Employers who hire undocumented foreign nationals currently face fines of up to R10,000 per worker under section 38 of the Immigration Act.

The Employment Services Amendment Bill would replace that with a tiered regime: up to R100,000 per worker for a first offence, R200,000 for a repeat within three years, and on a third offence R1 million per worker or 10% of annual turnover, alongside criminal prosecution.

The penalties are the headline, but the compliance burden underneath is the bigger change. The Bill, tabled as B16 of 2026, inserts a new Chapter 3A covering sections 12A to 12E. Employers of foreign nationals would have to verify work eligibility, first seek suitably qualified South African candidates through a labour market test, prepare and retain skills transfer plans, offer terms no less favourable than those for citizens, and keep supporting documentation.

Under current law, those duties attach only to certain visa categories. Section 12B lets the minister gazette maximum quotas for foreign nationals by sector, occupational category, region or nationally, with 30 days for comment on any draft notice. Employers with fewer than 10 staff are excluded from quotas, subject to conditions preventing businesses splitting to qualify.

The critical skills carve-out falls away, so employers relying on scarce foreign expertise would need an exemption to exceed a quota.

Daily Investor reported deputy minister Jomo Sibiya's position that employers must verify documents at Home Affairs, and that only Home Affairs can legally confirm a person's status. Cliffe Dekker Hofmeyr noted that when the department briefed the Portfolio Committee on 5 August, members supported the policy intent but questioned the breadth of the minister's exemption powers, the absence of quantifiable criteria for setting quotas, and the department's capacity to enforce the Bill. FEDHASA has said it will not support the Bill in its current form.

The practical shift is from a filing exercise to an evidence trail. Copying a visa into a personnel file has been the standard for years. Under this Bill you would need to show you looked for a South African first, document what that search produced, and keep a skills transfer plan on record, for every foreign hire rather than only critical skills appointments.

If you employ fewer than 10 people, the quotas will not reach you, but the penalties still will. The 10% of turnover figure is the one to sit with, because it scales with the size of your business rather than the seriousness of the offence.

Public participation opens now, which is where the specifics get fought over, and the committee itself has already flagged that nobody has defined how a quota would be calculated.

You might also like our piece on the Smart ID branches now handling verification volume, why South Africa's business regulation already outranks China's for restrictiveness, and what the driving licence card validity extension says about enforcement capacity.

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