South Africa HR Information

Updated on: 2025/03/11 04:48 (UTC)

Overview

The Basic Conditions of Employment Act 75 of 1997 regulates working time, leave, termination of employment, recordkeeping, and prohibition of child labor in South Africa. The Labour Relations Act governs freedom of association, collective bargaining, strikes and lockouts, and other forms of industrial action.

Discrimination and affirmative action issues are regulated by the Employment Equality Act.

Hiring

Employment Contracts

While most medium-size and large employers have written employment contracts with their employees, such contracts are not legally mandatory, although the Basic Conditions of Employment Act requires employers to provide employees with specific written information after they are hired.

The information includes:

• the location of the job,
• the date that employment begins,
• a description of job duties,
• hours and workdays,
• wage rate,
• overtime rate,
• details about leave,
• period required for notice to terminate employment,
• descriptions of bargaining council or sectoral determinations that cover the employer’s business,
• any period of employment with a previous employer that would count towards the current employment and
• a list of any other documents that form a part of the employment contract and instructions on how to obtain copies.

An employer must retain this information for three years after an employee leaves the company.

Fixed-term contracts are allowed between employers and employees and can be extended based on the needs of the worker and the employer. Under the Labour Relations Act, however, a nonrenewal or change in the terms of a contract may be considered an unfair labor practice if the worker had a reasonable expectation that the contract would be renewed on the same or similar terms.

Employers can require new workers to serve probationary periods. The length of probation should be determined in advance and is typically three months. The probationary period can be extended if the employer has not decided after the initial period whether the employee would be suitable for the company, but the company must first give the employee a chance to defend his or her performance. The Labour Relations Act states that employers should not use probationary periods to deprive workers of permanent status—for example, by regularly dismissing workers after the probation is up and hiring new workers.

Employers can freely use part-time workers unless a collective bargaining agreement bars them from doing so. Employees who work fewer than 24 hours per month are not protected by statutes mandating minimum working conditions.

Restrictions on Hiring

Under the Basic Conditions of Employment Act, it is illegal in South Africa to employ children under age 15 except in the performing arts or to employ children under 18 for work inappropriate for their age or that places them at risk.

Recordkeeping

Every employer must keep a record containing the following information and any other prescribed information, for at least three years from the date of the last entry in the record:

• each employee’s name and occupation;
• the time worked by each employee;
• the remuneration paid to each employee; and
• the date of birth of any employee under 18 years of age.

Background Checks

Under the Protection of Personal Information Act, personal information may only be processed if:

• the employee consents to the processing,
• the processing is needed to conclude or perform a contract;
• the processing protects a legitimate interest of the employee,
• the processing is required for the proper performance of a public law duty by a public body, or
• the processing is needed to pursue the legitimate interests of the employer.

Noncompetition Agreements

Sharing employer trade secrets and other confidential business information is illegal unless authorized by the employer. Trade secrets cannot be disclosed even after the employer-employee relationship is terminated.

Nonsolicitation or restraint-of-trade agreements, which are regulated by contract rather than labor law, are generally enforceable, although they must be reasonable—in setting the time period and geographical area covered, for example—and not in violation of public policy. An agreement must be tailored to protect an employer’s proprietary interests, such as business or trade secrets, and not simply to prevent workers from taking their own general skills and knowledge to a competing employer.

Reference Citations

Employment Contracts: Basic Conditions of Employment Act, No. 75 of 1977, §§ 29-31

Restrictions on Hiring: Basic Conditions of Employment Act, No. 75 of 1977, §§ 43-47

Recordkeeping: Basic Conditions of Employment Act, No. 75 of 1977, § 31

Background Checks: Protection of Personal Data Act, No.4 of 2013, § 11

Immigration and Work Permits

In General

General Work Visas are issued to foreigners in cases where the employer can show that no suitable candidates were available among South African citizens and permanent residents. Critical skills work permits, which are valid for a maximum of five years, are issued for positions in industries the government deems to have a shortage of skills. Employees of multinational companies transferred from a location in another country to a branch in South Africa must apply for intracompany transfer work permits, which are valid for four years and cannot be renewed or extended.

Visas and Work Permits

Following are the different kinds of work permits that are required for working in South Africa:

General work permit. General work permits, which are valid for a maximum of five years, are issued to foreigners where it has been proven beyond reasonable doubt that South African citizens and permanent residents with the relevant qualifications or skills and experience are not available for appointment. The employer also must confirm that the salary and benefits of the applicant are not inferior to those received by employees occupying similar positions in the country. Applications must be made at a regional office of the Department of Home Affairs or the nearest South African embassy, mission or consulate abroad. A general work permit lapses if within nine months of issuance and every year thereafter the holder fails to submit satisfactory proof of continuing employment.

Critical skills work permit. This permit is for applicants working in an industry that the government deems to have a shortage of skills. The list of such industries is published in the government gazette. Critical skills work permits are valid for five years and require certification of the applicant’s exceptional skills or qualifications and an explanation of how they will benefit South Africa.

Intracompany transfer work permits. Employees of multinational companies transferred from a location in another country to a branch in South Africa must apply for intracompany transfer work permits. Intracompany transfer work permits are valid for four years and cannot be renewed or extended. Applicants must submit a letter from the employer confirming transfer to a branch/affiliate company in South Africa. The letter must specify the occupation and capacity in which the employee will be employed. No proof of steps taken to obtain the services of a South African citizen or permanent residence are required. However, the applicant must have been employed in the company abroad for at least six months prior to his or her transfer to the South African operations.

Foreigners can also apply for a visit visa allowing them to perform short term work in certain occupations for up to 90 days (renewable one time each year).

Each type of permit requires applicants to supply:

• one passport photograph;
• a medical certificate no older than six months;
• a radiological certificate no older than six months;
• police clearances no older than six months from all countries in which the applicant has lived for more than 12 months;
• birth certificate;
• marriage certificate, if applicable;
• divorce certificate, if applicable; and
• eligibility documents, which will vary depending on permit category.

An employer employing a foreigner must, for two years after the termination of the foreigner’s employment, keep records relating to the individual and report to the Director-General the termination of such foreigner’s employment and any breach on the side of the foreigner of his or her status.

Penalties

Foreign nationals departing South Africa under an expired visa are classified as “undesirable persons” and subject to mandatory fines. Employers found to be in noncompliance with visa laws face possible fines and/or imprisonment.

Reference Citations

Visas and Work Permits: Immigration Act, No. 13 of 2002, § 19

Penalties: Immigration Act, No. 13 of 2002, §§ 30, 38(4), 49(3)

Nondiscrimination

In General

The South African Constitution of 1996 and federal laws prohibit discrimination based on race, gender, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, beliefs, culture, language, family responsibility, political opinion, or HIV status. The Employment Equity Act promotes equal opportunity and fair treatment in employment, including affirmative action measures designed to advance equal work opportunities for people in designated groups. Sexual harassment is considered a type of unfair discrimination and is illegal under the EEA.

Types of Discrimination

The Employment Equity Act promotes equal opportunity and fair treatment in employment, including affirmative action measures designed to advance equal work opportunities for people in designated groups. The groups include people of color—legally defined as “Africans, Coloureds and Indians”—as well as women and people with disabilities.

The antidiscrimination measures apply to all private-sector employers, while the affirmative action portions apply to employers with 50 or more workers or those that reach a certain revenue threshold.

The EEA prohibits discrimination based on race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, birth or HIV status. The act also prohibits harassment in the workplace and bans medical testing unless it is related to a job or is otherwise justifiable. Preemployment HIV/AIDS testing is allowed if the Labour Court authorizes it or the employer obtains the informed consent of the job applicant to conduct the test. Psychological and intelligence testing is prohibited unless a test is scientifically valid, applies equally to all workers, and does not discriminate against any employees or groups.

The Employment Equity Amendment Bill 2012 has expanded the grounds on which an employer can be charged with discriminatory treatment of employees by (for example) giving the Commission for Conciliation, Mediation and Arbitration more authority to address sexual harassment and salary inequities, while a new section of the law details prohibitions against the disparate treatment in wages and other terms and conditions of employment of employees doing “the same or similar work or work of equal value.”

Employers with more than 50 workers that operate in certain business sectors and geographical regions must meet specific hiring goals determined by the government to ensure racial diversity in their workforce. An amendment to the Employment Equity law imposes employment-equity targets on employers. Covered employers must also report to the government the steps they have taken to achieve their hiring targets.

Disability Discrimination: In addition to affording people with disabilities protections against work-related discrimination and providing opportunities through affirmative action, the government has provided employers with practical guidance through the Code of Good Practice: Key Aspects on the Employment of People with Disabilities Act of 2002 and the Technical Assistance Guidelines on the Employment of People with Disabilities.

Gender Discrimination: Sexual harassment is considered a type of unfair discrimination and is illegal under the EEA. The Code of Good Practice on the Handling of Sexual Harassment Cases stipulates that sexual harassment is conduct of a sexual nature—whether physical, verbal or nonverbal—that is unwelcome by the target. Examples of nonverbal harassment include unwelcome gestures or the unwelcome display of sexually explicit pictures. Sexual harassment can also involve quid pro quo harassment in which victims’ job prospects or terms of employment are affected by their reaction to the behavior.

Sexual Orientation Discrimination: The EEA broadly defines “marital status” to include heterosexual and same-sex relationships. The Civil Union Act of 2006 made civil unions between same-sex partners legal in South Africa, and individuals in same-sex relationships are afforded the same legal protections as those in heterosexual marriages.

Reference Citations

Nondiscrimination: Constitution of the Republic of South Africa 1996, § 9; Labour Relations Act, No. 66 of 1995, §§ 4-7, 78-82; Employment Equity Act, No. 55 of 1998, § 13

Employee Privacy

Employee Data

Employers generally do not need to obtain employees’ consent prior to collecting their personal data. By law, employers are required to keep records of basic employee information, including the individual’s occupation, salary, and number of hours worked. Certain records, such as those pertaining to medical exams, must be kept confidential and may be made available only when the employee has consented or if required by court order.

Employees have the right to access their personal information and request corrections and/or deletions of the data.

Employee Monitoring and Surveillance

Under the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, commonly known as RICA, employers that want to monitor communications such as telephone calls or emails have to get some form of consent from employees. They can go directly to workers and ask for written permission or use approaches such as a written workplace privacy policy to notify employees in advance that their communications through company equipment might be monitored, although even using the latter approach, employers must still get employee consent to the policy.

Reference Citations

Employee Data: Data Privacy Act, 2013, §§ 2-6

Employee Monitoring and Surveillance: Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002

Compensation

Hours of Work

The regular workweek may vary for different employers and workers, but the maximum is 45 hours. For employees whose regular workweek is five days, the regular workday cannot exceed nine hours. For those who work more than five days a week, the regular workday cannot exceed eight hours. Even with overtime, an employee’s workday cannot exceed 12 hours.

Employees who complete five continuous hours of work on any given day must have a meal break of at least one continuous hour. If the employer and the employee agree, the 60-minute break can be reduced to 30 minutes or, in the case of employees who work fewer than six hours a day, dispensed with.

Employees generally must have 12 hours off work between the end of one shift and the beginning of the next. Between the end of the last shift of one workweek and the beginning of the first shift of the next, employees are entitled to 36 consecutive hours off, which must include a Sunday unless an employer and an employee have an agreement to the contrary.

If set forth by a collective agreement, the hours of work and overtime may be averaged over a period of up to four months.

Night work is considered any work done between 6 p.m. and 6 a.m. for most workers, 8 p.m. to 4 a.m. for farmworkers, and 7 p.m. to 7 a.m. for workers in the wholesale and retail sector. Employees cannot be required to work at night. If they agree to night work, employees are entitled to extra pay or a reduction in working hours, and transportation between home and workplace must be available at the beginning and end of the shift, but not necessarily provided by the employer. Employees who work between 11 p.m. and 6 a.m. on a regular basis—“regular basis” defined as more than one hour at least five times a month or 50 times per year—must be informed by their employer about health and safety hazards related to night work and that they have the right to get medical examinations related to those hazards at the employer’s expense.

Minimum Wage

Effective March 1, 2024, the standard minimum wage is 27.58 rand per hour. From March 1, 2023, to Feb. 29, 2024, the standard minimum wage was 25.42 rand per hour.

Overtime

The decision to work overtime must be by agreement between employee and employer, and most employees who work more than their regular workweek must be compensated for the extra time. Employees generally cannot work more than three hours’ overtime per day or 10 hours a week, although a collective or bargaining council agreement can increase overtime to 15 hours per week for up to two months in any 12-month period.

The overtime pay rate is 1.5 times the normal wage. An employer and an employee can also come to an agreement in which the worker is paid regular wages and given 30 minutes’ compensatory time off or simply 90 minutes of compensatory time for every hour of overtime worked.

Employees receive double their normal wage rate if they work on Sundays unless the day is part of their regular workweek, in which case they receive wages at time-and-one-half their normal salary. Employers and employees also can agree to the option of paid time off if an employee works on a Sunday, but it must be at the enhanced rate for Sunday work.

Restrictions on working time do not apply to senior managers, sales staff and employees who work fewer than 24 hours a month.

Wage Payment

An employer must pay wages in South African currency in cash, by check, or by direct deposit into an account designated by the employee. Wages can be calculated on a daily, weekly, semiweekly or monthly basis and must be paid no later than seven days after completion of the wage period. If wages are paid in cash or by check, they must be paid at the workplace or another location agreed to by the employee during or within 15 minutes before or after the employee’s working hours and must be provided in a sealed envelope that becomes the property of the employee.

On each payday, the employer must provide the employee with the following information in writing:

• the employer’s name and address,
• the employee’s name and occupation,
• the period for which payment is made,
• the amount of wages earned,
• the amount and purpose of any deduction from wages,
• the actual amount paid to the employee, and
• certain information relevant to the calculation of the employee’s pay.

Mandatory Bonuses

South Africa does not mandated employers to provide bonus payments to employments but it does require other types of benefits. It also is customary for a 13th month bonus or “cheque” to be paid around Christmas or at the year-end.

Reference Citations

Hours of Work: Basic Conditions of Employment Act, No. 75 of 1977, §§ 9-15, 17

Overtime: Basic Conditions of Employment Act, No. 75 of 1977, §§ 10, 16

Wage Payment: Basic Conditions of Employment Act, No. 75 of 1977, §§ 32-33

Benefits

Vacation

Employees who work 24 hours or more per month are entitled to 21 consecutive days of paid annual leave during every 12-month period they are with the same employer. If the employee and the employer agree, the worker can take one day of leave for every 17 days worked or one hour of leave for every 17 hours worked.

An employee must generally complete the 12-month leave cycle before taking the leave, although employers have the discretion to change this. Employers cannot pay workers in lieu of taking annual leave, although on termination of employment, they must pay them for unused leave.

Absent an agreement between the employer and employee, the employer can mandate when leave must be taken. Employers must grant the leave within six months of the end of the annual 12-month leave cycle. The employee is entitled to take annual leave accumulated in an annual leave cycle on consecutive days.

Holidays

There are 12 paid holidays under the Public Holidays Act. Employees who work on a public holiday are paid double their normal wage. A public holiday can be exchanged for another day off if the employer and the employee agree.

South Africa’s public holidays are:

• New Year’s Day (Jan. 1)
• Human Rights Day (March 21)
• Good Friday (the Friday before Easter Sunday)
• Family Day (the day after Easter Sunday)
• Freedom Day (April 27)
• Workers’ Day (May 1)
• Youth Day (June 16)
• National Women’s Day (Aug. 9)
• Heritage Day (Sept. 24)
• Day of Reconciliation (Dec. 16)
• Christmas Day (Dec. 25)
• Day of Goodwill (Dec. 26)

Whenever a holiday falls on a Sunday, the following Monday is considered a public holiday. During election years, a 13th annual paid public holiday is usually declared to allow workers to vote in local government elections.

Maternity Leave

Female employees are eligible for four consecutive months of maternity leave, benefits paid by the Unemployment Insurance Fund. Pregnant employees are entitled to start the leave within four weeks of the due date, although earlier or later start dates are allowed by agreement between an employer and an employee or in cases of medical necessity. Women are not permitted to work for six weeks after giving birth unless certified by a doctor or midwife to do so.

An employee who suffers a miscarriage during the third trimester of pregnancy or who gives birth to a stillborn child receives six weeks’ leave after the loss, regardless of whether maternity leave had begun.

The benefit from the Unemployment Insurance Fund is determined on a sliding scale based on monthly remuneration.

Employees also can receive paid maternity benefits based on a collective agreement or employment contract in which the employer agrees to provide payment above its contribution to the Unemployment Insurance Fund.

Employers cannot require or allow pregnant or nursing employees to perform work that is hazardous to their health or that of their children and must if possible provide alternative work.

Maternity protection guidelines appear in the nonbinding Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child. Employers are expected to inform workers about hazards to pregnant or breast-feeding employees and the importance of notifying employers if they are pregnant. According to the code, employers should keep a record of every notification of pregnancy and should evaluate whether the employee’s job might create a potential risk to the worker or the fetus. The code notes that for the first six months after the birth of a child, employees who are breast-feeding should have two 30-minute breaks each workday to breast-feed or express milk. While such codes are nonbinding, courts and tribunals consider them in labor law disputes.

Paternity Leave

Working fathers are entitled to 10 days of parental leave upon the birth of their child.

Sick Leave

Paid sick leave is granted in 36-month cycles—commencing from an employee’s start date with an employer—and is equal to the number of days the employee normally would work during a six-week period. For example, during the three-year cycle, an employee who works a five-day week is eligible for 30 days of sick leave. During the first six months with an employer, workers cannot take more than one sick day for every 26 days worked.

Sick leave terms can vary if they are negotiated differently in an employment contract or in a collective agreement.

If an employee is absent for more than two consecutive days or on more than two occasions during an eight-week period and does not respond to a request to provide a medical certificate that explains the absences, the employer is not required to pay the employee for the sick leave.

An unused sick leave balance is not carried over to the following year’s leave cycle.

Health insurance plans often are provided by bargaining councils and by most employers that are not covered by a bargaining council plan. The employer and the employee contribute in equal amounts to such plans.

Other Leave

Parental leave. Parents who are not covered by maternity leave are entitled to 10 days of parental leave upon the birth or adoption of their child. The benefit is paid by the Unemployment Insurance Fund. Employees must notify their employers in writing of the date in which they intend to begin taking parental leave and return to work following parental leave.

Adoption leave. Parents of an adopted child under two years old may take up to ten consecutive weeks of adoption leave. If there are two adoptive parents, one of the employees is entitled to adoption leave and the other employee is entitled to parental leave.

Family responsibility leave. Employees who have been with the same employer for more than four months and who work at least four days a week for the employer are generally entitled to three days of paid family responsibility leave during each 12-month period after starting the job (the annual leave cycle). Under the Basic Conditions of Employment Act, the leave can be taken for the birth of a child, a child’s illness or the death of a family member. Employers may require proof of the need for the leave. “Family member” is defined as a spouse, life partner, biological or adoptive parent, grandparent, child (including adopted), grandchild or sibling. Family responsibility leave time might differ in a collective agreement.

Surrogacy leave. Employees who have been with the same employer for at least thirteen weeks and are parents to a child born as a result of a surrogate motherhood agreement are entitled to either ten consecutive weeks or ten consecutive days per parent. The leave must begin on the date the child is born as a result of the surrogate motherhood agreement. If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for ten consecutive weeks leave and the other commissioning parent may apply for ten consecutive days.

Pensions and Social Security

There is no statutory retirement age in South Africa.

Retirement funding in South Africa is private and voluntary, with many employers providing plans and many South Africans setting up their own savings plans. For the most part, employers and employees contribute equal amounts to private pension plans or schemes, although this is not mandatory.

Workers’ Compensation

Under the Compensation for Occupational Injuries and Diseases Act, workers are compensated for workplace injuries or diseases without having to prove employer negligence. Employers make contributions to the Compensation Fund based on the size of their payroll and the type of business they operate.

Employers must report occupational injuries to the compensation commissioner’s office or the mutual association that administers workers’ compensation benefits within seven days of learning of them and must report occupational diseases within 14 days. Employees receive compensation only if an injury or illness requires them to miss more than three days of work. Employers are required to make payments to injured or sick workers for the first three months of a temporary disability and are later reimbursed for these payments.

Benefits go to temporarily disabled workers, permanently disabled workers, and families of individuals who die in work accidents or because of work-related illnesses. A worker is considered to have a temporary disability for up to two years, after which it is considered a permanent disability.

Reference Citations

Vacation: Basic Conditions of Employment Act, No. 75 of 1977, §§ 20-21

Holidays: Basic Conditions of Employment Act, No. 75 of 1977, § 18

Maternity Leave: Basic Conditions of Employment Act, No. 75 of 1977, §§ 25-26

Paternity Leave: Basic Conditions of Employment Act, No. 75 of 1977, § 27

Sick Leave: Basic Conditions of Employment Act, No. 75 of 1977, § 22

Other Leave: Basic Conditions of Employment Act, No. 75 of 1977, § 27

Workers’ Compensation: Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993

Labor Relations

In General

South Africa’s Constitution states that every worker has the right to form and join a union and to strike and that every union has the right to engage in collective bargaining. The constitution gives employers the right to form and join employers’ organizations and to bargain collectively with unions.

The Labour Relations Act requires that workplace forums be established in companies with more than 100 employees to promote worker involvement in decisionmaking. To resolve labor disputes, the act favors conciliation or mediation through bargaining councils, independent alternative dispute resolution entities, or the Commission for Conciliation, Mediation, and Arbitration or, failing that, through adjudication in the Labour Court.

Employees have a right to strike and employers have a right to lock employees out of a workplace if a dispute cannot be resolved after it has been referred to a bargaining council.

Right to Organize

Under South Africa’s Constitution, every worker has the right to form and join a union and to strike and every union has the right to engage in collective bargaining. The constitution gives employers the right to form and join employers’ organizations and to bargain collectively with unions.

The Labour Relations Act outlines the rights of all employees in South Africa, whether union member or nonmember, manager or nonmanager; reiterates the constitutional rights of workers to form and join a union and to strike; lays out procedures for dispute resolution; and details protections for workers from unfair termination of employment.

LRA guidelines stipulate that employers should have a written disciplinary code and that workers be made aware of it. Such codes highlight progressive discipline. Bargaining councils, which include employer and union representatives and usually cover a particular sector of the economy and often a region of the nation, are central to the South African collective bargaining system.

In addition to engaging in collective bargaining, the councils are charged with such duties as preventing and resolving labor disputes, establishing training programs, and establishing and administering pension, sick pay, and unemployment programs.

The minister of labor is authorized to make sectoral determinations, setting labor conditions for a particular sector or area. The determinations often contain requirements similar to those in the Basic Conditions of Employment Act, but might make some changes to such things as minimum wages, meal breaks or annual leave.

The Labour Relations Act requires that workplace forums be established in companies with more than 100 employees for the purpose of promoting worker involvement in decisionmaking. Forums consist of employees elected by fellow workers. A forum has regular meetings with the employer at which the employer presents a report on the company’s financial and employment situation. The employer must also consult with the forum on issues such as restructuring the workplace, employee evaluations, criteria for merit pay increases, training, plant closures, mergers or transfers of ownership, and layoffs. The employer must get agreement from a workplace forum before implementing plans on such issues as disciplinary codes and procedures and affirmative action.

South Africa is a member of the International Labor Organization and has ratified conventions on forced labor, child labor, freedom of association and the right to organize and health and safety in the workplace, among many others.

Dispute Resolution

To resolve labor disputes, the Labour Relations Act favors conciliation or mediation through bargaining councils, independent alternative dispute resolution entities or the Commission for Conciliation, Mediation and Arbitration (CCMA) or, failing that, through adjudication in the Labour Court.

The Labour Court presides over cases concerning employees’ rights under the LRA. The Labour Appeal Court reviews Labour Court decisions.

Unfair labor practices can involve individual employment issues as well as collective labor issues. The Labour Relations Act defines ULPs to include unfair conduct in regards to the promotion, demotion, discipline, probation, suspension, or training of an employee or involving the provision of benefits.

Strikes and Lockouts

Under the Labour Relations Act, employees have a right to strike and employers have a right to lock employees out of a workplace if a dispute cannot be resolved after it has been referred to a bargaining council or the CCMA. During legal strikes, employees cannot be dismissed except for misconduct during the strike or if the company determines that for operational reasons it no longer needs the workers’ services. Employers also cannot bring civil legal proceedings against workers for participating in a strike.

Registered trade unions can direct their members to picket to support a legal strike or in opposition to a lockout. Picketing can take place in public access areas outside an employer’s worksite but can be conducted inside the workplace only with an employer’s permission.

During legal strikes, employers do not have to pay workers. If part of workers’ usual compensation includes housing and food, however, an employer must continue to provide those things if the employees request it, although after the strike the employer can seek to recover the value of those provisions through civil proceedings in Labour Court.

Successorship Clauses

In the event of a transfer of a business by one employer to another, all the rights and obligations between the old employer and an employee at the time of the transfer continue in force as if they had been rights and obligations between the new employer and the employee.

Reference Citations

Right to Organize: Labour Relations Act, No. 66 of 1995, §§ 4-7, 78-82; Constitution of the Republic of South Africa 1996, § 23

Dispute Resolution: Labour Relations Act, No. 66 of 1995, §§ 133-150

Strikes and Lockouts: Labour Relations Act, No. 66 of 1995, §§ 64-69

Successorship Clauses: Labour Relations Act, No. 66 of 1995, § 197

Safety, Health and Security

In General

The Occupational Health and Safety Act requires employers to take steps to prevent workplace injuries and accidents. Employers must conduct regular risk assessments to determine how to eliminate or mitigate hazards and provide safety equipment and training for employees.

Employers that want to monitor communications such as telephone calls or emails must have employee consent. Sharing employer trade secrets and other confidential business information is illegal even after the employer-employee relationship is terminated unless authorized by the employer.

Workplace Safety and Health

The Occupational Health and Safety Act addresses the use of machinery and requires employers to take steps to prevent workplace injuries and accidents. Under the law, employers must conduct regular risk assessments to determine how to eliminate or mitigate hazards. Safety equipment and training must be provided for employees.

Employers with 20 or more employees must select one or more to be safety and health representatives, with one appointed for every 100 workers in shops and offices and one for every 50 workers in other workplaces. Duties include reviewing health and safety measures, identifying potential hazards, investigating employee complaints and health and safety incidents, making periodic inspections of the workplace, and working with government inspectors when necessary. Workplaces with two or more safety and health representatives must establish safety and health committees consisting of safety and health representatives and other members picked by the employer. The committees are charged with making recommendations to employers and/or government inspectors and discussing and filing reports on workplace safety and health incidents.

South Africa’s labor minister appoints labor inspectors to promote, monitor, and enforce compliance with employment laws. The inspectors advise workers and employers of their employment law rights, investigate employment-related complaints, and issue compliance orders. Inspections are usually planned on the basis of accident statistics and the presence of hazardous substances or dangerous machinery in the workplace. Unplanned inspections usually arise from confidential requests or complaints by workers, employers, or members of the public.

The Mine Health and Safety Act and the Occupational Health and Safety Act Asbestos Regulations regulate industries in which medical testing of employees exposed to health hazards might be needed. Employers in these industries are required to establish a medical monitoring system to track the extent to which workers are being exposed to health hazards in the workplace. Such systems require that employers provide workers with initial medical examinations and follow-up exams to monitor changes in their health.

The Tobacco Products Control Act of 1993 bars smoking in all public places, including workplaces, except for certain places specified by the minister of health. These include designated areas in bars, restaurants, hotels, airports, and workplaces. Employers are required to have a written policy on smoking.

The government has issued regulations that address required training and other steps employers must take to prevent exposure to ergonomic risks.

Drug and Alcohol Use

The Tobacco Products Control Act prohibits smoking in workplaces and obliges employers to put smoking policies in place on their premises. The employer has a duty to ensure that notices prohibiting smoking are displayed in conspicuous places in the workplace in a language understood by the employees. Employers may designate a portion of the public space as a smoking area provided certain conditions are met in terms of the size of the smoking area, required signage, and separation of the area from the rest of the public space.

Reference Citations

Workplace Safety and Health: Occupational Health and Safety Act, No. 85 of 1993

Drug and Alcohol Use: Tobacco Products Control Act, No. 83 of 1993

Termination

Termination by Employer

The Basic Conditions of Employment Act outlines the minimum written notice or payment due to an employee when the employment relationship is terminated. Such notices are not required if the employee engages in gross misconduct. The timing of the termination notice depends on the employee’s tenure. Individuals who have worked at a company for six months or less must receive at least a one-week notice of termination; for more than six months but not more than one year, a two-week notice; and for more than one year, a four-week notice, although the law allows collective bargaining agreements to reduce four-week notice requirements to two weeks. Instead of providing employees with a termination notice, an employer can reimburse workers for the amount of money they would have received had they worked during the designated notice period. Employers must provide terminated employees with a certificate of service containing such information as the start and end dates of employment, job title, a description of the work performed and the salary or wage at the date of termination.

Under the Labour Relations Act, a dismissal is legitimate if it is based on employee misconduct, incapacity due to ill health, or poor performance or on an employer’s operational requirements such as the need to close, downsize, or restructure its business. Misconduct that can lead to an employee’s dismissal includes gross dishonesty, gross insubordination, willful endangerment of the safety of others, racist conduct, and sexual harassment. Workers who feel they were fired unjustly can sue the employer under the Labour Relations Act. If a dismissal is deemed unfair, the worker can get his or her job back or receive compensation of up to 24 months’ remuneration. Employees who leave a job because the employer made the atmosphere intolerable can claim constructive dismissal, and employees who believe they have been discriminated against can sue for damages under the Employment Equity Act.

Plant Closings and Mass Layoffs

When employers seek to downsize or restructure, they must disclose in writing all relevant details about the plan and consult with a union, a workplace forum, or the employees or their representatives. Topics of consultation include:

• avoiding or minimizing layoffs,
• changing the timing of layoffs,
• reducing the effects of layoffs,
• choosing which workers to lay off and
• severance pay.

The employer must provide information on:

• reasons for intended layoffs,
• why a specific layoff method will be used,
• how many workers are employed,
• how many workers will be laid off,
• how many workers were laid off in the previous 12 months,
• when layoffs will take place,
• what assistance the employer intends to give laid-off workers, and
• possible reemployment.

If relevant information is not provided, employees who are laid off might be eligible for compensation.

The employer is obliged to seek out ways and means of avoiding layoffs. Prior to selecting employees to be laid off, the employer must first try to agree with the union on the criteria to be used.

Payment on Termination

At termination, employers must pay workers for any leave or compensatory time they have earned but not yet taken. When workers are dismissed because a company is downsizing or restructuring, the employer must pay severance equal to at least one week’s remuneration for each full year of completed service, although employees who “unreasonably” refuse an employer’s offer of alternative employment lose the right to severance pay.

Unemployment Insurance

Workers who have lost their jobs, are unemployed for more than 14 days, and are willing and able to work are entitled to benefits from the Unemployment Insurance Fund, which was created to provide unemployment benefits to people who temporarily are not working, including those who are on maternity leave or in the process of adopting a child. The duration of benefits depends on the person’s contributions to the fund.

Employers and workers are required to contribute monthly to the Unemployment Insurance Fund. Workers contribute 1 percent of their pay to the fund, and their employers provide a matching 1 percent.

This benefit is not available to individuals who work fewer than 24 hours a month, students, government employees, foreigners working on contract, retirees who receive a monthly state pension, or individuals who work on commission.

Reference Citations

Termination by Employer: Basic Conditions of Employment Act, No. 75 of 1977, § 37 ; Labour Relations Act, No. 66 of 1995, § 188

Plant Closings and Mass Layoffs: Labour Relations Act, No. 66 of 1995, § 189

Payment on Termination: Basic Conditions of Employment Act, No. 75 of 1977, §§ 38, 40-41

Unemployment Insurance: Unemployment Insurance Act, No. 63 of 2001, §§ 12-13

Personal Taxes

Residency Requirements

South Africa conducts two tests for determining whether an individual is a resident for tax purposes:

• The ordinarily resident test assesses whether a person considers South Africa to be his or her principal residence, which could be described, in comparison to other countries, as the individual’s real home. Persons not ordinarily resident in South Africa would only be considered to be resident for South African tax purposes by virtue of their physical presence in South Africa.
• Under the physical presence test, an individual is deemed to be resident for tax purposes if he or she is physically present in South Africa for a period exceeding 91 days in total in each of the current and previous five tax years and more than 915 days in total during the previous five tax years.

If a person who is deemed to be a resident under the physical presence test leaves South Africa for a continuous period of 330 full days, he or she is deemed to be no longer resident from the first day of the 330-day period.

An individual considered to be a resident of another country by virtue of a tax treaty cannot also be a resident of South Africa.

Taxable Income

South African residents are taxed on their worldwide income wherever earned. Nonresidents are taxed only on income from South African sources.

Tax Rates

Income tax rates are levied on a progressive scale, with rates ranging from 18 percent to 45 percent.

Employers and employees are also required to make Unemployment Insurance Fund contributions of 1 percent on compensation up to a fixed amount.

Reference Citations

Residency Requirements: Income Tax Act, No. 58 of 1962

Taxable Income: Income Tax Act, No. 58 of 1962

Tax Rates: Rates of Tax for Individuals

References

Laws and Regulation

Acts Online (South African legislation)

Basic Conditions of Employment Act

Constitution of the Republic of South Africa

Employment Equity Act

Labour Relations Act and Amendments

Pension Funds Act

Tobacco Products Control Act, 1993

Unemployment Insurance Amendment Act

Unemployment Insurance Contributions Act

Government Websites and Publications

Government Codes of Good Practice

Arrangement of Working Time

Disability in the Workplace

Integration of Employment Equity into Human Resource Policies and Practices

Key Aspects of HIV/AIDS and Employment

Department of Labour Basic Guides

Basic Conditions of Employment

Compensation for Occupational Injuries and Diseases

Employment Equity

Employment of People with Disabilities

Health and Safety Committees

Labor Relations

Private Employment Agencies

Public Holidays

Unemployment Insurance Fund