The Western Cape High Court recently dealt with a case of hiring foreign workers in South Africa, and whether an employer’s intention to employ foreign nationals rather than South African citizens or permanent residents could constitute unfair discrimination.
The case centred around Mukuru, a financial services provider that uses mobile technology to transfer money across Africa and Asian countries, says Jacqui Reed, a senior associate at law firm Herbert Smith Freehills.
“The group applied for a corporate visa that would permit them to employ foreign nationals. To obtain such a certificate, it was necessary for Mukuru to obtain a certificate from the Department of Employment and Labour (DEL).
“To obtain the certificate, Mukuru needed to have shown that despite conducting a diligent search to find suitable employees that were either South African citizens or permanent residency holders, it was not able to do so.”
The department subsequently refused to issue the certificate because it was not satisfied with Mukuru’s attempts to employ South Africans which prompted Mukuru to take this decision on review.
However, the High Court was not persuaded by Mukuru’s explanation for why it could not employ South Africans and found that South Africans were unfairly excluded from employment opportunities which constituted unfair discrimination on various constitutional grounds.
Reed noted that the ruling is important – especially when considering whether passing over South Africans for employment is discriminatory.
“Whilst this decision did not emanate from a South African alleging that there was unfair discrimination by an employer who employed a foreign national as opposed to the South African citizen, it does highlight that there may be circumstances under which the employment of a foreign national rather than a South African may constitute unfair discrimination,” she said.
“It is evident from this decision that South African employers will need to justify the employment of foreign nationals in favour of South Africans. Whether an employer can do so, will depend on the facts of each case.”