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26. Sep. 2023 News24

Digital nomads: How SA labour laws affect foreign employers, employees and remote workers


In the modern world of employment in which South Africa is fast being recognised as a destination of choice for remote workers, foreign employers must take care to align the employment contract to the appropriate system of law, says Bradley Workman-Davies.
The Labour Relations Act (LRA), among other important functions, regulates the rights of employees whose contract of employment has been terminated, and affords the employee the right to refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) upon receipt of such notice.
However, the position of an employee who needs to rely on legal protection in terms of labour law within the framework of diplomatic immunity remains vulnerable in view of the limitation of their employment rights, and a recent case in the CCMA demonstrates that the mere fact that the employee works in South Africa, does not always mean that the employee can appeal to the LRA or other South African labour laws, if there is an employment dispute.
This is seen in the case of Pitya v United States of America [2023] (`Pitya`), where the court had to determine whether an employee employed by a diplomatic or consular employer was entitled to refer a claim in damages for an unfair dismissal to the CCMA. In this case, Pitya was employed as a visa assistant by a consulate which is part of the US Diplomatic mission to South Africa and component of the US Department of State.
The consulate assists US citizens with documentation related to their status and issuing of visas to non-US citizens. Pitya’s role involved various duties, such as accepting, reviewing, and processing nonimmigrant and immigrant visa applications, and providing information to applicants, government officials and members of the US mission in regard to data entry and visa printing.
Pitya was dismissed from his position at the United States diplomatic mission to South Africa and dissatisfied with his dismissal, referred a claim for payment of money arising from his dismissal to the CCMA. However, the CCMA ruled that it lacked jurisdiction to arbitrate the unfair dismissal dispute on the basis that the applicant’s employment was directly related to the sovereign powers of foreign state and that the employer enjoyed immunity under the Foreign States Immunities Act 87 of 1981 (“Act“).
On a review before the Labour Court, it found that the CCMA commissioner’s reasons in finding that Act ousted the CCMA’S jurisdiction were correct.
The Labour Court considered the Act and held that it clearly regulated legal immunity that is afforded to foreign states to include `government of foreign states` and `any departments of the government` in terms of Section 1 (2) (b) and (c) of the Act. Critically, the Labour Court recognised that the Act provides that `a foreign state shall be immune from the jurisdiction of the courts of the Republic except as provided in this Act or any proclamation issued thereunder` and that courts are required to `give effect to the immunity conferred by the Act even though the foreign state does not appear in the proceedings under question.`
Notably however, there are exceptions to the above rule which apply to contracts of employment, so that if `
• the contract of employment was entered into in the Republic, or the work is to be performed wholly or partly in the Republic;
• at the time when the contract was entered into the individual was a South African citizen or was ordinarily resident in the Republic; and
• at the time when the proceedings are brought the individual is not a citizen of the foreign state,
• then the laws of South Africa will in fact apply.
However, this exception does not apply if the parties to the contract have agreed in writing that the dispute or any dispute relating to the contract is subject to the courts of a foreign state, or the proceedings relate to the employment of the head of a diplomatic mission or any member of the diplomatic, administrative, technical or service staff of the mission or to the employment of the head of a consular post or any member of the consular, labour, trade, administrative, technical or service staff of the post.
In light of the above, the Court found that Pitya in his capacity as a visa assistant was a `consular, labour, trade, administrative, technical or service staff of the post` which fell within the bounds of the exemption and that the CCMA, and the Labour Court lacked jurisdiction to entertain a referral on account that the employer enjoyed immunity.
This case is important in confirming the principal that mere physical presence of an employee in South Africa does not always subject them to South African labour laws. In the Pitya case, this was due to the fact that the employee fell within the bounds of the diplomatic exemption.
However, the case points to and recognises a more general principal, which is also accepted in South African law and which is not dependant on one of the parties being a diplomatic or consular staff member. And that is if the parties to the employment contract agree on the application of a foreign legal system, and submit to the jurisdiction of the foreign legal system, and there are sufficient other factors pointing the foreign legal system, rather than South Africa, as having the stronger or better nexus to the employment relationship, then South African laws may not apply even if the place of work is South Africa.
Especially in the modern world of employment in which South Africa is fast being recognised as a destination of choice for remote workers, it is important for foreign employers that may seek to engage with or deploy a workforce to South Africa that, provided that the relevant contractual care is taken to align the employment relationship to the correct foreign system of law, South African labour laws do not always have to apply to the relationship.



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18. Jul. 2024 Businesstech

Foreigners are loving life in South Africa but they still have one big worry

Expats’ happiness with their lives in South Africa has improved considerably over the past year, but they still face several pressing issues, particularly those related to safety. This is according to the latest Expat Insider 2024 survey by InterNations, where South Africa ranks 29th out of 53 countries in the overall rankings of “Best Destinations for Expats in 2024.” This is a 19-spot improvement from 2023, climbing out of the bottom 10 after spending four consecutive years there. “In early 2024, more than 12,500 expats from around the world shared with us their thoughts on what it’s like to live and work abroad [representing] 175 nationalities living in 174 countries or territories,” said InterNations. V.5496

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18. Jul. 2024 My Broadband

New smart ID cards and passports for South Africa

Newly appointed Home Affairs Minister Dr Leon Schreiber has announced that South Africa’s Smart ID cards and passports will be updated with enhanced security features in the coming years. Schreiber announced the development in the Department of Home Affairs’ 2024/2025 budget vote speech on Monday. “Both the passport and smart ID card will be refreshed and updated in order to enhance the security features of these documents, with the aim of building trust by more countries and organisations worldwide,” said Schreiber. While Schreiber did not provide a specific date for the changes, he said the documents would be updated “during the current administration”. Barring an unprecedented early election, the current administration is set to serve until the next general elections in 2029. V.5497

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18. Jul. 2024 News24

Asylum seekers fear arrest but can`t access documents

Thousands of people coming into South Africa from war-torn countries or countries rife with political unrest say they live in constant fear of being arrested.This is despite their numerous attempts, some since 2020, to apply for asylum at the Department of Home Affairs. Leaders of immigrant communities in Diepsloot, Gauteng, say they are aware of at least 15 people currently being held at the Lindela Repatriation Centre due to their inability to apply for asylum documents. An Ethiopian man who has been living and working in Diepsloot, Gauteng, for nearly four years says he fears being arrested each time he walks out of his home because he has been struggling for years to get legal asylum documents, GroundUp reports. V.5498

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17. Jul. 2024 Businesstech

South Africa’s massive visa backlog hits over 200,000

South Africa’s new minister of Home Affairs, Leon Schreiber, says that the department is making headway in reducing its massive visa backlog, which has been cut to around 213,000 applications. Schreiber, who took over as minister as part of the Government of National Unity in June, said that the department has set up a dedicated team to reduce the backlog and has cut through 92,886 applications out of a total of 306,042. “This is a reduction of 30%. But we must do more because clearing this backlog is the only way to avoid another extension of the concession on visas, waivers and appeals that have already been granted three times,” he said. V.5493

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17. Jul. 2024 Daily Mavrick

Five key takeaways from Home Affairs Minister Leon Schreiber’s maiden budget vote speech

Leon Schreiber laid out his priorities as Minister of Home Affairs during his maiden budget vote speech in Parliament on Monday, saying his department would prioritise, among other things, dealing with the visa backlog and stabilising the department’s online system. The Department of Home Affairs has a budget of R10.49-billion for the 2024/25 financial year - a slight increase from R9.75-billion in the previous financial year. Schreiber’s speech covered five key issues. Visa backlog Schreiber said the department had assigned a “dedicated team” to deal with the permit backlog. V.5495

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16. Jul. 2024 The Citizen

Home Affairs to intensify inspections at restaurants, farms for illegal employment

Schreiber said he would reach out to the departments, including the South African Police Service (Saps), for joint operations. Leon Schreiber, minister of Home Affairs, during the swearing-in ceremony of the new national executive members at Cape Town International Convention Centre on 3 July, 2024 in Cape Town. Home Affairs Leon Schreiber says in the coming year, the department will intensify inspections at restaurants, spaza shops, farms and mines by over 50% to take action, including deportations, against people who are illegally employed. V.5491

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16. Jul. 2024 The Citizen

Home Affairs to intensify inspections at restaurants, farms for illegal employment

Schreiber said he would reach out to the departments, including the South African Police Service (Saps), for joint operations. Leon Schreiber, minister of Home Affairs, during the swearing-in ceremony of the new national executive members at Cape Town International Convention Centre on 3 July, 2024 in Cape Town. Home Affairs Leon Schreiber says in the coming year, the department will intensify inspections at restaurants, spaza shops, farms and mines by over 50% to take action, including deportations, against people who are illegally employed. V.5492

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15. Jul. 2024 The Pie News

Australia’s Home Affairs pledges reforms after agent failures

Australia’s Home Affairs has pledged to improve oversight and timeliness in regulating migration agents by June 2025, after an audit exposed major flaws. The Department for Home Affairs expects that all ANAO recommendations will be implemented by 30 June 2025. The Australian National Audit Office released a report in May, in which it raised serious concerns regarding the processes of the Office of the Migration Agents Registration Authority - an office within the Department of Home Affairs. The report found the department’s regulation of migration agents to be ineffective, stating that “appropriate arrangements are not in place to support the regulation of migration agents” and that migration agents in Australia are not currently “effectively regulated”. V.5485

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15. Jul. 2024 News 24

Visa extension for foreign workers raises ire of home affairs committee worried about `capacity`

• The Portfolio Committee on Home Affairs is not entirely happy with newly appointed Home Affairs Minister Leon Schreiber`s decision to extend the temporary concession for foreign nationals awaiting their visas. • Several MPs serving on the committee raised concerns about capacity to ensure that undocumented individuals are deported. • The committee also wants home affairs officials to join operations targeting spaza shops engaged in illicit activities more frequently. Extending the visas of foreign nationals already in South Africa shifts focus and resources away from the needs of citizens. This is according to the Portfolio Committee on Home Affairs after newly appointed Home Affairs Minister Leon Schreiber`s decision to extend the temporary concession for foreign nationals who are currently awaiting the outcome of visa, waiver and appeal applications. V.5486

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15. Jul. 2024 Cape Town Today

A Paradigm Shift in South Africa’s Passport Influence: An In-depth Analysis of its Worldwide Reach

passport holders can travel without visas to 35 African nations, 18 countries in the Americas, 17 in Asia, 16 in the Caribbean, 3 in Europe, 8 in the Middle East and 10 in Oceania. However, recent changes to visa regulations, such as Ireland’s adjustment, have reduced their global influence. South Africans should stay informed about evolving visa regulations to make the most of their passport’s opportunities. What visa-free travel destinations are available for South African passport holders? South Africans can travel without a visa to 35 African nations, 18 countries in the Americas, 17 in Asia, 16 in the Caribbean, 3 in Europe, 8 in the Middle East and 10 in Oceania. However, recent changes to visa regulations for South Africans, such as Ireland’s adjustment, have reduced their global influence. It is important for South Africans to stay informed about evolving visa regulations. V.5487

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15. Jul. 2024 News 24

Fixing Home Affairs will be a mountain to climb

One day after he was sworn in as the new Minister of Home Affairs, Dr Leon Schreiber made a range of announcements regarding extending temporary visa concessions and other arrangements affecting legal foreign nationals in South Africa. It drew attention to him as one of the six new ministers of the DA in the Government of National Unity (GNU). Eleven new ministers were appointed from the DA, PAC, IFP, Patriotic Alliance (PA) and Freedom Front Plus and two from the ANC in the GNU. V.5488

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15. Jul. 2024 Business Tech

The booming R7 billion industry in South Africa

South Africa’s ride-hailing market has grown considerably over the past several years, becoming a massive R7 billion industry with no signs of slowing down. Vincent Lilane, Business Development Representative at inDrive, highlights that approximately 21% of South Africans now rely on e-hailing services, marking a substantial shift in urban transportation dynamics. Despite this growth, the sector faces several critical challenges that could impede further development if left unaddressed. V.5490

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12. Jul. 2024 Radio567

Fixing Home Affairs: Every SAn understands the scale of the problem - Schreiber

The DA`s Leon Schreiber is the Home Affairs Minister-designate. He discusses his priorities with John Maytham. Is a more competent Home Affairs department on the horizon? President Cyril Ramaphosa’s newly announced Cabinet has had to accommodate ministers and deputy ministers from six former opposition parties. The post of Home Affairs Minister has gone to Leon Schreiber from the Democratic Alliance, who takes over from the ANC`s Aaron Motsoaledi who returns in the guise of Health Minister. V.5478

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12. Jul. 2024 News 24

Busted! Children found inside trailer after Paarl police intercept bus with undocumented passengers

Police conducting an early morning patrol intercepted a bus carrying undocumented passengers • Police found undocumented women and children inside a trailer attached to the bus. • A passenger then intervened and offered one of the police officers R50 000 to release the passengers. • Home Affairs Minister, Leon Schreiber announced last week that foreign tourists, students and visitors who have applied for visa extensions will be allowed to stay in the country until the end of this year . V.5479

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12. Jul. 2024 News24

EXPLAINER | Short-term work visa vs SA`s new remote work visa: what`s the difference?

The remote work visa allows individuals employed by foreign companies to work remotely in South Africa, and is similar to the nomad visas now popular in many countries across the globe, explains Aadil Wadee. A significant change introduced by the newly gazetted regulations on 20 May 2024, was the implementation of the remote work visa in South Africa. V.5483

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12. Jul. 2024 Daily Maverick

After the Bell: Ireland’s not being a good sport about its visa push

Irish eyes might be smiling, but South Africans are rightly rankled by Ireland’s new visa requirements, imposed on Monday with a tiny bone thrown our way by way of a ‘grace period’ that is probably of use to only a minuscule cohort of travellers. V.5484

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11. Jul. 2024 The Star

Calls for home affairs minister to reverse visa extension continue to grow

Amid an increasing calls for new Minister of Home Affairs Leon Schreiber to reverse his decision to extend the deadline for visa applications, ActionSA has called for the minister to prioritise jobs for South Africans. Last week, a day after being sworn in, Schreiber extended the temporary concession for foreign nationals who are awaiting the outcome of visa, waiver and appeal applications. The extension safeguards applicants, including those who are contributing to South Africa through their scarce skills, from suffering adverse consequences or being erroneously declared undesirable while they await the outcome of applications submitted to the department. V.5473

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11. Jul. 2024 Pretoria News

Home Affairs told to unblock man’s ID after three years

A Man who was more than three years ago suddenly stripped of his South African citizenship by Home Affairs, and who had in the meantime lost his job as a result, turned to the court for a final interdict to force the department to unblock his ID document. The applicant, only identified as FS, told the Gauteng High Court, Pretoria, of the hardships he has encountered after home affairs simply took away his citizenship in April 2021, based on unverified claims that he is actually a Zimbabwe national. He said his life has been a nightmare since, as he cannot travel, he is now unemployed and he cannot even receive a social grant. V.5475

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11. Jul. 2024 New Zimbabwe

Clarity on Zimbabwe exemption permits deadline in South Africa; new Home Affairs minister gets flake for ‘soft’ stance

THE National Employers’ Association of South Africa (NEASA) on Thursday provided clarity for all affected parties on the relevant deadlines and periods of validity of the the Zimbabwean exemption permits (ZEP) dispensation. There are more than a million Zimbabweans living in South Africa, according to South Africa’s census data. It said for the current holders of the original ZEPs, the deadline has been extended and was valid until November 29, 2024. V.5476

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11. Jul. 2024 EWN (EYEWITNESS NEWS )

Home Affairs reports over 300,000 cases of fraudulent visas and permits

The Home Affairs Department is now preparing to hand over at least 94 individuals for investigation by the Hawks, on top of 28 others already handed over to the Directorate for Priority Crime Investigations. CAPE TOWN - The Home Affairs Department says it has identified more than 300,000 cases related to the fraudulent issuing of visas and permits. It is now preparing to hand over at least 94 individuals for investigation by the Hawks, on top of 28 others already handed over to the Directorate for Priority Crime Investigations. V.5477

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Articles

18. Jul. 2024 Businesstech

Foreigners are loving life in South Africa but they still have one big worry

Expats’ happiness with their lives in South Africa has improved considerably over the past year, but they still face several pressing issues, particularly those related to safety. This is according to the latest Expat Insider 2024 survey by InterNations, where South Africa ranks 29th out of 53 countries in the overall rankings of “Best Destinations for Expats in 2024.” This is a 19-spot improvement from 2023, climbing out of the bottom 10 after spending four consecutive years there. “In early 2024, more than 12,500 expats from around the world shared with us their thoughts on what it’s like to live and work abroad [representing] 175 nationalities living in 174 countries or territories,” said InterNations. V.5496

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