Excluding South Africans from employment opportunities may constitute unfair discrimination

The employment of foreign nationals should not adversely impact unskilled South Africans, a court has found.

Nivaani Moodley, partner at Webber Wentzel, says a recent high court ruling has confirmed that companies seeking to employ foreign nationals must show that they have tried to train South African citizens to meet their needs when applying for corporate visas for foreign nationals.

In the court case, Mukuru Financial Services and Mukuru Africa (Mukuru) brought an application against the Department of Employment and Labour after their application for corporate visas for foreign nationals in terms of section 21 of the Immigration Act 13 of 2002 was refused.

Nivaani says while the court was satisfied that Mukuru had shown ample reasons why it was necessary for it to have, among its employees, persons who speak languages other than the official South African languages, for the company to demonstrate the fairness of its discrimination, it had to ensure that its conduct did not adversely impact the rights of South African citizens and permanent residents.

“The preamble to the Immigration Act clearly requires that the contribution of foreign workers in the South African labour market does not adversely impact existing labour standards and the rights and expectations of South African workers. The judge found that Mukuru failed to demonstrate and provide any evidence indicating their efforts to train South African citizens to meet their business requirements,” Nivaani says.

The court, she says, concluded that Mukuru unfairly excluded South African citizens from employment opportunities in favour of foreign nationals. This, according to the court, constituted unfair discrimination on the grounds of race, ethnic or social origin, culture, language and birth.

“While employing employees from the global workforce may be important to businesses in South Africa, employers must be mindful of the careful balance that the Immigration Act requires or face possible claims of unfair discriminationm,” says Nivaani.