Provisions in the national labour migration policy (NLMP) white paper for quotas limiting the hiring of foreigners in certain businesses and sectors are likely to be challenged in court, labour law experts say.
They warn that setting such conditions for employment has in the past been ruled unconstitutional.
Separately, the National Employers Association of South Africa (Neasa) and Sakeliga are seeking an interdict against the employment equity regulations published in April by the minister of employment & labour, Nomakhosazana Meth.
The regulations update requirements for employment based on race, gender and disability, with a penalty equal to 10% of turnover for companies that do not comply.
The cabinet approved the NLMP white paper late last month with sectoral targets for the employment of South Africans in certain sectors “to enforce proper and orderly movement and employment of foreign nationals in the country”.
However, Imraan Mohamed, director of employment law at Cliffe Dekker Hofmeyr (CDH), said the Constitutional Court had already ruled that the imposition of quotas is unconstitutional.
“If we pivot to the Employment Equity Act, we know that the minister moved away from any consideration that sectoral targets are quotas,” Mohamed said. “So clearly, the [department] puts out that it’s not quotas under employment equity legislation, it’s sectoral targets.
“But in relation to the employment of foreigners, the position is [that] it’s not going to be a sectoral target in relation to foreigners, it’s going to be quotas. So, I suspect there’s going to be some legal challenge in relation to quotas when it comes to the Employment Services Amendment [Bill] when that eventually sees the light of day.”
Sashin Naidoo, associate for employment law at CDH, said the aim of the NLMP was to give the minister the power to determine quotas for sectors.
It’s ironic that a government that has left our border open to millions would think that foreign nationals would come here and not work. That shouldn’t have happened, and that’s why borders are important
— Gerhard Papenfus, Neasa CEO
The white paper proposes creation of a list of “occupations in high demand open to foreign labour” (OHDOFL) that the departments of employment & labour and of home affairs would use when evaluating applications for work visas.
“The list should also be updated every two years. It should be based strictly on occupations drawn from the department of higher education occupations in high demand list, from which certain occupations will be removed for reasons which should be justified by national policy,” the white paper says.
“These would typically be occupations reserved for citizens due to security requirements and strategy, such as security, civil service restrictions, and national policy. The OHDOFL list should provide targets per occupation, at least at the national level.”
Amendments to the Employment Services Act are being drafted to give effect to the new proposals, the white paper says.
“The imposition of quotas to limit the number of foreign nationals from competing for the few technical and low-skilled jobs available is being considered. This would require enabling legal provisions to this effect.”
The document says employment creation, skills transfer, sector-based or provincial development and stability indicators should be built into the labour migration policy structure and monitored over time.
“These measures should be aligned with the suggested next steps interventions indicated by the National Employment Policy of 2021 to counter the significant unemployment scenario in South Africa.
“First, consideration has to be given to adopting pro-employment macroeconomic policies, particularly in the form of mass social employment, like public employment programmes supported by employment guarantees.
“Second, other dedicated active labour market policies need to be pursued — including work-seeker assistance programmes, skills training, measures aimed at increasing the returns to labour, thus influencing firm-level factor choices, and demand-side measures.”
Gerhard Papenfus, CEO of Neasa, said such state interference such in the private sector has frustrated growth and investment.
Papenfus said he backed controls on hiring foreign nationals, but a company could not be dictated to about recruiting people who had skills that were scarce or absent in South Africa.
“In employment where a particular skill is required, you must leave it to the company to make that call. It’s ironic that a government that has left our border open to millions would think that foreign nationals would come here and not work. That shouldn’t have happened, and that’s why borders are important.”
He said companies generally hated interference, and any company that was subjected to these levels of interference would ultimately leave the country. He cited Goodyear, saying its exit will have a major impact on the economy and livelihoods in the Eastern Cape.
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