In the recent Mukuru decision of Mukuru Financial Services (Pty) Ltd and Another v Department of Employment and Labour, the Court had to consider the facts supporting the contention that Makuru had no option but to employ foreign nationals rather than South African citizens or permanent residents. Did this constitute unfair discrimination?
Mukuru is a financial services provider that uses mobile technology to transfer money across Africa and Asian countries. They applied for a corporate visa to permit them to employ foreign nationals. To qualify, they had to do demonstrate to the Department of Employment and Labour (DEL) that despite conducting a diligent search to find suitable employees that were either South African citizens or permanent residency holders, it was not able to do so. The DEL refused to issue the necessary certificate as they were not satisfied with Mukuru’s attempts to employ South Africans.
Mukuru applied to court to review the DEL decision. The High Court was not persuaded by Mukuru’s explanation why it could not employ South Africans and found that South Africans were unfairly excluded from employment opportunities which constituted unfair discrimination on various constitutional grounds.
It is thus clear that South African employers must justify the employment of foreign nationals over South Africans. Whether an employer can do so, will depend on the facts of each case.