Court finds company’s foreign language requirement discriminated vs South Africans

The Western Cape High Court ruled earlier this year that a remittance company – sending cash to African countries predominantly – discriminated against South Africans by requiring job applicants to speak Zimbabwe and Malawi’s indigenous languages. Mukuru Financial Services applied to the Employment and Labour Department for certification proving it had tried to find suitable South African candidates before employing foreign nationals in its call centre. That certification was rejected on the basis that the Grade 12 skills requirement was available and that the foreign language requirement was discriminatory. BizNews spoke to Webber Wentzel’s Nivaani Moodley for more on the case. – Michael Appel

Nivaani Moodley on the Western Cape High Court ruling that South Africans cannot be excluded from employment opportunities in favour of foreign nationals

The companies in this particular case applied for corporate visas in terms of Section 21 of the Immigration Act to enable them to employ foreign nationals. Now, in its application for corporate visas to the Department of Home Affairs, the company was required to attach a certificate from the Department of Employment and Labour confirming that despite a diligent search, it was unable to find suitably qualified South African citizens or permanent residents to occupy the available positions. The company alleged that it had been unable to find suitably qualified South Africans who were fluent in the indigenous languages of Zimbabwe and Malawi and other relevant languages, which was a requirement for the company. Despite this allegation, the Department of Employment and Labour had rejected the applications for the necessary certificate on the basis that the skills were available in South Africa and that the foreign language requirement was discriminatory to South Africans.

On whether the judgment places the onus on companies in SA – local or foreign – to give preference to South Africans

The Department of Labour obviously opposed the application and in court, their argument was that the transactions were money transfers which were done electronically and so the use of foreign languages was maybe supplementary to the service, and not an actual requirement. Secondly, only appointing foreign nationals based on language requirements was detrimental to South African citizens and permanent residents. And among other things, that the language requirement was discriminatory and that there was no operational reason provided to indicate that it was an essential requirement of the company’s provision of services. Now this judgment serves as an important warning to local and foreign employers that although it might be very attractive and important for their businesses to employ foreign nationals, they must be mindful of their obligations towards South Africans and permanent residents and that there is a careful balance.

On whether the applicant failed to comply with the requirements for corporate visas

Perhaps the starting point is to acknowledge that South Africans were not necessarily ill-equipped for the positions because they were South African. A more appropriate line of enquiry was whether applicants of any nationality met the language requirements and the company was unable to demonstrate this difference in their hiring practices. So it’s not so much that the judge disagreed with this, but more so that the applicant failed to comply with the requirements for corporate visas in terms of the immigration regulations, as well as the applicant failing to justify the operational need for foreign nationals in their employ, especially where the only job requirement was a grade 12 or equivalent qualification.

On whether this is a unique case 

In terms of this type of law, and especially with employment law and the immigration aspects, each case is bespoke. So you’d have to look at it on an individual basis. And each application to the Department of Home Affairs or Department of Employment and Labour would be specific for your business or a particular business. So there’s no one size fits all, basically.

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