With the deepening of globalization, when enterprises expand their business in multiple countries, cross-border labor compliance has become one of the most complex and severe challenges. To help enterprises systematically address this issue, we have collaborated with top labor lawyers from over 50 major jurisdictions worldwide (all recommended by Chambers, The Legal 500, or equivalent institutions) to jointly compile a Chinese-English labor & employment compliance guide exceeding 1 million words, and we will continuously update relevant key points.

This article publishes the key points of labor & employment compliance by September 2025 in South Africa.

01 Overview of the Labor Law System

1.Legal System

Given South Africa’s historical legacy, the legal system is a hybrid of Roman-Dutch civil law, English common law, and customary law.

2.Resources and Agencies

Enforcement of labour laws in South Africa is led by the Department of Employment and Labour. The Commission for Conciliation, Mediation and Arbitration (CCMA) and sector based Bargaining Councils provide accessible dispute resolution through conciliation and arbitration. For matters where the CCMA does not have jurisdiction or to review decisions of the CCMA, the Labour Court is the adjudication forum and the Labour Appeal Court for taking matters on appeal. The Constitutional Court is the final and highest Court of adjudication and hearing.

02 Employment Qualifications and Classification

1.Employment Age

South African employment law sets the minimum working age at 15, as per the Basic Conditions of Employment Act (BCEA), with restrictions on hazardous work for those under 18 in line with international standards. In the private sector, there is no fixed statutory retirement age. Instead, the retirement age is typically determined by the terms of the employment contract, internal company policies, or the rules of a provident /pension fund scheme, usually falling between 60 and 65. Employees may continue working beyond the stated retirement age if both the employer and employee agree.

2.Qualifications for Employment

Foreign businesses seeking to hire locally in South Africa cannot do so without establishing a legal presence in the country, in other word registering with the CIPC. This typically involves registering a local entity such as a Pty Ltd, appointing local directors, opening a South African bank account, and registering with the South African Revenue Service (SARS).

3.Classification of Employment

In South Africa, employment relationships fall into multiple legal categories, each with specific rights and obligations. Common types include permanent, fixed-term, part-time, temporary employment services (TES), and independent contractors.

4.Foreign Workers

In South Africa, the employment of foreign nationals is governed by both immigration and labour laws, ensuring fair treatment and legal compliance. Employers may only hire foreign nationals who hold a valid work visa issued by the Department of Home Affairs.

03 Recruitment and Employment Contracts

1.Background Examination

Employers are allowed to conduct background checks on job applicants, but these checks must comply with labour, privacy, and anti-discrimination laws. There are no outright prohibitions, but checks must be lawful, relevant to the job, and conducted fairly. Employers can perform these checks directly or through registered third-party agencies, which must be compliant with the Employment Services Act. However, using a third party does not absolve the employer of responsibility for any unlawful practices.

2.Contract Types

The most common types of employment contracts include permanent (indefinite-term) contracts, fixed-term contracts, part-time contracts, and temporary employment service (TES) or labour broker placements. Each of these contract types has distinct legal implications and is suited to specific employment scenarios.

3.Probationary Period

There is no fixed maximum duration for probation periods. However, the length must be reasonable in relation to the nature of the job and the time required to assess performance effectively and must not be used to deny permanent employment unfairly. For example, repeated probation periods are discouraged and may be viewed as an attempt to avoid granting permanent employment.

04 Working Standards

1.Remuneration and Statutory Benefits

The definitions of wages and remuneration can be found in the BCEA and the related published schedule. The term remuneration is wider than wages, and includes, for instance, payments in kind such as accommodation. Some payments (such as annual leave and severance pay) must be calculated by reference to remuneration, while sick leave is paid based on wages only. Remuneration may be accrued based on fluctuating structures, e.g. commission.

2.Social Security and Employment Taxes

Statutory employee benefits and social security contributions are governed by a combination of national legislation and sector-specific regulations. The country’s social security system is structured around three pillars: non-contributory, contributory ,and private voluntary schemes. These benefits aim to provide financial protection for employees in cases of unemployment, illness, injury, retirement, and other life events.

3.Working Hours

Statutory working hours and overtime regulations are governed by the Basic Conditions of Employment Act (BCEA), which aims to ensure fair labor practices and protect employee well-being. For employees earning below the threshold, the standard working hours system allows for a maximum of 45 hours per week, with no more than 9 hours per day for employees working a five-day week, and 8 hours per day for those working more than five days per week.

4.Rest and Leave

Statutory rest and leave entitlements are governed by the Basic Conditions of Employment Act. Employees are entitled to a minimum number of paid annual leave days. The minimum period of paid annual leave is 21 consecutive days on full remuneration for each annual leave cycle, or by agreement it can be accrued based on one day’s annual leave accrued for every 17 days.

05 Occupational Health and Special Protection

1.Occupational Health and Security

Workplace health and safety is governed by the Occupational Health and Safety Act (OHSA), which mandates that employers provide, as far as reasonably practicable a working environment that is safe and without risk to the health of its employees.

2.Special Protection

The Employment Equity Act expressly prohibits unfair discrimination while imposing a duty on employers to eradicate it in the workplace. Discrimination is unfair when it occurs on one or more protected grounds.

06 Personal Information and Privacy

1.General Rules

The Protection of Personal Information Act  (POPI) places several obligations on employers in the management of personal and special personal information collected from employees, in an endeavour to balance the right of employers to conduct business with the rights of employees to privacy.

07 Anti-Discrimination and Anti-Harassment

1.General Rules

The Code of Good Practice on the Prevention and Elimination of Harassment (2022), issued under the Employment Equity Act, addresses workplace harassment as any unwanted conduct that undermines dignity or creates an intimidating, hostile, or offensive environment. The Code underscores that racial harassment constitutes unfair discrimination and requires employers to implement mechanisms to prevent and eliminate it.

2.Protective Characters

The Employment Equity Act prohibits both direct and indirect discrimination on the following grounds:

• Race

• Gender

• Sex

• Pregnancy

• Marital status

• Family responsibility

• Ethnic or social origin

• Color

• Sexual orientation

• Age

• Disability

• Religion

• HIV status

• Conscience

• Belief

• Political opinion

• Culture

• Language

• Birth

• Any other arbitrary ground that may impair human dignity or adversely affect the individual in a comparable way.

08 Internal Policies

1.Applicability

Internal policies typically cover areas such as disciplinary procedures, grievance handling, leave, performance management, workplace conduct, and health and safety standards. These policies are not just administrative guidelines, instead they form part of the broader employment framework and are often referenced in employment contracts.

2.Validity

Internal employment policies are a part of workplace governance, but their validity and enforceability depend on how they are introduced and whether they materially affect employees’ terms and conditions of employment. Employers are generally allowed to implement policies unilaterally if they are non-contractual, such as codes of conduct or dress codes, but must follow consultation procedures when policies impact core employment terms like remuneration, working hours, or leave.

3.Whistleblowing

South Africa’s whistleblowing framework is governed primarily by the Protected Disclosures Act  (PDA). It provides legal protection to employees in both the public and private sectors who disclose information about workplace impropriety. 

09 Transactions

1.Employment Relationship

In terms of section 197 of the Labour Relations Act  (LRA), when a business is transferred as a going concern, the effect is that employees of that business automatically become employed by the new owner of the business, on terms which are on the whole not less favourable, without the need for new contracts of employment between the employees and the new owner.

2.Compensation

As the employment relationship remains intact, there is no legal basis for severance pay or additional compensation unless the employee is retrenched post-transfer, their terms are materially worsened without consent, or the transfer results in termination.

10 Termination of Employment

1.Termination Grounds

Dismissals must be both substantively and procedurally fair, as required by the Labour Relations Act (LRA). Employers may not dismiss employees arbitrarily or without cause. A dismissal is only lawful if it is based on a fair reason and follows a fair procedure.

2.Termination Procedure

Termination of employment is primarily governed by the BCEA and the LRA. These statutes set out the requirements for dismissal, including notice periods, payment in lieu of notice, and exceptions such as summary dismissal or retrenchment.

3.Termination Protection

The right to severance pay is governed by the BCEA and applies specifically to dismissals due to operational requirements, such as retrenchments. Employees dismissed for misconduct, incapacity, or who resign voluntarily are not entitled to severance pay unless a contractual or negotiated agreement provides otherwise.

4.Wrongful Termination

Under South African labour law, wrongful termination, which is referred to as unfair dismissal, can expose employers to legal challenges that could result in compensation and/or reinstatement. The LRA provides a structured framework for remedies, with reinstatement being the primary remedy.

5.Mass termination and Layoffs

South African labour law provides a detailed framework for mass terminations, commonly referred to as retrenchments, under Sections 189 and 189A of the LRA. These provisions apply when employees are dismissed due to operational requirements, which include economic, technological, structural, or similar business needs.

11 Confidentiality, Non-Compete, and Non-Solicitation

1.Confidentiality

Confidentiality agreements are not mandatory for all employees but are commonly used in roles where individuals have access to sensitive or proprietary information. These agreements are typically embedded in employment contracts or signed as standalone documents and are enforceable under South African law, provided they are reasonable and do not infringe constitutional rights. Ordinarily employees are required to act in the best interests of the employer.

2.Non-Compete and Non-Solicitation

Non-compete and non-solicitation clauses are legal and enforceable, provided they meet specific criteria of reasonableness and public policy compliance. These clauses are commonly included in employment contracts to protect an employer’s proprietary interests, such as trade secrets, client relationships, and confidential business information.

12 Work Representation and Trade Unions

The LRA regulates the establishment and functions of trade unions and workplace forums. In addition, it provides for the role of trade unions and workplace forums as bodies which engage in collective bargaining with employers on behalf of employees to advocate for the interests of employees through applying for organisational rights, negotiating collective agreements, and representing employees in industrial action.

13 Dispute Resolution

1.Procedures & Enforcement

Resolution of labour disputes is governed by the LRA, which establishes a structured process involving the CCMA and the Labour Court.

2.Waiver & Enforcement

Employees generally cannot waive their statutory rights, particularly those protected under the LRA and BCEA. Any agreement that attempts to contract out of these protections is likely to be unenforceable if it undermines public policy or constitutional rights, such as the right to fair labour practices under Section 23 of the Constitution.

14 Others

1.Cultural and Religious Considerations

Most South Africans are Christian, with Sundays and Christian holidays widely observed. Minority faiths such as Islam, Hinduism, and Judaism are present, and employers should be sensitive to prayer times, dietary needs, and religious festivals. Inclusive leave and workplace policies help avoid conflict and demonstrate respect.

* To avoid ambiguity, this article should not be regarded as legal advice.

Authors

Aadil Patel is a Director and the National Practice Head of the Employment Law Department at Cliffe Dekker Hofmeyr. Aadil has represented and advised significant companies in various sectors including government and state-owned entities, the motor vehicle industry, the banking and finance sector, and the mining sector, among others.

Dr Nadeem Mahomed is a Director at Cliffe Dekker Hofmeyr in the Employment Law Department. Prior to that, Nadeem worked in the employment law department at a corporate law firm and consulted independently in the area of employment law. 

Translator

Zhou Hao, Master of Laws, Associate at Anli Partners. Areas of expertise: Labor Law, Dispute Resolution, ESG Compliance.