In continuation of our discussion on immigration consideration when seconding employees to key African jurisdictions, in this edition, we consider the Republic of South Africa (South Africa).

South Africa's corporate immigration framework

The Immigration Act, 2002 (the Act) came into effect on 7 April 2003. The Act has been amended on various occasions, and has most recently been supplemented by the regulations contained in the Immigration Amendment Act, 2014 which came into effect on 26 May 2014 (the Regulations).

The purpose of the Act and the Regulations is to regulate employment of foreign nationals in South Africa.

Which visa is required?

A foreign national who wishes to work in South Africa needs to obtain the appropriate temporary residence visa.

The foreign national may apply for a visa at the South African diplomatic representative in their country of origin. The foreign national can also apply at a South African diplomatic representative in a neighbouring country if there is no South African diplomatic representation in their country of origin.

The visa is issued by the Director-General of the Department of Home Affairs (DHA) (Director-General).

Work Visas

The Act and Regulations provide for different types of work visas, depending on the circumstances surrounding the applicant's entry into South Africa. A work visa issued in terms of the Act is not transferable and is only valid for the purpose for which it was issued.

This Insight will deal with the following work visas available to foreign applicants:

  1. General Work Visa - Issued to applicants who do not have skills and/or expertise listed on the critical skills list. One of the key issues in obtaining a general work visa is that the employer must be able to demonstrate that there are no South African citizens or permanent residents with qualifications or skills and experience equivalent to those of the foreign applicant. Practically, this means that the employer will have to advertise the position, consider and interview applicants and motivate why the position cannot be filled by a citizen or permanent resident in South Africa.
  2. Critical Skills Work Visa - Issued to applicants in possession of skills or qualifications that are considered to be critical. The employer does not have to demonstrate that it was unable to find a suitable citizen or permanent resident for the relevant position. Therefore, if a foreign national qualifies for a critical skills visa, this option is more preferable than a general work visa.
  3. Intra-Company Transfer Work Visa (ICT Visa) - Issued in circumstances where multi-national companies may decide to transfer an existing employee in a key position from a foreign branch to a branch, subsidiary or an affiliate of that company in South Africa.
  4. Corporate Visa - Allows a corporate entity established under the laws of South Africa to employ a pre-determined number of foreign skilled/semi-skilled/unskilled workers. The Director-General may issue a corporate worker certificate to the corporate worker employed by the holder of a corporate visa, for a period not exceeding the validity period of the corporate visa. This will allow the corporate worker to work within the Republic of South Africa.
  General Work Visa Critical Skills Work Visa Intra-Company Transfer Work Visa Corporate Visa
Definition of Category Issued to applicants who do not have skills and/or expertise listed on the critical skills list.
There is a closed list of critical skills published by the DHA (Critical Skills List).
The employer must be able to demonstrate that there are no South African citizens and permanent residents with the relevant qualifications or skills and experience.
Issued to applicants in possession of skills or qualifications that are considered to be critical.
The Critical Skills List details the skills for which this visa will be applicable.
Issued in circumstances where multi-national companies may decide to transfer an existing employee in a key position from a foreign branch to a branch, subsidiary or an affiliate of that company in South Africa. Issued to a resident corporate applicant established under the laws of South Africa (as opposed to a foreign individual) and allows a corporate entity to employ a pre-determined number of foreign skilled/semi-skilled/unskilled workers.
In this case, the visa is issued to the employing company as opposed to the individual.
Prescribed Fee USD 100 USD 100 USD 100 USD 100
Duration The duration of the contract of employment.
Maximum: 5 years.
The general work visa may be renewed or extended.
Maximum: 5 years.
However, where there is no offer of employment a critical skills visa shall be issued for a maximum of 1 year.
The critical skills work visa may be renewed or extended.
Where the applicant was already issued with a critical skills work visa for 12 months, the extension shall not exceed four (4) years until the next renewal.
Maximum:  4 years.
The ICT visa cannot be renewed or extended.
Maximum: 3 years.
The corporate visa may not be renewed or extended.
Apply to / Issued by Application to the Director-General for a work visa. Upon approval, the Director-General will issue the visa. Application to the Director-General for a work visa. Upon approval, the Director-General will issue the visa. Application to the Director-General for a work visa. Upon approval, the Director-General will issue the visa.


 
Application to the Director-General for a work visa. Upon approval, the Director-General will issue the visa.
What needs to submitted when applying The foreign national will need to fill in the form provided by the Department of Home Affairs and pay the prescribed fee.
The documents specified in the Act and the Regulations need to accompany the  application.
The foreign national will need to fill in the form provided by the Department of Home Affairs and pay the prescribed fee.
The documents specified in the Act and the Regulations need to accompany the  application.
The foreign national will need to fill in the form provided by the Department of Home Affairs and pay the prescribed fee.
The documents specified in the Act and the Regulations need to accompany the  application.
The foreign national will need to fill in the forms provided by the Department of Home Affairs and pay the prescribed fee.
The documents specified in the Act and the Regulations need to accompany the  application.
Application for a corporate worker certificate

Permanent Residency

The process of applying for permanent residency after a foreign national has obtained a temporary work visa is made easier depending on the type of work visa obtained.

If a foreign national has retained a general work visa or a critical skills work visa for a continuous period 5 years, they may apply for permanent residency and will be exempt from the five-year waiting period for qualifying for permanent residency.

However, the ICT visa may only ever be applied for as a temporary visa and the time period it is held for will not count towards the 5 years required for an application for permanent residency. For a holder of an ICT visa to apply for permanent residency, they would need to apply for a different type of work visa where permanent residency may be applied for, and fulfil the requirement of holding a work visa for 5 years.

Spouses and Dependants

Spouses and dependant children will need visas if they are to accompany the foreign national to South Africa. They will be issued with temporary residence visas on arrival in South Africa. They can also apply for work or study visas, either before departing or once they are in South Africa.

In respect of dependent children accompanying the applicant or joining the applicant in South Africa, proof of parental responsibilities and rights or written consent in the form of an affidavit from the other parent or legal guardian will be required. In respect of a spouse accompanying the applicant or joining the applicant in South Africa, a copy of a marriage certificate or proof of a relationship must be submitted.

Practical considerations

While the different work visas detailed above all apply to the different ways in which a foreign national can enter the employment market in South Africa, each visa has its own advantages and disadvantages. Knowing the practical differences between the visas will assist both employers and employees in considering which visa will be the most beneficial in the circumstances.

A general visa will apply to most foreign nationals, and the applicant will not need to possess skills or qualifications that are considered to be critical in terms of the Critical Skills List. However, in order to demonstrate why the employer was unable to find a suitable South African citizen or permanent resident with the required qualifications or skills and experience, the position must be advertised, candidates interviewed etc. Practically this is a time-consuming process. The applicant will need to be in possession of a valid job offer from the employer at the time of applying for the general work visa.

In comparison to the other types of work visas, the process and documentation required to obtain an ICT visa is easier to manage, as well as quicker. The foreign national will also not need to possess skills or qualifications that are considered to be critical in terms of the Critical Skills List. The downfall of the ICT visa is that it cannot be renewed or extended (unlike the general work visa and the critical skills work visa). The applicant will have to return to the country of origin and apply for a new visa after the 4 year period. Also, a transfer of skills plan must be in place in support of the ICT visa application.

In order to apply for a critical skills work visa, the applicant does not need a job offer in South Africa before applying. A holder of a critical skills visa has 12 months to find employment (in their field of expertise) after obtaining this visa. It is, however, recommended for them to secure permanent employment before applying.

On the other hand, applicants for a critical skills visa may need to register with a South African accredited professional body that covers the field of expertise. Another disadvantage is that the critical skills work visa is only available to applicants who posses the critical skills listed on the Critical Skills List.

Lastly, a corporate work visa is not issued to an individual, but to an employing company, and allows that company to employ a number of foreign workers. Hence a company can recruit a certain number of foreign employees to fulfil certain roles over a finite period of time instead of by a case-by-case basis. The disadvantage here is that the process of obtaining permission to recruit a large number of foreign employees within one application is an unfortunately lengthy process, and that the business must be able to show, at all times, that at least 60% of the total staff complement that are employed in the operations of the business are citizens or permanent residents of South Africa employed permanently in various positions.

Employers and employees will need to weigh up the pros and cons of the different types of work visas offered in South Africa in order to find the one that suits their capabilities and needs.