New regulations make it tougher to hire foreign workers in South Africa – what you need to know

IOL – 03 August 2022

The Department of Employment and Labour (DEL) has published an annexure to South Africa’s immigration regulations, making sure that all work visa applications are vetted by the department first.

Labour and immigration experts at Cliffe Dekker Hofmeyr said that employers must ensure that they comply with new requirements to avoid any administrative delays in the processing of visa applications.

The new annexure clarifies “uncertainty” about the DEL’s involvement in the visa application process, now making it a critical step, said Cliffe Dekker Hofmeyr.

There is now a compulsory preliminary process to be followed before work visa applications are submitted to Visa Facilitation Services (VFS), which was not the case prior to the annexure.

Previously, an employer was required to register a vacancy with the DEL and had to interview all prospective candidates referred to them by the department. Under the new annexure, visa applications to fill the position must be submitted to the DEL for vetting.

The annexure deals with the following:

• A general work visa (GWV);
• A corporate visa;
• The renewal of an existing visa (to a GWV);
• The change of conditions or status of an existing visa (to a GWV);
• A permanent residence permit for foreigners who receive an offer of employment while in possession of a valid work visa.

According to Cliffe Dekker Hofmeyr, in terms of the preliminary process, the following steps must be taken by the client employer – and not the foreign worker – before a visa application is submitted to VFS:

• The employer must register the employment opportunity with the DEL by completing a registration form.
• After completing the employment opportunity form, the DEL will try to provide the employer with suitable candidates for placement. The client employer is required to inform the DEL whether any of its referred candidates have been employed.
• The visa application form must be completed and delivered to the relevant DEL provincial office, together with the respective supporting documents. When submitting the visa application, the client employer must also provide the DEL with its contact details and business address for purposes of future compliance audits.
• After the visa application is submitted to the DEL, a “visa finalisation notification” will be emailed to the employer after a recommendation certificate has been submitted by the DEL to the Department of Home Affairs (DHA).

In terms of the annexure, the DEL’s recommendation is not appealable, and an appeal can only be directed to the DHA, added Cliffe Dekker Hofmeyr.

Only after the employer receives the notification from the DEL it can submit the work visa application to the DHA. The turnaround time for the DEL to process a work visa is said to be 30 working days. However, the department currently faces a backlog.

Zero-tolerance stance

The DHA announced at a recent Xpatweb conference that it has the mandate to address immigration in South Africa. It urged employers to ensure that all expatriate staff are in possession of legally obtained and issued work visas.

The department’s approach has been necessitated by years of employers failing to comply with the provisions of the Immigration Act through the consistent employment of illegal foreigners without valid work visas, said Cliffe Dekker Hofmeyr.

Under the Immigration Act, employers are prohibited from employing illegal foreign nationals. The new zero-tolerance approach by the government means that employers who are found to have contravened the Immigration Act will be shown ‘no mercy’.

Cliffe Dekker Hofmeyr said that employers must make a good faith effort to ascertain the status or citizenship of any foreigners they intend to employ, not to contravene the Immigration Act.

This could be done by:

• Verifying the validity of prospective employees’ work visas, refugee or asylum permits through either the Department of Home Affairs or a third-party service provider such as the Managed Integrity Evaluation Services; or,
• Conducting an immigration audit of all current foreign employees.

An illegal foreign national under the Immigration Act is a foreigner whose status does not authorise them to be employed by a particular employer. Or any foreigners on terms, conditions and/or in any capacity other than the capacity provided for based on their status, said Cliffe Dekker Hofmeyr.

If an employer is in contravention of the act, it is guilty of an offence and liable to either a fine or imprisonment upon conviction, the firm said.

The DHA said it is currently working its way through businesses and arresting illegal ex-pats and relevant company representatives.

www.samigration.com

 

 

 

Barring foreign nationals from being admitted to legal profession not unconstitutional - ConCourt

News24 – 03 August 2022

• In September 2021, the Free State High Court declared Section 24(2) of the Legal Practice Act 28 of 2014 unconstitutional and invalid. 
• The matter was brought by foreign nationals who wanted to be admitted and enrolled as legal practitioners in South Africa.
• On Tuesday, the Constitutional Court declined to confirm the constitutional invalidity. 

A group of foreign nationals, who were fighting to be admitted and enrolled as legal practitioners in South Africa, but lack permanent residency, lost their bid in the Constitutional Court on Tuesday.

The court dismissed the group's leave to appeal against a Free State High Court judgment.

It also declined to confirm that Section 24(2) of the Legal Practice Act 28 of 2014 (LPA) was unconstitutional and invalid to the extent that it did not allow foreigners to be admitted and authorised to enroll as non-practising legal practitioners.

In September last year, the Free State High Court in Bloemfontein declared that section unconstitutional and invalid, but found the discrimination in Section 24(2)(b) of the LPA was fair.

One of the applications was brought by Relebohile Cecilia Rafoneke and Sefoboko Phillip Tsuinyane, both Lesotho nationals, who wanted to practice in South Africa.

Another was brought by Zimbabwe nationals Bruce Chakanyuka, Nyasha James Nyamugure and Dennis Tatenda Chayda, as well as an asylum seeker refugee and migrant coalition, all facing the same issues as Rafoneke and Tsuinyane.

The respondents were the justice and correctional services minister and the Legal Practice Council. 

Rafoneke and Tsuinyane both studied at the University of the Free State, where they obtained LLB degrees.

They entered into contracts of articles of clerkship, completed vocational training, and passed the practical examination for attorneys.

When they applied to be admitted and enrolled as attorneys of the high court, their applications were dismissed because they were neither South African citizens nor lawfully admitted to this country as permanent residents.

The applicants challenged the constitutionality of sections 24(2)(b) and 115 of the LPA, arguing that the impugned provisions restricted their rights to be admitted into the legal profession.

On Tuesday, the court said: "South Africa, as a sovereign state, has an obligation to protect the interests of its citizens. It has entrenched the rights of its citizens to choose their trade, occupation or profession freely through section 22 of the Constitution."

The court said section 24(2) of the LPA is legislation that regulates practice, legally-related occupations and professions in general.

It, however, found that the "regulatory competence exercised cannot be said to extend to non-citizens and their choice of profession as section 22 is a right in the Constitution that does not extend to them".

But it said the fact that non-citizens do not have rights that accrue under section 22 does not mean they are not entitled to enter certain categories of professions in the country.  

In addition, the Constitutional Court said the differentiation between citizens and permanent residents on one hand, and foreign nationals on the other, does not amount to unfair discrimination.

According to the judgment, the limitation created by section 24(2) is "narrowly tailored" to the admission of legal practitioners and does not operate as a blanket ban on employment in the profession.

"Therefore, the activity which the applicants sought constitutional protection for is the enjoyment to choose one's vocation and, as such, this cannot be held to amount to unfair discrimination as that right does not fall within a sphere of activity protected by a constitutional right available to foreign nationals, such as the applicants."

www.samigration.com

 

 

 

Major skills shortage looms for schools in South Africa

Businesstech – 3 August 2022

 

Almost half of South Africa’s teachers are going to have to retire in the next 10 years, says Julian Hewitt, chief executive officer of the educator bursary programme, the Jake Gerwell Fellowship.

Speaking to 702, Hewitt said that the Department of Education’s payroll showed that the country’s schools are expected to run out of highly skilled teachers.

The latest Jake Gerwell Fellowship annual report shows that 45% of all government-employed teachers will retire in the next decade – pointing to a potential teacher crisis.

“At least half the teachers in South Africa are in their 50s at the moment, and the retirement age is 60, so there is a looming crisis.”

This is compounded by the other major challenge facing the industry, being that there is poor uptake in teaching as a career of choice, said Hewitt. According to the fellowship, a recent OECD survey revealed that only 49% of teachers in South Africa regard teaching as their first-choice career.

This is significantly lower than international standards, said Hewitt.

A shortage of skilled educators due to retirement was previously raised by private higher education institution, Mancosa, which said that South Africa is not graduating an adequate number of teachers to meet the supply and demand.

“More teachers are leaving than entering the profession. Currently, the country’s initial teacher institutions graduate 15,000 new teachers per year. This is below the 25,000-mark required to maintain an effective teacher-pupil ratio,” said professor Magnate Ntombela, principal of Mancosa.

“There is a dire need to find 20,000 newly-qualified teachers each year to maintain current teacher-pupil ratios,” he said.

More graduates

The Department of Basic Education has previously responded to claims of a skills crisis in teaching, saying that the number of new teaching graduates is increasing every year.

“The number of initial teacher education graduates has grown over the last 10 years from an output of about 7,973 in 2010 to 31,799 in 2020,” it said.

The 25,000 graduates mark was reached in 2017, it said, adding that the current enrolment trends point to the upward trajectory in graduation numbers.

The output of graduates is favoured towards the Senior/Further Education and Training Phases (SP/FET) – partly because the two qualification pathways allow for SP/FET to qualify through both the Bachelor of Education (BEd) and Post Graduate Certificate in Education (PGCE) while Foundation Phase (FP) is largely limited to BEd pathway, the department said.

The average teacher attrition rate over is 15,200 a year – largely due to retirement, but also because of resignations, ill health and death, the department said.

The teacher supply in terms of quantity is reasonably adequate, the department said, at least from the analysis of the situation in public education.

Earnings

The department’s latest information on how much the average teacher varies between post levels.

The lowest entry-level salary for educators that meet the minimum qualification (Relative Equivalent Qualification Value 13) or a matric pass plus three years of study is R214,908.

However, an educator who studied for four years earns R284,238 annually. This salary can increase gradually with experience and age.

According to the Department of Education, age does affect the earnings of a teacher; however, a promotion to a higher post could lead to a quicker increase in earnings.

www.samigraytion.com

 

South Africa is facing another skills crisis

Businesstech – 3  August 2022

 

South Africa needs to increase the number of researchers and technicians it has at its disposal if it wants to remain globally competitive in innovation.

This was one of the key issues raised in the 2022 South African Science, Technology And Innovation Indicators Report, published by the Department of Higher Education, Science and Innovation on Friday (29 July).

Minister in charge of that department, Blade Nzimande said that the number of researchers employed in research and development (R&D) in South Africa has been on the decline since 2018, as has the number of technicians employed in R&D.

The proportion of technicians to researchers employed in R&D decreased from 32.8% in 2014/15 to 24.3% in 2019/20, and employment in R&D in the business sector declined by slightly more than one-fifth, he said.

“A critical component of a well-functioning innovation system is human capital across all the science, technology and innovation (STI) activities,” the department said.

“Previously, much of the focus was on researchers carrying out R&D activities in South Africa. However, technicians are important for the integration and translation of research ideas into demonstrators and other tangible R&D outputs. Hence, the number of researchers employed in R&D are analysed along with the technicians employed in R&D.”

The department pointed to a steady increase in researchers employed in R&D between 2010 and 2017. However, since 2017, the numbers have declined.

While South Africa’s number of researchers in 2019 (28,358) was 51.5% more than in 2010 (18,720), it said the country needs to up the number of researchers of all races to increase its innovation potential.

South African Researchers in Employment

 

The upside to the latest data is that transformation is taking place in South Africa’s STI landscape, the department said.

There is an increase in the percentage of African researchers, from 26.7% in 2010 to 35.6% in 2019. However, there is a declining trend among white researchers in the country.

While the percentage of white researchers has declined, the absolute number of white researchers was in fact on the increase from 14,789 in 2010 to 15,795 in 2017. However, the numbers dropped back to 14,890 in 2018 and further to 14,224 in 2019.

The proportion of both coloured and Indian researchers increased marginally between 2010 and 2018, the department said.

Proportion of South African Researchers by Race

 

When it comes to technicians, a more troubling picture emerges.

The number of technicians employed in R&D has been on the decline since 2015. As a result, the proportion of technicians to researchers has decreased from a high of 32.8% in 2014 to 24.3% in 2019.

“The decline in the percentage and number of technicians employed in R&D should be interpreted in the context of the movement of R&D in South Africa from the business sector to higher education, with more focus on basic research,” the department said.

However, even taking into account the migration from business to academics, the number of technicians employed in R&D by the higher education sector is also very low, it said.

South African Technicians Employed in R&D

 

Nzimande said that following the 2020 and 2021 Covid-19 pandemic, the country’s National System of Innovation has been “stretched to its limits”, which impacts the country’s ability to compete internationally.

“South Africa’s innovation performance is falling behind other middle-income countries with regard to outputs such as patents and high technology exports. South Africa performs better in innovation inputs than innovation outputs. Considering its level of innovation investment, the country produces few innovation outputs,” he said.

The resolve the issue, he said that his department will focus on the 2019 White Paper on Science, Technology and Innovation, which aims to future-proof education and skills as one of its core pillars.

The government is trying to strengthen a future-ready workforce at both the foundational and further education levels through restructuring curriculae and introducing a broader range of subjects and courses.

www.samigration.com

 

 

SA travellers face a long wait for visas – with US appointments only open in 2023

Business Insider SA – 02 August 2022

 

South Africans looking to travel abroad have been met with visa processing delays.

• These delays are most noticeable for those wanting to visit America, with no appointment slots left in 2022, according to Rennies BCD Travel.
• Would-be travellers may get an "appointment waiver", speeding the process up significantly, if they've had a US visa that expired in the past two years.

Visa processing delays are frustrating South Africans who are looking to travel abroad, with appointments for interviews with the United States (US) consulate only available from February 2023.

"Visa availability continues to be a struggle for travellers," warned corporate and online travel management company Rennies BCD Travel in a notice to clients on Friday.

A massive backlog of visa applications, emanating from the pandemic-induced lockdown, which effectively halted travel and closed embassies, coupled with a resurgence of international movement in the past six months, has led to longer processing times. Like the airports experiencing chaos amid Europe's summer holiday, staffing deficits are also impacting embassies.

Back in January, VFS Global, the world's largest visa outsourcing firm, confirmed longer waiting times and limited appointment slots. The US warned "that it may take several months to schedule an interview appointment", while the UK High Commission in Pretoria, in May, confirmed "longer processing times" and urged travellers to "apply in good time".

Visa appointment and processing times for some European destinations, like Austria, Denmark, Italy, and Spain, range from two weeks to six weeks. Although Germany is taking appointments in August, the total processing time listed by Rennies is up to four weeks, while the earliest date for an appointment with the Dutch embassy in Pretoria is 1 September.

Wait times for an appointment for those wishing to travel to the UK aren't as long – estimated between one and two weeks according to Rennies – but the processing time could take up to two months.

Getting a visa appointment for travel to the US has the longest waiting period of any country listed by Rennies. Appointments in Cape Town are only open in February 2023, while Johannesburg's wait time extends to May 2023.

The long wait for US visa appointments cited by Rennies is confirmed by the US department of consular affairs. Getting an appointment for a visitor visa in Johannesburg is estimated to take 240 days, or eight months, while the waiting period for "all other non-immigrant visas" is marginally shorter, at 210 days.

Getting an appointment for a US visitor visa in Cape Town, according to the department of consular affairs' website, will take 121 days or around four months, which is quicker than Rennies' estimate. Rennies, however, warns of a processing time of up to 12 weeks. Those applying for a student/exchange visitor visa could get an interview within three days, compared to two months for the same in Johannesburg.

There may, however, be some relief for those who've had a US visa in the past.

"If you have had a previous USA visa that expired in the last 48 months, you may qualify for an 'appointment waiver'. This option takes anything from four to 12 weeks to be returned," explained Rennies.

"There is no option for an earlier appointment unless the traveller has a compassionate case or can demonstrate an urgent or compelling need for business travel."

www.samigration.com