The Employment Services Amendment Bill, 2026: what employers need to know
South Africa is entering a new era in the regulation of foreign employment. The Employment Services Amendment Bill, 2026, which forms part of government’s broader strategy under the National Labour Migration Policy, is one of the most significant reforms to the country’s labour and immigration framework in recent years. If enacted, it will replace the current sections 8 and 9 of the Employment Services Act, 2014 with a far more detailed Chapter 3A in terms of which employers will face stricter and ongoing obligations, the Minister of Employment and Labour will be empowered to set quotas for the employment of foreign nationals, and penalties will escalate. At the same time, the Bill shifts in the opposite direction for one group as refugees and asylum seekers will no longer be classified as “foreign nationals” at all.
– Ross Simon (Associate, BCom (Law) LLB, Post Graduate Diploma in Labour Law Practice), WP Moolman (Partner: Equity, LLB), Ulrich Stander (Managing Partner & Director, BA LLB LLM IRDP)
The Bill also widens the net in two structural respects. The Act will apply not only to “employees” but to all “workers” so atypical and informal arrangements will not fall outside the new regime. The definition of “private employment agency” is likewise extended to agencies operating not for gain.
For employers, the message is clear: immigration compliance is no longer a once-off administrative exercise at the point of hiring, but a continuing obligation that must be actively monitored, documented and justified throughout the employment relationship.
KEY PROPOSED CHANGES
Refugees and asylum seekers are no longer “foreign nationals”
“Foreign national” is redefined to mean an individual who is not a South African citizen, permanent resident, refugee or asylum seeker.
Refugees and asylum applicants will therefore have the same status in respect of employment as citizens, and the restrictions, quotas and recruitment requirements below will not apply to them.
Employers should ensure their workforce records correctly distinguish between the two categories, as misclassification in either direction carries risk.
New employer obligations (section 12A)
No foreign national may be employed unless permitted to work in South Africa under a visa issued in terms of the Immigration Act or Refugees Act, other legislation, or a binding international agreement. An employer employing a foreign national must:
- ascertain that the person is entitled to work in the Republic and to perform the specific work concerned;
- satisfy itself, in the prescribed manner, that no suitable local candidates are available before recruiting a foreign national – in effect, a labour market test;
- prepare a skills transfer plan for the position (the Minister may exempt categories of employers or employees where this is not practicable);
- employ the foreign national on terms not inferior to those that would be provided to South African citizens; and
- retain copies of the visa and all documents evidencing the right to work.
- These are continuing obligations and employers will need systems to monitor visa validity, expiry and renewal, and to demonstrate compliance during inspections.
Sectoral quotas (section 12B)
The Minister may, after consulting the Employment Services Board, publish maximum quotas for the employment of foreign nationals (nationally, or per sector, occupational category or region) and no employer may exceed an applicable quota in its workforce or any occupational category. Notably: quotas will generally not apply to private sector employers with fewer than 10 employees (subject to anti-avoidance provisos); a quota notice must set transitional compliance periods for existing and new employers; a draft notice must first be published for at least 30 days of public comment; and under the new section 49A an employer (or a registered employers’ organisation acting for a member) may apply for an exemption from a quota. If granted, the exemption must state the period for which it applies and the percentage of foreign nationals the employer is permitted to employ. The Minister may, however, withdraw an exemption before it expires if there is good reason to do so.
Prohibited acts and rights of unlawfully employed workers
Section 12E prohibits an employer from requiring or permitting a foreign national to perform work not authorised by, or contrary to, their visa or permit or any law. Significantly, section 12D confirms that a worker employed in contravention of the Chapter may nonetheless enforce any claim under any law, collective agreement or contract, and labour inspectors and bargaining council agents may pursue such claims on the worker’s behalf. Employers cannot rely on the unlawfulness of the employment to escape their employment law obligations.
Strengthened enforcement and substantially increased penalties
Labour inspectors appointed under the Basic Conditions of Employment Act are expressly mandated to enforce the Act, and the Minister may, in consultation with the Minister of Home Affairs, make regulations coordinating labour inspectors and the Immigration Inspectorate in enforcing section 38 of the Immigration Act – a statutory footing for the joint inspections (Employment and Labour, Home Affairs and SAPS) that have already intensified and can be expected to become more frequent.
For contraventions of sections 12A, 12B(8) or 12E, the Labour Court may, on application by the Director-General, impose a fine of up to R100 000 for a first contravention; R200 000 for a repeat contravention within three years; and the greater of R1 million or 10% of the employer’s turnover in the previous financial year for a third or subsequent contravention, taking into account any economic benefit derived.
The general maximum fine for Schedule 3 contraventions also doubles from R50 000 to R100 000. Criminal liability for employing illegal foreigners remains in place under the Immigration Act, so the new fines add to, rather than replace, existing criminal exposure.
WHAT THIS MEANS FOR EMPLOYERS
Obtaining a work visa at the commencement of employment will no longer be sufficient.
Employers will need to demonstrate, on an ongoing basis, that each foreign national was recruited only after a genuine search for local candidates, is working within the terms of a valid visa, is employed on terms no less favourable than South African counterparts, is covered by a skills transfer plan where required, and falls within any applicable quota.
Failure to do so could expose an organisation to escalating fines, criminal prosecution under the Immigration Act, reputational harm and operational disruption.
PRACTICAL STEPS FOR EMPLOYERS
Although the Bill remains subject to the parliamentary process and will commence on a date proclaimed by the President, businesses should begin preparing by:
- Auditing all foreign employees and workers, verifying that each holds a valid visa authorising the specific work performed, and diarising expiry and renewal dates.
- Correctly classifying refugees and asylum seekers, who fall outside the foreign national regime, and reviewing atypical arrangements now caught by the “worker” definition.
- Reviewing recruitment and onboarding procedures so that labour market testing can be evidenced before any foreign national is appointed.
- Preparing skills transfer plans and benchmarking foreign nationals’ terms and conditions against those of South African employees.
- Maintaining accurate immigration records for inspection purposes.
- Monitoring the Gazette for draft quota notices and regulations, participating in the public comment process, assessing whether a section 49A exemption may be required, and seeking legal advice where uncertainty exists.
KEY TAKEAWAYS
- Immigration compliance becomes an ongoing legal obligation not merely a recruitment requirement.
- Refugees and asylum seekers will no longer be “foreign nationals” and will enjoy the same employment status as citizens; the Act will extend beyond employees to all “workers”.
- Quotas may cap the employment of foreign nationals per sector, occupation or region; small employers are generally excluded and an exemption procedure will be available.
- Fines escalate sharply for repeat offenders – up to the greater of R1 million or 10% of annual turnover – in addition to criminal liability under the Immigration Act.
- Inspections are increasing and labour inspectors will be expressly mandated to enforce the Act; employers should audit their workforce and compliance policies now.
