IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case no: JS 560/23

In the matter between:
NTHA BELENG ANNA KOLOBI Applicant

and
SIBANYE GOLD EASTERN OPERA TIONS (LTD) Respondent
Heard: 05-06 May 2025
Heads of Argument : 08 May 2025
Delivered: 27 May 2025


JUDGMENT


MABASO, AJ Introduction

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[1] The Applicant has instituted a claim of unfair discrimination against the
Respondent, asserting that the discrimination is based on an arbitrary ground in accordance with section 6(1) of the Employment Equity Act (EEA) .
1 It is uncontested
that the principal issue at hand pertains to the Applicant's nationality and has been categori zed by the parties involved as "a foreign national." The Respondent opposes
this application, arguing that the employment of the Applicant would contravene the
immigration laws of the Republic of South Africa.

Relevant evidence and analysis

[2] In the referral, the Applicant stated that she responded to an advertisement from
the Respondent inviting applications for the Mineral Resource Technician C3 position. She was shortlisted and attended an interview for the advertised role, during which she performed commendably. In November 2022, she received a communication from a Human Resources department ’s representative, whose name she could not recall,
informing her that the hiring manager had recommended her for an alternative position at a lower level, specifically that of Mineral Resources Technician, Grade B5. She
accepted this offered position and was subsequently directed to undergo a screening
process for background checks. However, the results were not released. Later, regarding this, she was informed by the Respondent contractor that it does not conduct screenings for foreign nationals; thus, no further engagement on this matter would be pursued. Therefore, she contends that this action constitutes discrimination against her on unclear or arbitrary grounds.
2
[3] The Respondent's statement of response provides the following points in
defence:

1 55 of 1998.
2 Despite the Applicant alleg ing that she was recommended for the lower position, it is prudent to indicate
that this matter has nothing to do with an unfair dismissal dispute.
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3.1 In accordanc e with the recruitment and selection policy applicable to all
job applicants, any offer of employment is contingent upon the successful
completion of pre- employment and engagement processes.
3.2 The role for which the Applicant had applied relates to its subsidiary,
Burnstone, which has not submitted a Corporate Visa application.
3.3 Consequently, under the current legal framework, Burnstone cannot
employ foreign nationals. The A pplicant screening revealed that she is a foreign
national who lacks the necessary authorisation to work in South Africa at any time, in accordance with the relevant immigration laws and regulations.

[4] The parties have submitted concise pre- trial minutes in which they have reached
an agreement on key points, namely that the Applicant is a foreign national from
Lesotho who responded to a job advertisement published by the Respondent for a Mineral Resource Technical Level C3 position in September 2022. Following the submission of her application, she was invited to participate in an interview on 17 October 2022 and was subsequently directed to undergo a pre- employment screening
process. In the same pre- trial minutes, the parties outlined, inter alia, the disputed facts
as follows: that the Respondent does not possess a Corporate Visa that would permit it
to employ foreign nationals, and that legislation disqualifies the Respondent from hiring
the Applicant. This Court was invited to determine whether the Respondent's conduct
towards the Applicant constituted discrimination. If this question is answered
affirmatively, then the fairness of such actions should be assessed.
[5] Both parties presented their respective witnesses: for the Applicant, it was her,
and for the Respondent, it was Ms Cilliers. Little significance emerged from the latter's evidence, particularly as, by the close of the former's case, the issue of the Respondent's lack of a Corporate Visa had been undisputed; therefore, considered
resolved, since t he Applicant did not provide evidence to demonstrate that the
Respondent possessed this type of Visa. T he importance of this point is augmented
hereafter.

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[6] During cross -examination, the Applicant conceded in her testimony that the
Respondent’s recruitment policy includes provisions regarding recruitment, stating that
the Respondent must adhere to the Immigration Act. Furthermore, it specifies that recruitment from remote and traditional regions, such as Lesotho, shall be strictly limited to situations where the requisite competencies and local experience are unavailable and that recruitment efforts will prioritise hiring novice employees from local areas, except in instances where a position is filled due to a fatal accident. The Applicant confirmed that she does not meet this requirement. Additionally, the Applicant conceded that she does not possess a work V isa, as the one she had expired in May 2022 after being obtained
through a previous employer where she was employed.
[7] Her contention, in her closing submissions, is that the Respondent should be the
one to apply for a work visa on her behalf. Furthermore, through her legal
representative, she urges this Court to consider what she referred to as “ section 19” of
the Immigration Act.
[8] As the Applicant raised this dispute in terms of the EEA, the relevant provision is
section 6, which provides that:
“(1) 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, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.
(2) It is not unfair discrimination to-
(a) take affirmative action measures consistent with the purpose of this Act;
or
(b) distinguish, exclude or prefer any person on the basis of an inherent
requirement of a job. ”

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[9] Once one of the requirements, in terms of section 6(2), is met, then, as a matter
of law, the conduct complained of cannot be deemed unfair discrimination; for example,
it is generally not unfair discrimination for an employer to insist that employees meet the
specified requirement s before the employment process can be concluded. However, if it
is based on specified ground, then the issue of onus, in terms of s ection 11(1) of the
EEA, is on the Employer to show that such conduct did not take place, or is rational ,
and not unfai r or justifiable. However, when allegations of discrimination are made
based on arbitrary grounds, as pleaded in this matter by the A pplicant , then section
11(2) of the same Act places the burden on the complainants to prove that:
“(a) the conduct complained of is not rational;
(b) the conduct complained of amounts to discrimination; and
(c) the discrimination is unfair. ”
[10] The parties have reached an agreement in the pre- trial minutes indicating that
one of the issues for determination by this C ourt is whether the Respondent holds a
Corporate Visa that permits the employment of foreign nationals. This mutual acknowledgment suggests that both parties recognize the significance of immigration
laws in this matter, particularly as the Respondent asserts that it was unable to employ
the Applicant due to concerns regarding potential legal violations. Therefore, it is imperative for the Court to conduct a thorough examination of the applicable legal
provisions in this context, as set out below.
[11] The government of the Republic of South Africa enacted the Immigration Act 13
of 2002(“Immigration Act”), which, in its preamble, declares its aim to regulate the admission of foreigners to the Republic, including their employment, and the procedures to be observed when this is done. It specifically provides, inter alia, that economic growth is promoted through the employment of needed foreign labour. This indicates that the Republic accepts the employment of foreign nationals . Section 1 of the
Immigration Act defines 'work' as including being employed or conducting activities
consistent with being employed, or aligned with the profession of the person, with or without remuneration or reward, and "a corporate applicant" is defined as a juristic
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person established under the laws of the Republic that applies for a corporate visa, as
referred to in Section 21. It is commonly acknowledged that the Respondent falls under this definition, as it is a juristic person. A foreigner is defined as an individual who is not a citizen of the Republic. This fits the definition of the Applicant in this matter, as she has asserted. Section 1(j) defines "A visa" as the authority to temporarily sojourn in the Republic for the purposes of work as contemplated in section 21.
[12] Section 21 reads explicitly thus:
“21 Corporate visa
(1) Subject to subsection (1A), a corporate visa may be issued by the Director -
General to a corporate applicant to employ foreigners who may conduct work
for such corporate Applicant in the Republic.
(1A) …
(2) The Director -General shall determine, in consultation with the
prescribed departments, the maximum number of foreigners to be
employed in terms of a corporate visa by a corporate applicant , after having
considered -
(a) the undertaking by the corporate Applicant that it will -
(i) take prescribed measures to ensure that any foreigner employed in terms of the corporate Visa will at all times comply with the provisions of this Act and the corporate Visa; and
(ii) immediately notify the Director -General if it has reason to believe that such
foreigner is no longer in compliance with subparagraph (i);
(b) the financial guarantees posted in the prescribed amount and form by the corporate Applicant to defray deportation and other costs should the corporate Visa be withdrawn, or certain foreigners fail to leave the Republic when no longer subject to the corporate Visa; and
(c) corroborated representations made by the corporate Applicant in
respect of the need to employ foreigners, their job descriptions, the number of
citizens or permanent residents employed and their positions, and other prescribed matters.
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(6) A foreigner employed in terms of a corporate visa shall work for the holder of
that corporate Visa. ” (emphasises added)

[13] Regulation 20 of Regulations issued in terms of section 7 of the Immigration Act
reads thus:
“20 Corporate visa
(1) An application for a corporate visa shall be made on Form 13 illustrated
in Annexure A and accompanied by-
(a) proof of the need to employ the requested number of foreigners;
(b) a letter issued to the corporate Applicant by the Department of
Labour to the effect that a certificate has been issued to the Department
confirming-
(i ) that despite diligent search, the corporate Applicant was unable to
find suitable citizens or permanent residents to occupy the position
available in the corporate entity;
(ii) the job description and proposed remuneration in respect of each
foreigner;
(iii) that the salary and benefits of any foreigner employed by the corporate
Applicant shall not be inferior to the average salary and benefits of citizens or permanent residents occupying similar positions in the Republic;
[14] Now, considering the points outlined above, it is clear that before the Respondent
could employ the Applicant, it should have applied for a C orporate Visa, specifically
under section 21(2)(c). This requirement is supported by regulation 20(1)(i), which outlines what needs to be demonstrated in the application. At the time of the hearing in this matter, it was common cause that it was a disputed fact that the Respondent had
no Corporate Visa; the burden was on the Applicant to prove otherwise, but no evidenc e
was presented to the Court to show that the Respondent had a C orporate Visa or had
applied for one at the time of the recruitment process . Instead, the Respondent argued
that its policy, which the Applicant accepted, indicated that she did not meet the specified requirements. This Court concludes that t his policy is not unreasonable as it
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clearly outlines the criteria for employing a foreigner, which do not provide anything
contrary to the Immigration laws of the Republic .

[15] As the Applicant was required to show what section 11(2) states, and through
evidence, she has unsuccessfully shown that “the conduct complained of is not rational”. Consequently, there is no evidence of discrimination or unfairness. Therefore, the claim could not succeed. Even if this matter was to be decided in terms of section 11(1) of the EEA whereby the Respondent would have had the onus of proof, which
includes, among other things, justification of the conduct, this Court could have still
concluded that the Applicant has no case because if the Respondent had employed the
Applicant without it having a Corporate Visa, that would be a violation of the law,
meaning there would have been justification, in terms of s 11(1)(c) of the EEA, on the
part of the Respondent for not hiring the Applicant.
[16] In conclusion, this Court must address two pertinent issues. The Applicant has
asserted that it is the Respondent's responsibility to apply for the Work Visa, referencing “section 19” of the Immigration Act. Conversely, the Respondent denies this and
maintains that it cannot pursue a Corporate Visa, as this Visa is specifically intended for
corporate entities seeking to employ multiple foreign nationals in designated roles;
therefore, it contends that the Corporate Visa takes precedence. Upon thorough examination of both viewpoints, the Court has recognised that the section 19 cited by the Applicant has been repealed, and that the question of who applies for a Work Visa is academic in this matter, since the primary requirement was obtaining the Corporate Visa. The Court concurs with the Respondent's argument; consequently, there is no need for this Court to further consider the issue of who applies for a Work Visa. Furthermore, it is important to emphasise that, in this case, the Applicant is not requesting that this Court compel the Respondent to submit a Corporate Visa application and/or breach of promise; rather, it is evident that she seeks to establish that she has been subjected to discrimination, particularly concerning the EEA, which this Court has concluded has not been proved.

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[17] Therefore, this Court makes the following order:

Order
1. The claim is dismissed.
2. Each part to bear own costs .

Sandile Mabaso
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicants: Mr Leshaba, of Mitti Attorneys
For the Respondent: Adv Z Ngwenya
Instructed by: Solomon Holmes Attorneys