident. Include employees, seasonal workers and personnel supplied through TES.
Minimum record for each foreign national employee
- Valid passport
- Documentation authorising work for the role that they occupy including, but not limited to, where applicable, –
Reality check: confirm that the person’s job title, duties, employer and work location match the authorisation. Flag any transfer, promotion or site move that may fall outside its scope.
Phase 2 — Build the recruitment-to-onboarding evidence trail
At recruitment
For every role offered to a foreign national, retain the job description, recruitment approval, advertisements and search records, applicant pool, interview notes, selection criteria and documented reasons for the appointment.
Where the role requires scarce or critical skills, employers must retain the supporting qualification and experience evidence.
At onboarding
- Verify the original or suitably verified authorisation
- Capture a controlled copy of the authorisation
- Record the permitted employer and work
- Obtain written employee confirmation of any restrictions to their authorisation
- Align the employment contract, payroll, UIF and Compensation Fund records with the employee’s actual status
Phase 3 — Treat expiry dates as business-critical deadlines
- Use a central calendar with reminders at least 120, 90, 60 and 30 days before the expiry of each employee’s authorisation, with named owners in HR, the business and legal or immigration support.
- Obtain evidence of a renewal or change-of-status application, not simply an informal assurance that an application is in progress.
Phase 4 — Prepare the inspection protocol and document pack
Sections 65 and 66 of the BCEA, empowers a labour inspector to enter a workplace or other non-residential business premises without a warrant or notice at a reasonable time. It also empowers a labour inspector to require information, question persons, inspect records, copy or remove records for copying, require production of records and inspect work being performed. Employers should facilitate lawful access, ask to see the inspector’s certificate, keep a contemporaneous inspection log, nominate one spokesperson and never coach employees or alter records.
When inspectors arrive: CALM
- C — Confirm identities, credentials and the scope of the inspection.
- A — Alert the designated manager, HR lead and legal adviser.
- L — Log requests, documents provided, interviews and items removed.
- M — Maintain cooperation without guessing, coaching or changing records.
The inspection pack should be accessible both electronically and physically at each workplace. It should contain the current workforce register, authorisations and passports, employment contracts and job descriptions, recruitment and selection records, payroll, UIF and Compensation Fund records, records of renewals and correspondence, TES and contractor agreements, policies and training records and a contact sheet for the responsible manager, HR lead and external adviser.
Phase 5 — Respond lawfully to suspected documentation problems
A suspected authorisation problem calls for prompt fact-finding—not an assumption that dismissal is the only answer. The Labour Court in Discovery Health Ltd v CCMA (2008) 29 ILJ 1480 (LC) confirmed that the employment relationship and labour-law protections are not extinguished by a lack of work authorisation. While an employer need not permit unlawful work to continue, any suspension, alternative arrangement or dismissal must be assessed under the contract and the LRA, supported by a fair process and tailored legal advice.
Use the PAUSE sequence
- P — Preserve documents and payroll, roster and communication records.
- A — Assess the person’s current status, role and actual authorisation.
- U — Understand whether renewal, review or status proceedings are pending.
- S — Separate immigration status, workplace misconduct and document-authenticity issues.
- E — Ensure procedural fairness before taking adverse action.
Phase 6 — Prepare for the Bill’s proposed regime
Proposed section 12A would require an employer to verify both the person’s right to work and entitlement to perform a particular job; demonstrate, in the prescribed manner, that suitable non-foreign-national skills are unavailable; prepare a skills-transfer plan unless excluded by ministerial determination; provide terms no less favourable than those of South African citizens; and retain the relevant visa and lawful-entitlement records. These are proposals, but employers can begin building the controls now.
Proposed section 12B would permit sector, occupation or region-based quotas after consultation and a further Gazette process, together with exemptions and transition periods.
Proposed section 12C would support regulations on local-skills searches, employment-service channels, skills-transfer plans, exemptions and records. Proposed section 12E would prohibit work outside the terms of a visa or permit. The Bill also proposes materially higher Labour Court fines: up to R100,000 per employee, for a first contravention of sections 12A, 12B(8) or 12E; R200,000 per employee, for a further contravention within three years; and, after two or more previous contraventions, the greater of R1,000,000 or 10% of prior-year turnover. These remain proposed—not current—fines.
Future-readiness test: map potential quota exposure by sector, occupation and site; identify realistic local-succession and skills-transfer opportunities; standardise recruitment-search evidence; compare pay and benefits for like work; and assign ownership of any exemption or Gazette-response process.
Special focus — asylum seekers after Scalabrini
The Department of Home Affairs issued a circular on 28 September 2026 which states that Refugee Reception Offices must accept applications from every new applicant irrespective of how they gained entry into the Country. This has caused widespread panic and discourse regarding the job security of South African citizen. The circular has since been withdrawn with the Department of Home Affairs undertaking to reconsider the appropriate approach going forward.
The circular was based on the Constitutional Court judgment in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others [2026] ZACC 30 which concerns access to the asylum process and protection against refoulement. It is not an employment-law judgment.
Where an asylum seeker is authorised to work while their application is being determined, an unsuccessful outcome will not bring the employment relationship or the employee’s labour-law protections to an immediate or automatic end. Employers will still need to assess the individual’s current status, any available review or appeal process, and the appropriate employment procedure before taking adverse action.
Employer takeaway: do not treat irregular entry, late asylum reporting or the absence of an asylum transit visa as conclusive proof that a person has no protectable status or must automatically be dismissed. Decide the employment issue by reference to current authorisation, the actual status of the asylum process, procedural fairness and non-discrimination safeguards.
Before taking adverse action
- Distinguish a procedural irregularity, a pending asylum claim and a final determination of legal status.
- Avoid automatic rejection or termination rules triggered solely by expired, incomplete or irregular documentation.
- Investigate suspected forgery or fraud through the applicable disciplinary and evidentiary process, separately from assumptions about entitlement to seek asylum.
- Retain verification records and obtain case-specific immigration advice where Home Affairs documentation is inconsistent, delayed or affected by the judgment.
Special focus: Zimbabwe Exemption Permit holders
Current position: Home Affairs has confirmed that qualifying ZEP’s remain valid until 29 May 2027. Employers should verify each holder’s ZEP, passport and individual status rather than assuming that the general extension revives a ZEP that has already expired, been withdrawn or otherwise ceased to be valid.
What is the effect on ZEP holders?
If enacted in its current form, the Bill’s proposed verification, recordkeeping, skills-transfer and any future quota requirements would apply to ZEP holders as foreign nationals. The contents of the Bill remain proposals and do not presently displace a valid ZEP.
Although the ZEP regime and the asylum system remain legally distinct, the Scalabrini judgment may add a further layer of complexity to any future decision to terminate the ZEP program. By affirming that procedural immigration irregularities cannot prevent an asylum claim from being assessed on its merits, the judgment may mean that some former ZEP holders could pursue protection through the asylum system where they have a genuine claim. This does not create an automatic entitlement to asylum or require the ZEP regime to continue indefinitely. It may, however, make an orderly transition from the ZEP program more difficult and reinforce the need for any future government decision to be supported by a fair process, careful impact assessment, clear transitional arrangements, and a sustainable pathway for affected permit holders.
HR implementation toolkit — people, process and accountability
Legal compliance becomes sustainable only when responsibilities, escalation routes and employee-facing processes are embedded in ordinary HR operations. Employers should consider the following controls.
- Responsibility matrix — identify who verifies documents, maintains the workforce register, monitors expiry dates, approves role or location changes, manages inspections and makes decisions about suspension or dismissal. Assign a backup for every critical activity.
- Manager change-notification rule — require managers to notify HR before changing a foreign national’s job title, duties, employing entity, reporting line or work location. HR should assess the proposed change against the person’s authorisation before it takes effect.
- Employee communication and self-reporting — give each affected employee a plain-language notice explaining the duty to inform HR promptly of renewals, status changes, Home Affairs correspondence, passport changes and any restriction affecting work. Provide one designated reporting channel.
- Fair case-management decision tree — establish separate pathways for apparent expiry, a pending renewal or review, inconsistent Home Affairs records, suspected fraud and a final adverse status decision. Specify interim work arrangements, investigation steps, employee representations, decision-makers and escalation for legal advice.
- TES and contractor controls — require labour brokers and service providers to warrant compliance, provide verification records, notify the employer immediately of status changes and cooperate during inspections. HR should periodically test the supplied-worker information against the people actually working at each site.
- Confidentiality and access safeguards — store passport, visa, asylum and related personal records securely; restrict access to personnel with a genuine operational need; control downloading and sharing; and apply the organisation’s retention and secure-destruction rules.
- Training and testing — provide role-specific training for HR, recruiters, payroll, reception or security teams and line managers. Run periodic mock inspections to test credentials checks, escalation, document retrieval, employee interviews and the inspection log.
- Quarterly HR dashboard — report authorisations expiring within 120 days, overdue records, pending renewals, unresolved agency-worker information, role or site changes awaiting clearance, potential quota exposure and progress against succession or skills-transfer plans.
Documents to build into the HR toolkit
Prepare a one-page responsibility matrix, manager change-notification form, employee self-reporting notice, case-management decision tree, agency compliance questionnaire, expiry-escalation workflow and inspection-day contact card. Keep controlled versions with the inspection pack and review them after every incident or mock inspection.
The five-minute readiness scorecard
An inspection-ready employer can answer five questions with evidence:
- Who is working?
- What is each person authorised to do?
- Why was the appointment made?
- When does the authorisation expire?
- Where is the supporting record?
If any answer depends on one person’s memory or an email search, that is the next control to fix.
Status note: The Bill’s requirements and penalty amounts discussed in this guide are proposals as at 7 October 2026. Employers should distinguish current legal duties from proposed changes and monitor the legislative process.
