Brief Summary

Immigration — Corporate visa — Application for condonation for late filing of review — Applicants sought to employ foreign nationals based on language requirements — Respondent rejected application, citing availability of local skills and discriminatory language requirement — Court granted condonation, finding that the applicants had shown sufficient reason for the delay and that the language requirement was not essential for the provision of services, thus potentially discriminatory against South African citizens.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an opposed application in the Western Cape High Court for condonation for the late institution of review proceedings and for the review and setting aside of an administrative decision taken by the Department of Employment and Labour. The applicants were Mukuru Financial Services (Pty) Ltd and Mukuru Africa (Pty) Ltd, corporate entities within the Mukuru Group of Companies. The respondent was the Department of Employment and Labour.

The procedural context was that the applicants sought to apply to the Department of Home Affairs for corporate visas under the immigration framework. In order to pursue those visa applications, the applicable immigration regulations required the applicants to obtain and attach a certificate issued by the respondent confirming, among other things, that despite a diligent search the applicants were unable to find suitable South African citizens or permanent residents to occupy the relevant positions. The respondent refused to issue the certificates, prompting the review.

The dispute centred on whether the applicants’ insistence on employees being fluent in certain foreign indigenous languages (notably languages of Zimbabwe and Malawi, and other unspecified “relevant languages”) could lawfully render South African citizens and permanent residents unsuitable for the posts, and whether the respondent was entitled to refuse certification on the basis that the requirement was discriminatory and that the relevant skills were available locally.

Material Facts

The applicants operated remittance and related financial services using financial technology solutions, including mobile phone and web-based platforms, facilitating domestic and international money transfers. The second applicant, Mukuru Africa (Pty) Ltd, provided remittance services particularly for customers without bank accounts and operated through partnerships with retail outlets. The first applicant, Mukuru Financial Services (Pty) Ltd, provided ancillary services to those customers.

The applicants sought to fill a large number of positions, with the minimum academic requirement for all being Grade 12 (or equivalent). The first applicant’s certificate application related to sales and support consultants, controllers, and call centre team leaders. The second applicant’s application related to multiple customer-facing and operational roles, including customer service representatives and various supervisory and verification roles. The applicants contended that they required employees fluent in the indigenous languages of Zimbabwe, Malawi, and other relevant languages, asserting that this was necessary to service their customer base effectively in customers’ mother tongues, given the sensitivity of money transfers.

It was common cause that the respondent refused the certificate requests. The respondent’s stated basis for refusal was that the requisite skills were available in South Africa and that the foreign language requirement amounted to discrimination against local citizens.

In relation to delay, the certificate applications were submitted in May and June 2019. The respondent’s decision was communicated on 28 October 2019. Review proceedings were instituted only on or about 25 November 2020. The applicants attributed the delay principally to the Covid-19 national disaster, contending that during restrictions the corporate visa process became less pressing and that the review would have been moot while visa issuance and entry into the Republic were curtailed. The respondent disputed that explanation, emphasising the substantial period before March 2020 and the lack of supporting facts for alleged mootness.

The court accepted that the applicants’ clients included foreign language speakers and accepted that language preferences could be relevant to service delivery. However, the court treated as material that the applicants’ papers contained no substantive account of training or development initiatives aimed at enabling South African citizens to meet the identified language needs, despite the statutory policy connection between immigration and local training.

Legal Issues

The court was required to determine, first, whether condonation should be granted for the late institution of the review, given the statutory requirement that reviews be brought without delay and within 180 days of the impugned decision.

Secondly, on the merits of review, the court had to determine whether the respondent’s refusal to issue the Department of Labour certificate (required for a corporate visa application) was lawful. This required determining whether the applicants’ asserted need for foreign language proficiency, and their resulting preference for foreign nationals, could justify the exclusion of South African citizens and permanent residents from the available employment opportunities.

The dispute involved an application of constitutional and statutory norms (including equality and employment equity considerations) to the facts, particularly whether the applicants’ employment criteria amounted to unfair discrimination, and whether the applicants had discharged the burden to justify differential treatment once discrimination on protected grounds was alleged.

Court’s Reasoning

On condonation, the court exercised a discretionary assessment anchored in the interests of justice. While the respondent emphasised the length of the delay and the period preceding the national disaster, the court nonetheless granted condonation. The grant was coupled with an adverse costs order against the applicants in respect of the condonation application, reflecting that the lateness required indulgence.

On the substantive review, the court approached the matter within the architecture of the Immigration Act 13 of 2002 and the Immigration Regulations, 2014, particularly the requirement that a corporate visa application be accompanied by a certificate from the Department of Labour confirming that, despite diligent search, the employer could not find suitable citizens or permanent residents. The court located this framework within the Immigration Act’s stated policy objectives in its Preamble, including promoting economic growth through needed foreign labour while ensuring that the contribution of foreigners in the labour market does not adversely affect labour standards and the rights and expectations of South African workers, and maintaining a policy connection between the employment of foreigners and the training of South African citizens.

The court accepted, as a factual and operational matter, that the applicants could require staff who speak languages other than South Africa’s official languages, and that the applicants could legitimately take into account the language preferences of their clients. In that sense, the court accepted that foreign language capacity could be necessary to the applicants’ business health and could fall within the notion of “needed contributions” by foreigners contemplated in the immigration policy framework.

However, the court held that establishing a need for foreign language capability was not the end of the enquiry. Once the applicants’ approach involved preferring foreign nationals and excluding citizens and permanent residents on bases implicating race, ethnic or social origin, culture, language, and birth, the court treated this as engaging the constitutional prohibition on unfair discrimination and the statutory prohibition under the Employment Equity Act 55 of 1998. The court emphasised that where discrimination on these grounds is alleged, the employer bears a burden to show that the discrimination is fair, referring to the allocation of the burden in section 11 of the Employment Equity Act.

The court placed particular weight on the Immigration Act’s policy objective requiring a connection between employing foreigners and training local citizens. In the court’s analysis, corporate visa decision-making should consider not only the asserted need for foreign nationals but also the employer’s evidence regarding the training of South African citizens to meet that specific need. The judgment characterised the absence of any meaningful evidence of training initiatives as a decisive deficiency: the applicants’ papers did not set out strategies, programmes, or concrete measures directed at enabling South African citizens to acquire the language skills that the applicants claimed were central to their operations.

The court further reasoned that the posts in issue were essentially customer service and operational roles with a Grade 12 requirement, and that the applicants’ decision to make foreign language proficiency a prerequisite had the effect of excluding South Africans from ordinarily accessible work. The court was not persuaded that language competence was inherently beyond the reach of local citizens, particularly given the general role of English in South African commerce and the prospect that misunderstandings with non-English-speaking clients could be addressed through training rather than categorical exclusion. The court treated the foreign language requirement as a business and marketing preference that, even if commercially rational for a target market, did not justify exclusion in the absence of countervailing evidence of local training and development.

In light of the above, the court concluded that the applicants’ conduct amounted to unfair exclusion of South African citizens in favour of foreign nationals, constituting unfair discrimination on protected grounds. Because the applicants did not place evidence before the court demonstrating measures to mitigate the adverse impact on South African workers—particularly through training pathways—the applicants failed to establish that the discrimination was fair. The respondent’s refusal to issue the requested certificates was therefore not shown to be reviewable on the grounds advanced.

Outcome and Relief

The court granted condonation for the late filing of the review application in the interests of justice, but ordered that the applicants pay the costs of the condonation application.

On the merits, the court dismissed the application to review and set aside the respondent’s decision refusing to issue the certificates. The dismissal was accompanied by an order that the review application was dismissed with costs.

Cases Cited

No reported South African case law was cited in the judgment.

Legislation Cited

The Constitution of the Republic of South Africa, 1996, including section 6(1) and section 9(4).

The Immigration Act 13 of 2002, including section 21 and the Preamble.

The Immigration Regulations, 2014, promulgated under the Immigration Act 13 of 2002, including regulation 20(1)(b).

The Employment Equity Act 55 of 1998, including sections 2, 6, and 11.

The Basic Conditions of Employment Act 75 of 1997.

Rules of Court Cited

The Uniform Rules of Court, Rule 53(1).

Held

The court held that condonation for the late institution of the review should be granted in the interests of justice, but that the applicants should bear the costs occasioned by the delay.

On the review, the court held that although foreign language capability could be relevant to the applicants’ service model, the applicants failed to justify excluding South African citizens and permanent residents from employment opportunities based on language and related grounds. The court found that the applicants had not produced a portfolio of evidence demonstrating strategies or programmes to train South African citizens to meet the asserted language needs, as contemplated by the policy framework of the Immigration Act and in light of employment equity obligations. The respondent’s refusal to issue the certificates was therefore not set aside, and the review was dismissed with costs.

LEGAL PRINCIPLES

The judgment applied the principle that corporate visa processes requiring a Department of Labour certificate must be understood within the Immigration Act’s broader policy objectives, including the balancing of access to needed foreign labour with the protection of the rights and expectations of South African workers and the maintenance of a policy connection between employing foreigners and training South African citizens.

The judgment applied constitutional and statutory equality norms to employment-related criteria connected to immigration applications. Where an employer’s selection criteria differentiate on grounds implicating race, ethnic or social origin, culture, language, or birth, and where unfair discrimination is alleged, the employer bears an evidentiary burden to establish that the discrimination is fair, consistent with section 11 of the Employment Equity Act as invoked in the judgment.

The judgment applied the principle that an asserted operational preference for serving clients in their mother tongues does not, without more, justify employment criteria that categorically exclude South African citizens and permanent residents from accessible positions, particularly where the employer provides no evidence of reasonable measures (such as training and development) aimed at enabling citizens to meet the identified requirements.

Mukuru Financial Services (Pty) Ltd and Another v Department of Employment and Labour (17474/20) [2022] ZAWCHC 272 (18 February 2022)