What should a founder settle before hiring a first employee in South Africa?
Before a first South African hire, a founder settles which entity will employ the person, because a foreign company that is party to a South African employment contract must register there as an external company within 20 business days. The employer must also register with the South African Revenue Service (SARS) within 21 business days of becoming an employer, unless no employee is liable for normal tax.
The hiring file records the facts the written particulars must state at commencement, including the full name and address of the employer, the employee’s name and occupation or a brief description of the work, the place of work and the start date. Those facts, with the hours, pay and payroll arrangements, feed later questions in this guide: the written particulars, the minimum wage, working time, employees’ tax and the other payroll contributions.
The foreign employer question covers employing without a local subsidiary, including through an employer of record. The contractor question covers when a contract engagement is employment. The fixed-term question covers when fixed-term and agency arrangements become permanent employment.
The South Africa hiring reviewer checklist turns these points into review items.
Statistics South Africa reported an official unemployment rate of 33.6% in the second quarter of 2026, with 16.7 million people employed and 8.5 million unemployed.
Sources for this answer
Companies Act section 23(2), as substituted in 2011, treats a foreign company that is a party to one or more employment contracts in South Africa as conducting business there.
"(2) For the purposes of subsection (1), and the definition of "external company" as set out in section I, a foreign company [is not to] must be regarded as "conducting business. or non-profit activities, as the case may be, within the Republic"[, unless] if that foreign company- [is engaged in, or has engaged in, one or mOre of the following activities within the Republic:] (a) is a party to one or more employment contracts within the Republic; or (b) subject to subsection (2A), is engaging in a course of conduct, or has engaged in a course or pattern of activities within the Republic over a period of at least six months, such as would lead a person to reasonably conclude that the company intended to continually engage in business or non-profit activities within the Republic.
See Companies Amendment Act 3 of 2011, s. 15(b), substituting Companies Act 71 of 2008, s. 23(2); Government Gazette 34243; retrieved 13 October 2026. Words in square brackets are deletions shown in the amending Act.
Companies Act section 23(1) requires an external company to register with the Commission within 20 business days after it first begins to conduct business in South Africa.
23. (1) An external company must register with the Commission within 20 business days after it first begins to conduct business, or non-profit activities, as the case may be, within the Republic— (a) as an external non-profit company if, within the jurisdiction in which it was incorporated, it meets legislative or definitional requirements that are comparable to the legislative or definitional requirements of a non-profit company incorporated under this Act; or (b) as an external profit company, if, within the jurisdiction in which it was incorporated, it meets legislative or definitional requirements that are comparable to the legislative or definitional requirements of a profit company incorporated under this Act.
See Companies Act 71 of 2008, s. 23(1), original text; Government Gazette 32121; retrieved 13 October 2026. Paragraph (b) was later substituted by the Companies Amendment Act 3 of 2011; the 20-business-day period is unchanged.
SARS states that an employer must register within 21 business days after becoming an employer unless none of its employees is liable for normal tax.
According to law, an employer must register with the South African Revenue Service (SARS) within 21 business days after becoming an employer, unless none of the employees are liable for normal tax.
See SARS, Registering as an Employer, web page, retrieved 13 October 2026.
Statistics South Africa reports an official unemployment rate of 33.6% in the second quarter of 2026.
A decrease in employment and an increase in unemployment resulted in an increase of 0,9 of a percentage point in the unemployment rate to 33,6% in the second quarter of 2026.
See Statistics South Africa, Quarterly Labour Force Survey, Quarter 2: 2026 (P0211), released 11 August 2026; retrieved 13 October 2026.
Original particulars include occupation/work description, workplace(s) and commencement.
An employer must supply an employee, when the emPloYee commences employment, with the following particulars in writing— (u) the full name and address of the employer; 30 (b) the name and occupation of the employee. or a brief description of the work for which the employee is employed; (c) the place of work, and. where the employee is required or permitted to work at various places. an indication of this; (d) the date on which the employment began; 35
See BCEA, s. 29(1)(a)–(d), original Gazette 18491, printed p. 28.
Statistics South Africa reports 16.7 million employed and 8.5 million unemployed people in the second quarter of 2026.
The working-age population grew by 121 000 (0,3%) in the second quarter of 2026 compared with the previous quarter. During the same period, the number of employed individuals decreased by 16 000 to 16,7 million, while the number of unemployed persons grew by 345 000 to reach 8,5 million.
See Statistics South Africa, Quarterly Labour Force Survey, Quarter 2: 2026 (P0211), released 11 August 2026; retrieved 13 October 2026.
Can a foreign company employ someone in South Africa without a local subsidiary?
A foreign company can employ someone in South Africa without a local subsidiary, but the employment contract counts as conducting business there, which requires registration as an external company within 20 business days. A foreign company that is not tax resident in South Africa must, unless the Commissioner authorises otherwise, withhold South African employees’ tax only if it conducts business through a permanent establishment in South Africa or acts through a representative employer, while one that is tax resident withholds like any resident employer.
An external company must also continuously maintain at least one office in South Africa and register its address.
The permanent-establishment test replaced a narrower rule in December 2023. Commentary describes the earlier rule: a non-resident employer withheld employees’ tax for a South African tax-resident employee only through a representative employer, and otherwise the employee accounted for tax through the provisional tax system. Commentary reads an employee’s home as not a fixed place of business of the employer where the employer is not free to use it for business purposes, so such remote working is unlikely to create a permanent establishment.
Commentary describes permanent establishment as a largely factual test that seldom gives certainty, and reported in February 2026 that the Budget proposed adding a requirement that the employee be effectively connected to the permanent establishment. The conservative course is a written permanent-establishment assessment before the first payroll run.
Employees’ tax is not the only payroll duty. Practitioners note that a foreign employer can owe unemployment insurance contributions and the skills development levy even when it has no employees’ tax obligation, and that the levy cannot be paid without registering with the South African Revenue Service (SARS). A non-resident employer carrying on business in South Africa must also give the Compensation Commissioner its head-office address and the name of its chief officer in South Africa, who is then deemed to be the employer for compensation-fund purposes.
Commentary describes an employer of record as a third party that becomes the legal employer so a foreign client can employ without its own South African entity, and warns that South African courts look past the contracts to the real relationship, so the client can be found to be a co-employer, and that the temporary-employment-service deeming rules can make lower-earning workers the client’s employees. The fixed-term question sets out those deeming rules.
Sources for this answer
Companies Act section 23(2), as substituted in 2011, treats a foreign company that is a party to one or more employment contracts in South Africa as conducting business there.
"(2) For the purposes of subsection (1), and the definition of "external company" as set out in section I, a foreign company [is not to] must be regarded as "conducting business. or non-profit activities, as the case may be, within the Republic"[, unless] if that foreign company- [is engaged in, or has engaged in, one or mOre of the following activities within the Republic:] (a) is a party to one or more employment contracts within the Republic; or (b) subject to subsection (2A), is engaging in a course of conduct, or has engaged in a course or pattern of activities within the Republic over a period of at least six months, such as would lead a person to reasonably conclude that the company intended to continually engage in business or non-profit activities within the Republic.
See Companies Amendment Act 3 of 2011, s. 15(b), substituting Companies Act 71 of 2008, s. 23(2); Government Gazette 34243; retrieved 13 October 2026. Words in square brackets are deletions shown in the amending Act.
Companies Act section 23(1) requires an external company to register with the Commission within 20 business days after it first begins to conduct business in South Africa.
23. (1) An external company must register with the Commission within 20 business days after it first begins to conduct business, or non-profit activities, as the case may be, within the Republic— (a) as an external non-profit company if, within the jurisdiction in which it was incorporated, it meets legislative or definitional requirements that are comparable to the legislative or definitional requirements of a non-profit company incorporated under this Act; or (b) as an external profit company, if, within the jurisdiction in which it was incorporated, it meets legislative or definitional requirements that are comparable to the legislative or definitional requirements of a profit company incorporated under this Act.
See Companies Act 71 of 2008, s. 23(1), original text; Government Gazette 32121; retrieved 13 October 2026. Paragraph (b) was later substituted by the Companies Amendment Act 3 of 2011; the 20-business-day period is unchanged.
Companies Act section 23(3) requires every company or external company to maintain at least one office in South Africa continuously and register its address.
(3) Each company or external company must— (a) continuously maintain at least one office in the Republic; and (b) register the address of its office, or its principal office if it has more than one office— (i) initially in the case of— (aa) a company, by providing the required information on its Notice of Incorporation; or (bb) an external company, by providing the required information when filing its registration in terms of subsection (1); and (ii) subsequently, by filing a notice of change of registered office, together with the prescribed fee.
See Companies Act 71 of 2008, s. 23(3); Government Gazette 32121; retrieved 13 October 2026.
Paragraph 2(1) of the Fourth Schedule to the Income Tax Act, as substituted in 2023, requires a resident employer, a non-resident employer that conducts business through a permanent establishment in South Africa, and a representative employer to deduct employees’ tax and pay it to SARS within seven days after the end of the month.
13. Paragraph 2 of the Fourth Schedule to the Income Tax Act, 1962, is hereby amended— (a) by the substitution for subparagraph (1) of the following subparagraph: ‘‘(1) Every— (a) employer [who] that is a resident; [or] (b) [representative employer in the case of any] employer [who] that is not a resident and conducts business through a permanent establishment in the Republic; or (c) representative employer, (whether or not registered as an employer under paragraph 15) who pays or becomes liable to pay any amount by way of remuneration to any employee shall, unless the Commissioner has granted authority to the contrary, deduct or withhold from that amount, or, where that amount constitutes any lump sum contemplated in paragraph 2(1)(b) of the Second Schedule, deduct from the employee’s benefit or minimum individual reserve as contemplated in that paragraph, by way of employees’ tax an amount which shall be determined as provided in paragraph 9, 10 or 11 or section 95 of the Tax Administration Act, whichever is applicable, in respect of the liability for normal tax of that employee, or, if such remuneration is paid or payable to an employee who is married and such remuneration is under the provisions of section 7(2) of this Act deemed to be income of the employee’s spouse, in respect of such liability of that spouse, and shall, subject to the Employment Tax Incentive Act, 2013, pay the amount so deducted or withheld to the Commissioner within seven days after the end of the month during which the amount was deducted or withheld, or in the case of a person who ceases to be an employer before the end of such month, within seven days after the day on which that person ceased to be an employer, or in either case within such further period as the Commissioner may approve.’’
See Tax Administration Laws Amendment Act 18 of 2023, s. 13(a), substituting Income Tax Act 58 of 1962, Fourth Schedule, para. 2(1); Government Gazette 49947, 22 December 2023; retrieved 13 October 2026. Words in square brackets are deletions shown in the amending Act.
Cliffe Dekker Hofmeyr describes the earlier rule, under which a non-resident employer without a representative employer had no employees’ tax obligation and the employee used provisional tax.
Historically, a non-resident employer was only required to deduct and pay over employees’ tax in respect of a South African tax resident employee where that foreign employer had a representative employer who paid or was liable to pay remuneration to an “employee”. A “representative employer” in turn was, in the case of a company, essentially a public officer of a company. If a non-resident employer did not have a “representative employer” in South Africa that paid (or was liable to pay) remuneration, then no employees’ tax obligation would arise for the foreign employer. Tax compliance for the local South African tax resident individual would then be accounted for under the provisional tax system.
See Cliffe Dekker Hofmeyr (collective byline), Welcome clarification for non-resident employers, Tax and Exchange Control Alert, 25 February 2026; retrieved 13 October 2026.
Werksmans reads an employee’s home as not being a fixed place of business of the employer, so the permanent-establishment rule is unlikely to capture foreign employers of remote workers.
The employee’s home clearly cannot be a fixed place of business of the employer, as it is not free to use the employee’s home for business purposes. Therefore, the amendment is unlikely capture foreign employers who employ remote workers in South Africa.
See Werksmans, National Treasury sees the light regarding foreign employers, undated web page written on the 2023 bill; retrieved 13 October 2026.
Cliffe Dekker Hofmeyr describes permanent establishment as a largely factual test where certainty is not always easy to obtain.
For example, while there are guidelines as to what constitutes a “permanent establishment”, this is largely a factual test in circumstances where it is not always easy to obtain certainty.
See Cliffe Dekker Hofmeyr (collective byline), Welcome clarification for non-resident employers, 25 February 2026; retrieved 13 October 2026.
Cliffe Dekker Hofmeyr reports the 2026 Budget proposal to add an effectively-connected requirement to the permanent-establishment rule.
The Minister has therefore announced that it is proposed that the permanent establishment requirement for non-resident employers should be amended to include an additional requirement that the employee is effectively connected to the permanent establishment in South Africa. This would align with generally accepted international tax principles and will likely be welcomed by employers.
See Cliffe Dekker Hofmeyr (collective byline), Welcome clarification for non-resident employers, 25 February 2026; retrieved 13 October 2026.
Bowmans reads current law as able to require a foreign employer to pay unemployment insurance contributions and the skills development levy without an employees’ tax obligation, and notes the levy cannot be paid without SARS registration.
Currently, a foreign employer could be obliged to pay UIF contributions and SDL even if the employer is not obliged to withhold employees’ tax. While most foreign employers have no in principle objection to paying UIF and SDL, the obligation to pay these amounts gives rise to substantial practical difficulties: While the payment of UIF contributions directly to the UIF is possible but difficult, it is impossible to pay SDL unless the employer registers with SARS as an employer.
See Bowmans (collective byline), South Africa: Why do we not encourage remote working?, 8 December 2023; retrieved 13 October 2026.
COIDA section 80(5), as substituted in 2022, requires a non-resident employer carrying on business in South Africa to furnish its head-office address and its chief officer in South Africa, who is deemed to be the employer.
‘‘(5) Any person not resident in the Republic or any [body corporate] legal person not registered in terms of any law governing the registration of [bodies corporate] legal persons in the Republic, and carrying on business in the Republic or engaged in, on or above the continental shelf 10 in activities in connection with surveys, research, sport, prospecting or exploitation of natural resources, and employing an employee in connection therewith, shall furnish the [commissioner] Commissioner with the address of his, her or its head office and the name and address of his, her or its chief officer in the Republic, and that officer shall for the 15 purposes of this Act be deemed to be the employer of the said employee.’’.
See Compensation for Occupational Injuries and Diseases Amendment Act 10 of 2022, s. 49(b), substituting COIDA s. 80(5); retrieved 13 October 2026. The amending Act is commencing in stages (Gazette 53990, 23 January 2026); the original section 80(5) also deemed the chief officer to be the employer.
Cliffe Dekker Hofmeyr describes an employer of record as the legal employer that lets a foreign entity employ in South Africa without its own entity.
The EOR model allows a foreign entity to employ individuals in the country without the need to establish a juristic entity, with the EOR being the legal employer of the workers.
See Cliffe Dekker Hofmeyr (collective byline), Employers of record and their place in South Africa, Employment Law Alert, 22 April 2024; retrieved 13 October 2026.
Cliffe Dekker Hofmeyr warns that the client of an employer of record may be found to be a co-employer and that the temporary-employment-service deeming provisions may apply.
The EOR model is not, however, without employment law risk. There is a real possibility that the client of the EOR may be found to be the co-employer of the workers, thus exposing it to adverse claims. This is particularly so because in South Africa, when a dispute as to who the true employer is arises, the courts will not be confined to merely referring to the contractual agreements in place between the EOR and the foreign client but will have regard to the true and real position between the parties and the workers. In addition, if triggered, the deeming provisions applicable to temporary employment services (colloquially known as labour brokers), as set out in our Labour Relations Act 66 of 1995, may apply. This could result in the workers being deemed to be employees of the foreign client.
See Cliffe Dekker Hofmeyr (collective byline), Employers of record and their place in South Africa, 22 April 2024; retrieved 13 October 2026.
When is a South African contractor treated as an employee?
A person earning no more than the earnings threshold who works for or renders services to another is presumed to be an employee, whatever the contract says, if any one of seven listed factors is present, such as control or economic dependence, until the contrary is proved. Under the 2014 amendment, the presumption applies for the purposes of the Labour Relations Act, any employment law and section 98A of the Insolvency Act. The threshold has been R269 600.90 a year since 1 May 2026.
The seven factors are control over how the person works, control over the person’s hours, forming part of the organisation, an average of at least 40 hours a month over the last three months, economic dependence, being provided with tools of trade or work equipment, and working for only one person. The presumption shifts the burden: until the contrary is proved, the person is an employee.
Above the threshold the general section 200A presumption does not apply, though the taxi and forestry sectoral determinations contain their own presumptions for people working in those sectors, and the label still does not decide the point. Commentary describes the courts’ approach as substance over form, looking at the real relationship, and as weighing supervision and control, integration into the organisation and economic dependence. Commentary also reads earners below the threshold as more likely to be found employees whatever their contract says.
Commentary notes that classification decides access to the labour statutes: only an employee can claim unfair dismissal or the protections of the Basic Conditions of Employment Act (BCEA). The intellectual property question covers ownership of work made by employees and contractors.
Sources for this answer
Labour Relations Act section 200A presumes a person who works for or renders services to another to be an employee if any listed factor is present, and does not apply to a person earning above the BCEA section 6(3) threshold.
200A. ( 1 ) Until thecontraryisproved, renders services to,any other person is presumed. regardless of the form of 30 the contract. to be an employee, if any one or more of the following factors are present: ( t r l the manner in whichthe personworks is subject to the control or direction of another person; ( b ) the person’s hours of work are subject to the control or direction of 35 another person; (c) in the caseof a person who works foran organisation. the person forms part of that organisation; (ti) the person has worked for that other person for an average of 3t least 40 40 hours per month over the last three months; (e) the person is economically dependent on the other person forwhom he or she works or renders services; C f l the person is provided with tools of trade or work equipment by the other person; or Cg) the person only works for or renders services to one person. 45 (2) Subsection (1) does not apply to any person who earns in excess of the amount determinedby the Ministerin terms of section 6(3) of the Basic Conditions of Employment Act.
See Labour Relations Amendment Act 12 of 2002, s. 51, inserting Labour Relations Act 66 of 1995, s. 200A(1)–(2); Government Gazette 23540, 24 June 2002; retrieved 13 October 2026. The text layer of the Gazette scan runs some words together and garbles some paragraph letters; the quote preserves that rendering. Act 6 of 2014 substituted the opening words of subsection (1).
The Labour Relations Amendment Act 6 of 2014 extends the section 200A presumption to any employment law and section 98A of the Insolvency Act.
39. Section 200A of the principal Act is hereby amended by the substitution for subsection (1) for the words preceding paragraph (a) of the following words: ‘‘Until the contrary is proved, for the purposes of this Act, any employment law and 35 section 98A of the Insolvency Act, 1936 (Act No. 24 of 1936), a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:’’.
See Labour Relations Amendment Act 6 of 2014, s. 39, substituting the opening words of Labour Relations Act s. 200A(1); Government Gazette 37921, 18 August 2014; retrieved 13 October 2026.
The taxi sector determination presumes a person working in the taxi sector to be an employee if any listed factor is present.
(1) A person who works for, or renders services to, any other person in the taxi sector is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the following factors is present (a) the manner in which the person works is subject to the control or direction of another person; (b) the person's hours of work are subject to the control or direction of another person; (c) the person forms part of the employer's organisation; (d) the person has worked for that other person for an average of at least 40 hours per month over the last three months; (e) the person is economically dependant on the other person for whom that person works or renders services; (f) the person is provided with tools of trade or work equipment by the other person; or (g) the person only works for or renders services to one person.
See Sectoral Determination 11: Taxi Sector, GN R409, 28 April 2005, clause 32(1); retrieved 14 October 2026.
The forestry sector determination presumes a person working in forestry activities to be a forestry worker if any listed factor is present.
(1) A person who works for, or renders services to, any other person in forestry activities is presumed, until the contrary is proved, to be a forestry worker, regardless of the form of the contract if any one or more of the following factors is present: (a) the manner in which the person works is subject to the control or direction of another person; (b) the person’s hours of work are subject to the control or direction of another person; (c) the person forms part of the employer’s organisation; (d) the person has worked for that other person for an average of at least 40 hours per month over the last three months; (e) the person is economically dependant on the other person for whom that person works or renders services; (f) the person is provided with tools of trade or work equipment by the other person; or (8) the person only works for or renders services to one person.
See Sectoral Determination 12: Forestry Sector, GN R219, Government Gazette 28598, 17 March 2006, clause 37(1); retrieved 14 October 2026. The text layer renders paragraph (g) as (8); the quote preserves that rendering.
The Gazette sets the annual threshold and enumerates the particular working-time provisions excluded above it, effective 1 May 2026.
Nomakhosazana Meth, Minister of Employment and Labour, hereby in terms of Section 6 (3) of the Basic Conditions of Employment Act, No. 75 of 1997, (the Act), determine that all employees earning in excess of R269 600.90 (Two hundred and sixty-nine thousand, and six hundred rand, ninety cents) per annum be excluded from sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) of this Act with effect from 1 May 2026. For the purposes of this notice: “Earnings” means the regular annual remuneration before deductions i.e income tax, pension, medical and similar payments but excluding similar payments(contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration for the purpose of this notice.
See Government Notice 7384 of 2026, Gazette 54544, 17 April 2026, printed p. 3; determination and definition of earnings.
Cliffe Dekker Hofmeyr describes the employee-or-contractor test as substance over form, with the agreement not definitive.
Ultimately the test is always substance over form and the nature of the agreement is not definitive.
See Cliffe Dekker Hofmeyr, Employee vs Independent Contractor vs TES, Employment Law Alert diagram, 5 December 2023; retrieved 13 October 2026.
Cliffe Dekker Hofmeyr reads earners below the threshold as more likely to be found employees notwithstanding their contracts.
Where an individual earns below the earnings threshold, they are more likely to be found to be an employee notwithstanding what their contract states, as these persons are considered vulnerable and in need of further protection by the law.
See Cliffe Dekker Hofmeyr, Employee vs Independent Contractor vs TES, 5 December 2023; retrieved 13 October 2026.
Webber Wentzel describes the dominant impression test as concentrating on supervision and control, integration into the organisation and economic dependence.
The dominant impression test concentrates on three aspects: - the employer's right to supervision and control; - whether the employee forms an integral part of the employer's organisation; and - the extent to which the employee is economically dependent on the employer.
See Webber Wentzel, Radio DJ: 15 years later and still not an employee, undated web page; retrieved 13 October 2026.
Webber Wentzel notes that only employees are entitled to the LRA and BCEA protections, including unfair-dismissal claims.
Only workers classified as employees are entitled to certain protections under the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA). For an individual to claim unfair dismissal, discrimination or dispute the fairness of an employer's labour practices, they must fall within the definition of an 'employee'.
See Webber Wentzel, Radio DJ: 15 years later and still not an employee, undated web page; retrieved 13 October 2026.
What must written employment particulars in South Africa contain?
Where Chapter Four of the Basic Conditions of Employment Act (BCEA) applies, the employer must give an employee written particulars when employment starts, covering the employer, occupation, workplace, start date, hours, pay, deductions, leave and notice or a fixed-term end date, among other items. Chapter Four does not cover an employee who works less than 24 hours a month for the employer.
The list runs from the employer’s full name and address, the employee’s name and occupation or a brief description of the work, the place of work and the start date, to ordinary hours and days, the wage or its calculation method, the overtime rate, other cash payments, payments in kind and their value, pay frequency, deductions, leave, and the notice period or the end date of a fixed-term contract. For an employer with five or more employees, it also covers any council or sectoral determination that applies, prior service that counts, and a list of other documents forming part of the contract with a reasonably accessible place to obtain copies.
An employer with fewer than five employees is exempt only from the items on applicable determinations, prior service and other contract documents, and from sections 30, 31 and 33; the 2002 amendment deleted the separate domestic-worker exception. When a listed term changes, the particulars must be revised and the employee given a copy, an employee who cannot understand them must have them explained in a language and manner the employee understands, and the employer keeps them for three years after the employment ends.
Where Chapter Four of the Basic Conditions of Employment Act applies, remuneration is due no later than seven days after the end of the period for which it is payable, and an employer with five or more employees also gives written information on each payday covering the employer, the employee, the period, the pay, each deduction and the amount actually paid, plus, where relevant to the calculation, the pay and overtime rates, the ordinary and overtime hours worked, the hours worked on a Sunday or public holiday and any averaging-period totals, given at the workplace or an agreed place during ordinary working hours or within 15 minutes of their start or end; the National Minimum Wage Act separately applies that payslip duty to the payment of the national minimum wage. A salary-only offer letter therefore leaves gaps that the hours and pay schedule, the leave schedule and the incorporated policies fill.
Sources for this answer
Original particulars include occupation/work description, workplace(s) and commencement.
An employer must supply an employee, when the emPloYee commences employment, with the following particulars in writing— (u) the full name and address of the employer; 30 (b) the name and occupation of the employee. or a brief description of the work for which the employee is employed; (c) the place of work, and. where the employee is required or permitted to work at various places. an indication of this; (d) the date on which the employment began; 35
See BCEA, s. 29(1)(a)–(d), original Gazette 18491, printed p. 28.
Original particulars include ordinary hours and days, wage calculation, overtime rate, cash and in-kind payments, pay frequency, deductions, leave and notice.
(e) the employee’s ordinary hours of work and days of work; (f) the employee’s wage or the rate and method of calculating wages: (g) the rate of pay for overtime work; (h) any other cash payments that the employee is entitled to; (i) any payment in kind that the employee is entitled to and the value of the 40 payment in kind; (j) how frequently remuneration will be paid; (k) any deductions to be made from the employee’s remuneration; (1) the leave to which the employee is entitled; (m~ the period of notice required to terminate employment, or if employment is for 45 a specified period, the date when employment is to terminate;
See BCEA, s. 29(1)(e)–(m), original Gazette 18491, printed p. 28.
Original section 29 lists incorporated documents/access and calls for revision when particulars change.
(II) a description of any council or sectoral determination which covers the employer’s business; (o) any period of employment with a previous employer that counts towards the employees period of employment; 50 (p) a list of any other documents that form part of the contract of employment. indicating a place that is reasonably accessible to the employee where a copy of each may be obtained. (2) When any matter listed in subsection (1) changes— (a) the written particulars must be revised to reflect the change; and 55 30 No. 18491 GOVERNMENT GAZETTE. 5 DECEMBER 1997 Act No. 75, 1997 B.4SJC CONDITIONS OF EMPLOYMENT ACT. 1997 (b) the employee must be supplied with a copy of the document reflecting the change. (3) If an employee is not able to understand the written particulars. the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. 5 (4) Written particulars in terms of this section must be kept by the employer for a period of three years after the termination of employment.
See BCEA, s. 29(1)(n)–(p), (2)–(4), original Gazette 18491, printed pp. 28–30.
Original BCEA section 28(1) excludes employment under 24 hours per month from Chapter Four.
28. (1) This Chapter does not apply to an employee who works less than 24 hours a month for an employer.
See BCEA, s. 28(1), original Gazette 18491, printed p. 28.
Historical original section 28 context includes the domestic-worker limb subsequently deleted by Act 11 of 2002 section 5; read alongside the same-question amendment card. The surviving small-employer exception affects only the enumerated fields/sections.
28. (1) This Chapter does not apply to an employee who works less than 24 hours a month for an employer. (2) Sections 29(1)(n). (o) and (p), 30.31 and 33 do not apply to- (a) an employer who employs fewer than five employees; and (b) the employment of a domestic worker. Written particulars of employment 29. (1) An employer must supply an employee, when the employee commences employment, with the following particulars in writing— (a) the full name and address of the employer; (b) the name and occupation of the employee. or a brief description of the work 30 for which the employee is employed;
See BCEA, ss. 28–29(1)(b), original Gazette 18491, printed p. 28.
Section 5 deletes BCEA 28(2)(b); domestic-worker employment is no longer an independent exception under that subsection.
5. Section 28 of the principal Act is amended by the deletion of subsection (2)(b).
See Act 11 of 2002, s. 5; Gazette 23539, 24 June 2002, printed p. 4 (PDF p. 3).
National Minimum Wage Act section 4(9) applies BCEA sections 32 to 34 to the payment of the national minimum wage to workers.
(9) Sections 32, 33 and 34 of the Basic Conditions of Employment Act apply to the payment of the national minimum wage to workers.
See National Minimum Wage Act 9 of 2018, s. 4(9); Government Gazette 42060, 27 November 2018; retrieved 13 October 2026.
BCEA section 32(3) requires payment within seven days after the pay period, and section 33(1) requires written information on each payday covering the employer, employee, pay period, remuneration, deductions and amount paid, plus further items where relevant to the calculation.
(3) An employer must pay remuneration not later than seven days after— (a) the completion of the period for which the remuneration is payable; or 40 (b) the termination of the contract of employment. (4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund. Information about remuneration 33. (1) An employer must give an employee the following information in writing on 45 each day the employee is paid: (a) The employer’s name and address; (b) the employee’s name and occupation; (c) the period for which the payment is made; (d) the employee’s remuneration in money; 50 (e) the amount and purpose of any deduction made from the remuneration: ~) the actual amount paid to the employee; and (g) if relevant to the calculation of that employee’s remuneration—
See Basic Conditions of Employment Act 75 of 1997, ss. 32(3)–(4), 33(1)(a)–(g) opening words, original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 33(1)(g) adds rates and hours to the payday information where relevant, and section 33(2) fixes where and when it is given.
(i) the employee’s rate of remuneration and overtime rate; (ii) the number of ordinary and overtime hours worked by the employee during the period for which the payment is made; (iii ) the number of hours worked by the employee on a Sunday or public holiday during that period; and 5 (iv) if an agreement to average working time has been concluded in terms of sectio~ 12. the total number of ordinary and overtime hours worked by the employee in the period of averaging. (2) The written information required in terms of subsection (1) must be given to each employee- 10 (a) at the workplace or at a place agreed to by the employee; and (b) during the employee’s ordinary working hours or within 15 minutes of the commencement or conclusion of those hours.
See Basic Conditions of Employment Act 75 of 1997, s. 33(1)(g)(i)–(iv), (2), original Gazette 18491, 5 December 1997; retrieved 13 October 2026. The quote continues section 33(1)(g) after the page break and keeps the line numbers the text layer renders.
What is South Africa’s national minimum wage in 2026?
From 1 March 2026, South Africa’s national minimum wage is R30.23 for each ordinary hour worked, with a lower rate for expanded public works programme workers and separate allowances for learnerships. Farm and domestic workers receive the same R30.23 rate, expanded public works programme workers R16.62 an hour, and learners the Schedule 2 allowances. The minimum cannot be waived and overrides any contract that pays less.
Unless a section 15 exemption specifies a different wage for a period of up to one year, every employer must pay wages no less than the national minimum wage, and the minimum becomes a term of the contract unless the contract provides more. The comparison uses the amount payable in money for ordinary hours of work, excluding payments that enable the worker to work, such as transport, equipment, tool, food or accommodation allowances, and payments in kind such as board or accommodation, each unless a sectoral determination specifies otherwise, as well as gratuities such as bonuses, tips or gifts and any other prescribed category of payment. Subject to section 9A of the Basic Conditions of Employment Act, a worker is entitled to the minimum for the hours worked on any day, and a worker paid on another basis may not receive less than the minimum for ordinary hours. A monthly salary therefore needs an hourly conversion against the agreed ordinary hours, and a contract, collective agreement or other law that provides a more favourable wage prevails over the minimum.
The 2026 notice gives farm and domestic workers the same R30.23 rate, sets R16.62 an hour for expanded public works programme workers, and applies separate allowances to learnerships.
Statistics South Africa reported average monthly earnings of R30 611 in the formal non-agricultural sector in May 2026.
Sources for this answer
Schedule 1 states the ordinary-hour wage and specified category exceptions.
1. Subject to item 2, the national minimum wage is R30,23 for each ordinary hour worked. 2. Despite item 1— (a) farm workers are entitled to a minimum wage of R30,23 per hour; (b) domestic workers are entitled to a minimum wage of R30,23 per hour; (c) workers employed on an expanded public works programme are entitled to a minimum wage of R16,62 per hour; and (d) workers who have concluded learnership agreements contemplated in section 17 of the Skills Development Act, 1998 (Act No. 97 of 1998), are entitled to the allowances contained in Schedule 2.
See Government Notice R. 7083 of 2026, Gazette 54075, 3 February 2026; commencement, printed p. 3; Schedule 1, items 1–2, printed p. 4; sector schedules, pp. 5–7.
The Minister fixes 1 March 2026 as the binding date of the amendment.
I, Nomakhosazana Meth, Minister of Employment and Labour, hereby in terms of section 6(5) of the National Minimum Wage Act, No. 9 of 2018, amend the national minimum wages contained in Schedule 1 and Schedule 2 of the National Minimum Wage Act, published under Government Notice No. 52053 of 4 February 2025, in accordance with the schedules hereto and fix the 1 March 2026 as the date on which this amendment shall become binding.
See Government Notice R. 7083 of 2026, Gazette 54075, 3 February 2026, commencement, printed p. 3.
National Minimum Wage Act section 4(4)–(7) entitles every worker to at least the national minimum wage, requires employers to pay it, bars waiver and makes it a contract term unless the contract is more favourable.
(4) Every worker is entitled to payment of a wage in an amount no less than the national minimum wage. (5) Every employer must pay wages to its workers that is no less than the national minimum wage. (6) The payment of a national minimum wage cannot be waived and the national minimum wage takes precedence over any contrary provision in any contract, collective agreement, sectoral determination or law, except a law amending this Act. (7) The national minimum wage must constitute a term of the worker’s contract except to the extent that the contract, collective agreement or law provides a wage that is more favourable to the worker.
See National Minimum Wage Act 9 of 2018, s. 4(4)–(7); Government Gazette 42060, 27 November 2018; retrieved 13 October 2026.
National Minimum Wage Act section 5(1) calculates the wage as the money payable for ordinary hours, excluding allowances that enable the worker to work; section 4(8) makes a unilateral change to wages, hours or conditions in connection with the minimum wage an unfair labour practice.
(8) It is an unfair labour practice for an employer to unilaterally alter wages, hours of work or other conditions of employment in connection with the implementation of the national minimum wage and sections 191, 193, 194(4) and 195 of the Labour Relations Act apply, unless the context indicates otherwise. (9) Sections 32, 33 and 34 of the Basic Conditions of Employment Act apply to the payment of the national minimum wage to workers. 10 15 20 25 30 35 40 Calculation of wage 5. (1) Despite any contract or law to the contrary, the calculation of a wage for the purposes of this Act is the amount payable in money for ordinary hours of work 45 excluding— (a) any payment made to enable a worker to work including any transport, equipment, tool, food or accommodation allowance, unless specified otherwise in a sectorial determination;
See National Minimum Wage Act 9 of 2018, ss. 4(8)–(9), 5(1)(a); Government Gazette 42060, 27 November 2018; retrieved 13 October 2026.
National Minimum Wage Act section 5(1)(b)–(d) also excludes payments in kind, gratuities and other prescribed payments from the wage calculation, and section 5(2)–(3) applies the minimum to hours worked and to workers paid on another basis.
(b) any payment in kind including board or accommodation, unless specified otherwise in a sectoral determination; (c) gratuities including bonuses, tips or gifts; and (d) any other prescribed category of payment. (2) Subject to section 9A of the Basic Conditions of Employment Act, a worker is 5 entitled to receive the national minimum wage for the number of hours that the worker works on any day. (3) Subject to subsection (2), if the worker is paid on a basis other than the number of hours worked, the worker may not be paid less than the national minimum wage for 10 the ordinary hours of work.
See National Minimum Wage Act 9 of 2018, s. 5(1)(b)–(d), (2)–(3); Government Gazette 42060, 27 November 2018; retrieved 13 October 2026. The quote continues section 5(1) from the preceding page of the English text and keeps the line numbers the text layer renders.
National Minimum Wage Act section 15 lets an employer apply for an exemption that specifies a period of up to one year and the wage the employer must pay.
15. (1) An employer or an employers’ organisation registered in terms of section 96 of the Labour Relations Act, or any other law, acting on behalf of a member, may, in the prescribed form and manner, apply for an exemption from paying the national minimum wage. (2) An exemption granted in terms of this section— 35 (a) must specify the period for which it is granted, which may not be longer than one year; (b) must specify the wage that the employer is required to pay workers; and (c) may contain any other relevant condition.
See National Minimum Wage Act 9 of 2018, s. 15(1)–(2); Government Gazette 42060, 27 November 2018; retrieved 13 October 2026.
Statistics South Africa reports average monthly earnings of R30 611 in May 2026 in the formal non-agricultural sector.
Average monthly earnings paid to employees increased by 2,6% from R29 825 in February 2026 to R30 611 in May 2026.
See Statistics South Africa, Quarterly Employment Statistics Q2:2026 media release, 29 September 2026; retrieved 13 October 2026.
What working hours and overtime limits apply to a South African employee?
Under the Basic Conditions of Employment Act (BCEA), the default limits for a covered employee are 45 ordinary hours a week and overtime by agreement, up to ten hours a week at one and a half times the wage, subject to agreed alternatives and any applicable sectoral or ministerial determination. Those alternatives are an agreed extension of up to 15 minutes a day, capped at 60 minutes a week, so that an employee who serves members of the public can finish doing so, a written compressed week, collective averaging, a collective increase to 15 overtime hours for up to two months in 12, and agreed paid time off instead of overtime pay, either the ordinary wage plus at least 30 minutes off or at least 90 minutes off per overtime hour, granted within one month or, by written agreement, 12 months. The ordinary-hours and overtime-agreement limits also do not apply to urgent work that unforeseeable circumstances require and ordinary hours cannot cover, although overtime pay still does. Employees earning above R269 600.90 a year are excluded from these and related working-time provisions from 1 May 2026.
The daily ordinary limit is nine hours for an employee who works five days a week or fewer and eight hours for one who works more than five days. Since 2002, an overtime agreement cannot require or permit more than 12 hours’ total work on any day, and a collective agreement may raise overtime to 15 hours a week for no more than two months in any 12. Two statutory alternatives vary the daily limits: a written compressed-week agreement may allow up to 12 hours a day, including meal intervals, without overtime pay, within 45 ordinary hours, ten overtime hours and five days a week, and a collective agreement may average ordinary hours and overtime over up to four months, within averages of 45 ordinary hours and five overtime hours a week, with the first two such agreements lapsing after 12 months. An overtime agreement concluded when the employee starts, or in the first three months, lapses after one year. Instead of overtime pay at one and a half times the wage, an agreement may provide for the ordinary wage plus 30 minutes’ paid time off per overtime hour, or 90 minutes’ paid time off per overtime hour, with the time off granted within one month or, by written agreement, 12 months.
A sectoral or ministerial determination made under the BCEA can vary these defaults for the employers and employees it covers, so a hiring review confirms whether one covers the hire and applies its terms where they differ. The small business determination applies to an employer whose business employs fewer than ten employees, but not to domestic workers, the public service, an employer that conducts more than one business or a business formed by dividing or dissolving an existing one, and a bargaining council agreement or sectoral determination takes precedence over it unless that agreement or determination provides otherwise. It allows up to 15 overtime hours a week, paid at least one and one third times the wage for the first ten hours and one and a half times beyond that, and lets a written agreement with the employee average ordinary hours and overtime over up to four months, within averages of 45 ordinary and ten overtime hours a week, lapsing after 12 months. The determination for expanded public works programmes, by contrast, sets general limits of 40 hours and five days a week and eight hours a day, allows ten hours a day on an agreed four-day week, and lets a task-rated worker work up to 55 hours a week to complete tasks allocated on a 40-hour basis.
Apart from the earnings threshold, the working-time chapter, except section 7, does not apply to senior managerial employees, to sales staff who travel to customers and regulate their own hours, or to employees working less than 24 hours a month for the employer.
The threshold exclusion removes sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) of the Basic Conditions of Employment Act. The threshold is measured on regular annual remuneration before deductions, excluding the employer’s pension, medical and similar contributions, overtime pay, achievement awards and subsistence and transport allowances. Commentary notes that each annual increase brings some employees back within these rights.
Sources for this answer
BCEA section 9(1)–(2) limits ordinary hours to 45 a week and nine or eight hours a day depending on the number of working days, and permits an agreed extension of up to 15 minutes a day and 60 minutes a week for employees serving the public.
9. (1) Subject to this Chapter. an employer may not require or permit an employee to work more than— ?5 (a) 45 hours in any week: and (b) nine hours in any day if the employee works for five days or fewer in a week: (c) ~ght hours in any day if the employee works on more than five days in a week. (2) An employee’s ordinary hours of work in terms of subsection (I) may by 30 agreement be extended by Up [0 15 minutes in a day but not more than 60 minutes in a week to enable an employee whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work.
See Basic Conditions of Employment Act 75 of 1997, s. 9(1)–(2), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
The 2002 amendment substitutes BCEA section 10(1) so that overtime requires an agreement and is capped at ten hours a week, adds a 12-hour daily cap for overtime agreements, and permits a collective agreement to raise overtime to 15 hours a week for two months in 12.
3. Section 10 of the principal Act is amended by- the substitution for-subsection (1) of the- following subsection: “(1) Subject to this Chapter, an employer may not require or permit an 10 employee to work- (a) overtime except in accordance with an agreement; (b) more than [- (i) three hours’ overtime a day; or (ii)] ten hours’overtimeaweek.”; 15 the insertion after subsection .(1), of the following” subsection: “( 1A) An agreement in terms of subsection ( 1 ) may not require or permit an employee to work more than 12 hours on any day.”; and the addition of the following subsection: “(6) ( a ) A collectiveagreement may increasethemaximumpermitted 20 overtime to 15 hours a week. ~~~~~ (b)A collective agreement contemplatedin paragraph ( a ) may not apply for more than two months in any period of 12 months.”.
See Basic Conditions of Employment Amendment Act 11 of 2002, s. 3, amending BCEA s. 10; Government Gazette 23539, 24 June 2002; retrieved 13 October 2026. Words in square brackets are deletions shown in the amending Act.
BCEA section 11 lets a written agreement allow up to 12 hours a day, including meal intervals, without overtime pay, subject to 45 ordinary hours, ten overtime hours and five days a week.
11. ( 1 ) An agreement in writing may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals required in terms of section 14. without receiving overtime pay. (2) An agreement in terms of subsection ( 1 ) may not require or permit an employee to w ork— (a) more than 45 ordinary hours of work in any week; (b) more than ten hours’ overtime in any week: or (c) on more than five days in any week.
See Basic Conditions of Employment Act 75 of 1997, s. 11, original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 12 permits averaging of ordinary hours and overtime over up to four months under a collective agreement, within averages of 45 ordinary and five overtime hours a week, and makes the first two such agreements lapse after 12 months.
12. (1) Despite sections 9(1 ) and (2) and 10(1 )(b). the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a collective agreement. 25 (2) An employer may not require or permit an employee who is bound by a collective agreement in terms of subsection ( 1 ) to work more than— (u) an average of 45 ordinary hours of work in a week over the agreed period; (b) an average of five hours’ overtime in a week over the agreed period. (3) A collective agreement in terms of subsection (1) lapses after 12 months. 30 (4) Subsection (3) only applies to the first two collective agreements concluded in terms of subsection (1).
See Basic Conditions of Employment Act 75 of 1997, s. 12, original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 10(3) lets an agreement provide for paid time off in place of the overtime payment in section 10(2); the text layer places a footnote after the opening words.
(3) Despite subsection (2). an agreement may provide for an employer to- 45 3. The Code of Good Practice issued by the Minister of Labour under section 87( 1 )(a) Will c~ntain provisions concerning the arrangement of work and, in particular, its impact upon the health. safety and welfare of employees. Issues that would be included are shift work, night work, res~ periods during working time, family responsibilities and work by children.
See Basic Conditions of Employment Act 75 of 1997, s. 10(3), opening words, original Gazette 18491, 5 December 1997; retrieved 13 October 2026. The quote preserves footnote 3, which the text layer places inside the subsection.
BCEA section 6(2) disapplies sections 9 and 10(1), among others, for work required without delay owing to unforeseeable circumstances that cannot be performed during ordinary hours.
(~) Sections 9. lo~l ). 14( I). 15(1), 17(Z) and 18(1) do not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work.
See Basic Conditions of Employment Act 75 of 1997, s. 6(2), original Gazette 18491, 5 December 1997; retrieved 13 October 2026. The text layer garbles the subsection and section numbers; the quote preserves that rendering.
BCEA section 10(2) requires overtime pay of at least one and a half times the employee’s wage.
(2) An employer must pay an employee at least one and one-half times the employee’s wage for overtime worked.
See Basic Conditions of Employment Act 75 of 1997, s. 10(2), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 10(5) provides that an overtime agreement concluded at the start of employment or in the first three months lapses after one year.
(5) An agreement concluded in terms of subsection (1) with an employee when the 10 employee commences employment. or during the first three months of employment. lapses after one year.
See Basic Conditions of Employment Act 75 of 1997, s. 10(5), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
The small business determination applies to employers whose business employs fewer than ten employees, varies the BCEA for them, yields to a bargaining council agreement or sectoral determination, and excludes domestic workers, the public service, employers conducting more than one business and businesses formed by division or dissolution.
This determination applies to employers who conduct businesses employing less than ten employees. the Basic To the extent provided for in this determination, this determination varies the application of Conditions of Employment Act, No. 75 of 1997, to such employers and their employees. “1.3 This determination must be read in conjunction with the Basic Conditions of Employment Act. 1.1. 1.4 1.5 1.6 the Basic Unless otherwise indicated, any word used in this determination has the same meaning as in : Conditions of Employment Act, No. 75 of 1997. ° on, A bargaining council agreement or sectoral determination takes precedence over this determinati unless the agreement or determination provides otherwise. This determination does not apply to— (a) the employment of domestic workers; (b) . the public service; (c) (d) 2. . any employer who conducts more than one business; any business formed by the division or dissolution of an existing business.
See Ministerial Determination 1: Small Business, GN R1295, Government Gazette 20587, 5 November 1999, clause 1; retrieved 14 October 2026. The text layer of the Gazette scan scrambles the two-column layout; the quote preserves that rendering.
The small business determination allows up to 15 overtime hours a week, sets overtime pay of at least one and one third times the wage for the first ten hours and one and a half times beyond, and permits written individual averaging over up to four months within averages of 45 ordinary and ten overtime hours a week, lapsing after 12 months.
OVERTIME 2.1 2.2 to work more than Despite section 10 (1) (b) (ii), an employer may not require or permit an employee fifteen hours overtime a week. . Despite section 10 (2), an employer must pay an employee— of overtime worked (a) at least one and one third times the employee’s wage for the first ten hours in any week; (b) of ten hours at least one and one half times the employee’s wage for any overtime in excess : worked in a week. STAATSKOERANT, 3. No. 20587 1999 3 AVERAGING OF HOURS 3.1 Despite sections 9 (1) and (2) and 10 (1) (b) of the Basic Conditions of Employment Act, No. 75 of 1997, and clause 2 of this determination, the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a written agreement concluded by an employer and employee. 3.2 An employer may not require or permit an employee who is bound by an agreement in terms of subclause 1 to work more than— 3.3 4. 5 NOVEMBER (a) an average of forty-five ordinary hours of work in a week over the agreed period; (b) an average of ten hours overtime in a week over the agreed period. An agreement in terms of subclause 1 lapses after twelve (12) months.
See Ministerial Determination 1: Small Business, GN R1295, Government Gazette 20587, 5 November 1999, clauses 2–3; retrieved 14 October 2026. The text layer of the Gazette scan scrambles the two-column layout; the quote preserves that rendering.
The expanded public works programmes determination sets general limits of 40 hours and five days a week and eight hours a day, allows ten hours a day on an agreed four-day week, and lets a task-rated worker work up to 55 hours a week to complete tasks allocated on a 40-hour basis.
An employer may not set tasks or hours of work that require a worker to work(a) more than forty hours in any week; (b) on more than five days in any week; and (c) for more than eight hours on any day. 3.2 An employer and worker may agree that a worker will work four days per week. The worker may then work up to ten hours per day. 3.3 A task-rated worker may not work more than a total of 55 hours in any week to complete the tasks allocated (based on a 40-hour week) to that worker. Meal Breaks 4.1 A worker may not work for more than five hours without taking a meal break of at least thirty minutes duration.
See Ministerial Determination 4: Expanded Public Works Programmes, GN R347, Government Gazette 35310, 4 May 2012, clauses 3–4.1; retrieved 14 October 2026. The text layer garbles some characters; the quote preserves that rendering.
The Gazette sets the annual threshold and enumerates the particular working-time provisions excluded above it, effective 1 May 2026.
Nomakhosazana Meth, Minister of Employment and Labour, hereby in terms of Section 6 (3) of the Basic Conditions of Employment Act, No. 75 of 1997, (the Act), determine that all employees earning in excess of R269 600.90 (Two hundred and sixty-nine thousand, and six hundred rand, ninety cents) per annum be excluded from sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) of this Act with effect from 1 May 2026. For the purposes of this notice: “Earnings” means the regular annual remuneration before deductions i.e income tax, pension, medical and similar payments but excluding similar payments(contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration for the purpose of this notice.
See Government Notice 7384 of 2026, Gazette 54544, 17 April 2026, printed p. 3; determination and definition of earnings.
BCEA section 10(3)–(4) lets an agreement replace part of the overtime premium with paid time off, granted within one month or, by written agreement, 12 months.
(a) pay an employee not less than the employee’s ordinary wage for overtime worked and grant the employee at least 30 minutes’ time off on full pay for every hour of overtime worked; or (b) grant an employee at least 90 minutes’ paid time off for each hour of overtime worked, 5 (4) (a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it. (b) An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.
See Basic Conditions of Employment Act 75 of 1997, s. 10(3)(a)–(b) and (4), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 6(1) excludes senior managerial employees, travelling sales staff who regulate their own hours and employees working under 24 hours a month from the working-time chapter, except section 7.
6. (1) This Chapter. except section 7, does not apply to- (a) senior managerial employees; (b) employees engaged as sales staff who travel to the premises of customers and 45 who regulate their own hours of work; (c) employees who work less than 24 hours a month for an employer.
See Basic Conditions of Employment Act 75 of 1997, s. 6(1), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
ENSafrica explains that an increase in the earnings threshold can bring employees back within BCEA rights such as hours of work and overtime.
The increase of the earnings threshold means that certain employees, who at present earn more than the current earnings threshold, and therefore do not enjoy certain rights provided for in the Basic Conditions of Employment Act, 1997 (“BCEA”), such as hours of work, overtime and payment of Sunday work, may now fall within this threshold and be entitled to these rights.
See ENSafrica (Jessie Gertzen and Tshepang Kgaladi), New earnings threshold and its impact on South African employers, 2024, written on the 2024 threshold; retrieved 13 October 2026.
What paid leave must a South African employee receive?
Under South Africa’s Basic Conditions of Employment Act, an employee working 24 hours or more a month for the employer has statutory rights to paid annual leave and paid sick leave. The default entitlements are at least 21 consecutive days’ paid annual leave per 12-month cycle and paid sick leave of six weeks’ normal working days per 36-month cycle. Annual leave may instead accrue by agreement at one day per 17 days, or one hour per 17 hours, worked or entitled to be paid, sick leave accrues at one day per 26 days worked in the first six months, and a bargaining-council collective agreement may vary leave only within statutory limits, which include that it may not cut annual leave below two weeks, reduce maternity, parental, adoption, commissioning parental or sick leave, or conflict with Chapter Six. The employer may reduce annual leave by occasional leave on full remuneration granted at the employee’s request in that cycle, and may deduct sick leave taken in the first six months from the first sick leave cycle’s entitlement. Subject to section 23, sick pay is the wage the employee would ordinarily have received for the day, paid on the usual payday, unless an agreement reduces the daily rate to no less than 75% of the ordinary-hours wage while increasing the paid days at least commensurately and keeping total sick pay over the cycle at least equal to the six-week entitlement. Under the small business determination, a written agreement may also reduce annual leave by family responsibility leave granted on full remuneration at the employee’s request. The working-time question explains how a sectoral or ministerial determination covering the hire can vary these defaults. Parental leave follows the interim regime the Constitutional Court ordered in Van Wyk.
The employer must grant annual leave within six months after the cycle ends and may pay it out only on termination. Sick pay can be withheld for absences of more than two consecutive days, or more than twice in eight weeks, when the employee does not produce a medical certificate on request, but not from an employee living on the employer’s premises who cannot reasonably obtain one unless the employer gives reasonable assistance.
An employee employed for longer than four months who works at least four days a week is also entitled to three days’ paid family responsibility leave in each annual leave cycle, when the employee’s child is sick or on the death of a spouse or life partner or a listed relative, unless a collective agreement varies the days or circumstances, and the employer may require reasonable proof of the event before paying; the 2018 amendment repealed the separate ground for a child’s birth.
Under the Van Wyk interim order, a single parent, or the only employed parent, is entitled to at least four consecutive months’ parental leave, and two employed parents share four months and ten days between them, including the six weeks after birth that a birth mother may not work without medical clearance. If two parents cannot agree on how to take the remainder, it is apportioned so that each parent’s total leave is as close as possible to half of four months and ten days, to be completed within four months of the birth or other relevant date. For parental leave on a birth, an employee notifies the employer in writing of the intended start and return dates, unless unable to do so, at least four weeks before the leave starts or, if that is not reasonably practicable, as soon as it is. Commentary reports that for adoption and commissioning parental leave the written notice of leave and return dates is due one month ahead, unless impracticable. The Court suspended its declaration of invalidity for 36 months to let Parliament legislate.
Commentary reads statutory parental leave as protected but unpaid; any income during it comes from the Unemployment Insurance Fund or from a contractual employer benefit, and commentary notes that the Court left the unemployment-insurance benefit provisions unchanged during the suspension period. An employer that already pays enhanced maternity leave faces a policy choice, because commentary reads the judgment as requiring parental benefits to reach all categories of parents.
Sources for this answer
BCEA section 20(1)–(2) defines the 12-month annual leave cycle and requires at least 21 consecutive days’ paid annual leave per cycle or, by agreement, one day per 17 days or one hour per 17 hours worked or entitled to be paid.
20. ( 1 ) In this Chapter, “annual leave cycle” means the period of 12 months’ employment with the same employer immediate! following- 10 (a) an employee’s comm-encement of employment: or (b) the completion of that employee’s prior leave cycle. (2) An employer must grant an employee at least— (a) 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle; or 15 (b) by agreement, one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid; (c) by agreement, one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid. (3)
See Basic Conditions of Employment Act 75 of 1997, s. 20(1)–(2), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 20(7) lets the employer reduce annual leave by occasional leave on full remuneration granted at the employee’s request in that cycle.
(7) An employer may reduce an employee’s entitlement to annual leave by the number 30 of days of occasional leave on full remuneration granted to the employee at the employee’s request in that leave cycle.
See Basic Conditions of Employment Act 75 of 1997, s. 20(7), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
The small business determination lets a written agreement reduce annual leave by family responsibility leave granted on full remuneration at the employee’s request.
FAMILY RESPONSIBILITY LEAVE 4.1 An employer and an employee may conclude a written agreement in terms of which an employer may reduce an employee’s entitiement to annual leave in terms of section 20 of the Basic Conditions of Employment Act, No. 75 of 1997, by the number of days of family responsibility leave on full remuneration granted to the employee at the employee’s request in terms of section 27 of the Basic Conditions of Employment Act, No. 75 of 1997.
See Ministerial Determination 1: Small Business, GN R1295, Government Gazette 20587, 5 November 1999, clause 4; retrieved 14 October 2026. The text layer of the Gazette scan scrambles the two-column layout; the quote preserves that rendering.
BCEA section 20 requires annual leave within six months after the cycle and bars payment instead of leave except on termination.
(4) An employer must grant annual leave not later than six months after the end of the annual leave cycle. (5) An employer may not require or permit an employee to take annual leave dunng— (a) any other period of leave to which the employee is entitled in terms of this 25 Chapter; or (b) any period of notice of termination of employment. (6) Despite subsection (5), an employer must permit an employee, at the employee’s written request. to take leave during a period of unpaid leave. (7) An employer may reduce an employee’s entitlement to annual leave by the number 30 of days of occasional leave on full remuneration granted to the employee at the employee’s request in that leave cycle. (8) An employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee’s annual leave on which the employee would ordinarily have worked. 35 (9) An employer may not require or permit an employee to work for the employer during any period of annual leave. (10) Annual leave must be t&en— (a) in accordance with an agreement between the employer and employee; or (b) if there is no agreement in terms of paragraph (a). at a time determined by the 40 employer in accordance with this section. (11 ) An employer may not pay an employee instead of granting paid leave in terms of this section except— (a) on termination of employment; and (b) in accordance with section 40(b) and (c).
See Basic Conditions of Employment Act 75 of 1997, s. 20(4)–(11), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 22 defines the 36-month sick leave cycle, gives paid sick leave equal to six weeks of normal working days per cycle and one day per 26 days worked in the first six months, allows the first-six-months leave to be deducted in the first cycle, fixes sick pay and allows an agreed reduction in daily sick pay within limits.
22. ( 1 ) In this Chapter. “sick leave cycle” means the period of 36 months’ 5 employment with the same employer immediately following— (a) an employee’s commencement of employment; or (b) the completion of that employee’s prior sick leave cycle. (2) During every sick leave cycle. an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period 1() of six weeks. (3) Despite subsection (2), during the first six months of employment. an employee is entitled to one day’s paid sick leave for every 26 days worked. (4) During an employee’s first sick leave cycle. an employer may reduce the employee’s entitlement to sick leave in terms of subsection (2) by the number of days” 15 sick leave taken in terms of subsection (3). (5) Subject [O section 23. an employer must pay an employee for a day’s sick leave— (a) the wage the employee would ordinarily have received for work on that day; and (h) on the employee’s usual pay day. 20 (6) An agreement may reduce the pay to which an employee is entitled in respect of any day’s absence in lerms of this section if— (u) the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay: and (b) the employee’s entitlement to pay— 25 (i) for any day”s sick leave is at least 75 per cent of the wage payable to the employee for the ordinary hours the employee would have worked on that day: and (ii ) for sick leave over the sick leave cycle is at least equivalent to the employee’s entitlement in terms of subsection (2).
See Basic Conditions of Employment Act 75 of 1997, s. 22(1)–(6), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 23(1)–(3) lets an employer withhold sick pay for longer or repeated absences without a requested medical certificate, but not from an employee living on the employer’s premises who cannot reasonably obtain one unless the employer gives reasonable assistance.
23. ( 1 ) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer. does not produce a medical certificate stating that the employee was unable to work for the 35 duration of the employee’s absence on account of sickness or injury. (2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional counci~ established by an Act of Parliament. (3) If it is not reasonably practicable for an employee who lives on the employer’s 40 premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection ( 1 ) unless the employer provides reasonable assistance to the employee to obtain the certificate.
See Basic Conditions of Employment Act 75 of 1997, s. 23(1)–(3), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 49(1) lets a bargaining-council collective agreement alter basic conditions within limits, including that it may not reduce annual leave below two weeks, reduce maternity or sick leave, or conflict with Chapter Six.
49. (1) A collective agreement concluded in a bargaining council may alter, replace or exclude any basic condition of employment if the collective agreement is consistent with to reconse eat eaten ances eyeins 7, 9 and any (b) reduce the protection afforded to employees who perform night work in terms of section 17(3) and (4); (c) reduce an employee's annual leave in terms of section 20 to less than two 30 weeks; (d) reduce an employee's entitlement to maternity leave in terms of section 25; (e) reduce an employee's entitlement to sick leave in terms of sections 22 to 24 (f) conflict with the provisions of Chapter Six
See Basic Conditions of Employment Act 75 of 1997, s. 49(1)(a)–(f), original Gazette 18491, 5 December 1997; retrieved 13 October 2026. The Gazette text layer garbles part of the opening words; the quote preserves that rendering. Act 10 of 2018 inserted paragraphs (dA)–(dC).
The Labour Laws Amendment Act 10 of 2018 adds to BCEA section 49(1) that a bargaining-council agreement may not reduce parental, adoption or commissioning parental leave.
5. Section 49 of the Basic Conditions of Employment Act, 1997, is hereby amended by the insertion in subsection (1) after paragraph (d) of the following paragraphs: ‘‘(dA) reduce an employee’s entitlement to parental leave in terms of section 25A; (dB) reduce an employee’s entitlement to adoption leave in terms of section 25B; (dC) reduce an employee’s entitlement to commissioning parental leave in terms 10 of section 25C;’’.
See Labour Laws Amendment Act 10 of 2018, s. 5, inserting BCEA s. 49(1)(dA)–(dC); Government Gazette 42062, 27 November 2018; retrieved 13 October 2026.
BCEA section 19(1) excludes an employee working less than 24 hours a month for an employer from the leave chapter.
19. (1) This Chapter does not apply to an employee who works less than 24 hours a month for an employer.
See Basic Conditions of Employment Act 75 of 1997, s. 19(1), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 27(1)–(2) gives an employee employed for over four months and working at least four days a week three days’ paid family responsibility leave per annual leave cycle on the listed occasions.
27. ( 1 ) This section applies to an employee— (a) who has been in employment with an employer for longer than four months; and (b) who works for at least four days a week for that employer. (2) An employer must grant an employee, during each annual leave cycle. at the 40 request of the employee. three days’ paid leave. which the employee is entitled to take— (a) when the employee’s child is born; (b) when the employee’s child is sick; or
See Basic Conditions of Employment Act 75 of 1997, s. 27(1)–(2)(b), original Gazette 18491, 5 December 1997; retrieved 13 October 2026. Paragraph (2)(a) was later repealed.
BCEA section 27(2)(c)–(3) covers the death of a spouse or life partner or listed relatives and requires payment at the ordinary daily wage.
(c) in the event of the death of— (i) the employee’s spouse or life partner; or (ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. (3) Subject to subsection (5), an employer must pay an employee for a day’s family 5 responsibility leave— (a) the wage the employee would ordinarily have received for work on that day; and (b) on the employee’s usual pay day.
See Basic Conditions of Employment Act 75 of 1997, s. 27(2)(c)–(3), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 27(7) lets a collective agreement vary the number of family responsibility leave days and the circumstances in which they are granted.
(7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section.
See Basic Conditions of Employment Act 75 of 1997, s. 27(7), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 27(5) lets the employer require reasonable proof of the event before paying family responsibility leave.
(5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection ( 1 ) for which the leave was required.
See Basic Conditions of Employment Act 75 of 1997, s. 27(5), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
The Labour Laws Amendment Act 2018 repeals BCEA section 27(2)(a), the family responsibility ground for a child’s birth.
4. Section 27 of the Basic Conditions of Employment Act, 1997, is hereby amended by the repeal in subsection (2) of paragraph (a).
See Labour Laws Amendment Act 10 of 2018, s. 4; Government Gazette 42062, 27 November 2018; retrieved 13 October 2026.
The Court confirmed parental-leave invalidity and suspended invalidity for 36 months.
2. The declaration made by the High Court, that sections 25, 25A, 25B and 25C of the BCEA dealing with maternity and parental leave, together with the corresponding sections 24, 26A, 27 and 29A of the UIF Act, are invalid and inconsistent with the Constitution to the extent that they unfairly discriminate between different classes of parents as to the length of parental leave available to parents and as to the unemployment benefits to which they are entitled, and the periods for which unemployment benefits are paid, is confirmed. 3. It is declared that section 25B(1) of the BCEA and section 27(1)(c) of the UIF Act are invalid and inconsistent with the Constitution to the extent that they limit parental leave and related benefits to the case where the adopted child is below the age of two years. 4. The declarations of constitutional invalidity referred to in paragraphs 2 and 3 are suspended for a period of 36 months from the date of this order to afford Parliament an opportunity to remedy the constitutional defects giving rise to the constitutional invalidity.
See Van Wyk [2025] ZACC 20, 3 October 2025, order paras. 2–4, judgment p. 3; parliamentary-hosted judgment posted May 2026.
Pending remedial legislation, the order reads in leave provisions distinguishing a single/sole employed parent from two employed parents, with medical and timing qualifications.
5. Pending the coming into force of any remedial legislation as contemplated in paragraph 4, the impugned provisions of the BCEA shall read as follows, the changes being indicated by underlining: (a) Section 25 of the BCEA shall read: “25. Parental leave (1) An employee who is— (a) a single parent; or (b) the only employed party in a parental relationship, is entitled to at least four consecutive months’ parental leave. (2) A female employee who is expecting the birth of a child may commence parental leave— (a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or (b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee’s health or that of her unborn child. (2A) Where section 25(2) does not apply, an employee may commence parental leave on— (a) the day that the employee’s child is born; or (b) where section 25B or section 25C is applicable, the date mentioned in section 25B(2) or section 25C(2) as the case may be. (3) No female employee who has given birth to a child may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. (4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to parental leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced parental leave at the time of the miscarriage or stillbirth. (4A) If both parties to a parental relationship are employed, the parties are entitled in the aggregate to four months and ten days’ parental leave, inclusive of any parental leave taken in terms of subsections (2) and (3).
See Van Wyk [2025] ZACC 20, 3 October 2025, order para. 5(a), section 25(1)–(4A), judgment p. 4.
The interim reading-in provides allocation and notice rules and leaves parental benefit payments subject to the UIF framework.
(4C) If the parties cannot agree on the manner in which the remainder of the parental leave referred to in subsection (4B) is to be taken, such remainder shall be apportioned between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and ten days, provided that such leave is completed within a period of four months from the birth of the child or, where applicable, from the date referred to in section 25B(2) or 25C(2). (4D) For purposes of subsection (4A), a party shall be deemed to be a party to a parental relationship if such a party has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act, 2005 (Act No. 38 of 2005). (5) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to— (a) commence parental leave; and (b) return to work after parental leave. (6) Notification in terms of subsection (5) must be given— (a) at least four weeks before the employee intends to commence parental leave; or (b) if it is not reasonably practicable to do so, as soon as is reasonably practicable. (7) The payment of parental benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).”
See Van Wyk [2025] ZACC 20, 3 October 2025, order para. 5(a), section 25(4C)–(7), judgment p. 5.
Webber Wentzel reads BCEA parental leave as an unpaid, protected leave of absence after the judgment.
The nature of parental leave as provided for in the BCEA is an unpaid, protected leave of absence. This remains the case.
See Webber Wentzel, The landmark parental leave judgment, undated web page published after 3 October 2025; retrieved 13 October 2026.
Bowmans reports that the Court made no interim change to unemployment-insurance benefits, so the existing provisions continue during the suspension period.
Insofar as the corresponding UIF Benefits are concerned, the Court found it inappropriate to provide an interim reading-in, reasoning that interim amendments to the UIA could have substantial financial implications and that it was preferable for the Legislature to determine the extent of the UIF Benefits conferred on employed parents in a non-discriminatory manner. Accordingly, the existing provisions of the UIA will continue to apply during the suspension period.
See Bowmans (collective byline), Constitutional Court reshapes parental leave legal landscape, undated web page published after 3 October 2025; retrieved 13 October 2026.
Cliffe Dekker Hofmeyr reports written notice of leave and return dates at least four weeks ahead, or one month for adoption and commissioning leave, unless impracticable.
Notification Requirements: Employees must notify their employer in writing of their intended leave dates and return date, at least four weeks in advance (or one month for adoption/commissioning leave), unless impracticable.
See Cliffe Dekker Hofmeyr (collective byline), Constitutional Court redefines parental leave, Employment Law Alert, 3 October 2025; retrieved 13 October 2026.
Cliffe Dekker Hofmeyr reads the judgment as requiring parental leave benefits, including employer-paid maternity benefits, to extend to all parents.
Employers must now extend parental leave benefits to all parents, regardless of gender or birthing status. This includes fathers and non-birthing parents, who are now entitled to share in the four months and ten days of leave. Employers should review and update their leave policies to ensure compliance and avoid discrimination. Where paid maternity leave has previously been offered only to birthing mothers, these benefits should be extended equally to all parents.
See Cliffe Dekker Hofmeyr (collective byline), Constitutional Court redefines parental leave, Employment Law Alert, 3 October 2025; retrieved 13 October 2026.
How does PAYE work for a South African employee?
A South African employer deducts employees’ tax, known as Pay-As-You-Earn (PAYE), from remuneration and pays it to the South African Revenue Service (SARS) within seven days after the end of the month of deduction, subject to statutory qualifications. The Commissioner may authorise otherwise or allow a longer period, an employer that ceases to be one pays within seven days of ceasing, and the Employment Tax Incentive can reduce the amount payable. The employer registers with SARS within 21 business days of becoming an employer unless no employee is liable for normal tax.
The monthly employer declaration, the EMP201, carries PAYE together with the skills development levy and unemployment insurance contributions, and payment goes to SARS with the same declaration. SARS states that in most instances the employer issues each employee with an employees’ tax certificate (IRP5 or IT3(a)) at the end of each tax period, and the employer also submits a reconciliation declaration, the EMP501. For 2026, SARS set the annual reconciliation window from 1 April to 31 May and the interim reconciliation, covering March to August, from 21 September to 31 October.
Unless the Commissioner authorises otherwise, a non-resident employer withholds PAYE only if it conducts business through a permanent establishment in South Africa or acts through a representative employer, which the foreign employer question covers.
The Employment Tax Incentive lowers the cost of hiring younger, less experienced employees: an employer that qualifies reduces the PAYE it pays to SARS by the incentive calculated for its qualifying employees, without changing the employee’s salary.
Sources for this answer
Paragraph 2(1) of the Fourth Schedule to the Income Tax Act requires a covered employer to deduct employees’ tax from remuneration and pay it to the Commissioner within seven days after the end of the month.
13. Paragraph 2 of the Fourth Schedule to the Income Tax Act, 1962, is hereby amended— (a) by the substitution for subparagraph (1) of the following subparagraph: ‘‘(1) Every— (a) employer [who] that is a resident; [or] (b) [representative employer in the case of any] employer [who] that is not a resident and conducts business through a permanent establishment in the Republic; or (c) representative employer, (whether or not registered as an employer under paragraph 15) who pays or becomes liable to pay any amount by way of remuneration to any employee shall, unless the Commissioner has granted authority to the contrary, deduct or withhold from that amount, or, where that amount constitutes any lump sum contemplated in paragraph 2(1)(b) of the Second Schedule, deduct from the employee’s benefit or minimum individual reserve as contemplated in that paragraph, by way of employees’ tax an amount which shall be determined as provided in paragraph 9, 10 or 11 or section 95 of the Tax Administration Act, whichever is applicable, in respect of the liability for normal tax of that employee, or, if such remuneration is paid or payable to an employee who is married and such remuneration is under the provisions of section 7(2) of this Act deemed to be income of the employee’s spouse, in respect of such liability of that spouse, and shall, subject to the Employment Tax Incentive Act, 2013, pay the amount so deducted or withheld to the Commissioner within seven days after the end of the month during which the amount was deducted or withheld, or in the case of a person who ceases to be an employer before the end of such month, within seven days after the day on which that person ceased to be an employer, or in either case within such further period as the Commissioner may approve.’’
See Tax Administration Laws Amendment Act 18 of 2023, s. 13(a), substituting Income Tax Act 58 of 1962, Fourth Schedule, para. 2(1); Government Gazette 49947, 22 December 2023; retrieved 13 October 2026. Words in square brackets are deletions shown in the amending Act.
The SARS employer guide states that an employer paying remuneration deducts employees’ tax, pays it to SARS monthly and issues employees’ tax certificates after each tax period.
Where an employer pays or becomes liable to pay remuneration to an employee, the employer has an obligation to deduct or withhold employees’ tax from the remuneration and pay the tax deducted or withheld to the South African Revenue Service (SARS) on a monthly basis. In most instances, the employer is obliged to issue each employee with an employees’ tax certificate [IRP5/IT3 (a)] at the end of each tax period which reflects, amongst other details, the employees’ tax deducted.
See SARS, Guide for Employers in respect of Employees’ Tax (2027 tax year), PAYE-GEN-01-G21, Background; retrieved 13 October 2026.
SARS states that an employer must register within 21 business days after becoming an employer unless none of its employees is liable for normal tax.
According to law, an employer must register with the South African Revenue Service (SARS) within 21 business days after becoming an employer, unless none of the employees are liable for normal tax.
See SARS, Registering as an Employer, web page, retrieved 13 October 2026.
SARS states that amounts withheld are paid monthly with the EMP201 declaration, which allocates the payment among PAYE, the skills development levy and unemployment insurance contributions.
The amounts deducted or withheld by the employer must be paid to SARS on a monthly basis, by completing the Monthly Employer Declaration (EMP201). The EMP201 is a payment declaration in which the employer declares the total payment together with the allocations for PAYE, SDL, UIF and/or Employment Tax Incentive (ETI).
See SARS, Skills Development Levy, web page, retrieved 13 October 2026.
SARS set the 2026 annual employer reconciliation period from 1 April to 31 May 2026.
The Employer Annual Declaration period opens on 1 April 2026 and closes on 31 May 2026. During this period, employers are required by law to submit their annual reconciliation declarations (EMP501) containing accurate, complete, and up‑to‑date employee payroll and tax information.
See SARS, Pay-As-You-Earn web page, notice of 27 March 2026; retrieved 13 October 2026.
SARS set the 2026 interim reconciliation period from 21 September to 31 October 2026 for March to August 2026.
The Employer Interim Reconciliation submission period is from 21 September to 31 October 2026. During this time, all employers must reconcile their declarations for the first six months of the reconciliation year, 1 March 2026 to 31 August 2026, and submit their EMP501 on eFiling or e@syFile™ Employer.
See SARS, Pay-As-You-Earn web page, interim reconciliation notice; retrieved 13 October 2026.
Paragraph 2(1) of the Fourth Schedule, as substituted in 2023, extends the deduction duty to a non-resident employer that conducts business through a permanent establishment in South Africa and to a representative employer.
13. Paragraph 2 of the Fourth Schedule to the Income Tax Act, 1962, is hereby amended— (a) by the substitution for subparagraph (1) of the following subparagraph: ‘‘(1) Every— (a) employer [who] that is a resident; [or] (b) [representative employer in the case of any] employer [who] that is not a resident and conducts business through a permanent establishment in the Republic; or (c) representative employer, (whether or not registered as an employer under paragraph 15) who pays or becomes liable to pay any amount by way of remuneration to any employee shall, unless the Commissioner has granted authority to the contrary, deduct or withhold from that amount, or, where that amount constitutes any lump sum contemplated in paragraph 2(1)(b) of the Second Schedule, deduct from the employee’s benefit or minimum individual reserve as contemplated in that paragraph, by way of employees’ tax an amount which shall be determined as provided in paragraph 9, 10 or 11 or section 95 of the Tax Administration Act, whichever is applicable, in respect of the liability for normal tax of that employee, or, if such remuneration is paid or payable to an employee who is married and such remuneration is under the provisions of section 7(2) of this Act deemed to be income of the employee’s spouse, in respect of such liability of that spouse, and shall, subject to the Employment Tax Incentive Act, 2013, pay the amount so deducted or withheld to the Commissioner within seven days after the end of the month during which the amount was deducted or withheld, or in the case of a person who ceases to be an employer before the end of such month, within seven days after the day on which that person ceased to be an employer, or in either case within such further period as the Commissioner may approve.’’
See Tax Administration Laws Amendment Act 18 of 2023, s. 13(a), substituting Income Tax Act 58 of 1962, Fourth Schedule, para. 2(1); Government Gazette 49947, 22 December 2023; retrieved 13 October 2026. Words in square brackets are deletions shown in the amending Act.
SARS tax statistics describe the Employment Tax Incentive as reducing an employer’s cost of hiring younger, less experienced persons by reducing PAYE payable, without changing the employee’s salary.
The incentive reduces an employer’s cost of hiring younger, less experienced persons through a cost-sharing mechanism with government, while leaving the salary the employee receives unaffected. The employer can claim the ETI and reduce the amount of PAYE payable to SARS by the amount of the total ETI calculated in respect of all qualifying employees.
See SARS and National Treasury, Tax Statistics 2025, Employment Tax Incentive section; retrieved 13 October 2026.
What unemployment insurance contributions apply to a South African employee?
Every employer and employee covered by the Unemployment Insurance Contributions Act contributes monthly to the Unemployment Insurance Fund (UIF): 1% of remuneration from the employee and a matching 1% from the employer. Contributions are calculated on remuneration up to R17 712 a month, the ceiling the South African Revenue Service (SARS) has applied since 1 June 2021.
An employee who works less than 24 hours a month for the employer does not contribute. The employer deducts the employee’s share and pays the total of 2% within seven days after the end of the month, or any longer period the Commissioner determines, or by the last business day before a weekend or public holiday on which the seventh day falls, to SARS with the monthly employer declaration if it is registered with SARS. An employer that is not registered with SARS for employees’ tax or the skills development levy registers with the Unemployment Insurance Commissioner instead and pays its contributions there.
Separately, every employer must, as soon as it starts activities as an employer, give the Unemployment Insurance Commissioner information about its employees, whatever they earn, including the street addresses of the business and its branches and each employee’s name, identification number, monthly remuneration and work address; an employer that is not resident in South Africa, or is a body corporate not registered there, must also supply the particulars of the authorised person required to carry out its duties under the Act.
Sources for this answer
Unemployment Insurance Contributions Act sections 5(1) and 6(1) require monthly contributions of 1% of remuneration from the employee and 1% from the employer.
5. (1) Every employer and every employee to whom this Act applies must, on a monthly basis, contribute to the Unemployment Insurance Fund. 35 (2) The contributions must be paid by the employer either to the Commissioner in terms of section 8 or to the Unemployment Insurance Commissionerin terms of section 9, whichever is applicable to the particular employer. Determination of contribution 6. (1) Subject to subsection (2), the amount of the contribution payable in terms of 40 section 5(a) by an employee, must be one per cent of the remuneration paid or payable to that employee by his or her employer during any month; and (b) by an employer in respect of any one of its employees, must be equal to one percent of theremunerationpaid or payable by thatemployer to that 45 employee during any month.
See Unemployment Insurance Contributions Act 4 of 2002, ss. 5–6(1); Government Gazette 23289, 28 March 2002; retrieved 13 October 2026.
SARS states the 1% employee and 1% employer contribution and the R17 712 monthly ceiling that has applied since 1 June 2021.
The amount of the contribution due by an employee, must be 1% of the remuneration paid by the employer to the employee. - The employer must pay a total contribution of 2% (1% contributed by the employee and 1% contributed by the employer) within the prescribed period. - A contribution shall not apply to so much of the remuneration paid or payable by an employer to an employee, as exceeds: - With effect from 1 October 2012 – R 14 872 per month (R 178 464 annually) - With effect from 1 June 2021 – R 17 712 per month (R 212 544 annually). Please note: As from 1 June 2021, the maximum earnings ceiling is R17 712 per month or R212 544 annually. For employees who earn more than this amount, the contribution is calculated using the maximum earnings ceiling amount. Therefore the maximum contribution which can be deducted, for employees who earn more than R17 712 per month, is R177,12 per month.
See SARS, Unemployment Insurance Fund, web page, retrieved 13 October 2026.
SARS states that an employee employed for less than 24 hours a month by the employer is excluded from contributing.
However, an employee is excluded from contributing to the UIF if he or she– - Is employed by the employer for less than 24 hours a month - Is employed as an officer or employee in the national or provincial sphere of Government - Is the President, Deputy President, a Minister, Deputy Minister, a member of the National Assembly, a permanent delegate to the National Council of Provinces, a Premier, a member of an Executive Council or a member of a provincial legislature or - Is a member of a municipal council, a traditional leader, a member of a provincial House of Traditional Leaders and a member of the Council of Traditional Leaders.
See SARS, Unemployment Insurance Fund, web page, retrieved 13 October 2026.
SARS states that contributions are paid within seven days after the end of the month of deduction.
It must be paid within seven days after the end of the month during which the amount was deducted. If the last day for payment falls on a public holiday or weekend, the payment must be made on the last business day before the public holiday or weekend.
See SARS, Unemployment Insurance Fund, web page, retrieved 13 October 2026.
Unemployment Insurance Contributions Act section 8(1) requires an employer, other than one paying the Unemployment Insurance Commissioner, to pay all contributions to the Commissioner monthly within seven days after the month, or any longer period the Commissioner determines.
8. (1) Every employer, other thanan employer contemplated in section9( l), must on a monthly basis pay the amount of all employees’ contributions and the employer’s contributions in respect of every employee in the employment of that employer to the Commissioner not later than seven days, or such longer period as the Commissioner 35 may determine, after the end of the month in respect of which the contributions are payable.
See Unemployment Insurance Contributions Act 4 of 2002, s. 8(1); retrieved 13 October 2026. The text layer runs some words together; the quote preserves that rendering.
SARS states that an employer registered for employees’ tax also registers for unemployment insurance contributions, and that other employers register with the Unemployment Insurance Commissioner.
Any employer, who is registered with SARS for Employees’ Tax, also needs to register to pay UIF contributions. You can register once for all different tax types using the client information system. The following employers must register at the UI Commissioner’s office for purposes of paying UIF contributions, an employer who: - Doesn’t need to register with SARS for Employees’ Tax purposes - Hasn’t voluntarily registered with SARS as an employer - Isn’t liable for the payment of the skills development levy.
See SARS, Unemployment Insurance Fund, web page, retrieved 13 October 2026.
Unemployment Insurance Act section 56(1)–(2) requires every employer, on starting activities as an employer, to give the Commissioner information about its employees irrespective of earnings, including its business and branch street addresses, the particulars of the authorised person for a non-resident employer, and each employee’s name, identification number, monthly remuneration and work address.
56. (1) Every employer must, as soon as it commences activities as an employer, 35 provide the information referred to in subsection (2) regarding its employees to the Commissioner, irrespective of the earnings of such employees. (2) The information contemplated in subsection (1) must( a ) include the street address of the business, and any of its branches, of the employer; 40 (b) if the employer is not resident in the Republic, or is a body corporate not registered in the Republic, include the particulars of the authorised person who is required to carry out the duties of the employerin terms of this Act: and ( c ) include the names, identification numbers and monthly remuneration of each of its employees,andmuststatetheaddress at whichtheemployeeis 45 employed.
See Unemployment Insurance Act 63 of 2001, s. 56(1)–(2); retrieved 13 October 2026. The text layer runs some words together; the quote preserves that rendering.
When must a South African employer pay the skills development levy and register for workplace-injury compensation?
A South African employer pays a skills development levy of 1% of its leviable amount, its remuneration bill measured as for employees’ tax, unless a statutory exemption applies, most relevantly a leviable amount not expected to exceed R500 000 over the next 12 months. The Minister may instead announce a rate in the national budget, which applies from the announced date for 12 months subject to Parliament passing implementing legislation within that period, or, on a SETA’s request and in consultation with the Minister of Finance, fix a different rate and basis by notice in the Gazette for employers within that SETA’s jurisdiction, provided the notice collects no less than the standard rate would. The other exemptions cover public service employers, certain public entities, qualifying public benefit organisations and certain municipalities. Every employer carrying on business in South Africa must also register with the Compensation Commissioner under the Compensation for Occupational Injuries and Diseases Act (COIDA), unless the Commissioner has exempted it as an employer referred to in section 84(1)(a) or (b).
The leviable amount is the total remuneration paid or payable to employees each month, as determined under the Fourth Schedule to the Income Tax Act, whether or not the employer must deduct employees’ tax, subject to listed exclusions, which since 1 September 2024 also cover amounts within paragraph (eD) of the Income Tax Act’s gross income definition; the levy is declared and paid monthly on the employer declaration, the EMP201. An employer below the R500 000 level need not register for the levy on that ground.
The Commissioner applies the compensation fund to pay compensation, medical costs and other benefits to or for employees under COIDA where no other person is liable. The employer furnishes the prescribed particulars of each business and notifies the Commissioner of any change within seven days. A non-resident employer names its chief officer in South Africa, who is deemed to be the employer.
Sources for this answer
Skills Development Levies Act section 3(1)–(2), as substituted in 2017, imposes the levy on every employer at one per cent of the leviable amount from 1 April 2001, or at a rate the Minister announces in the national budget.
88. (1) The following section is hereby substituted for section 3 of the Skills Development Levies Act, 1999: ‘‘Imposition of levy 3. (1) Every employer must pay a skills development levy— (a) (i) from 1 April 2000, at a rate of 0,5 per cent of the leviable amount; and (ii) from 1 April 2001, at a rate of one per cent of the leviable amount; or (b) at such a rate as the Minister may announce in the national annual budget contemplated in section 27(1) of the Public Finance Management Act, 1999 (Act No. 1 of 1999), with effect from a date mentioned in that Announcement. (2) If the Minister makes the announcement contemplated in subsection (1)(b), that rate comes into effect on the date determined by the Minister in that announcement and continues to apply for a period of 12 months from that date subject to Parliament passing legislation giving effect to that announcement within that period of 12 months.
See Taxation Laws Amendment Act 17 of 2017, s. 88(1), substituting Skills Development Levies Act 9 of 1999, s. 3; Government Gazette 41342, 18 December 2017; retrieved 13 October 2026.
Skills Development Levies Act section 3(3)–(4), as substituted in 2017, defines the leviable amount as monthly remuneration determined under the Fourth Schedule to the Income Tax Act, whether or not employees’ tax is deductible, subject to listed exclusions, and section 3(5) lets the Minister fix a SETA-specific rate and basis by notice.
(3) For the purposes of subsections (1) and (2), but subject to subsection (4), the leviable amount means the total amount of remuneration, paid or payable, or deemed to be paid or payable, by an employer to its employees during any month, as determined in accordance with the provisions of the Fourth Schedule to the Income Tax Act for the purposes of determining the employer’s liability for any employees’ tax in terms of that Schedule, whether or not such employer is liable to deduct or withhold such employees’ tax. (4) The amount of remuneration referred to in subsection (3) does not include any amount— (a) paid or payable to any person contemplated in paragraphs (c) and (d) of the definition of ‘employee’ in paragraph 1 of the Fourth Schedule to the Income Tax Act, to whom a certificate of exemption has been issued in terms of paragraph 2(5)(a) of that Schedule; (b) paid or payable to any person by way of any pension, superannuation allowance or retiring allowance; (c) contemplated in paragraph (a), (d), (e) or (eA) of the definition of ‘gross income’ in section 1 of the Income Tax Act; (d) payable to a learner in terms of a contract of employment contemplated in section 18(3) of the Skills Development Act. (5) Despite subsection (1), on the request of a SETA, the Minister may, in consultation with the Minister of Finance and by notice in the Gazette, determine from time to time a rate and basis for the calculation of a levy
See Taxation Laws Amendment Act 17 of 2017, s. 88(1), substituting Skills Development Levies Act 9 of 1999, s. 3(3)–(5); Government Gazette 41342, 18 December 2017; retrieved 13 October 2026. The quote stops at the page break inside section 3(5).
Skills Development Levies Act section 3(5)–(7), as substituted in 2017, lets the Minister, on a SETA’s request and in consultation with the Minister of Finance, set by notice a different rate and basis that may not collect less than the standard rate.
payable by employers within the jurisdiction or a part of the jurisdiction of a SETA, different from the rate and basis contemplated in subsection (1)(a) or (b), but subject to subsection (7). (6) The rate and basis determined in a notice in terms of subsection (5) may not have the result that the amount of the levies collected by virtue of 5 such notice is less than the amount of the levies which would have been collected, based on the rate and basis contemplated in subsection (1)(a) or (b). (7) The Minister may, in consultation with the Minister of Finance, determine criteria for purposes of any determination contemplated in 10 subsection (5).
See Taxation Laws Amendment Act 17 of 2017, s. 88(1), substituting Skills Development Levies Act 9 of 1999, s. 3(5)–(7); Government Gazette 41342, 18 December 2017; retrieved 13 October 2026. The quote continues section 3(5) after the page break.
The Revenue Laws Second Amendment Act 44 of 2024 adds paragraph (eD) of the gross income definition to the leviable-amount exclusions from 1 September 2024.
6. (1) Section 3 of the Skills Development Levies Act, 1999, is hereby amended by the substitution in subsection (4) for paragraph (c) of the following paragraph: ‘‘(c) contemplated in paragraph (a), (d), (e) [or], (eA) or (eD) of the definition of ‘gross income’ in section 1 of the Income Tax Act;’’. 25 (2) Subsection (1) comes into operation on 1 September 2024.
See Revenue Laws Second Amendment Act 44 of 2024, s. 6; Government Gazette 51828, 24 December 2024; retrieved 13 October 2026.
SARS lists the employers exempt from the levy, including public service employers, qualifying public entities and public benefit organisations, certain municipalities, and employers whose leviable amount over the next 12 months will not exceed R500 000.
The following employers are exempt from paying SDL— - Any public service employer in the national or provincial sphere of Government. (These employers must budget for an amount equal to the levies due for training and education of their employees). - Any national or provincial public entity, if 80% or more of its expenditure is paid directly or indirectly from funds voted by Parliament. (These employers must budget for an amount equal to the due for training and education of their employees). - Any public benefit organisation (PBO), exempt from paying Income Tax in terms of Section 10(1) (cN) of the Income Tax Act No.58 of 1962, which only carries on certain educational, welfare, humanitarian, health care, religion, belief or philosophy public benefit activities or only provides funds to these PBO and to whom a letter of exemption has been issued by the Tax Exemption Unit (TEU). - Any municipality to which a certificate of exemption is issued by the Minister of Higher Education and Training. - Any employer whose total remuneration subject to SDL (leviable amount) paid/due to all its employees over the next 12 month period won’t exceed R500 000. If this is the reason for exemption, these types of employers are not required to register to pay SDL.
See SARS, Skills Development Levy, web page, retrieved 13 October 2026.
SARS states that the levy is paid monthly with the EMP201 declaration.
The amounts deducted or withheld by the employer must be paid to SARS on a monthly basis, by completing the Monthly Employer Declaration (EMP201). The EMP201 is a payment declaration in which the employer declares the total payment together with the allocations for PAYE, SDL, UIF and/or Employment Tax Incentive (ETI).
See SARS, Skills Development Levy, web page, retrieved 13 October 2026.
COIDA section 80(1)–(3) requires an employer carrying on business in South Africa to register with the Commissioner, furnish particulars per business and notify changes within seven days, and section 80(4) lets the Commissioner exempt employers referred to in section 84(1)(a) and (b).
80. (1) An employer carrying on business in the Republic shall within the prescribed period and in the prescribed manner register with the commissioner, and shall furnish the commissioner with the prescribed particulars of his business, and shall within a period determined by the commissioner furnish such additional particulars as the commissioner may require. · (2) The particulars referred to in subsection (1) shall be furnished separately in respect of each business carried on by the employer. (3) An employer shall within seven days of any change in the particulars so furnished notify the commissioner of such change. · (4) The commissioner may exempt employers referred to in section 84(1)(a) and (b) from the provisions of this section.
See Compensation for Occupational Injuries and Diseases Act 130 of 1993, s. 80(1)–(4); Government Gazette 15158, 6 October 1993; retrieved 13 October 2026.
COIDA section 16(1) has the Commissioner apply the compensation fund to pay compensation, medical costs and other benefits to or for employees where no other person is liable.
16. (1} The compensation fund shall, subject to the provisions of this Act, be under the control of the commissioner and its moneys shall be applied by the 45 commissioner to-· ·· (a) the payment of compensation, the cost of medical aid or other pecuniary benefits to or on behalf of or in respect of employees in terms of this Act where no other person is liable for such payment; (b) the maintenance of the reserve fund; 50 (c) the payment of expenses incurred in or in connection with the performance of his functions in terms of section 4(2};
See Compensation for Occupational Injuries and Diseases Act 130 of 1993, s. 16(1)(a)–(c); Government Gazette 15158, 6 October 1993; retrieved 13 October 2026. The quote preserves the text layer’s brace characters and page header.
COIDA section 80(5), as substituted in 2022, deems a non-resident employer’s chief officer in South Africa to be the employer.
‘‘(5) Any person not resident in the Republic or any [body corporate] legal person not registered in terms of any law governing the registration of [bodies corporate] legal persons in the Republic, and carrying on business in the Republic or engaged in, on or above the continental shelf 10 in activities in connection with surveys, research, sport, prospecting or exploitation of natural resources, and employing an employee in connection therewith, shall furnish the [commissioner] Commissioner with the address of his, her or its head office and the name and address of his, her or its chief officer in the Republic, and that officer shall for the 15 purposes of this Act be deemed to be the employer of the said employee.’’.
See Compensation for Occupational Injuries and Diseases Amendment Act 10 of 2022, s. 49(b), substituting COIDA s. 80(5); retrieved 13 October 2026. The amending Act is commencing in stages (Gazette 53990, 23 January 2026); the original section 80(5) also deemed the chief officer to be the employer.
Can a South African employer dismiss an employee during probation without a fair reason?
A South African employer cannot dismiss a probationary employee without a fair reason and a fair procedure, because under the 2025 Code of Good Practice: Dismissal the employer must show both for any dismissal that is not automatically unfair. Probation exists to evaluate the employee’s performance and suitability before the appointment is confirmed.
The Code recognises three possible fair grounds: the employee’s conduct, the employee’s capacity and the employer’s operational requirements. An offer-letter termination clause that describes employment as at will, lets the employer end it on notice whatever the reason, or ends it automatically when probation expires does not remove the employer’s burden to show a fair reason and a fair procedure for the dismissal. A notice period sets how much warning is given; it does not supply the reason or the process, which the notice question covers.
The probation period should be set in advance and be reasonable for the job and the time needed to judge suitability, and probation should not be used to deprive employees of permanent status. During probation the employer should give reasonable guidance, appropriate to the nature and size of the employer and the job, which may include instruction, training or counselling. Before dismissing or extending probation, the employer gives the employee an opportunity to make representations and considers them.
The 2025 Code allows less compelling reasons for a dismissal during or at the end of probation that relates to conduct or capacity, including poor performance. Commentary notes that earlier guidance confined that allowance to poor work performance and that the 2025 Code also recognises the position of small businesses that lack formal human resources capacity. Commentary reports that the Code took effect on 4 September 2025 and replaced the earlier dismissal and operational-requirements codes.
Sources for this answer
For a dismissal not automatically unfair, the employer must show a fair reason and fair procedure.
In cases where the dismissal is not automatically unfair, the employer must show that the dismissal was for a fair reason and in accordance with a fair procedure.
See GN3470 of 2025, Gazette53294, para.5(4), printed p.6.
Probation serves performance and suitability assessment before confirmation.
The purpose of probation is to give the employer an opportunity to evaluate the employee's performance and suitability for employment before confirming the appointment.
See GN3470 of 2025, Gazette53294, para.15(1), printed p.11.
The Code identifies conduct, capacity and operational requirements as the three possible fair grounds.
The Act lists three grounds on which a dismissal may be fair. These are: the conduct of the employee, the capacity of the employee, and the employer's operational requirements.
See GN3470 of 2025, Gazette53294, para.5(2), printed p.6.
Probation should be predetermined and reasonable by reference to the job and suitability assessment.
The period of probation should be determined in advance and be of a reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee's suitability for continued employment.
See GN3470 of 2025, Gazette53294, para.16, printed p.11.
Probation should not be used to deprive employees of permanent-employment status for other purposes.
Probation should not be used for purposes not contemplated by this Code, to deprive employees of the status of permanent employment.
See GN3470 of 2025, Gazette53294, para.15(2), printed p.11.
The Code calls for reasonable appropriate guidance during probation.
During probation an employer should give an employee reasonable guidance, appropriate to the nature and size of the employer and the job, which may include instruction, training or counselling, in order to allow the employee an opportunity to render a satisfactory service.
See GN3470 of 2025, Gazette53294, para.17, printed p.12.
Dismissal or extension follows an opportunity for representations and consideration of them.
An employer may only decide to dismiss an employee or extend the probationary period after the employer has given the employee the opportunity to make representations and the employer has considered any representations made.
See GN3470 of 2025, Gazette53294, para.18(1), printed p.12.
Probationary conduct/capacity dismissal reasons may be less compelling than after probation.
Any person deciding about the fairness of a dismissal of an employee related to the employee's conduct or capacity, including poor work performance, during or on expiry of the probationary period, ought to accept, taking into account the purpose of probation, reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.
See GN3470 of 2025, Gazette53294, para.18(2), printed p.12.
Werksmans reads the 2025 Code as extending less compelling probationary reasons to conduct and capacity, where earlier guidance confined them to poor performance.
Consequently, the New Code seeks to relax the guidelines in relation to probation. For example, less compelling reasons may justify the fairness of the dismissal of an employee during or on completion of the probation where the dismissal relates to the employee’s conduct or capacity, including poor work performance. Previously, less compelling reasons were only accepted when the dismissal related specifically to poor work performance.
See Anastasia Vatalidis and Anna Tchalov, Werksmans, New Code of Good Practice: Dismissal, September 2025; retrieved 13 October 2026.
Werksmans reads the 2025 Code as making a small business’s circumstances relevant to the fairness of a dismissal.
The New Code acknowledges that it may not be feasible or practical for small businesses to comply with formal procedures such as time-consuming investigations or pre-dismissal processes and that small businesses may not have human resource departments staffed by people with the relevant skills and experience. Accordingly, the circumstances in which small businesses operate are relevant to the fairness of a dismissal.
See Anastasia Vatalidis and Anna Tchalov, Werksmans, New Code of Good Practice: Dismissal, September 2025; retrieved 13 October 2026.
Werksmans reports that the 2025 Code took effect on 4 September 2025 and replaced the earlier dismissal and operational-requirements codes.
On 4 September 2025, the new Code of Good Practice: Dismissal (“New Code“) came into effect. The New Code repeals and replaces the old Code of Good Practice: Dismissal and the Code of Good Practice Based on Operational Requirements, consolidating dismissals for misconduct, incapacity and operational requirements into one code.
See Anastasia Vatalidis and Anna Tchalov, Werksmans, New Code of Good Practice: Dismissal, September 2025; retrieved 13 October 2026.
When does a fixed-term or agency worker in South Africa become a permanent employee?
For an employee covered by section 198B of the Labour Relations Act, a fixed-term contract kept beyond three months without work of limited or definite duration or another justifiable reason is deemed to be of indefinite duration. Section 198B does not cover employees earning above the earnings threshold, an employer with fewer than ten employees or with fewer than 50 employees whose business has operated for less than two years (in either case unless it runs more than one business or was formed by dividing or dissolving an existing business), or a fixed term that a statute, sectoral determination or collective agreement permits.
Where section 198B applies, an offer of a fixed-term contract, or of a renewal or extension, must be in writing and state the reason for fixing the term, and where it is relevant in any proceedings, the employer must prove the justifiable reason and that the term was agreed. The statute lists reasons that justify a fixed term, including replacing an employee who is temporarily absent, a temporary increase in work not expected to last beyond 12 months, a student or recent graduate trained or gaining work experience to enter a job or profession, exclusive work on a specific project of limited or defined duration, a non-citizen with a work permit for a defined period, and a position externally funded for a limited period. Within the section’s scope, a fixed-term employee kept for more than three months may not be treated less favourably than a comparable permanent employee without a justifiable reason.
Commentary on a 2026 Labour Court ruling reads the section as rejecting vague formulations such as completion of tasks, and rolling or call-back contracts, as a basis for fixing the term.
A worker placed by a temporary employment service, often called a labour broker, who earns no more than the threshold is deemed to be the client’s employee once the placement is no longer a temporary service, which means a placement of more than three months that is not a substitution for a temporarily absent employee and not in a category that a bargaining-council collective agreement, sectoral determination or ministerial notice treats as temporary service. That is the main risk in employer-of-record arrangements discussed in the foreign employer question.
Sources for this answer
Labour Relations Act section 198B(3)–(5) permits fixed-term employment beyond three months only for work of limited or definite duration or another justifiable reason, and deems a contravening contract to be of indefinite duration.
(3) An employer may employ an employee on a fixed term contract or successive fixed term contracts for longer than three months of employment only if— (a) the nature of the work for which the employee is employed is of a limited or definite duration; or (b) the employer can demonstrate any other justifiable reason for fixing the term of the contract. (4) Without limiting the generality of subsection (3), the conclusion of a fixed term contract will be justified if the employee— (a) is replacing another employee who is temporarily absent from work; (b) is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months; (c) is a student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job or profession; (d) is employed to work exclusively on a specific project that has a limited or defined duration; (e) is a non-citizen who has been granted a work permit for a defined period; (f) is employed to perform seasonal work; (g) is employed for the purpose of an official public works scheme or similar public job creation scheme; (h) is employed in a position which is funded by an external source for a limited period; or (i) has reached the normal or agreed retirement age applicable in the employer’s business. (5) Employment in terms of a fixed term contract concluded or renewed in contravention of subsection (3) is deemed to be of indefinite duration.
See Labour Relations Amendment Act 6 of 2014, s. 38, inserting Labour Relations Act 66 of 1995, s. 198B(3)–(5); Government Gazette 37921, 18 August 2014; retrieved 13 October 2026.
Labour Relations Act section 198B(2) excludes employees above the threshold, employers with fewer than ten employees or fewer than 50 in their first two years subject to listed exceptions, and fixed-term contracts permitted by statute, sectoral determination or collective agreement.
(2) This section does not apply to— (a) employees earning in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act; 50 (b) an employer that employs less than 10 employees, or that employs less than 50 employees and whose business has been in operation for less than two years, unless— (i) the employer conducts more than one business; or (ii) the business was formed by the division or dissolution for any 55 reason of an existing business; and No. 37921 GOVERNMENT GAZETTE, 18 August 2014 Act No. 6 of 2014 38 Labour Relations Amendment Act, 2014 38 (c) an employee employed in terms of a fixed term contract which is permitted by any statute, sectoral determination or collective agreement.
See Labour Relations Amendment Act 6 of 2014, s. 38, inserting Labour Relations Act 66 of 1995, s. 198B(2); the quote preserves the Gazette page header the text layer places inside the subsection; Government Gazette 37921, 18 August 2014; retrieved 13 October 2026.
Labour Relations Act section 198B(6)–(8)(a) requires a written offer stating the reason, places the burden of proof on the employer and bars less favourable treatment after three months without a justifiable reason.
(6) An offer to employ an employee on a fixed term contract or to renew or extend a fixed term contract, must— (a) be in writing; and (b) state the reasons contemplated in subsection (3)(a) or (b). (7) If it is relevant in any proceedings, an employer must prove that there was a justifiable reason for fixing the term of the contract as contemplated in subsection (3) and that the term was agreed. (8) (a) An employee employed in terms of a fixed term contract for longer than three months must not be treated less favourably than an employee employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for different treatment.
See Labour Relations Amendment Act 6 of 2014, s. 38, inserting Labour Relations Act 66 of 1995, s. 198B(6)–(8)(a); Government Gazette 37921, 18 August 2014; retrieved 13 October 2026.
Labour Relations Act section 198B(4) lists reasons that justify a fixed-term contract, including a non-citizen granted a work permit for a defined period.
(4) Without limiting the generality of subsection (3), the conclusion of a fixed term contract will be justified if the employee— (a) is replacing another employee who is temporarily absent from work; (b) is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months; (c) is a student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job or profession; (d) is employed to work exclusively on a specific project that has a limited or defined duration; (e) is a non-citizen who has been granted a work permit for a defined period; (f) is employed to perform seasonal work; (g) is employed for the purpose of an official public works scheme or similar public job creation scheme; (h) is employed in a position which is funded by an external source for a limited period; or (i) has reached the normal or agreed retirement age applicable in the employer’s business.
See Labour Relations Amendment Act 6 of 2014, s. 38, inserting Labour Relations Act 66 of 1995, s. 198B(4); Government Gazette 37921, 18 August 2014; retrieved 13 October 2026.
Cliffe Dekker Hofmeyr reports a 2026 Labour Court holding that vague formulations such as completion of tasks, and rolling or call-back contracts, do not avoid the section 198B deeming provisions.
The Court held that an employer may not rely on vague formulations such as “completion of tasks,” or on rolling fixed-term contracts and “call-back” arrangements, to escape the deeming provisions of section 198B of the Labour Relations Act 66 of 1995 (LRA).
See Cliffe Dekker Hofmeyr (collective byline), Fixed terms, loose ends, Employment Law Alert, 24 August 2026; retrieved 13 October 2026.
Labour Relations Act section 198A defines a temporary service and, for employees earning no more than the threshold, deems an employee not performing a temporary service to be the client’s employee employed indefinitely, subject to section 198B.
198A. (1) In this section, a ‘temporary service’ means work for a client by an employee— 50 (a) for a period not exceeding three months; (b) as a substitute for an employee of the client who is temporarily absent; or (c) in a category of work and for any period of time which is determined to be a temporary service by a collective agreement concluded in a 55 bargaining council, a sectoral determination or a notice published by the Minister, in accordance with the provisions of subsections (6) to (8). No. 37921 GOVERNMENT GAZETTE, 18 August 2014 Act No. 6 of 2014 36 Labour Relations Amendment Act, 2014 36 (2) This section does not apply to employees earning in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act. (3) For the purposes of this Act, an employee— (a) performing a temporary service as contemplated in subsection (1) for the client is the employee of the temporary employment services in terms of section 198(2); or (b) not performing such temporary service for the client is— (i) deemed to be the employee of that client and the client is deemed to be the employer; and (ii) subject to the provisions of section 198B, employed on an indefinite basis by the client.
See Labour Relations Amendment Act 6 of 2014, s. 38, inserting Labour Relations Act 66 of 1995, s. 198A(1)–(3); Government Gazette 37921, 18 August 2014; retrieved 13 October 2026. The quote preserves the Gazette page header that the text layer places inside subsection (1).
How much notice ends a South African employment contract?
Under section 37 of the Basic Conditions of Employment Act (BCEA), a covered contract terminable on notice needs at least one week’s notice in the first six months, two weeks until the first anniversary and four weeks thereafter, subject to statutory variations and exceptions. The rules exclude employees working under 24 hours a month, give farm and domestic workers four weeks after six months, let a collective agreement cut the one-year four weeks to two, allow pay instead of notice, and preserve termination without notice for lawful cause. The working-time question explains how a sectoral or ministerial determination covering the hire can vary these defaults. Notice must be in writing, except when an illiterate employee gives it, and an employee who cannot understand a notice must have it explained orally, by or on behalf of the employer, in an official language the employee reasonably understands.
| Length of employment | Minimum notice under section 37(1), other than farm and domestic workers |
|---|---|
| Six months or less | One week |
| More than six months but less than one year | Two weeks |
| One year or more | Four weeks |
Apart from that reduction, a collective agreement may not shorten these periods. No agreement may require an employee to give longer notice than the employer must give. An employer may pay the remuneration for the notice period instead of requiring work during it. Notice rules do not apply to an employee who works less than 24 hours a month for the employer, and they leave intact the right of either party to terminate without notice for any cause recognised by law.
On termination the employer pays out unused annual leave and, for an employee employed longer than four months, accrued leave for the incomplete leave cycle. The probation question covers the reason and procedure a dismissal needs, and the retrenchment question covers dismissals for operational requirements.
Sources for this answer
The 2002 amendment substitutes BCEA section 37(1)–(2), setting minimum notice of one week, two weeks or four weeks by length of employment and limiting collective-agreement reductions.
8. Section 37 of the principal Act is amended by the substitution for subsection (1) of the following subsection: “( 1) Subject to section38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than- 25 ( a ) one week, if the employee has been employed for [four weeks] six months or less; (b) two weeks, if the employee has been employed for more than [four weeks] six months but not more than one year; ( c ) four weeks, if the employee- 30 (i) has been employed for one year or more; or (ii) is a farm worker or domestic worker who has been employed for more than [four weeks] six months. (2) (a) A collective agreement may not permit a notice period shorter than that required by subsection (1). 35 (a), jb) Despite paragraph a collective agreementmay permit the notice period of four weeks required by subsection (l)(c)(i) to be reduced to not less than two weeks.”.
See Basic Conditions of Employment Amendment Act 11 of 2002, s. 8, substituting BCEA s. 37(1)–(2); Government Gazette 23539, 24 June 2002; retrieved 13 October 2026. Words in square brackets are deletions shown in the amending Act.
BCEA section 37(3)–(4) bars a longer notice period for the employee than for the employer, requires written notice except from an illiterate employee, and requires oral explanation to an employee who cannot understand the notice.
(3) No agreement may require or permit an employee to give a period of notice longer than that required of the employer. (4) (u) Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee. (b) If an employee who receives notice of termination is not able to understand it. the 40 notice must be explained orally by, or on behalf of. the employer to the employee in an official language the employee reasonably understands.
See Basic Conditions of Employment Act 75 of 1997, s. 37(3)–(4), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 38(1) lets the employer pay the notice-period remuneration instead of giving notice.
38. (1) Instead of giving an employee notice in terms of section 37, an employer may pay the employee the remuneration the employee would have received, calculated in accordance with section 35, if the employee had worked during the notice period.
See Basic Conditions of Employment Act 75 of 1997, s. 38(1), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 36 excludes an employee who works less than 24 hours a month for an employer from the termination chapter.
36. This Chapter does not apply to an employee who works less than 24 hours in a month for an employer.
See Basic Conditions of Employment Act 75 of 1997, s. 36, original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 37(6) preserves unfair-dismissal claims and the right to terminate without notice for any cause recognised by law.
(6) Nothing in this section affects the right— (a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law; 50 and (b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law.
See Basic Conditions of Employment Act 75 of 1997, s. 37(6), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 40 requires payment on termination for untaken annual leave and, after four months, pro rata leave for the incomplete cycle.
40. On termination of employment, an employer must pay an employee— (a) for any paid time off that the employee is entitled to in terms of section 10(3) 25 or 16(3) that the employee has not taken; (b) remuneration calculated in accordance with section 21(1) for an! period of annual leave due in terms of section 20(2) that the employee has not taken; and (c) if the employee has been in employment longer than four months. in respect 30 of the employee-s annual leave entitlement during an incomplete annual leave cycle as defined in section 20(1 )— (i) one day’s remuneration in respect of every 17 days on which the employee worked or was entitled to be paid; or (ii) remuneration calculated on any basis that is at least as favorable to the 35 employee as that calculated in terms of subparagraph (i).
See Basic Conditions of Employment Act 75 of 1997, s. 40, original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
What process applies when a South African employer retrenches employees?
A South African employer that contemplates dismissing employees for operational requirements must consult, and where no collective agreement, workplace forum or registered union applies, it consults the employees likely to be affected or their nominated representatives. Where the termination chapter of the Basic Conditions of Employment Act applies, a retrenched employee is entitled to severance pay of at least one week’s remuneration for each completed year of continuous service, unless the employee unreasonably refuses the employer’s offer of alternative employment.
The consultation is a meaningful joint consensus-seeking process on measures to avoid or minimise the dismissals, change their timing and mitigate their effects, on how the employees to be dismissed are selected, and on severance pay. Commentary notes that the 2025 Code of Good Practice: Dismissal adds an annexure with the form and content of the notice of possible retrenchment that opens the process.
An employee who unreasonably refuses the employer’s offer of alternative employment, whether with the employer or another employer, loses the statutory severance pay, and the termination chapter does not cover an employee working less than 24 hours a month for the employer. The notice question covers notice pay and leave pay due on termination.
Sources for this answer
Labour Relations Act section 189(1), as substituted in 2002, requires consultation before operational-requirements dismissals, ending with the affected employees or their nominated representatives where no collective agreement, workplace forum or registered union applies.
189. ( I ) When an employercontemplatesdismissing oneor more employees for reasons based on the employer’s operational requiren~ents. the employer must consult( ( 7 ) any person whom the employer is required to consult in terms of a collective 30 ( h ) if there is no collective agreement that requires consultation- a workplace forum, if the employees likely IO be affected by the (i) proposed dismissals are employed in a workplace in respect of which there is a workplaceforum; (ii) anyregistered trade union whosemembersare likely to be 35 affected by the proposed dismissals: (c) if thereis no workplace forum in the workplace inwhich the employees likely to be affectedby theproposed dismissals are employed, any registeredrrade union whose members are likelyto be dismissals; or 40 byaffected proposed the ( d ) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.
See Labour Relations Amendment Act 12 of 2002, s. 44, substituting Labour Relations Act 66 of 1995, s. 189(1); Government Gazette 23540, 24 June 2002; retrieved 13 October 2026. The text layer of the Gazette scan runs words together and misplaces some line fragments; the quote preserves that rendering.
Labour Relations Act section 189(2) requires a meaningful joint consensus-seeking process on avoiding and mitigating dismissals, selection criteria and severance pay.
(2) Themployerandtheotherconsultingpartiesmust in the consultation envisaged by subsections (1) and (3) engage in a meaningful 45 joint consensus-seeking process and attemptto reach consensus on( a ) appropriate measures(i)to avoidthe dismissals; (ii) to minimise the number of dismiss&; (iii) to change timing the of the dismissals; and 50 (iv) to mitigate the adverse effects of the dismissals; (b) the method for selecting the employees to be dismissed; and ( e ) the severance pay for dismissed employees.
See Labour Relations Amendment Act 12 of 2002, s. 44, substituting Labour Relations Act 66 of 1995, s. 189(2); Government Gazette 23540, 24 June 2002; retrieved 13 October 2026. The text layer runs words together; the quote preserves that rendering.
BCEA section 41(2), as substituted in 2002, requires severance pay of at least one week’s remuneration per completed year of continuous service for an operational-requirements dismissal.
9. Section 41 of the principal Act is amended by the substitution for subsection ( 2 ) of 40 the following subsection: “ ( 2 )An employer must pay an employee who is dismissed for reasons based on themployer’soperationalrequirementsorwhosecontract of employment terminates or is terminated in terms of section 38 of the Insolvency Act. 1936 (Act No. 24 of 19361, severance pay equal to at least one week’s remuneration for each 45 completed year of continuous service with that employer, calculatedin accordance with section 35.”.
See Basic Conditions of Employment Amendment Act 11 of 2002, s. 9, substituting BCEA s. 41(2); Government Gazette 23539, 24 June 2002; retrieved 13 October 2026.
BCEA section 36 excludes an employee who works less than 24 hours a month for an employer from the termination chapter, including severance pay.
36. This Chapter does not apply to an employee who works less than 24 hours in a month for an employer.
See Basic Conditions of Employment Act 75 of 1997, s. 36, original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
BCEA section 41(4) disentitles an employee who unreasonably refuses alternative employment from statutory severance pay.
(4) An employee who unreasonably refuses to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to 50 severance pay in terms of subsection (2).
See Basic Conditions of Employment Act 75 of 1997, s. 41(4), original Gazette 18491, 5 December 1997; retrieved 13 October 2026.
Werksmans reports that the 2025 Code includes an annexure with the form and content of the notice of possible retrenchment.
The New Code largely reflects and clarifies existing principles in relation to retrenchments, specifying the process to be followed and the principles that guide the process. However, a notable development is the inclusion of an annexure reflecting the form and content of the notice of possible retrenchment to be given to employees at the onset of the process.
See Anastasia Vatalidis and Anna Tchalov, Werksmans, New Code of Good Practice: Dismissal, September 2025; retrieved 13 October 2026.
Can a South African employment contract include a restraint of trade?
A South African employment contract can include a post-employment restraint of trade, and practitioners read the law as treating it as valid and enforceable unless the party challenging it shows that it is unreasonable. The restraint limits a constitutional right, because every citizen may choose a trade, occupation or profession freely, subject to regulation by law.
Commentary agrees that a restraint must protect a proprietary interest, such as confidential information or customer connections, and that preventing competition for skilled labour is not such an interest: a former employee may use the general knowledge and skills gained in the job.
A restraint’s duration must match the interest. Practitioners report that, without convincing reasons for a long restraint, courts may cut it to the period that protects the interest; in two Labour Appeal Court decisions handed down on the same day, one restraint was reduced to one year and another was upheld because a 24- to 36-month product lead time justified it. Commentary also reads the courts as holding that the way employment ends does not matter: a reasonable restraint remains enforceable after resignation, dismissal or retrenchment, unless the termination was fraudulent or in bad faith.
The conservative drafting course is a restraint tied to a recorded interest, with each restriction, its duration and its territory justified by that interest, rather than a blanket non-compete.
Sources for this answer
Bowmans states that a restraint of trade is valid and enforceable unless the party challenging it shows it to be unreasonable.
While the legal position in South Africa is that a restraint of trade agreement is valid and enforceable, unless it is shown by the party challenging it to be unreasonable, the two judgments handed down by the LAC demonstrate the evidence that will need to be led by the employer and the conservative approach adopted by our courts when determining the reasonableness of a long restraint.
See Bowmans (collective byline), Reasonableness of a two-year restraint of trade, undated web page on 2023 Labour Appeal Court decisions; retrieved 13 October 2026.
Norton Rose Fulbright South Africa states that restraints of trade are generally enforceable unless found unreasonable and contrary to public policy.
As opposed to various other jurisdictions, such as the United Kingdom, in South Africa, restraints of trade are generally enforceable unless the restraint is found to be unreasonable and contrary to public policy.
See Steven Adams, Norton Rose Fulbright South Africa, Enforcing employee restraints of trade after termination of employment, Global Workplace Insider, February 2016; retrieved 13 October 2026.
Section 22 of the Constitution protects every citizen’s right to choose a trade, occupation or profession freely, subject to regulation by law.
Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.
See Constitution of the Republic of South Africa, 1996, s. 22; Department of Justice web edition; retrieved 13 October 2026.
Bowmans states that a protectable proprietary interest, such as confidential information or customer connections, must be established to justify enforcing a restraint.
A protectable proprietary interest, such as confidential information or customer connections, must be established to justify enforcement of a restraint.
See Bowmans (collective byline), The Labour Appeal Court confirms that dismissed employees are still required to comply with their restraint of trade obligations, undated web page published after 27 October 2025; retrieved 13 October 2026.
Norton Rose Fulbright South Africa states that preventing competition for skilled labour is not a protectable interest and that employees may use general knowledge and skills gained in employment.
South African courts have held that the mere prevention of competition for skilled labour is not a proprietary interest that justifies protection in a restraint. Employees are entitled to use the general knowledge and skills acquired during employment with a particular employer once they leave its employment, even if their new employer benefits from such knowledge and skills.
See Steven Adams, Norton Rose Fulbright South Africa, Enforcing employee restraints of trade after termination of employment, February 2016; retrieved 13 October 2026.
Bowmans reports that courts may reduce an otherwise reasonable restraint to a shorter period absent compelling reasons for its duration.
In this regard, in the absence of convincing and compelling reasons that justify the duration of the restraint, our courts may reduce the operation of an otherwise reasonable restraint to a period that, in its judgement, will sufficiently protect the interest sought to be protected, while also protecting an employee’s freedom of trade.
See Bowmans (collective byline), Reasonableness of a two-year restraint of trade, undated web page; retrieved 13 October 2026.
Bowmans reports two Labour Appeal Court decisions handed down on the same day, one upholding a two-year restraint and one reducing a restraint to one year.
The Labour Appeal Court (LAC) recently handed down two judgments on the same day in which it has on the one hand upheld a two-year restraint of trade agreement and on the other hand, reduced the operation of the restraint to one year.
See Bowmans (collective byline), Reasonableness of a two-year restraint of trade, undated web page; retrieved 13 October 2026.
Bowmans reports that a two-year restraint was upheld because a 24- to 36-month product lead time justified it.
The company led evidence that established that the two-year period in which the restraint operated was justifiable, as it sought legitimately to protect the company’s proprietary interests: that is, once approached by a customer, it took a period of between 24 and 36 months to conceptualise a particular product for that customer before bringing it to market. Accordingly, the operation of the restraint of trade for a two-year period would protect the company during this required lead time.
See Bowmans (collective byline), Reasonableness of a two-year restraint of trade, undated web page; retrieved 13 October 2026.
Cliffe Dekker Hofmeyr reads the Labour Appeal Court as confirming that a reasonable restraint remains enforceable however employment ends.
The manner of termination is irrelevant to enforceability. Whether an employee resigns, is dismissed for misconduct, or is retrenched, a restraint of trade will remain enforceable provided it meets the requirements of reasonableness. The only exception is where the termination was fraudulent or effected in bad faith, such as for the sole purpose of imposing the restraint.
See Cliffe Dekker Hofmeyr (collective byline), Labour Appeal Court confirms enforceability of restraints following dismissal, Employment Law Alert, 9 February 2026; retrieved 13 October 2026.
Does a South African employer own the copyright and inventions its employees create?
A South African employer owns the copyright in work an employee makes in the course of employment under a contract of service, unless an agreement excludes that rule or a narrower statutory rule applies. Unless an agreement excludes them, the narrower rules give a newspaper or periodical proprietor only the publication rights in an employee’s literary or artistic work made for publication, and give a person who commissions a photograph, portrait, gravure, film or sound recording, and pays or agrees to pay for it, the copyright in work made pursuant to that commission, subject to the newspaper rule. Outside those rules, copyright in a contractor’s work vests in the contractor as author. Any assignment of copyright, including from a contractor or from a South African employer to a foreign parent, has effect only if it is in writing and signed by or on behalf of the assignor.
Where copyright does not vest in the employer under section 21, an assignment to the employer has effect only if it is in writing and signed by or on behalf of the assignor.
For inventions, the Patents Act voids two kinds of employment term: a term requiring an employee to assign to the employer an invention made otherwise than within the course and scope of employment, and a term restricting the employee’s rights in an invention made more than one year after the employment ends.
Sources for this answer
Copyright Act section 21(1)(d), as substituted in 1980, makes the employer the owner of copyright in a work made in the course of employment under a contract of service, outside the cases in paragraphs (b) and (c) and subject under paragraph (e) to any agreement excluding that rule.
(d) Where in a case not falling within either paragraph (b) or (c) a work is made in the course of the author's employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work by virtue o section 3 or 4. (e) Paragraphs (b), (c) and (d) shall in any particul case have effect subject to any agreement excluding the operation thereof and subject to the provisions of section 20.
See Copyright Amendment Act 56 of 1980, substituting Copyright Act 98 of 1978, s. 21(1)(d)–(e); retrieved 13 October 2026. The text layer drops some characters; the quote preserves that rendering.
Copyright Act section 21(1)(a)–(b), as substituted in 1980, vests copyright in the author subject to the section, and gives a newspaper or periodical proprietor only the publication rights in an employee’s work made for publication.
21. 1) a Sub'ect to the rovisions of this section, the ownership of any copyright conferred by section 3 or 4 on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work. (b) Where a literary or artistic work is made by an author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall be the owner of the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the owner. of any copyright subsisting in the work by virtue of section 3 or 4.
See Copyright Amendment Act 56 of 1980, substituting Copyright Act 98 of 1978, s. 21(1)(a)–(b); retrieved 13 October 2026. The text layer drops some characters; the quote preserves that rendering.
Copyright Act section 21(1)(c), as substituted in 1980, makes a person who commissions and pays for a photograph, portrait, gravure, film or sound recording the owner of its copyright.
(c) Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording and pays or agrees to pay for it in money or money's worth, and the work is made in pursuance of that commission, such person shall, subject to the provisions of paragraph (b), be the owner of any copyright subsisting therein by virtue of section 3 or 4..
See Copyright Amendment Act 56 of 1980, substituting Copyright Act 98 of 1978, s. 21(1)(c); retrieved 13 October 2026. The text layer drops some characters; the quote preserves that rendering.
Copyright Act section 22(3) gives no effect to an assignment of copyright or an exclusive licence unless it is in writing signed by or on behalf of the assignor or licensor.
(3) No assignment of copyright and no exclusive lice~ce tod~ an act which is subject to copyright shall have effect unless it is in writing signed by or on behalf of the assignor, the licenser or, in the case of an 5 exclusive sublicence, the exclusive sublicenser, as the case may be.
See Copyright Act 98 of 1978, s. 22(3), original Gazette 6092, 30 June 1978; retrieved 13 October 2026. The text layer of the Gazette scan garbles some characters; the quote preserves that rendering.
Patents Act section 59(2) voids a contract term requiring assignment of an invention made outside the course and scope of employment, or restricting an employee’s rights in an invention made more than one year after termination.
(2) Any condition in a contract of employment which( a) requires an employee to assign to his employer an invention made by him otherwise than within the course and scope of his employment; or . . (b) .restricts the right of an employee in.an invention made 15 .. by him more than one year after the termination of the contract of employment, . .' shall be null and void.
See Patents Act 57 of 1978, s. 59(2), original Gazette 6012, 17 May 1978; retrieved 13 October 2026. The text layer of the Gazette scan includes margin marks; the quote preserves that rendering.
What does South Africa’s data protection law require for employee records and transfers abroad?
Under the Protection of Personal Information Act (POPIA), an employer collecting personal information directly from a candidate or employee must first take reasonably practicable steps to make the person aware of the listed matters, unless the person already knows them or a statutory exception applies. The exceptions cover repeat collection of the same kind of information for the same purpose after the employer has already taken the notification steps, and listed cases, such as the person’s consent to non-compliance or compliance not being reasonably practicable. Those matters include the information collected, the employer’s name and address, the purpose, whether supplying it is voluntary or mandatory, any intended transfer abroad and the person’s rights. A transfer to a recipient in another country, including a foreign parent or a payroll or human resources provider, also needs a ground listed in section 72(1), such as the employee’s consent, or a law, binding corporate rules or binding agreement giving adequate protection, meaning principles substantially similar to POPIA’s processing conditions and to its rules on onward transfer.
POPIA prohibits processing special personal information, including health, race, trade union membership, biometric information and criminal behaviour relating to alleged offences or proceedings about them, unless an exception applies, such as consent or processing necessary to establish, exercise or defend a right or obligation in law. Commentary reads POPIA as covering the whole employment relationship, from recruitment to after termination, and records such as employment history, references, disciplinary records and health and biometric information.
Where a provider such as a payroll or human resources platform processes employee information for the employer as an operator, the employer must require it, by written contract, to establish and maintain the security measures POPIA requires. Transferring special personal information to a country without adequate protection also needs the Information Regulator’s prior authorisation, unless a sector code of conduct in force displaces that requirement; one authorisation covers later processing that does not depart from it.
For transfers within a group, commentary recommends a data protection agreement where concluding one is not onerous, unless another section 72 ground applies, and notes that the ground for transfers necessary to perform a contract concluded in the employee’s interest can cover an employment arrangement such as a secondment.
Sources for this answer
POPIA section 18(1) requires reasonably practicable steps to make the data subject aware of the listed matters, including the purpose, voluntary or mandatory supply, cross-border transfer and rights.
18. (1) If personal information is collected, the responsible party must take reasonably practicable steps to ensure that the data subject is aware of— (a) the information being collected and where the information is not collected from the data subject, the source from which it is collected; (b) the name and address of the responsible party; (c) the purpose for which the information is being collected; (d) whether or not the supply of the information by that data subject is voluntary or mandatory; (e) the consequences of failure to provide the information; (f) any particular law authorising or requiring the collection of the information; (g) the fact that, where applicable, the responsible party intends to transfer the information to a third country or international organisation and the level of protection afforded to the information by that third country or international organisation; (h) any further information such as the— (i) recipient or category of recipients of the information; (ii) nature or category of the information; (iii) existence of the right of access to and the right to rectify the information collected; (iv) existence of the right to object to the processing of personal information as referred to in section 11(3); and (v) right to lodge a complaint to the Information Regulator and the contact details of the Information Regulator, which is necessary, having regard to the specific circumstances in which the information is or is not to be processed, to enable processing in respect of the data subject to be reasonable.
See Protection of Personal Information Act 4 of 2013, s. 18(1); Government Gazette 37067, 26 November 2013; retrieved 13 October 2026.
POPIA section 18(2) requires the steps to be taken before collection where information is collected directly from the data subject, and otherwise before or as soon as reasonably practicable after collection.
(2) The steps referred to in subsection (1) must be taken— (a) if the personal information is collected directly from the data subject, before the information is collected, unless the data subject is already aware of the information referred to in that subsection; or 20 25 30 35 40 45 50 No. 37067 GOVERNMENT GAZETTE, 26 November 2013 Act No. 4 of 2013 32 Protection of Personal Information Act, 2013 32 (b) in any other case, before the information is collected or as soon as reasonably practicable after it has been collected.
See Protection of Personal Information Act 4 of 2013, s. 18(2); Government Gazette 37067, 26 November 2013; retrieved 13 October 2026.
POPIA section 18(3)–(4) treats earlier notification as sufficient for repeat collection for the same purpose and lists exceptions, including consent to non-compliance and impracticability.
(3) A responsible party that has previously taken the steps referred to in subsection (1) complies with subsection (1) in relation to the subsequent collection from the data subject of the same information or information of the same kind if the purpose of collection of the information remains the same. (4) It is not necessary for a responsible party to comply with subsection (1) if— (a) the data subject or a competent person where the data subject is a child has provided consent for the non-compliance; (b) non-compliance would not prejudice the legitimate interests of the data subject as set out in terms of this Act; (c) non-compliance is necessary— (i) to avoid prejudice to the maintenance of the law by any public body, including the prevention, detection, investigation, prosecution and punishment of offences; (ii) to comply with an obligation imposed by law or to enforce legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997); (iii) for the conduct of proceedings in any court or tribunal that have been commenced or are reasonably contemplated; or (iv) in the interests of national security; (d) compliance would prejudice a lawful purpose of the collection; (e) compliance is not reasonably practicable in the circumstances of the particular case; or (f) the information will— (i) not be used in a form in which the data subject may be identified; or (ii) be used for historical, statistical or research purposes.
See Protection of Personal Information Act 4 of 2013, s. 18(3)–(4); Government Gazette 37067, 26 November 2013; retrieved 13 October 2026.
POPIA section 72(1) permits transfers to a third party in a foreign country only on the listed grounds.
72. (1) A responsible party in the Republic may not transfer personal information about a data subject to a third party who is in a foreign country unless— (a) the third party who is the recipient of the information is subject to a law, 45 binding corporate rules or binding agreement which provide an adequate level of protection that— (i) effectively upholds principles for reasonable processing of the information that are substantially similar to the conditions for the lawful processing of personal information relating to a data subject who is a 50 natural person and, where applicable, a juristic person; and No. 37067 GOVERNMENT GAZETTE, 26 November 2013 Act No. 4 of 2013 78 Protection of Personal Information Act, 2013 78 (ii) includes provisions, that are substantially similar to this section, relating to the further transfer of personal information from the recipient to third parties who are in a foreign country; (b) the data subject consents to the transfer; (c) the transfer is necessary for the performance of a contract between the data 5 subject and the responsible party, or for the implementation of pre-contractual measures taken in response to the data subject’s request; (d) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the responsible party and 10 a third party; or (e) the transfer is for the benefit of the data subject, and— (i) it is not reasonably practicable to obtain the consent of the data subject to that transfer; and (ii) if it were reasonably practicable to obtain such consent, the data subject 15 would be likely to give it.
See Protection of Personal Information Act 4 of 2013, s. 72(1); Government Gazette 37067, 26 November 2013; retrieved 13 October 2026. The quote preserves the Gazette page header that the text layer places inside the subsection.
POPIA section 26 prohibits processing special personal information, subject to section 27.
26. A responsible party may, subject to section 27, not process personal information 20 concerning— (a) the religious or philosophical beliefs, race or ethnic origin, trade union membership, political persuasion, health or sex life or biometric information of a data subject; or (b) the criminal behaviour of a data subject to the extent that such information 25 relates to— (i) the alleged commission by a data subject of any offence; or (ii) any proceedings in respect of any offence allegedly committed by a data subject or the disposal of such proceedings.
See Protection of Personal Information Act 4 of 2013, s. 26; Government Gazette 37067, 26 November 2013; retrieved 13 October 2026.
POPIA section 27(1) lists general authorisations, including consent and processing necessary for a right or obligation in law.
27. (1) The prohibition on processing personal information, as referred to in section 26, does not apply if the— (a) processing is carried out with the consent of a data subject referred to in section 26; (b) processing is necessary for the establishment, exercise or defence of a right or obligation in law; (c) processing is necessary to comply with an obligation of international public law; (d) processing is for historical, statistical or research purposes to the extent that— (i) the purpose serves a public interest and the processing is necessary for the purpose concerned; or (ii) it appears to be impossible or would involve a disproportionate effort to ask for consent, and sufficient guarantees are provided for to ensure that the processing does not adversely affect the individual privacy of the data subject to a disproportionate extent; (e) information has deliberately been made public by the data subject; or (f) provisions of sections 28 to 33 are, as the case may be, complied with.
See Protection of Personal Information Act 4 of 2013, s. 27(1); Government Gazette 37067, 26 November 2013; retrieved 13 October 2026.
POPIA section 21(1) requires a written contract under which the operator maintains the section 19 security measures.
21. (1) A responsible party must, in terms of a written contract between the 10 responsible party and the operator, ensure that the operator which processes personal information for the responsible party establishes and maintains the security measures referred to in section 19.
See Protection of Personal Information Act 4 of 2013, s. 21(1); Government Gazette 37067, 26 November 2013; retrieved 13 October 2026.
POPIA section 57(1)(d) requires prior authorisation from the Regulator before transferring special personal information or children’s information to a foreign country without adequate protection; section 57(3) disapplies this where a sector code of conduct is in force, and section 57(4) requires authorisation only once for unchanged processing.
57. (1) The responsible party must obtain prior authorisation from the Regulator, in terms of section 58, prior to any processing if that responsible party plans to— (a) process any unique identifiers of data subjects— (i) for a purpose other than the one for which the identifier was specifically intended at collection; and (ii) with the aim of linking the information together with information processed by other responsible parties; (b) process information on criminal behaviour or on unlawful or objectionable conduct on behalf of third parties; (c) process information for the purposes of credit reporting; or (d) transfer special personal information, as referred to in section 26, or the personal information of children as referred to in section 34, to a third party in a foreign country that does not provide an adequate level of protection for the processing of personal information as referred to in section 72. (2) The provisions of subsection (1) may be applied by the Regulator to other types of information processing by law or regulation if such processing carries a particular risk for the legitimate interests of the data subject. (3) This section and section 58 are not applicable if a code of conduct has been issued and has come into force in terms of Chapter 7 in a specific sector or sectors of society. (4) A responsible party must obtain prior authorisation as referred to in subsection (1) only once and not each time that personal information is received or processed, except where the processing departs from that which has been authorised in accordance with the provisions of subsection (1).
See Protection of Personal Information Act 4 of 2013, s. 57(1)–(4); Government Gazette 37067, 26 November 2013; retrieved 13 October 2026.
Webber Wentzel reads POPIA as applying to employment records across the full life cycle of the employment relationship.
From an employment perspective, POPIA applies to: - information such as identity numbers, contact details, employment history, psychometric assessment results, references, qualifications, disciplinary records, union membership, grievances, health and biometric information; and - the full life cycle of the employment relationship - from recruitment to post termination and continues to apply for five years after the relationship has ended (and still applies where the employer is approached as a reference).
See Webber Wentzel, POPIA: what employers need to know, undated web page published around POPIA commencement in 2020; retrieved 13 October 2026.
CMS South Africa recommends a data protection agreement to comply with section 72 unless another section 72 ground applies.
Our recommended approach to mitigate this uncertainty and comply with section 72 of POPIA is to conclude a data protection agreement where it is not onerous to do so, unless other grounds in section 72 apply to the specific data transfer situation.
See CMS South Africa, Managing cross border data transfers, undated web page; retrieved 13 October 2026.
CMS South Africa reads the contract-performance ground as able to cover transfers needed to give effect to an employment contract, such as a secondment.
Interests of the data subject: The transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the responsible party and a third party. This could, for example, become relevant in relation to an employment contract. In order to give effect to an employment contract where an employee is being seconded to an office in another country, the cross-border transfer of that employee’s personal information will be necessary and in the interest of the employee.
See CMS South Africa, Managing cross border data transfers, undated web page; retrieved 13 October 2026.
When do South African employment equity duties apply to a growing company?
Every South African employer is bound by the prohibition on unfair discrimination in employment policy and practice, but affirmative action duties bind only designated employers, which for a private employer since 1 January 2025 means 50 or more employees or designation by collective agreement to the extent it provides.
Before the 2022 amendment took effect, an employer with fewer than 50 employees could still be designated by turnover; the amendment deleted that limb, so a private employer with fewer than 50 employees is designated only if, and to the extent that, a collective agreement makes it one. The Department of Employment and Labour announced that employers with fewer than 50 employees are no longer bound by Chapter III, including the reporting duty, from the 2025 reporting period.
A designated employer’s numerical goals must comply with any sectoral target the Minister sets for its sector under section 15A.
Two rules reach every employer from the first hire. The prohibition on unfair discrimination, as amended in 2013, applies on the listed grounds or on any other arbitrary ground, and the listed grounds include race, gender, sex, pregnancy, family responsibility, age, disability, religion, HIV status and culture. Medical testing of an employee is prohibited unless legislation permits or requires it or it is justifiable on the listed grounds, and testing of an employee’s HIV status is prohibited unless the Labour Court determines it justifiable.
Sources for this answer
Employment Equity Act section 6(1) prohibits unfair discrimination against an employee in any employment policy or practice on listed grounds.
6. (I) No person may unfairly discriminate, directly or indirectly, against an employee. in any employment policy or practice. on one or more grounds. including race. gender. sex. pregnancy. marital status. family responsibility, ethnic or social origin, 15 colour. sexual orientation. age, disability, religion, HIV status, conscience, belief. political opinion, culture. language and birth.
See Employment Equity Act 55 of 1998, s. 6(1), original Gazette 19370; retrieved 13 October 2026. Later amendments added an arbitrary-ground limb; the listed grounds quoted remain.
The 2013 amendment substitutes Employment Equity Act section 6(1) so that unfair discrimination is prohibited on the listed grounds or on any other arbitrary ground.
3. Section 6 of the principal Act is hereby amended— (a) by the substitution for subsection (1) of the following subsection: ‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or 35 more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, [and] birth or on any other arbitrary ground.’’; and
See Employment Equity Amendment Act 47 of 2013, s. 3(a); retrieved 13 October 2026. Words in square brackets are deletions shown in the amending Act.
Employment Equity Act section 12 applies Chapter III, on affirmative action, only to designated employers.
12. Except where otherwise provided, this Chapter applies only to designated employers.
See Employment Equity Act 55 of 1998, s. 12, original Gazette 19370; retrieved 13 October 2026.
The original definition of designated employer covered employers with 50 or more employees, smaller employers above a turnover threshold in paragraph (b), municipalities, organs of state and employers designated by collective agreement.
"designated employer" means(aJ an employer who employs 50 or more employees; ( b) an employer who employs fewer that 50 employees, but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 to this Act; ( c) a municipality, as referred to in Chapter 7 of the Constitution; ( d) an organ of state as defined in section 239 of the Constitution, but excluding local spheres of government, the National Defence Force, the National Intelligence Agency and the South African Secret Service; and ( e) an employer bound by a collective agreement in terms of section 23 or 31 of the Labour Relations Act, which appoints it as a designated employer in terms of this Act, to the extent provided for in the agreement;
See Employment Equity Act 55 of 1998, s. 1, definition of designated employer, original Gazette 19370; retrieved 13 October 2026. Act 47 of 2013, from 1 August 2014, removed local spheres of government from the paragraph (d) exclusions; paragraph (b), the turnover limb, was deleted by Act 4 of 2022 from 1 January 2025.
The Employment Equity Amendment Act deletes the turnover limb, paragraph (b), of the definition of designated employer.
1. Section 1 of the Employment Equity Act, 1998 (Act No. 55 of 1998) (hereinafter referred to as the principal Act), is hereby amended— (a) by the deletion of paragraph (b) of the definition of ‘‘designated employer’’; (b) by the insertion, after the definition of ‘‘Minister’’, of the following definition: ‘‘ ‘National Minimum Wage Commission’ means the Commission 10 established in terms of section 8 of the National Minimum Wage Act, 2018 (Act No. 9 of 2018);’’; (c) by the substitution for the definition of ‘‘people with disabilities’’ of the following definition: ‘‘ ‘people with disabilities’ [means] includes people who have a 15 long-term or recurring physical [or], mental, intellectual or sensory impairment which, in interaction with various barriers, may substantially [limits] limit their prospects of entry into, or advancement in, employment, and ‘persons with disabilities’ has a corresponding meaning;’’;
See Employment Equity Amendment Act 4 of 2022, s. 1(a); Government Gazette 48418, 14 April 2023; retrieved 13 October 2026.
The Department of Employment and Labour states that the Employment Equity Amendment Act comes into effect on 1 January 2025 and that employers with fewer than 50 employees are no longer bound by Chapter III from the 2025 reporting period.
The Minister of the Department of Employment and Labour, Ms. Nomakhosazana Meth, is pleased to announce that the Employment Equity Amendment Act, aimed at reducing the regulatory burden for small employers to allow them to focus on job creation, will come into effect on 1 January 2025. President Cyril Ramaphosa signed the proclamation notice giving effect to the start date of implementation of the Employment Equity (EE) Amendment Act, No. 4 of 2022. In terms of the notice gazetted on 28 November 2024, small businesses that employ less than 50 employees are no longer bound to comply with Chapter III of the Employment Equity Act, 1998 (EEA) for example, in relation to the submission of their EE reports starting from 2025 EE Reporting period.
See Department of Employment and Labour media statement on the commencement of the Employment Equity Amendment Act on 1 January 2025; retrieved 13 October 2026.
Employment Equity Act section 15A lets the Minister identify economic sectors and set numerical targets for them.
15A. (1) The Minister may, by notice in the Gazette, identify national economic sectors for the purposes of this Act, having regard to any relevant code contained in the Standard Industrial Classification of all Economic Activities published by Statistics South Africa. (2) The Minister may, after consulting the relevant sectors and with the advice of the Commission, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, by notice in the Gazette set numerical targets for any national economic sector identified in terms of subsection (1).
See Employment Equity Amendment Act 4 of 2022, s. 4, inserting Employment Equity Act 55 of 1998, s. 15A(1)–(2); Government Gazette 48418, 14 April 2023; retrieved 13 October 2026.
Employment Equity Act section 20(2A) requires a designated employer’s numerical goals to comply with any applicable sectoral target.
‘‘(2A) The numerical goals set by an employer in terms of subsection (2) must comply with any sectoral target in terms of section 15A that applies to that employer.’’.
See Employment Equity Amendment Act 4 of 2022, s. 6, inserting Employment Equity Act 55 of 1998, s. 20(2A); Government Gazette 48418, 14 April 2023; retrieved 13 October 2026.
Employment Equity Act section 7 prohibits medical testing of an employee unless legislation permits or requires it or it is justifiable on listed grounds, and prohibits HIV testing unless the Labour Court determines it justifiable.
7. (I) Medical testing of an employee is prohibited, unless25 (a) legislation permits or requires the testing; or (h) it is justifiable in the light of medical facts, employment conditions, social policy. the fair distribution of employee benefits or the inherent requirements of a job. (2) Testing of an employee to determine that employee's HIV status is prohibited 30 unless such testing is determined to be justifiable by the Labour Court in terms of section 50( 4) of this Act.
See Employment Equity Act 55 of 1998, s. 7(1)–(2), original Gazette 19370; retrieved 13 October 2026.
Can a South African company hire a foreign national?
A South African company may hire a foreign national only if the person’s immigration status authorises employment by that company on the terms offered, and the employer must make a good faith effort to ascertain that status.
The main routes for skilled hires are the general work visa and the critical skills work visa, both assessed under the 2024 points-based system: an applicant must meet the other prescribed requirements and earn 100 points, and an occupation on the critical skills list alone supplies 100 points. Without a listed occupation, an applicant can reach 100 points through a combination of the other criteria, which cover qualifications, a mandatory offer of employment banded by salary, work experience, an employment offer from a Trusted Employer and language skills, and may then be issued with a general work visa. Commentary reports the same structure. Commentary also notes that a remote work visitor’s visa does not allow its holder to take up employment in South Africa, and that employers accredited under the Trusted Employer Scheme can use an accelerated visa process.
A fixed term tied to a non-citizen’s time-limited work permit is a recognised justification for a fixed-term contract, which matters for lower earners covered by the fixed-term rules.
Sources for this answer
Immigration Act section 38(1)–(2) prohibits employing a foreigner whose status does not authorise the employment and requires a good faith effort to ascertain status.
38. ( 1 ) No person shall employ(a) an illegal foreigner; ( b ) ajoreigner whose status does not authorise him or herto be employed by such 20 person; or ( c ) aforeigner on terms.conditions or in a capacitydifferentfromthose contemplated in suchforeigner’s status. ( 2 ) An employer shall makea good faith efforto ascertain thatno illegal foreigner is employed by him or her or to ascertain the status or citizenship of those whom he or she 25 employs.
See Immigration Act 13 of 2002, s. 38(1)–(2), original Gazette text; retrieved 13 October 2026. The text layer runs some words together; the quote preserves that rendering.
The 2024 points-based system notice’s table awards 100 points to an occupation on the critical skills list and sets points for qualifications, a mandatory offer of employment banded by salary, work experience of 5 to 10 years and of 10 or more years, and an employment offer from a Trusted Employer.
I, Dr L.A. Schreiber, MP, Minister of Home Affairs, have, in terms of sections 19(2) and (4) of the Immigration Act, 2002 (Act No. 13 of 2002), read together with regulation 18(12) and (13) of the Immigration Regulations, 2014, and after consultation with the Immigration Advisory Board, determined the points-based system, applicable to general work visas and critical skills work visas as follows: Criteria Points Points (%) (%) Occupation: Occupation on critical skills list 100 Qualifications: NQF levels 9 and 10 50 NQF levels 7 30 and 8 Offer of Above R976,194 gross per annum 50 Between employment R650,976 and (Mandatory): R976,194 20 gross per annum Work experience: 5 – 10 years 20 Employment Offer from Trusted Employer 30 10+ years status: This gazette is also available free online at www.gpwonline.co.za 30
See Government Notice 5448 of 2024, Government Gazette 51416, 18 October 2024, points table; retrieved 13 October 2026. The text layer interleaves the table’s columns and places one score after the page footer; the quote runs through that score and preserves the rendering.
The 2024 points-based system notice lists language skills as a criterion, requires an applicant for a general or critical skills work visa to meet the other prescribed requirements and earn 100 points, and provides for a critical skills work visa when a listed occupation supplies the threshold and a general work visa when a combination of other points does.
Language skills: Proficient in at least one official No. 51416 5 10 language NB: An applicant must meet all other prescribed requirements (for example, police clearance, medical report, etc.) for a critical skills work visa or general work visa, and must earn 100 points to obtain a visa. If the 100-point threshold is reached through an occupation contained on the critical skills list, and provided all other prescribed requirements are met, the applicant may be issued with a critical skills work visa. If the 100-point threshold is reached through a combination of points other than through an occupation contained on the critical skills list, and provided all other prescribed requirements are met, the applicant may be issued with a general work visa.
See Government Notice 5448 of 2024, Government Gazette 51416, 18 October 2024; retrieved 13 October 2026. The quote starts at the table’s final row, which the text layer renders across a page break.
Webber Wentzel reports that the points-based system applies to general work visas and critical skills work visas.
The new point-based system will now apply to General Work Visas as well as Critical Skills Work Visas in terms of section 19(2) and section 19(4) of the Immigration Act respectively.
See Webber Wentzel, Latest developments in South African immigration, undated web page published November 2024; retrieved 13 October 2026.
Webber Wentzel reports that a general or critical skills work visa requires 100 points, and that an occupation on the critical skills list reaches 100 points.
To get a General Work Visa or a Critical Skills Work Visa, a foreign national must score 100 points and meet all other prescribed requirements for such a work visa set out in the Immigration Regulations. If the foreign national reaches 100 points because their occupation is listed on the Critical Skills List and they meet all other prescribed requirements, then the foreign national may be issued with a Critical Skills Work Visa.
See Webber Wentzel, Latest developments in South African immigration, undated web page published November 2024; retrieved 13 October 2026.
Webber Wentzel reports that a remote work visitor’s visa holder may not take up employment in South Africa.
A foreign national who holds a Remote Work visitor's visa is not allowed to take up employment in South Africa, and cannot change their visa status while in South Africa, unless the exceptional circumstances set out in the Immigration Regulations apply.
See Webber Wentzel, Latest developments in South African immigration, undated web page published November 2024; retrieved 13 October 2026.
Baker McKenzie describes the Trusted Employer Scheme as giving qualifying employers a streamlined, accelerated visa process.
Launched in October 2023, the Trusted Employer Scheme (TES), allows employers meeting specific criteria to recruit foreign workers through a streamlined, accelerated visa process.
See Baker McKenzie, South Africa: Trusted Employer Scheme reminder, client alert, October 2025; retrieved 13 October 2026.
Labour Relations Act section 198B(4)(e) treats employment of a non-citizen granted a work permit for a defined period as justifying a fixed-term contract.
(4) Without limiting the generality of subsection (3), the conclusion of a fixed term contract will be justified if the employee— (a) is replacing another employee who is temporarily absent from work; (b) is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months; (c) is a student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job or profession; (d) is employed to work exclusively on a specific project that has a limited or defined duration; (e) is a non-citizen who has been granted a work permit for a defined period; (f) is employed to perform seasonal work; (g) is employed for the purpose of an official public works scheme or similar public job creation scheme; (h) is employed in a position which is funded by an external source for a limited period; or (i) has reached the normal or agreed retirement age applicable in the employer’s business.
See Labour Relations Amendment Act 6 of 2014, s. 38, inserting Labour Relations Act 66 of 1995, s. 198B(4); Government Gazette 37921, 18 August 2014; retrieved 13 October 2026.