Legislation regarding the employment of foreign nationals is constantly changing and employers should ensure that they are informed of the developments to avoid being held liable for non-compliance. Businesses have various needs and tailor their models to suit the demands of their client base. Within those specific business needs, an interesting question does present itself.  What if a business requires a unique skill such as language proficiency or cultural awareness that South African citizens or permanent residents cannot fulfil. Would this permit the employment of foreign nationals, or would the company be prohibited by legislation from looking for employees abroad?

This question was addressed in Mukuru Financial Services (Pty) Ltd and Another v Department of Employment and Labour (17474/20) [2022] ZAWCHC 14 (“Mukuru”). The applicants in this matter needed suitably qualified employees fluent in the indigenous languages of Zimbabwe, Malawi and other languages which were unspecified but which the applicants called “relevant languages”. A further question was whether the lack of proficiency in the relevant languages made South African and permanent citizens unsuitable to be employed by the company.

Before a foreign national is employed, section 8(2)(a) of the Employment Services Act No. 4 of 2014 (“Employment Services Act”) obligates an employer to “satisfy themselves that there are no persons in the Republic with suitable skills to fill a vacancy, before recruiting a foreign national”.  The applicants in this matter make use of financial technology solutions to facilitate domestic and international money transfers across the African continent and parts of Asia. They insisted that because their products were mainly utilized by foreign nationals, it was crucial for them to have employees that would be able to service their clients in their respective native languages. Clients were known to be more comfortable and confident doing business in their native language and thus this made proficiency in these languages an essential skill to have as an employee in their business. Subsequent to the applicants’ search, they claimed that they could not find South African and permanent citizens that were proficient in any of these languages and could relate to their customers on a cultural and ethnic basis.

The question turned to whether this discrimination was justified. The Department of Employment and Labour, the respondent in this matter, contended that the discrimination was not justified as it considered the use of language in the company’s business to be supplementary and not essential to the services that were supplied. The Department argued that the language proficiency prerequisite was “arbitrary, exclusionary and unreasonable” and consequently violated the Constitution, the Basic Conditions of Employment Act and the Employment Equity Act. The court held that the applicants successfully showed that proficiency in these respective languages was necessary for the applicants to conduct their business to the comfort of their clients. However, this was not the end of the discrimination inquiry. In their implementation of this requirement and the employment of foreign nationals, the applicants had to ensure that they complied with the Immigration Act.

The Preamble of the Immigration Act reads:

“(h) the South African economy may have access at all times to the full measure of needed contributions by foreigners ;

(i) the contribution of foreigners in the South African labour market does not adversely impact on existing labour standards and the rights and expectations of South African workers.”

The court held that the applicants failed to prove that their conduct did not adversely impact the rights and expectations of South African workers. The court stated that it was the company’s duty in terms of the Immigration Act to train South African citizens to meet their business needs. The court affirmed that it is a business’s social responsibility to reorient itself and help address the social ills of the country, in this circumstance, to address the country’s unemployment and poverty by ensuring that they hire and train South African citizens before looking abroad for employees.

Mukuru is a message to employers who intend to employ foreign nationals to ensure that they have exhausted all local options first. Employers have a duty, if they cannot find South African citizens to fulfil their business needs, to attempt to train South African citizens to meet those needs. Employers are also warned not to stealthily implement job requirements that will subsequently exclude South African citizens from employment and potentially be forms of discrimination.