The Employment Law Review: South Africa

Introduction

South Africa's Constitution2 entrenches fundamental rights and contains several provisions that are relevant to employment and labour, which confer on everyone the right to fair labour practices, provide for freedom of association for workers and employers, and the right to participate freely in the activities of a trade union or employers' organisation. Trade unions and employers' organisations have the right to form and join federations and to engage in collective bargaining. The Constitution provides for the enactment of national legislation to regulate collective bargaining, inter alia, and the legislation so enacted is the Labour Relations Act No. 66 of 1995 (LRA).

The LRA also provides for resolution of labour disputes through, inter alia, the establishment of the Commission for Conciliation, Mediation and Arbitration (CCMA), industry bargaining councils, the labour courts and the Labour Appeal Court (LAC), which is, in principle at least, the final court of appeal for labour matters. However, when a dispute involves a constitutional issue, or the Constitutional Court (CC) is of the view that a matter raises an arguable point of law of general public importance that ought to be considered by that court, it is still possible to take the matter to the CC. Employees can also enforce contractual employment rights in the normal civil courts.

The LRA provides protection for employees against unfair dismissal and unfair labour practices, with further guidelines supplied in codes of good practice. The LRA extensively regulates dismissals on the basis of the operational requirements of the employer (retrenchments), and the rights of employees and the obligations of employers in the context of the transfer of a business (or part of a business) as a going concern.

Minimum conditions of employment are regulated by the Basic Conditions of Employment Act No. 75 of 1997 (BCEA). The BCEA applies to all employers and employees except 'soldiers and spies' and unpaid volunteers working for charity. The BCEA regulates working time, leave, particulars of employment and the keeping of records regarding remuneration, termination of employment (notice and severance pay), and the prohibition of child and forced labour. It provides for basic conditions to be varied in different ways. For example, a particular sector or industry can regulate its own terms via a bargaining council agreement, which then takes precedence over the BCEA (subject to some limited exceptions). A bargaining council comprises representative employers and unions in the industry concerned. In addition, the Minister of Labour may make sectoral determinations setting basic conditions for a specific sector and area, a number of which have already been made. The National Minimum Wage Act No. 9 of 2018 (NMWA), which came into effect on 1 January 2019, sets a minimum wage for all workers in South Africa (except farmworkers, domestic workers and workers in the Expanded Public Works programme).

Discrimination and affirmative action issues are regulated by the Employment Equity Act No. 55 of 1998 (EEA). The Occupational Health and Safety Act No. 85 of 1993 (OHSA) imposes on all employers a general duty to provide and maintain a working environment that is safe and without risk to employees' health. In addition, there are a number of specific regulations published under the OHSA. Work-related injuries and illnesses are covered by the Compensation for Occupational Injuries and Diseases Act No. 130 of 1993.

Unemployment benefits are regulated by the Unemployment Insurance Act No. 63 of 2001 and the Unemployment Insurance Contributions Act No. 4 of 2002.

Skills development in the workplace is regulated by the Skills Development Act No. 97 of 1998 and the Skills Development Levies Act No. 99 of 1999, which requires compulsory contributions by employers to a statutory fund with the opportunity for employers to obtain refunds against the contributions if they implement workplace skills development plans and the like.

Save for a section regulating the registration of private employment agencies, the provisions of Employment Services Act No. 4 of 2014 (ESA) came into effect on 9 August 2015. The purpose of the ESA is to increase productivity within South Africa, decrease levels of unemployment and provide for the training of unskilled workers. Although the ESA has various mechanisms for improving employment levels in the country and training the workforce, it remains to be seen whether these mechanisms will fulfil their legislative objective. Retirement funding and provision for medical insurance in South Africa is private unless regulated under a bargaining council agreement.

The employment of foreign nationals who are not asylum seekers, refugees or permanent residents is governed by the Immigration Act No. 13 of 2002 (the Immigration Act) as amended and the Regulations published pursuant thereto on 26 May 2014, as well as various practice directives issued by the Department of Home Affairs that influence the execution and application of the law.

Year in review

With much of 2020 being dominated by the covid-19 pandemic, there have been few legislative changes to employment law during the past year. Nevertheless, many employers have been required to adjust to the 'new normal', which has resulted in many employers adopting working-from-home policies and attempting to monitor employees' performance through new technological approaches.

Notably, however, the majority of the provisions of the Protection of Personal Information Act 4 of 2013 (POPIA) came into effect on 1 July 2020. POPIA was promulgated in 2013 to give effect to the constitutional right to privacy. This includes protection against the unlawful collection, retention, dissemination and use of personal information. POPIA aims to protect personal information in accordance with international regulations by imposing minimum conditions for the handling of personal information. Furthery, POPIA regulates the flow of personal information outside the borders of South Africa and establishes the Information Regulator, an independent juristic body tasked with implementing POPIA and the Promotion of Access to Information Act. POPIA requires employers to implement policies that ensure that employee and client information is handled in accordance with the law and the new provisions of POPIA.

Significant cases

i National Union of Metal Workers of South Africa and Others v. Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another3

Section 187(1)(c) has been a controversial section in the LRA for many decades. It provides that a dismissal would be considered automatically unfair when an employee is dismissed for refusing to accept a demand in respect of any matter of mutual interest. In this case, the Constitutional Court (CC) critically analysed Section 187(1)(c) and distinguished it from dismissals for operational requirements in terms of Section 189 of the LRA.

In 2014, Aveng Trident Steel (Pty) Ltd (the Company) experienced a decline in sales and profitability and accordingly gave notice to the National Union of Metal Workers of South Africa (NUMSA) of possible retrenchments. It proposed that there be a restructuring of its business and hoped that some employees would agree to work in redesigned positions to avoid retrenchments. The company had a total of 1,784 employees. The consultation process began and resulted in some 253 employees taking voluntary severance benefits. NUMSA then proposed a five-grade structure as an alternative to the redesigned positions.

Thereafter, an interim agreement was concluded between the Company and NUMSA in terms of which their members agreed to work in accordance with the Company's redesigned job descriptions, and on new terms and conditions of employment until such time as the five-grade job structure proposed by NUMSA could be implemented. However, NUMSA terminated the agreement before the job grading system was implemented. This was because NUMSA requested an increase in wages for its members and the Company was not in a financial position to fulfil its demand. NUMSA members were given the opportunity to continue performing the redesigned jobs but were told that, if they rejected this offer, they would be retrenched as the Company required employees to work on the existing terms and conditions of employment, as a matter of operational need. Approximately 733 employees rejected the offer and were dismissed on the basis of the Company's operational requirements.

NUMSA referred a dispute to the Metal Engineering Industries Bargaining Council for conciliation. However, the matter remained unresolved and a certificate of non-resolution was issued. Thereafter, NUMSA approached the Labour Court (LC) and argued that the dismissals were automatically unfair and that their members had been dismissed because they had refused to accept the Company's demand that they work in accordance with the redesigned job descriptions and new terms and conditions in terms of Section 187(1)(c) of the LRA. The Company argued that the dismissals were for operational requirements in terms of Section 189 of the LRA.

NUMSA and its members were unsuccessful in both the LC and the Labour Appeal Court (LAC). In both judgments, a conclusion was reached that Section 187(1)(c) of the LRA does not preclude an employer from dismissing employees provided that the dismissals are for operational requirements. The true reason or the dominant cause of the dismissals must be critically analysed and determined.

NUMSA appealed to the CC. The majority judgment written by Mathopo AJ upheld the reasons and findings of the LC and LAC.

Mathopo AJ rejected the notion of final and conditional dismissals that was previously used to determine whether the dismissal fell under Section 187(1)(c) or Section 189 of the LRA. Previously, many LAC decisions distinguished between what were described as 'conditional dismissals'4 and 'final dismissals'.5 Mathopo AJ held that a court has to determine whether the reason for the dismissal was the employer's operational requirements or that the employee had refused to accept a demand by the employer. This is simply a factual enquiry. The second and the third judgments concurred with the first judgment that what had to be determined was the true reason for the dismissal.

This judgment is welcomed by employers for restructuring and retrenchments purposes because all that the employer needs to establish is that there was a genuine operational need to retrench or restructure its business, which may include a change to terms and conditions of employment.

ii Edward Lemley v. Commission for Conciliation Mediation and Arbitration & 2 ors

Section 41(1) of the BCEA provides that a retrenched employee is entitled to severance pay equal to at least one week's remuneration for every year of completed service with the employer. This obligation to pay severance pay is curtailed by the provisions of Section 41(4), which provides that a retrenched employee is not entitled to severance pay if that employee unreasonably refuses an offer of alternative employment.

These provisions were critically analysed by the LAC in this case.6 T-Systems SA (Pty) Ltd (the Company) was experiencing severe financial difficulties and on 25 September 2009 wished to embark on a retrenchment process under the terms of the LRA.

In light of this, on 13 May 2009, Mr Edward Lemley was made an offer of alternative employment in east London, on the same salary but in a different location. Mr Lemley refused the offer without indicating any reasons to the Company. A revised offer was made to him on 29 May 2009, increasing the period of the rental subsidiary in east London initially offered to him. Mr Lemley refused this offer, again without providing reasons. On 11 June 2009, an offer of a pension fund payment to allow for early retirement was also rejected by Mr Lemley. During this meeting, he stated that he rejected the previous offers because of his age and family constraints. However, he did not go into the nature of his family constraints or provide the Company with further details in this respect.

Owing to his refusal, the Company was left with no other option but to dismiss Mr Lemley for operational requirements without the payment of a severance package.

Mr Lemley referred a dispute about the Company's refusal to pay a severance package to the CCMA, which found that Mr Lemley unreasonably refused the offer of alternative employment and dismissed his referral. Not satisfied with this, Mr Lemley took the arbitration award on review to the LC. Judge Lallie found that the award was unassailable because Mr Lemley's refusal to accept the offer of alternative employment was unreasonable and dismissed his review application.

Mr Lemley was then granted leave to appeal to LAC. He argued that his refusal of the alternative employment offer was reasonable because of his personal and family circumstances, which included his age. However, the Company argued that the commissioner's award was reasonable because an offer of alternative employment was made, especially in the light of the fact that Mr Lemley had not communicated to the Company the reasons why he did not accept the offers.

Acting Judge of Appeal Savage upheld the arguments of the Company and found that the purpose of Section 41(4) of the BCEA is clear and that the reasons why the legislature included the limitation on severance pay was to incentivise an employer to provide alternatives to employment and accordingly limit job losses through retrenchment. The LAC therefore upheld the findings of the Commissioner.

The LAC also that Mr Lemley did not engage with the Company regarding the difficulties he was facing, and simply refused the three offers without giving reasons.

This case simply confirms the principle of Section 41(4) of the BCEA and that the question of whether an employee is entitled to a severance package is not determined by considering the reasonableness of the employer's offer alone. The reasons why an employee refused the alternative employment are also of importance. However, from this judgment it may seem that an additional factor must be considered, namely the conduct of the employee when refusing the offer of alternative employment.

iii NUMSA OBO Members & Comair Ltd (in business rescue) and others7

Comair Ltd (the Company) was under severe financial constraints and, with the advent of the covid-19 pandemic, had no option but to be placed under business rescue under Companies Act 71 of 2008. A business rescue plan was published by the business rescue practitioners on 2 September 2020. A consortium of investors were envisaged to invest in the Company and assist with the financial difficulties it faced. Certain conditions had to be satisfied, which included:

  1. to continue with the stayed retrenchment process;
  2. to enter into a collective agreement with the trade unions agreeing to a total reduction of 400 jobs; and
  3. the collective agreement must agree to a reduction in employee numbers in job categories suitable to the investors, which will be given effect in accordance with the fair and objective selection criteria contemplated in Section 189 of the LRA.

Accordingly, the Company started negotiations on 15 September 2020. Throughout the negotiations, NUMSA was not cooperative in the process.

A collective agreement was entered into between two of the majority trade unions, namely Solidarity and the Comair Pilots Association, on 25 September 2020 (the Collective Agreement). The Collective Agreement contained, among other things, an agreement on a number of the issues that would ordinarily require consultation in terms of Section 189. As it was signed by trade unions who represented the majority of the Company's employees, the Collective Agreement was extended to all employees of the Company, regardless of whether they were members of the signatory trade unions, the conditions of Section 23(1)(d) of the LRA having been satisfied.

On 27 October 2020, notices were issued by the respondent in terms of Section 189(3) of the LRA, inviting all employees, including the applicant, to a consultation process scheduled for 30 October 2020. Given that many of the issues requiring consultation were already agreed in the Collective Agreement, the Section 189(3) notice only addressed those not already agreed.

The applicant raised a legal objection to the consultation process and accordingly brought an application in terms of Section 189(13) of the LRA to the LC on 11 November 2020. The provisions of this Section allow a consulting party to challenge an employer's non-compliance with a fair procedure prior to retrenchments being implemented.

The Applicant sought, inter alia, the following relief:

  1. that it be ordered that the Company is acting in a procedurally unfair manner especially in relation to the allegedly defective Section 189(3) notices issued on 27 October 2020;
  2. that the Applicant not be bound by the Collective Agreement; and
  3. that the Company be directed to follow a fair procedure by placing no reliance on the contents of the Collective Agreement.

Judge Moshoana held that the main question to be determined was whether parties may contract out of the provisions of the LRA in terms of a collective agreement that has been lawfully concluded.

The main basis of NUMSA's argument was not that the Collective Agreement was invalid, rather that it contravened Sections 189(2) and 189(3) of the LRA.

NUMSA argued that the principle confirmed in numerous decisions that a party may contract out of the provisions of the legislation; however, where public interest is involved, a party cannot. Its argument, based on public interest and the vulnerability of employees who face retrenchments, was that the Company cannot contract out of the provisions of the LRA.

The LC rejected this argument and considered the primacy of collective bargaining and the enforceability of collective agreements. The LC held that in mass retrenchments, the legislature made provision for a facilitated process and most of all the exercise of power in the consultation process. This accordingly acts as a safeguard to any vulnerability of retrenched employees.

Furthermore, the Court considered the objectives of the LRA and found that orderly collective bargaining and effective resolution of labour disputes is a recurrent theme in the LRA. The principle of majoritarianism is a key feature in collective bargaining and, as such, parties are free, particularly as a collective, to contract out of the LRA.

Therefore, Moshoana J held that the parties are allowed to agree on the procedure that seeks to bypass the provisions of Section 189, provided that it is fair.

Regarding the argument that the notices issued on 27 October 2020 were defective because they referred to a dismissal that was already agreed, the LC held:

[12] the fact that the number of jobs and categories to be culled are agreed upon prior to the consultation process does not detract from the fact that deserving employees may be saved through an objective and fair selection criteria.
[17] . . . . this statutory imperative does not suggest that an employer cannot take a decision on a category of employees it wishes to eliminate for operation reasons or through collective bargaining achieve an agreement and or buy-in of that decision.

In closing, Moshoana J highlighted that a collective agreement is a contract and is governed by common law. Accordingly, the Company is bound by the Collective Agreement until it is declared invalid.

iv National Union of Metal Workers of South Africa v. Lufil Packaging (Isithebe)

Section 4(1)(b) of the LRA provides that 'every employee has the right to join a trade union, subject to its constitution'. NUMSA's constitution provides that its membership is open to employees in the metal and related industries. Notwithstanding this, NUMSA admitted as members Lufil employees who were employed in the paper and packaging industries. NUMSA represented approximately 70 per cent of Lufil's employees and thus sought organisational rights in the workplace. Lufil refused to grant NUMSA organisational rights on the basis that the paper and packaging industry fell outside the scope of NUMSA's constitution and, accordingly, the union was not sufficiently representative in the workplace.

In this case,8 the CC was required to decide whether NUMSA was entitled to organisational rights at Lufil's workplace and, more specifically, whether the union was entitled to represent members who did not qualify as members in terms of its constitution.

NUMSA argued that Section 4(1)(b) should be interpreted less restrictively, so as to ensure that unions and their members can exercise their right to freedom of association without undue limitation. NUMSA argued that the provision ought to be interpreted to mean that, provided that the union and its members were satisfied that the union's constitution governed their relationship, the employee had a right to join that union, and the union, in turn, had the right to claim organisational rights from the employer. Additionally, NUMSA argued that employers should not be permitted to interfere with the internal workings of a union.

Lufil argued that NUMSA had chosen to draft its constitution such that only employees in certain industries were eligible to become members and that NUMSA was required to abide by its own constitution. Furthermore, it argued that in terms of the common law, a union is bound by its constitution and any action taken outside the scope of its constitution is ultra vires and unlawful. Last, the scheme of the LRA is such that unions seeking organisational rights must register a constitution that prescribes, among other things, criteria for membership. If the LRA makes organisational rights dependent on membership, then it must necessarily be interpreted to mean that unions can only rely on lawfully admitted members to determine representation when seeking organisational rights.

The CC found in favour Lufil and held that NUMSA is bound by its own constitution and has no powers beyond what is contained therein. It could not be accepted that this interpretation was an infringement of the right to freedom of association, since nothing prevented NUMSA from amending its constitution so long as it complied with its provisions governing amendments. The CC held that a union's constitution is not only a contract between the union and its members but is also a source of information to employers in the industries in which the unions operate. It would violate the constitutional values of accountability, transparency and openness if unions were allowed to act outside the scope of their constitution.

v Mahlangu & Another v. Minister of Labour and Others

The CC judgment in Mahlangu9 has been lauded as a landmark victory for domestic workers in South Africa, who have historically been one of the most marginalised groups in society.

Ms Mahlangu (the First Applicant's mother) was employed as a domestic worker in a private home and, in the course of executing her duties, fell into her employer's pool and drowned. Her daughter, who was financially dependent on her mother, approached the Department of Labour, seeking compensation for her mother's death. She was informed that she was not entitled to compensation under the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 (COIDA) COIDA, nor was she entitled to unemployment insurance benefits for her loss, which would ordinarily be covered by COIDA. This was because Section 1(xix)(v) expressly excluded domestic workers from the definition of an 'employee', thus excluding them from the social security benefits provided for under COIDA.

The Applicants sought an order declaring Section 1(xix)(v) of COIDA unconstitutional to the extent that it excludes domestic workers employed in private households from the definition of 'employee'. The High Court granted an order declaring Section 1(xix)(v) of COIDA unconstitutional but did not furnish reasons for this order. Section 167(5) of the Constitution provides that any order of invalidity made by the Supreme Court of Appeal or High Court must be confirmed by the CC before it has any force.

The applicants argued that the exclusion of domestic workers amounted to unfair discrimination and infringed domestic workers' rights to dignity, equality and social security. They argued further that because domestic workers are largely black women, the discrimination against them is indirect discrimination on the basis of race and gender, as it disproportionately affected black women.

The respondents conceded in oral argument that the provision infringed domestic workers' rights to dignity, equality and social security, and that the provision should be struck from COIDA. The respondents did not oppose confirmation of the High Court's order of invalidity. The CC reiterated that it will not merely confirm an order of constitutional validity without satisfying itself that the provisions are indeed unconstitutional. Accordingly, despite the respondents' concessions, the CC still considered the merits of the issues raised as well as the appropriate remedy.

The CC found that South Africa is party to various international instruments that protect domestic workers' rights to equality and, accordingly, it was inexplicable that they were excluded from benefits under COIDA. Similarly, South Africa is party to various international instruments that promote equality regardless of gender, race or class. Section 39 of the Constitution requires a court to consider international law when making a ruling.

The CC also considered the purpose of COIDA, being a vital piece of social legislation that gives effect to the constitutional right to social security. Despite the fact that COIDA pre-dates the Constitution, the CC held that the Act must still be interpreted in accordance with constitutional values. The very purpose of a social grant goes beyond mere compensation and aims to ameliorate the circumstances of those who would otherwise find themselves in a difficult financial position because of the loss of employment or bodily function or through being a breadwinner.

In considering whether the impugned provision was reasonable or not, the CC held that a law or policy that fails to caters to the members of society who are most vulnerable cannot be said to be reasonable. It considered that domestic workers are a particularly vulnerable group in our society owing to the intersection of their race, gender and class.

The CC concluded that in light of the above, and the fact that no legitimate objective is served by excluding domestic workers from COIDA, Section 1(xix)(v) was unfairly discriminatory and declared it unconstitutional with retrospective effect from 27 April 1994.

vi National Union of Metalworkers of South Africa (NUMSA) obo Members and Another v. South African Airways (SOC) Ltd and Others10

South African Airways (SAA) was placed in business rescue on 5 December 2019, following years of mismanagement and financial difficulty. During the course of business rescue proceedings, the business rescue practitioners issued notices in terms of Section 189A of the LRA, informing employees that SAA was contemplating retrenchments. NUMSA brought an application before the LC seeking an order declaring the issuing of Section 189A notices unlawful, or unfair, on the basis that they were issued prior to the publication of a business rescue plan.

The court was required to determine whether it was procedurally unfair to issue Section 18A notices prior to the publication of a business rescue plan in terms of the Companies Act 71 of 2008.

The court held that the wording of Section 136(1) indicated that employees' jobs could not be terminated in the course of business rescue proceedings, except in the course of natural attrition or with employees' consent. Accordingly, the business rescue proceedings effectively placed a moratorium on retrenchments until a business rescue plan is published and the retrenchments are rooted in the plan. The court held that where there is an interpretation of Section 136 that promotes job security, that interpretation ought to be preferred.

The effect of this judgment is that a business rescue practitioner is not entitled to retrench employees in the absence of a business rescue plan. This places the business rescue practitioner in the unenviable position of being unable to retrench employees during the business rescue process, thus making it more difficult to effectively rescue a distressed business as envisioned in the Companies Act.

Basics of entering into an employment relationship

i Employment relationship

The existence of an employment contract is not a prerequisite for an employee to qualify for statutory employment rights. The definition of an employee under most South African employment legislation is wide enough to include persons (excluding independent contractors) who assist in carrying on or conducting the business of the employer even though they may not be formally employed by the employer. However, most employees in South Africa are employed under employment contracts.

The BCEA obliges employers to provide their employees with written particulars of their employment conditions once the employee commences employment. Signatures on a contract are not legally required, subject to two limited exceptions, namely for written employment contracts under the Merchant Shipping Act No. 57 of 1951 and contracts relating to learners (i.e., apprentices) under the Skills Development Act.

The conditions of employment provided for under the BCEA constitute the basic terms of any employment relationship except to the extent that any other law or terms of the employment contract provide for more favourable terms, or where the basic condition has been varied in terms of the BCEA. Collective agreements, where applicable, can also vary the terms of employment contracts between employers and employees who are bound by them.

Under South African law, employers and employees are generally free to conclude their contract of employment either for a fixed term or an indefinite period. The LRA places certain restrictions on the use of fixed-term contracts for employees whose earnings are below the BCEA threshold.11

Parties to an employment contract can only amend the contract by agreement. Agreement is obtained either through negotiation or, if this fails, and after taking certain procedural steps, parties can resort to industrial action (i.e., a strike in the case of employees or a lockout in the case of employers) aimed at compelling the other party to agree.

It is mandatory that all offers of employment to foreigners who require work visas be made subject to the employee procuring a work visa before commencing employment.

ii Probationary periods

Probationary periods are permitted for newly hired employees to afford the employer an opportunity to evaluate the employee's performance and suitability for employment before confirming his or her appointment. An employer must still have a fair reason and follow a fair procedure before effecting the dismissal of a probationary employee. The minimum notice periods for termination of employment described in Section XII.i also apply to employees on probation.

iii Establishing a presence

A foreign employer can hire employees and engage independent contractors in South Africa without being required to set up a local entity. However, a foreign employer may be required to register as an external company (a branch) with the South African Companies and Intellectual Property Commission if it conducts business within South Africa as contemplated by the South African Companies Act No. 71 of 2008. A company is deemed to be conducting business in South Africa if it is (1) a party to one or more employment contracts within South Africa, or (2) engaging in a course of conduct that would 'lead a person to reasonably conclude that the company intended to continually engage in business' within South Africa.12

A non-resident employer is not obliged to withhold employees' tax from remuneration (provided that it does not have a 'representative employer', as defined, in South Africa). The employees themselves will be required to settle their tax liabilities in respect of the remuneration they receive from the non-resident employer for the services that they render in South Africa. This will be done through provisional tax payments.

If a foreign employer appoints a South African resident agent to pay remuneration on its behalf, the South African agent will be regarded as a representative employer of the foreign employer in South Africa and will be required to register as an employer with the South African Revenue Service and withhold employees' tax from remuneration paid to the employees of the foreign employer.

A foreign employer will be liable for income tax on its South African-sourced income. However, if there is a double taxation agreement in place between South Africa and the jurisdiction within which the foreign employer is resident (for the purposes of the double taxation agreement), and the income of the foreign employer comprises business profits, then the double taxation agreement would allocate taxing rights to the country in which the foreign employer is a resident, unless the foreign employer carries on business in South Africa through a permanent establishment. Most of South Africa's double taxation agreements are based on the Organisation for Economic Co-operation and Development's Model Tax Convention on Income and Capital (the Model Tax Convention).

The existence of a permanent establishment is determined with reference to Article 5 of the Model Tax Convention. Generally, however, what is required for permanent establishment is a fixed place of business through which the business of an enterprise is wholly or partly carried on. There must be a fixed location or facility with a certain degree of permanence that is used to conduct the business activities of the enterprise, and it must be used regularly for business operations. Generally, business is regarded as being carried out through the employees of the enterprise, but a business may also be carried on through agents or other representatives of the enterprise, particularly where those representatives are dependent on the enterprise.

Therefore, if employees of a foreign employer spend significant periods in South Africa and carry on the business of the foreign employer in South Africa, these employees may create a permanent establishment for the employer in South Africa. If so, the profits of the foreign employer that are attributable to the permanent establishment may also be taxed in South Africa.

If a company resident in South Africa hires employees in South Africa, whether the employees are foreign or local, employees' tax must be deducted from remuneration at source and the employer is responsible for reporting and withholding the employees' tax. Employers are required to provide few statutory benefits.

Restrictive covenants

Restraint of trade (i.e., non-compete or restrictive covenant) clauses can be included in employment contracts. In principle, these clauses are valid and enforceable and, as such, many restraints are enforced in South African courts every year. Nevertheless, when an employer seeks to enforce restraint provisions, the courts retain discretion as to whether to enforce the restraints and will not enforce them if, in a particular case, the enforcement would be unreasonable or contrary to the public interest.

The reasonableness of a restraint is judged both on the broad interests of the public and the interests of the contracting parties themselves. Reasonableness as between the parties themselves depends on many factors, the most important of which is whether the employer has a proprietary interest that may legitimately be protected by means of a restraint agreement. Proprietary interests include confidential information and customer connections. The geographical area and duration of the restraint must also be reasonable.

The restraint may also operate in combination with garden leave in appropriate cases. In these cases, when assessing the reasonableness of the restraint period, the period of garden leave will be taken into account.13

It is not a prerequisite for the employer to financially compensate the employee in exchange for the employee undertaking restraint of trade obligations, although where these payments are made, this may enhance the enforceability of the restraint.

Wages

i Working time

Generally, no employee may work more than 45 ordinary hours a week and nine hours a day if he or she works a five-day week. Alternatively, an employee may not work more than eight hours a day if he or she works a six-day week. Total working hours may not exceed 12 a day. Wage-regulating measures specific to industries can have different provisions regulating working hours.

Night work (i.e., work performed after 6pm and before 6am the next day) may only be performed with the employee's consent and he or she must be compensated with an allowance, which may be a shift allowance or a reduction of normal working hours. Transport must be available between his or her residence and the workplace at the commencement and conclusion of the shift. If employees regularly perform night work (i.e., work for longer than one hour after 11pm and before 6am at least five times a month or 50 times a year), the employer must inform them of health and safety hazards associated with night work and of their right to request a medical examination at the employer's expense. If a regular night worker suffers from a health condition associated with the performance of night work, the employer must transfer the employee to suitable day work within a reasonable time, if it is practicable to do so.

ii Overtime

Employees generally enjoy the following statutory overtime benefits (excluding those who are not senior managerial employees, sales staff who travel to customers' premises and regulate their own working hours, employees who work for fewer than 24 hours a month, or employees whose earnings are above the BCEA threshold):

  1. An employer can only require an employee to work overtime if the employee's agreement to do so has been obtained. If the employee's agreement is obtained on commencement of employment or within three months thereof, the consent shall lapse after 12 months and must be secured again by the employer, after which the consent does not lapse. An employer must pay an employee at least one-and-a-half times the employee's wage for overtime worked or grant the employee paid time off (90 minutes off for every 60 minutes of overtime worked).
  2. Employees are not permitted to work more than 10 hours of overtime a week, or three hours of overtime in a day if they work a nine-hour day.

The National Minimum Wage Bill was signed into law on 23 November 2018 and came into effect on 1 January 2019. A national minimum wage of 20 rand per hour (with slightly lower minimums for farm and domestic workers) will be reviewed annually (by a yet-to-be-appointed commission).

Foreign workers

The employment of non-South African citizens who are not asylum seekers, refugees or permanent residents (foreign workers) is governed by the Immigration Act, as amended, and the regulations thereto.

The Act and regulations impose obligations on any person or organisation that employs a foreign national, regardless of the size of the business or number of employees, although stricter compliance is required of any employer with more than five employees or that has been found guilty of a prior offence under the Act.

An authorisation to work is required irrespective of the duration for which services will be rendered within South Africa. A business visitor's visa is suited to temporary placements of fewer than 90 days. If a traveller, such as an academic, business person or frequent visitor, has established himself or herself as a bona fide frequent business visitor, he or she may be issued with a multiple-entry visa valid for two to three years, usually for visits of 30 days. Longer placements require a temporary residence work visa, such as an intra-company transfer, a general work visa, a critical skills visa or corporate worker visa, or another appropriate visa authorising the work. There is no restriction on the number of foreign workers that an employer may employ or on the number of categories under which work visas may be applied for. Nonetheless, the work visa process guards against employing foreign workers in positions that can be filled by local people.

By way of example, the regulations provide that a company wishing to obtain a corporate visa or a business visa must have a workforce that is made up of at least 60 per cent South Africans, and that an application for a general work visa must include a certificate from the Department of Labour confirming that, despite a diligent search, the employer has been unable to find a South African citizen or permanent resident with equivalent qualifications and skills or experience. The Department of Labour's application process for this certification includes the submission of proof of advertisement of the position and a letter of motivation from the employer and from a recruitment agency detailing the labour market test, and disclosing the details of all unsuccessful applicants for the position and justifying the need to employ a foreign worker in that position.

No labour market testing is required when applying for a critical skills visa, which facilitates applications for foreign nationals who meet the minimum qualifications and experience listed on the critical skills list published in terms of the regulations.

Similarly, no labour market testing is required when applying for an intra-company transfer work visa. However, an undertaking must be given to develop a skills transfer plan. Many foreign missions insist on the filing of a skills transfer plan, which identifies the South Africans to whom skills will be transferred.

There is no general legislative cap on the period for which a foreign worker may be employed in aggregate, although the Immigration Act does provide maximum periods for which certain categories of work visas may be granted. Intra-company transfer work visas may be issued for a maximum of four years and cannot be renewed. On expiry of the visa, the holder must depart from South Africa. If the worker wishes to apply for a different category of visa, he or she must bring the application abroad.

In general, work visa holders become eligible to apply for permanent residence after holding a temporary residence work visa for a continuous period of five years, provided that they have received a permanent offer of employment. Holders of critical skills visas may apply for permanent residence sooner. Although not legislated, the Department of Home Affairs would usually insist on proof of work experience in the relevant area of skill. Individuals who have obtained qualifications listed as critical skills are also able to apply for permanent residence on the basis of those qualifications without the need to obtain an evaluation of their qualifications from the South African Qualifications Authority or to demonstrate prior work experience.

Any foreign worker needs to obtain a work visa to render services in South Africa irrespective of the time frame for which they are required to render services locally and notwithstanding the fact that they may be employed through a foreign entity. Foreign workers and their employers can be fined or jailed, or both, for non-compliance with their obligations in this regard.

South African employment laws are of universal application to employees who fall within their jurisdiction. They therefore apply to foreign workers working in South Africa, even if they are working illegally in contravention of their visa status.

To ensure regulatory compliance, an employer in South Africa must maintain documentary records for each foreign employee for two years after the termination of employment. The employer must also report to the authorities the termination of a foreign worker's employment and any breach by the worker of his or her status. Employers must also make a reasonable effort in good faith to ensure that they have no illegal foreigners in their employ and to ascertain workers' status or citizenship.

Global policies

Employers are under no legal obligation to have written rules on internal discipline, and individual employers may decide whether they want to establish written rules to regulate conduct in the workplace.

In general, an employer does not require the approval or agreement of its employees or their representative body when deciding to introduce disciplinary rules, unless the rules form part of their employment contracts and the employer wishes to amend the rules. Approval and agreement may also be required if there is a collective agreement between the employer and the representative body stipulating that employees or their representative body must approve or agree to disciplinary rules before the rules may be introduced or amended. There is also no requirement for the rules to be filed with or approved by any government authorities but they must be lawful and fair.

Although there are no mandatory disciplinary rules, issues of discrimination and sexual harassment are prohibited by specific legislation, most notably the EEA and codes published pursuant to the EEA. Employers must also report acts of corruption to the authorities.

There is no requirement that the rules governing discipline in the workplace be signed. It is nonetheless good practice to get employees to sign some form of acknowledgement that they are aware of the existence of the rules and have been given an opportunity to familiarise themselves with them. This may be done electronically.

The rules should be accessible to all employees and, if possible, copies of the rules should be given to all employees. If this is not possible, then copies should be available from designated persons, such as human resources managers, for inspection by employees. An intranet site is insufficient if the employees do not have access to it or do not know how to access it.

Individual employers are free to decide whether to incorporate the disciplinary rules into employees' contracts of employment, but generally it is not advisable to do so. If the disciplinary rules are incorporated into employees' contracts of employment, any minor breach of the rules will constitute a breach of contract that may be actionable. In addition, the rules will then become part of the employees' terms and conditions of employment and may not be changed without the employees' consent.

Parental leave

On 18 December 2019, President Cyril Ramaphosa announced that, on 1 January 2020, Sections 1 to 7 of the Labour Laws Amendment Act of 2018 would be enacted. These Sections effectively amend the BCEA to provide for, inter alia, the much-anticipated parental leave.

Parental leave entitles an employee to 10 consecutive days' leave (not 10 working days) on the birth of the employee's child. Parental leave may also be applicable when an employee legally adopts a child or when a child is placed by a court in the care of a prospective adoptive parent. Therefore, a female employee may qualify for parental leave if she becomes an adoptive parent or a prospective adoptive parent.

Parental leave is unpaid and an employee will have to submit a claim to the Unemployment Insurance Fund to qualify for payment during the period of absence from work. An employee is entitled to 66 per cent of his or her regular earnings subject to the maximum income threshold as per the Unemployment Insurance Act.

One of the most important requirements is that to qualify for the payment of parental leave benefits from the Unemployment Insurance Fund, a male employee will have to provide proof that he is the father of the child by virtue of a birth certificate with his name and surname recorded on it.

Translation

There is no legal requirement that employment-related documents be translated, unless the employee is not able to understand them, in which case the employer should ensure that the contents of the documents are explained to the employee in a language and in a manner that the employee understands.

There are no penalties if a document is not translated. However, if it is not translated (in circumstances where it is required as described above), the risk is that the employer may be directed by the Department of Labour to translate the document or it may be unenforceable against the employee in question.

Employee representation

Employees are permitted to form and join a registered trade union of their choice. At an undertaking where there are more than 100 employees, the employees, through their trade unions, are permitted to establish workplace forums to consult on numerous defined workplace issues. However, these are rarely set up.

A majority union in a workplace in which at least 10 of its members are employed may elect union representatives from its members in accordance with the following:

  1. 10 members in the workplace: one representative;
  2. more than 10 members: two representatives;
  3. more than 50 members: two representatives for the first 50 members plus one representative for every additional 50 members (up to a maximum of seven);
  4. more than 300 members: seven representatives for the first 300 members plus one representative for every additional 100 members (up to a maximum of 10);
  5. more than 600 members: 10 representatives for the first 600 members plus one representative for every additional 200 members (up to a maximum of 12); or
  6. more than 1,000 members: 12 representatives for the first 1,000 members plus one representative for every additional 500 members (up to a maximum of 20).

Unions that do not have majority representation may nonetheless elect union representatives from their members if a collective agreement is concluded with the employer concerned that allows for this. The constitution of the trade union (with any constraints and obligations that may exist in terms of a collective agreement, if any) will govern the nomination, election, term of office and removal from office of the representatives. It will also regulate the holding of meetings and the issues relating thereto. Under the LRA, any registered trade union that represents a 'significant interest' or a 'substantial number of employees' in the workplace may be entitled to be recognised for organisational rights, irrespective of a collective agreement to the contrary.

Representatives have the right to assist and represent employees in grievance and disciplinary proceedings, to monitor the employer's compliance with labour laws and any collective agreements, and to report any contraventions of these laws and agreements. They also have the right to perform any other functions as agreed with the employer and to take reasonable time off work for trade union activities. Representatives may not be discriminated against in any way, or dismissed, for their involvement in trade union activities. However, representatives remain employees of the employer and generally remain subject to its rules on discipline and its other workplace rules.

Depending on the level of representation of the union, an employer must allow it access to the workplace to recruit members, communicate with them, hold meetings, and otherwise serve them and grant stop orders due to the union from the employees' wages.

Data protection

i Requirements for registration

Comprehensive legislation regulating data protection was published in 2013 in the form of the POPIA. As already alluded to in Section II, the majority of its provisions came into effect on 1 July 2020. Therefore, companies will be given a one-year grace period to comply with its provisions, which may be extended. The POPIA places restrictions on what information may be collected from employees and applicants, and processed by employers. The POPIA does not require employers to register with a data protection agency or other government body, but an employer can only collect and store personal information about its employees if it has notified the Information Protection Regulator and the employees, and it is necessary or related to a lawful and permitted purpose under the legislation. In September 2017, draft regulations were published for public comment. The final regulations were published on 14 December 2018.

Personal information may only be collected by an employer directly from and with the consent of the employee, who must be informed of the purpose of any collection and who the intended recipients are once the information is collected. Personal information should not be kept for longer than necessary to achieve the (permitted) purpose for which it was collected and it must be distributed in a way that is compatible with the purpose for which it was collected. The employer must take reasonable steps to ensure that the information is accurate, up to date and complete.

Under the POPIA, an employer must ensure that all personal information about its employees is protected against risks of loss, damage, destruction or unauthorised access. The employees must also be allowed to access their personal information and can demand that the information be corrected if it is found to be inaccurate.

ii Cross-border data transfers

The POPIA prohibits cross-border (and onward) transfers of personal information to countries that do not have substantially similar protections for the information (except under limited circumstances). Notification of transfers of sensitive personal information or the personal information of children must be given to the Information Protection Regulator, and an employer must obtain the Regulator's prior authorisation before processing any information. The employee's consent to the transfer is generally required. The transfer must also be necessary under contractual arrangements involving the employee. Authorisation from the Regulator need only be obtained once and not each time that personal information is received or processed, except when the processing departs from that which has already been authorised.

iii Sensitive data

The POPIA considers the following information to be 'special personal information' for which additional protections are required: information concerning children, religious or philosophical beliefs, race or ethnic origin, trade union membership, political persuasion, health, sex life or biometric data, and criminal behaviour in certain instances.

This special personal information may not be processed by an employer unless specifically permitted under exemptions provided for in the legislation. An example of an exemption would be the processing of information about race because the employer is required to comply with laws designed to protect or advance persons from groups historically disadvantaged by unfair discrimination (under the terms of the EEA).

iv Background checks

Background checks are generally permitted provided they do not involve checks that amount to unfair discrimination under the EEA.

A code of good practice issued under the EEA stipulates that an employer should only conduct integrity checks – such as checking credit references or investigating whether an applicant has a criminal record – if they are relevant to the requirements of the job. The National Credit Act No. 34 of 2005 also stipulates that a credit bureau can only issue a credit report to a prospective employer when the employer is considering the candidate for a position that requires trust and honesty and entails the handling of cash or finances, and only with the prior consent of the candidate.

Medical testing is only permitted if legislation permits or requires it, or if it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job. Testing an employee for his or her HIV status is prohibited unless determined to be justifiable by the labour court. Psychological testing and other similar assessments are also prohibited unless the test has been scientifically shown to be valid and reliable, and that it can be applied fairly to all employees and is not biased against any employee or group of employees.

The Immigration Act and regulations thereto provide that medical reports and chest X-rays must be submitted in support of applications for temporary and permanent residence visas. Police clearance certificates are also required from all countries if an applicant for a temporary or permanent residence visa has resided for more than one year in South Africa since their 18th birthday.

Discontinuing employment

i Dismissal

Dismissals are required to be for a fair reason and effected pursuant to a fair procedure; therefore, employees may not be dismissed without cause.

There are no requirements to notify government authorities of dismissals. In some instances, an employer must consult a trade union about pending dismissals, for example if an employee is a trade union representative or if union members are to be made redundant.

The grounds on which an employer can fairly dismiss an employee are misconduct, incapacity (which can be either medical incapacity or poor performance) and the operational requirements of the employer (i.e., redundancy, which is dealt with in Section XIII.ii in more detail). Dismissal may be summary when it is warranted (e.g., in cases of serious misconduct) but otherwise the employee must be given notice (the BCEA stipulates minimum notice periods of one week for employees with less than six months' service, two weeks for employees with service of between six months and one year, and four weeks for employees with service of more than one year). Employers may pay their employees in lieu of notice.

An employee whose employment is fairly terminated for misconduct or poor performance is not entitled to any separation or severance pay. See Section XIII.ii regarding the severance pay requirements in cases of redundancy. It is possible for employers to conclude separation or settlement agreements with departing employees.

An employer is obliged to notify the Department of Home Affairs when the employment of an individual who holds a work visa is discontinued.

ii Redundancies

An employee may be dismissed for a reason relating to the employer's operational requirements, namely, circumstances based on the employer's economic, technological, structural or similar needs. A dismissal based on operational requirements must be both procedurally and substantively fair, as is the case with any other dismissal.

The process that must be followed when considering dismissals for operational reasons is set forth in Section 189 and 189A of the LRA. The basic Section 189 provisions apply to all retrenchments and Section 189A imposes additional procedural requirements for when large businesses conduct large-scale retrenchments. A large employer is one that has 50 or more employees.

Section 189 requires consultation with the employees who may be affected or their representatives (e.g., trade union or workplace forum) regarding the proposed retrenchments. There is no requirement to notify a works council or the government.

As soon as an employer contemplates retrenchments, it must commence consultation about ways to avoid retrenchment, to minimise the number of retrenchments, to change the timing, to mitigate the hardships caused to employees who are retrenched, to select the employees to be retrenched, and about severance pay. Consultation must commence with the employer issuing a written notice inviting the other party to consult and disclosing relevant information to enable the other consulting party to engage in the consultation process. Facilitation is an additional process available to the parties to a large-scale retrenchment on request. Facilitation occurs alongside the normal consultation process and is essentially consultation with the assistance of a commissioner appointed by the CCMA. The facilitator's job is to help the parties with their discussions and their attempts to reach agreement on as many issues as possible in relation to the proposed retrenchment.

If the employer falls under a bargaining council, it is advisable to check whether or not the bargaining council agreement has any special provisions relating to retrenchment with which it must comply.

No social plan is required but as part of its duty to avoid retrenchment wherever possible, the employer must explore alternatives to retrenchment. If the employer has alternative work that an affected employee can do (even if some training is required), the employer should accommodate the affected employee. The employer must also consult about the method of selecting employees to be retrenched and, in the absence of agreed criteria, must adopt fair and objective criteria. There is no category of employee protected by law from retrenchment when genuine operational requirements exist.

There are statutory rights to severance pay for retrenched employees. An employer must pay severance to an employee dismissed for operational requirements that is equal to at least one week's remuneration for each completed year of continued service with that employer. If the employer and employee have agreed, in advance or otherwise, to a higher amount of severance pay, the rights under the agreement are unaffected by the lower statutory minimum. Employees who unreasonably refuse offers of alternative employment with the retrenching employer, or any other employer, are not entitled to severance pay.

The employer must consult about the possibility of rehiring retrenched employees if business picks up or if it is later considering hiring people for the sort of work that the retrenched employees performed. Usually the parties agree on how long the rehiring arrangement will apply and make it subject to the employees remaining contactable.

Employers may conclude settlement agreements with retrenched employees that entail a release of claims from the former employees.

Transfer of business

Under the terms of Section 197 of the LRA, if a transfer of a business takes place, unless otherwise agreed, the new employer automatically substitutes the old employer in respect of all employment contracts in existence immediately before the date of transfer and all rights and obligations between the old employer and an employee at the time of the transfer continue to be in force, as if they had been rights and obligations between the new employer and the employee.

Various statutory requirements must be met for a transaction to fall within the ambit of Section 197 of the LRA. Whether this Section applies to a specific transaction depends on the following:

  1. the relevant business transaction must be a 'transfer' envisaged by Section 197 (which means that the business must be transferred as a going concern); and
  2. the entity being transferred must be a 'business' (which is defined to include a part of a business, a trade, an undertaking or a service).

The test for whether or not there is a going concern transfer is an objective one, where the substance of the transaction is considered rather than its form. The courts have formulated a test that involves taking a 'snapshot' of the entity before the transaction and assessing its components. This is then compared with a snapshot of the business after the transaction is concluded to establish whether it is essentially the same business but in different hands. There is no inflexible test, however, and each transaction is considered on its own merits.

The buyer of the transferred business (the new employer) must provide employees with terms and conditions that are generally not less favourable than those that applied before the transfer. However, the buyer can transfer employees to different retirement plans or similar schemes. Employees cannot be dismissed because of the transfer of a business or any reason relating to the transfer.14 A dismissal that breaches this provision is automatically unfair.

It is possible to contract out of the provisions of Section 197 but only if the requirements of Section 197(6) are met. This means that an employer must negotiate with the same body that would have had to be consulted in the event of a retrenchment and must make full disclosure of all relevant information during the negotiation process.

Work visas are specific to an employer and a position, and holders of a work visa may not continue working on their existing work visa but must apply for an amendment to the visa to authorise work for a new employer.

Outlook

On 18 October 2018, the Minister of Labour published both the COIDA Amendment Bill 2018 and the proposed Regulations on the Compensation Fund New Assessment Model for public comment.

The proposed amendments to COIDA follow from an application in the North Gauteng Division of the High Court seeking to declare the provisions of COIDA that exclude domestic workers from its ambit unconstitutional and that the declaration of unconstitutionality apply retrospectively. In response to the application, the Acting Compensation Commissioner filed an answering affidavit on behalf of the Minister of Labour and the Director General, in which he indicated that the Department of Labour intended to introduce a bill amending COIDA to include domestic workers within its scope. The Commissioner further stated that the reason for the delay in extending coverage to domestic workers was due to the fact that the Department of Labour was in the process of developing its institutional capacity to administer the coverage of domestic workers under the terms of COIDA. This is set out and discussed in the Mahlangu judgment (see Section III.v), in which the CC confirmed that there is no legitimate objective for excluding domestic workers from the provisions of COIDA. Accordingly, the CC found that Section 1(xix)(v) was unfairly discriminatory and declared it unconstitutional with retrospective effect from 27 April 1994. Notwithstanding this judgment, the COIDA Amendment Bill has still not been enacted into law.

With the inclusion of domestic workers under COIDA, the Department of Labour will need to have a firm administrative framework in place. Should the COIDA Amendment Bill be adopted in its current form, employers of domestic workers will be required to register with the Compensation Commissioner, furnish the Commissioner with the full particulars of their business, keep a record of the earnings of their domestic workers, furnish returns of earnings to the Commissioner and pay an assessment to the compensation fund. The Department of Labour will have to be prepared to manage the administrative load that this will bring about.

Other proposed changes to COIDA of importance to employers are the following:

  1. definition of 'an employee';
  2. definition of 'an employer';
  3. meaning of the financial year (currently March to February) to be changed to start on the first day of April in any year and end on the last day of March in the following year;
  4. insertion of a definition for 'remuneration';
  5. provision for the rehabilitation, reintegration and return to work of employees who have suffered an occupational injury;
  6. provision for the regulation of the use of healthcare services;
  7. provision for the reopening of claims;
  8. provision for criminal and administrative penalties;
  9. regulation of compliance and enforcement, and provision for a no-fault-based compensation system and matters connected therewith; and
  10. replacement of 'concept mandators' with contractors and sub-contractors.

The draft changes to the Regulations on the Compensation Fund New Assessment Model under COIDA have been published for public comment.

The main proposals are to reduce the existing 102 assessment subclasses to five main assessment classes to simplify the process of dealing with the Compensation Fund. The reason for this change is because the Compensation Fund assesses employers based on the industry in which they operate and are assigned to a specific assessment class for the basis of determining their liability to the Fund. However, because of the number of classes, employers often are registered in incorrect classes, resulting in inaccurate collection and recording of the Compensation Fund's financial performance. The current classes also contribute to fraudulent conduct by different stakeholders who may not want to pay the assessment fees relating to the industry in which the employer operates.

A new assessment class for households has been introduced as part of this proposal.

Since the start of the pandemic, the Department of Home Affairs has issued numerous directions in terms of the Disaster Management Act with the aim of alleviating the plight of foreigners who are unable to travel because of international travel restrictions. Although South Africa has lifted all its travel restrictions, many jurisdictions have banned or limited travel to and from South Africa. It is expected that this will continue throughout 2021. No other major legislative or policy changes concerning immigration are anticipated.

Footnotes

1 Stuart Harrison, Brian Patterson and Zahida Ebrahim are directors at ENSafrica. Susan Stelzner was also a director of ENSafrica. Sadly, she passed away on 5 January 2011 but this chapter continues to reflect her invaluable contribution and it remains dedicated to her memory.

2 The Constitution of the Republic of South Africa, 1996.

3 (CCT178/19) [2020] ZACC 23 (27 October 2020).

4 A conditional dismissal takes place when an employer has dismissed employees in an attempt to force them to agree to a change to terms and conditions of employment. A conditional dismissal is considered to be automatically unfair.

5 If an employer failed to convince employees to accept a change to terms and conditions of employment and then had no choice but to dismiss the employees on the basis of its operational requirements, this would not constitute an automatically unfair dismissal in terms of Section 187(1)(c). These would be referred to as final dismissals.

6 (PA6/2018) [2020] ZALAC 6; (2020) 41 ILJ 1339 (LAC); [2020] 7 BLLR 676 (LAC) (4 March 2020).

7 Not reportable, J1217/20 (LC).

8 [2020] ZACC 7.

9 [2020] ZACC 24.

10 [2020] 6 BLLR 588 (LC).

11 As of 17 December 2019, this is 205,433.30 rand per annum.

12 Companies Act, Section 23(2).

13 Vodacom (pty) Ltd v. Motsa and another 2016 (3) SA 11 6 (LC).

14 Labour Relations Act No. 66 of 1995, Section 187(1)(g).

Get unlimited access to all The Law Reviews content