Recently settled case in the Labour Court demonstrated that excluding a job applicant because of their criminal record is only lawful when the requirements of that job explicitly outline and justify the need for a clean criminal record.

However, legal experts say that the court’s decision ultimately delinked trust and honesty from the inherent requirements of a job, which was “concerning.”

ENS Africa’s Nils Braatvedt, Kim Vova, and Lutho Zono examined the background, outcome, and subsequent analysis of the recent court ruling in O’Connor v LexisNexis.

The experts said that “this decision emphasises the risk of automatically excluding applicants from employment based on an inherent trait such as a criminal record.”

Background

O’Connor [first name omitted] applied for a senior data expert role at LexisNexis. As part of the recruitment process, the company required applicants to declare whether they had ever been criminally charged.

Acknowledging his past theft conviction from 2001 had been expunged, O’Connor was initially offered a job by LexisNexis based on the outcome of a background check.

LexisNexis withdrew their job offer following the check, which unveiled six theft charges, one fraud charge, and two charges of obstructing justice.

Aggrieved at this decision and after unsuccessfully attempting to settle the dispute at the Commission for Conciliation, Mediation and Arbitration (CCMA), O’Connor approached the Labour Court.

He alleged that LexisNexis unfairly discriminated against him based on his past criminal convictions, basing the argument on a section of the Employment Equity Act that prohibits “unfair discrimination” in any employment policy or practice.

Court ruling

In considering whether O’Connor had been unfairly discriminated against, the court assessed whether the differentiation based on a criminal record was ” arbitrary.”

The court found that having a criminal record is an inherent attribute that is connected to how a person is viewed in society. Additionally, the court said that the idea behind criminal justice in South Africa is that once a criminal have paid their debt to society, that person must be allowed back into society.

“Accordingly, the Labour Court found that differentiation on the basis of a criminal record is an arbitrary ground as contemplated in section 6 of the EEA,” said Braatvedt, Vova, and Zono.

Additionally, the court had to ascertain whether discrimination was justifiable on the basis that it was an inherent requirement of the job for O’Connor to have a clean criminal record.

The court reached the conclusion that the position did “not require a significant amount of trust and honesty”, where the possibility of O’Connor’s rehabilitation should be completely disregarded.

It, therefore, found that LexisNexis did not demonstrate that a clean criminal record was an inherent requirement for the role and ordered that it would be just and equitable for LexisNexis to employ Mr O’Connor in the role.  

Legal Commentary

“What is perhaps concerning about the Court’s decision is the delinking of trust and honesty from the inherent requirements of a job,” said the ENS experts.

The ultimate decision was influenced by LexisNexis’ inadequate response to the claim’s core issues, with the court suggesting a different outcome had they engaged with the allegations.

However, the legal experts said that “the decision seems to contradict the common law principle that there is a reciprocal duty of good faith which obliges an employee to perform work in a trustworthy and honest manner indeed, trust underpins the employment relationship.”

“Insofar as the Court found that Mr O’Connor’s role did not require a significant amount of trust, there is either trust, or there is not an employer cannot be expected to tolerate a degree of untrustworthiness or dishonesty regardless of how clerical or geographically distinct an employee’s work may be,” they added.

The ENS experts said that, in their view, the enquiry should have started with the assumption that trust and honesty are essential for any job, and the key question should have rather been how a 20-year-old criminal conviction affects an employer’s trust in the applicant.

Things to note going forward

“Employers should bear in mind that excluding an applicant because of their criminal record is only lawful when the inherent requirements of the job legitimately require a clean criminal record,” said the experts.

A noteworthy part of this case involves O’Connor’s upfront disclosure of his criminal history, showing “a degree of honesty” despite potential employment consequences.

“Employees who refuse to disclose their criminal convictions when they have been asked to do so could be guilty of misconduct,” said Braatvedt, Vova, and Zono.

The City of Cape Town has slammed the Department of Home Affairs for creating confusion and continuing to score “infuriating” own goals in launching remote work visas in the country.

Mayoral committee member for economic growth, James Vos, said that the last month has seen the department shoot itself in the foot with the premature gazetting and subsequent withdrawal of regulations that would create this category of visa.

“On 28 March, the DHA published the amended immigration regulations. This, however, was a day before the closing date of the public comment period. And then, on 12 April, the minister issued a notice withdrawing the 28 March amendments,” Vos said.

Among other things, the regulations replaced the highly-contested critical skills list with a new points-based system and introduced the remote work visa class. At the time of the withdrawal, the minister said that the regulations would be revised within a week, but has since fallen silent.

“South Africa’s visa system is already infamously a mess and this latest bungle only serves as a reminder of the murk. The hundreds of thousands of employees working in the tourism industry, not to mention those in need of jobs, can ill afford yet more chaos caused by the department.”

Vos said that the tourism industry and businesses need urgent clarity on the status of the remote-worker visas. The delays could cost the country millions of rands of additional tourist spend.

“Businesses in countless more industries are equally frustrated as the skilled staff they need are unable to get into the country due to unprocessed visas,” he said.

The MEC said that businesses in industries like business process outsourcing have complained about the current visa system hindering expansion and skills transfer, while others have flagged challenges acquiring visas for delegates, forcing the relocation of conferences and events to other parts of Africa.

Vos urged the department to provide a detailed plan to address the crisis of the visa system and adhere to that plan.

Cape Town has been a major proponent of the remote-work visa, saying that it is in a prime position to benefit economically.

“A fully functioning visa system would be a boon to our country’s economy, driving investments and jobs for millions of desperate South Africans. I urge President Cyril Ramaphosa to exert pressure on the department to get this done,” he said.

The City of Cape Town has slammed the Department of Home Affairs for creating confusion and continuing to score “infuriating” own goals in launching remote work visas in the country.

Mayoral committee member for economic growth, James Vos, said that the last month has seen the department shoot itself in the foot with the premature gazetting and subsequent withdrawal of regulations that would create this category of visa.

“On 28 March, the DHA published the amended immigration regulations. This, however, was a day before the closing date of the public comment period. And then, on 12 April, the minister issued a notice withdrawing the 28 March amendments,” Vos said.

Among other things, the regulations replaced the highly-contested critical skills list with a new points-based system and introduced the remote work visa class. At the time of the withdrawal, the minister said that the regulations would be revised within a week, but has since fallen silent.

“South Africa’s visa system is already infamously a mess and this latest bungle only serves as a reminder of the murk. The hundreds of thousands of employees working in the tourism industry, not to mention those in need of jobs, can ill afford yet more chaos caused by the department.”

Vos said that the tourism industry and businesses need urgent clarity on the status of the remote-worker visas. The delays could cost the country millions of rands of additional tourist spend.

“Businesses in countless more industries are equally frustrated as the skilled staff they need are unable to get into the country due to unprocessed visas,” he said.

The MEC said that businesses in industries like business process outsourcing have complained about the current visa system hindering expansion and skills transfer, while others have flagged challenges acquiring visas for delegates, forcing the relocation of conferences and events to other parts of Africa.

Vos urged the department to provide a detailed plan to address the crisis of the visa system and adhere to that plan.

Cape Town has been a major proponent of the remote-work visa, saying that it is in a prime position to benefit economically.

“A fully functioning visa system would be a boon to our country’s economy, driving investments and jobs for millions of desperate South Africans. I urge President Cyril Ramaphosa to exert pressure on the department to get this done,” he said.

 The Henley Passport Power Index recently showed the significant limitations African citizens face for international travel and economic mobility because of their passports. These limitiations include lengthy visa applications, possible rejections, and long passport control queues. Only Mauritius and Seychelles passports allow holders to access over 50% of global GDP without needing to obtain a visa. This is despite Africa being home to some of the most visa-open nations when welcoming visitors from abroad Henley & Partners’ latest Africa Wealth Report has highlighted how this ‘exclusion’ is denying Africans from international business opportunities. “Your passport serves as a determinant of financial freedom, impacting individuals’ abilities to explore international business ventures, network efficiently, or engage in multi-national trade opportunities,” said Chidinma Okebalama, Senior Consultant at Henley & Partners Nigeria.” “Consequently, African entrepreneurs and investors are often left out of lucrative global markets, impeding their potential for economic growth and financial prosperity.” BIAS AGAINST AFRICAN COUNTRIES Meanwhile, Professor Mehari Taddele Maru at the School of Transnational Governance said African visa applicants face a disproportionately higher rejection rate compared to other regions, particularly for Schengen visas. Commenting on the 2024 Africa Wealth Report, he said: “Africa tops the list of rejections with one in three of all processed applications being turned down, even though it had the lowest number of visa applications per capita.” “Despite justifications based on security or economic concerns, the European visa system clearly demonstrates apparent bias against African applicants.” Seven of the top 10 countries with the highest rate of visa rejections were African nations. Image: Henley & Partners/ Africa Wealth Report Maru also noted that access to Schengen visas is closely tied to the economic and passport power of the applicant’s country of origin. “Many African countries have low ranking gross national income per capita, and also rank low on the Henley Passport Index,” he added. “A lower ranking correlates with a high level of rejection for Schengen visa applicants.”



Capitec and TymeBank customers can temporarily use a low-cost bank account with another major bank to renew their passports or get a Smart ID card from a bank branch.

The Department of Home Affairs (DHA) and major banks first rolled out this option via the eHomeAffairs portal and select bank branches in 2016.

The facility has expanded to about 30 locations, including branches from Absa, Discovery Bank, FNB, Investec, Nedbank, and Standard Bank.

MyBroadband recently tested the service at two FNB branches.

For one tester, the entire passport renewal process at the branch — including biometric checks and document collection — took around 15 minutes. The second tester spent about an hour at another branch.

Overall, they found it was a massive improvement over the horrorshow that many experience at regular DHA offices, which offer a myriad of other services.

To use eHomeAffairs, customers must have a bank account that supports accepting payment requests from the portal.

They must also visit a branch of the same bank for biometric verification, which includes scanning their fingerprints and taking a photo.

Capitec and TymeBank are the only major banks with no eHomeAffairs support.

However, there are several low-fee bank accounts from Absa, Discovery Bank, FNB, Nedbank, and Standard Bank that can be opened for this purpose.

With monthly fees starting from around R5.00 for regular customers, this could be an option if you would rather not dare to visit a regular Home Affairs office.

This option is also available to customers with one of the other major banks that might not have an eHomeAffairs-enabled branch in their province.

For example, the only branch available to Discovery Bank customers is at its head office in Sandton.

Nedbank is also the only bank with an eHomeAffairs branch in Mpumalanga, while FNB has the only branch in Limpopo.

The table below summarises the bank branches that support Smart ID and passport renewal services and what low-cost bank account you can use to access the service at those branches.