May 21, 2025

Exploitation and employment of foreign nationals in South Africa- Complexities and nuances in the national discourse

The recruitment and employment of foreign nationals in South Africa's higher education institutions and key government roles have sparked a multifaceted debate, involving constitutional rights, economic imperatives, and national identity.

While the Public Service Act (PSA)[1] allows for the employment of foreign nationals with permanent residency, the concentration of foreign professionals in critical sectors has raised questions about the effectiveness of domestic aptitude development and retention strategies[2].

South Africa's legal framework provides for the inclusion of foreign nationals in public service under specific conditions. The 1997 Constitutional Court ruling in Larbi-Odam v MEC for Education held that a policy forbidding the employment of non-citizens in permanent teaching positions was unconstitutional, emphasising that discrimination against non-citizens was unfair[3].

Approximately 0.5% of the public service workforce was comprised of over 6,220 foreign nationals employed in national and provincial government departments as of July 2024. It is important to note that nearly 90% of these individuals are employed in the health and education sectors, which are frequently cited as experiencing skills shortages[4].

In March 2025, the parliamentary Portfolio Committee on Higher Education raised concerns about the University of the Free State's (UFS) employment of 141 foreign academics and 26 foreign support staff. While acknowledging the value of global expertise, the committee urged UFS to prioritise the development and hiring of local talent, cautioning against over-reliance on the "scarce skills" argument to justify overlooking qualified South African candidates[5].

Subsequently, the Central University of Technology (CUT) faced scrutiny over its hiring practices, with allegations that procedures favoured foreign nationals over South African citizens. This has sparked nationwide discussions, with social media users expressing frustration and calling for solutions, linking high unemployment rates to such employment practices[6].

On the contrary, in 2022 in the Rafoneke v Minister of Justice and Correctional Services. The Constitutional Court ruled that Section 24(2)(b) of the Legal Practice Act (LPA) is constitutional, stating that the differentiation based on citizenship or residency status is rational and aligns with Section 22 of the Constitution, ensuring free trade, occupation, or profession. This case included multiple applicants, including Lesotho and Zimbabwean nationals, who had been denied legal practitioner admission in South Africa due to their non-South African citizenship or permanent residency, arguing it violated their constitutional rights to equality and non-discrimination [7].

Critics argue the South African Court's judgment failed to adequately consider non-citizens' vulnerability and potential xenophobic discrimination, missing an opportunity to advance substantive equality and address systemic disadvantages[8].

Institutions such as University of Free State (UFS) advocate for the recruitment of foreign scholars, contending that these individuals contribute extensive global knowledge, varied academic viewpoints, and profound cultural insights that enrich teaching, research, and scholarship. UFS highlighted that foreign personnel constitute under 3% of its academic staff and play a crucial role in its aspiration to be a research-oriented, student-focused institution.

However, challenges persist in attracting international talent. University leaders have cited regulatory barriers, low wages, and infrastructure issues, such as power outages and inadequate facilities, as factors hindering the recruitment of overseas academics. These challenges not only affect the institutions' global competitiveness but also their ability to provide quality education and research[9].

The discourse around employing foreign nationals in South Africa's public institutions underscores the need for a balanced approach that values global expertise while prioritizing local talent development. Policymakers and institutions must collaborate to ensure that employment practices are equitable, transparent, and aligned with national development goals.

As South Africa continues to grapple with high unemployment rates and the imperative for transformation, the integration of foreign professionals should complement, not compromise, efforts to empower and uplift local communities.

While we are knee-deep in the discourse particularly about foreign nationals in knowledge production, there are foreign nationals who are often exploited for cheap labour, particularly in sectors such as restaurants, retail, housekeeping, and logistics.

Many are employed under precarious conditions, working long hours for wages far below the legal minimum wage. Employers often take advantage of their vulnerable legal status, lack of access to formal employment protections, and fear of deportation or xenophobic violence, making it difficult for them to assert their rights. This exploitation is further compounded by weak enforcement of labour laws and widespread discrimination, which creates an environment where abuse can thrive unchecked. Despite their essential contributions to the economy, these workers are frequently marginalised and denied the dignity and protections afforded to their South African counterparts.

Recent investigations have revealed widespread exploitation of foreign nationals in South Africa's hospitality, retail, and logistics sectors. In September 2024, a viral TikTok video by a former waitress at Babel restaurant in Menlyn, Pretoria, prompted a joint inspection by the Department of Employment and Labour, Home Affairs, and the Hawks. The operation uncovered that employees were working 12 to 15-hour shifts and earning as little as R150 per shift, far below the legal minimum wage of R27.58 per hour. The restaurant owed over R1.3 million in unpaid wages and failed to comply with UIF and occupational injury regulations[10] .

In January 2025, raids in Camps Bay, Cape Town, led to the arrest of employers exploiting undocumented workers in restaurants. Authorities found that many establishments employed illegal immigrants, paying them below minimum wage and without proper contracts, effectively treating them as "slaves" [11].

These incidents highlight a broader issue within South Africa's labor market, where foreign nationals, often undocumented, are subjected to exploitative practices, including underpayment, excessive working hours, and lack of legal protections. The Department of Employment and Labour has identified the hospitality, retail, and logistics sectors as particularly problematic, with non-compliance rates ranging from 30% to 85%[12] .

The government's response includes increasing the number of labor inspectors and conducting more frequent inspections to enforce compliance with labor laws. However, the persistence of these practices indicates a need for more robust enforcement and protections for vulnerable workers.[13]

South Africa's employment of foreign nationals, particularly in public institutions and low-wage sectors, is a complex socio-political issue. While skilled foreign professionals address skills shortages, concerns persist about local skills prioritization and employment distribution.

Simultaneously, migrant workers ‘problematic’ sectors face systemic abuse, underpayment, and lack of legal protection, often undocumented, due to weak enforcement mechanisms and discriminatory attitudes. This the causal impact of the South Africa's contradictory legal and institutional responses, while protective in some contexts, are exclusionary in others, highlighting the urgent need for a rights-based approach.

In conclusion it is vital that policymakers review and strengthen legal frameworks to ensure worker protection, close loopholes, and promote local employment without infringing on migrants' rights. State leadership should strengthen their commitment to equality, dignity, and justice, and ensure accountability mechanisms. Civil society and human rights advocates should amplify migrant voices, expand legal aid, and form stronger alliances for inclusive economic policies and social protections.

Yolokaz Mfuto is a DDP Communications strategist and write in her personal capacity.

References

[1] https://www.dpsa.gov.za/dpsa2g/documents/acts&regulations/psact1994/PublicServiceAct.pdf

[2]https://currentaffairsza.com/2024/09/10/over-6200-foreign-nationals-employed-in-south-africas-public-service/

[3] https://www.saflii.org/za/cases/ZACC/1997/16media.pdf

[4] https://currentaffairsza.com/2024/09/10/over-6200-foreign-nationals-employed-in-south-africas-public-service

[5] Parliament of South Africa)

[6]Bona Magazine)

[7] https://mg.co.za/news/2022-08-02-constitutional-court-upholds-ban-on-foreigners-practising-law-in-south-africa/

[8] https://journals.co.za/doi/10.2989/CCR.2024.0002?

[9] https://www.timeshighereducation.com/news/recruiting-overseas-talent-getting-harder-say-south-african-v-cs?

[10] https://www.gov.za/news/media-statements/employment-and-labour-undertakes-joint-inspection-operation-menlyn-pretoria