Foreign Job Quota Plan Faces Legal Challenges, Experts Warn

South Africa’s newly approved National Labour Migration Policy (NLMP), which proposes quotas limiting foreign workers in certain sectors, is likely to face legal challenges, with experts warning that similar measures have previously been ruled unconstitutional, reports the Sunday Times.

The policy, approved by Cabinet last month, aims to enforce stricter controls on foreign employment but may clash with existing constitutional protections.

Labour law specialists argue that imposing employment quotas has already been deemed unlawful by the Constitutional Court. Imraan Mohamed, Director of Employment Law at Cliffe Dekker Hofmeyr (CDH), noted that while the government avoids calling them “quotas” under employment equity legislation, the NLMP’s foreign worker restrictions would effectively function as such. “I suspect there’s going to be some legal challenge,” he said.

The policy proposes creating a list of “occupations in high demand open to foreign labour” (OHDOFL), updated every two years, with certain jobs reserved exclusively for South Africans. However, critics argue that rigid quotas could violate constitutional rights and harm industries reliant on skilled foreign labour.

Meanwhile, employer groups like the National Employers Association of South Africa (Neasa) and Sakeliga are already challenging related employment equity regulations, which impose race, gender, and disability hiring targets with penalties of up to 10% of turnover for non-compliance.

Gerhard Papenfus, Neasa CEO, criticized the government’s approach, stating, “It’s ironic that a government that has left our border open to millions would think that foreign nationals would come here and not work. That shouldn’t have happened, and that’s why borders are important.”

As legal battles loom, the debate over foreign labour restrictions highlights tensions between employment equity goals and constitutional protections, setting the stage for a contentious legal and policy showdown.