Hiring in South Africa: the work visa, the contract and a salary worked through, step by step

Move someone who is already in South Africa

A foreigner already in South Africa on a work visa can apply to Home Affairs to change the terms and conditions of the visa without leaving. No one may employ a foreigner whose status does not allow them to be employed by that person, or on terms other than those their status sets. Where new employment falls outside what the visa allows, the change goes through Home Affairs before the person starts.

A South African citizen needs no visa. Their move turns on the notice their current contract sets, which is at least four weeks once they have worked there for a year.

Check the role is open to a non-South African

No employer may employ a foreign national before they produce a valid work visa. Nor may a foreign national be asked to do work their visa does not allow.

Home Affairs issues a work visa only where South African citizens with the relevant skills are not available for the post. A critical skills work visa is for an occupation on the Critical Skills List the Minister of Home Affairs publishes in the Gazette. It is not a visa for seeking work: the application comes with an offer from an employer in good standing with the Department of Employment and Labour.

Set the contract up right

When employment starts, the employee is given written particulars. They include the job, the place of work, the start date, the ordinary hours and days, the pay and how it is worked out, the overtime rate, any deductions, the leave and the notice period. Where the employee cannot understand them, they are explained in a language the employee understands.

Pay is in South African currency, paid no later than seven days after the end of each pay period. Each pay day comes with written details of the pay and the deductions.

Ordinary hours are up to 45 a week. That is no more than nine a day for someone working five days a week or fewer, and eight for someone working more. Overtime is worked only by agreement, up to 10 hours a week, with no more than 12 hours' work in a day. It is paid at one and a half times the wage at least. Work on a Sunday is paid at twice the wage, or one and a half times for someone who ordinarily works Sundays. Work on a public holiday is only by agreement, and on a normal working day it is paid at twice the day's wage at least.

Senior managers, and staff earning above a threshold the Minister sets by notice, are outside these limits on hours and overtime.

Know the employee test before you engage a contractor

South African law presumes, until the contrary is proved, that someone who works for another person is an employee where any one of seven factors is present. That holds whatever form the contract takes. Among the factors, the other person controls how they work or their hours, they are part of the organisation, they depend on that person economically, or they work for no one else. Another is that they have worked for that person for an average of at least 40 hours a month over the last three months.

The presumption does not apply to someone earning above the threshold the Minister sets. No one may employ a foreign national without a valid work visa, and a role that needs one goes through employer of record.

Work out what a salary costs you and what the employee takes home

Take an employee under 65 on ZAR 50,000 a month, paying into no pension, retirement annuity or medical scheme.

UIF counts pay up to its ceiling of ZAR 17,712 a month, so each side pays 1% of that. The skills levy is 1% of all pay, where total pay over the next twelve months will exceed ZAR 500,000.

Income tax is worked out on the year's pay, ZAR 600,000 here, at the statutory rates. The bands take 18% of the first ZAR 245,100, 26% of the next ZAR 138,000, 31% of the next ZAR 147,100 and 36% of the rest, ZAR 150,727 in all. The primary rebate of ZAR 17,820 then comes off, and the month's tax is a twelfth of what is left. Someone under 65 whose year's income is no more than ZAR 99,000 pays no income tax.

Contributions to a pension or retirement annuity fund come off pay before tax. Medical scheme contributions earn a tax credit. This example has neither.

The Compensation Fund assessment is worked out on the year's earnings at the tariff for the industry, so it is not shown. UIF, the skills levy and income tax are each paid to SARS within seven days of the month's end.

Know the leave your people are entitled to

End employment on the law's terms

Notice is at least a week in the first six months, two weeks from six months to a year, and four weeks after a year. A collective agreement can shorten the four weeks to no less than two. Notice is given in writing. The employer can pay the wages for the notice period instead.

When employment ends, annual leave not taken is paid. Once employment has lasted longer than four months, leave for the part of the cycle worked is paid too.

A dismissal is fair only for a fair reason and after a fair procedure. A fair reason relates to the employee's conduct or capacity, or to the employer's operational requirements. A dismissal for operational requirements carries severance of at least a week's pay for each completed year of service.

An employee who disputes a dismissal refers it to a bargaining council or the CCMA within 30 days. Where an arbitrator or the Labour Court finds the dismissal unfair, it can order reinstatement or compensation. Compensation can reach 12 months' pay. Where the dismissal is automatically unfair, such as one for pregnancy, it can reach 24 months' pay.

A certificate of service is given when employment ends.

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