Latest news with #CliffeDekkerHofmeyr
IOL News
9 hours ago
- Business
- IOL News
What the Eastern Cape High Court ruling means for foreign employee terminations
A law firm looks at the law following a judgment saying employers are not entitled to fire foreign nationals on the spot if they are working without a valid visa. Image: File A foreign national employee must be provided with proper notice of their termination in line with the Basic Conditions of Employment Act (BCA). Failure to provide such notice may result in the termination being unlawful. This is the warning of employment law experts at Cliffe Dekker Hofmeyr (CDH), following a recent Eastern Cape High Court judgment. This was after an application by a research assistant and Zimbabwean national, Samuel Nyakudya. He was granted a temporary residence permit allowing him to reside in South Africa and seek employment in the category of general work as provided for under the Immigration Act. His employer, the OR Tambo District Municipality, however, terminated his employment contract due to allegations of its unlawfulness and irregularity. Commenting on the case, CDH said that this area of termination has just become a lot clearer for employers after the recent ruling, stating that employing a foreign national without a work visa does not automatically grant an employer the right to summarily terminate the employment contract. 'This indicates a key warning for employers highlighting their responsibility to act lawfully and in accordance with the BCA,' CDH said. The experts explained that a foreign national employee must be provided with proper notice of their termination in line with the BCA. 'Failure to provide such notice may result in the termination being unlawful. The dismissal may also be found to be unfair in the CCMA (Commission for Conciliation, Mediation and Arbitration).' Nyakudya was employed on successive fixed-term contracts, but following the expiration of his last contract, the municipality allowed him to continue working without a new fixed-term contract. Throughout his employment, Nyakudya was not consistently in possession of a work visa. In November 2023, the municipality notified him that his contract had expired on March 31, 2022, and that he had failed to provide a copy of his South African identity document, despite being requested to do so. Consequently, the municipality claimed it had no choice but to terminate his employment immediately, citing the unlawful nature of his contract due to the expiration of his work visa. While Nyakudya could have contested the fairness of his dismissal before the CCMA, he opted to challenge the termination in the High Court. The court ultimately ruled that Nyakudya's employment contract termination was unlawful.. CDH said the Immigration Act outlines an employer's responsibilities regarding the employment of foreign nationals, specifically in Section 38, which prohibits the employment of illegal foreigners or those whose status does not authorise them to work. It said the court also referenced Section 49(3) of the Immigration Act, which states that employing an illegal foreigner or a foreigner in violation of the Act constitutes a criminal offence. The court confirmed that such employment is punishable by fines or imprisonment upon conviction. Regarding the summary termination of Nyakudya's contract, the court considered Section 37(1) of the BCEA, which stipulates the notice period required for termination based on the duration of employment. The court highlighted that the purpose of providing notice is to allow employees to prepare for a smooth transition. 'Nyakudya's lack of a work visa or South African identity document was a critical factor in the case. The court determined that employing a foreign national without a work visa is prohibited, and thus, the municipality's immediate termination of Nyakudya's contract was unlawful. 'This case serves as a significant reminder that employing a foreign national without a work visa does not automatically grant an employer the right to terminate the employment contract summarily,' CDH warned.
Daily Maverick
17-07-2025
- General
- Daily Maverick
When it just ain't peachy — can a smiley face land you in HR's inbox?
As the once-innocent smiley face acquires new meanings in the modern workplace, experts urge caution: misunderstanding an emoji could have more serious – or litigious – consequences than you might expect. On Wednesday, 16 July, Cliffe Dekker Hofmeyr (CDH) hosted a webinar featuring a panel of experts – Yvonne Mkefa, director of employment law at CDH; Zakeera Docrat, a forensic and legal linguist; and Anli Bezuidenhout, director of employment law at CDH – who explored the evolving role of emojis in workplace communication, including their legal implications and the importance of cultural sensitivity. This conversation was especially timely given how rapidly digital language is growing: every year, a fresh batch of nearly 60 emojis joins our digital space. What once seemed like harmless, playful icons are now shaping, and sometimes complicating, the fabric of workplace communication. One careless thumbs-up or cheeky wink can set off a chain reaction of confusion, awkwardness or even HR intervention. Decoding emojis at work This raises the question: what do emojis really mean in the workplace – and why do they matter? In the modern workplace, emojis can be loaded with unspoken meaning, risk of misinterpretation and even serve as evidence in sensitive investigations. Decoding emoji etiquette in the workplace Before you send that peach, thumbs-up or a red heart in a professional chat, this is what you need to keep in mind: Context is everything: The same emoji can mean very different things depending on the conversation, the relationship between participants, and the ongoing dynamics of the group; Volume matters: You can't draw firm conclusions from just a handful of WhatsApp messages or emails. Analysing emoji use in workplace disputes often requires looking at a larger batch – think 10 to 20 messages in chats or several substantial emails – to properly gauge intent and pattern; Initiators influence meaning: Notice who first introduces emojis (especially personal ones like hearts or the peach) in a professional context. The shift from strictly work-related icons to more casual or suggestive ones can signal changing intentions or boundaries; Cultural and personal sensitivities: Something as trivial as a fruit emoji can be misconstrued. Even shades or choices of emoji (peach vs plum) can unintentionally raise complex issues, including perceived bias or exclusion; Patterns over single actions: It's not just about one emoji. Frequency, timing (day or night) and engagement (full sentences vs single icons) all form part of the bigger picture and can signal anything from avoidance to inappropriate attention; and Evidence in investigations: Deleting messages or emojis to 'cover tracks' can complicate or undermine workplace investigations, making context and record-keeping vital. Patterns in emoji use have been pivotal in sexual harassment and bullying cases. Workplace complexities 'We are often confronted with WhatsApp chats as evidence of either a relationship or communication that may have been inappropriate,' Bezuidenhout said, highlighting the serious implications behind seemingly casual digital exchanges. These factors can make or break the interpretation of emojis in workplace interactions. 'Sometimes, a peach emoji can spark more drama than a full paragraph,' said Mkefa. These issues become even more critical in sensitive cases like sexual harassment or bullying. Mkefa noted that 'even the time of day a message is sent can matter'. While Docrat suggested that employers refer to websites like Emojipedia to provide employees with quick access to emoji meanings and consult forensic linguists for deeper insight, research shows that emoji meanings are heavily influenced by generational and cultural factors. A smiley face might communicate sarcasm to Gen Z, but sincerity to older workers, illustrating why misunderstanding emojis can easily escalate workplace tensions. Legal complexities This discussion takes on greater urgency in light of the controversial case involving Eastern Cape Judge President Selby Mbenenge, who faces sexual harassment allegations after sending a series of texts that included suggestive emojis – including peeled bananas, eggplants, peaches and guavas – to a female employee, Andiswa Mengo. During the tribunal hearings, Mbenenge acknowledged sending some of these emojis but denied that they were intended as explicit or harassing, describing their use as playful or flirtatious. Beyond everyday misunderstandings, these digital nuances carry significant legal weight, demanding expert interpretation and carefully crafted policies. 'If we look, even at the colleagues interpreting the emojis, you have to have a background expertise in the semiotics of law,' said Docrat. She further explained that cultural and linguistic context plays a crucial role, noting that analysing or interpreting emojis cannot be separated from the context in which they are used. While it might seem logical to enforce a uniform policy on emoji use in the workplace, Docrat said that creating a 'one-size-fits-all' rule simply isn't practical. Each organisation has its own unique culture, communication needs and sensitivities, which means any guidelines for digital communication – including emojis – should be tailored to its specific context and regularly reviewed to keep up with evolving language and team dynamics. Navigating these complexities to foster respectful and clear workplace interactions requires more than just good intentions, it requires expert insight such as in the forensic and legal fields. 'We must also accept that things develop. New emojis are going to be introduced… We need to look at how we are going to deal with it,' Mkefa said. DM
IOL News
16-07-2025
- General
- IOL News
Understanding Johannesburg's water crisis: Infrastructure failures and community impact
A man collects water from a roaming tanker. Image: File/ Timothy Bernard/ Independent Newspapers Johannesburg, a sprawling metropolis that is home to over 5.5 million people, is grappling with severe water shortages that are affecting residents from all walks of life. The situation has been exacerbated by a combination of failing infrastructure, ongoing maintenance issues, and the dire realities of climate change. According to a 2025 report by Cliffe Dekker Hofmeyr, the city's water infrastructure is under immense pressure and fails to meet the growing demand. Frequent leaks, an ageing system, and the expansion of residential areas without corresponding upgrades in infrastructure are at the heart of the problem. Currently, Johannesburg is dealing with an estimated 2,300 burst water pipes, which only serves to intensify the crisis. These are the affected areas. Image: Rand Water Video Player is loading. Play Video Play Unmute Current Time 0:00 / Duration -:- Loaded : 0% Stream Type LIVE Seek to live, currently behind live LIVE Remaining Time - 0:00 This is a modal window. Beginning of dialog window. Escape will cancel and close the window. Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Advertisement Next Stay Close ✕ Ad Loading In a recent maintenance alert, Johannesburg Water announced that Rand Water's maintenance activities would significantly reduce water supply in various parts of the city, notably affecting areas such as Steyn City, Diepsloot, Carlswald, and Kaalfontein from 15 to 18 July 2025. This planned maintenance comes at a time when the City of Tshwane is also facing its own battles with water shortages due to reservoir maintenance, forcing residents to rely on roaming water tankers for their daily needs. Climate change further complicates South Africa's water crisis. As noted by NuWater, changing rainfall patterns, prolonged droughts, and increased evaporation rates significantly contribute to the nation's water scarcity. The Department of Water and Sanitation has estimated that repairing and upgrading the nation's beleaguered infrastructure will cost an astounding R90 billion annually over the next decade. The importance of water sources from the Limpopo, Inkomati, Pongola, and Orange River, as well as the Lesotho Highlands Water Project, cannot be overstated, as they currently support about 70% of South Africa's gross domestic product. Expert insights Ferrial Adam, a water specialist who spoke exclusively to IOL, expressed concern about South Africa's management of its water resources. "South Africa is a water scarce country, geographically we have half the average rainfall that is experienced in most parts of the world, but given that, but given this little water, we are still mismanaging it, we are polluting it, we are allowing it to be wasted." Adam emphasised the necessity of a shared sense of responsibility between government and citizens, alongside a compelling call for increased budget allocations to address these pressing challenges. Supporting the statement, Prof. Anja du Plessis, an Associate Professor and water management expert at Unisa, noted the alarming trends indicating an increase in water stress. "South Africa is a water scarce country, with trends showing an increase in water stress due to a multitude of factors such as increased water demands outstripping available supply, continued water pollution and increased climate variability." Du Plessis added that the unreliable water supply and the longer outages across the Gauteng metros are due to neglected municipal infrastructure. A stark illustration of this was the Vaal Dam, which may be sitting above 100% capacity, yet many areas still experience rampant water outages primarily linked to frequent pipe bursts and demand that exceeds available supply. Water springing from a burst pipe at Cnr Bertha and Stiemens Streets in Braamfontein, Johannesburg. 16 July 2025 Image: Koketso Phasha/ IOL Residents' experiences IOL spoke to South Africans to get their thoughts on the water scarcity Itumeleng Tlhabane, 27, from Pretoria said: "It is quite frustrating, because some of us live in rented rooms, we don't have large water storage capacity and the trucks often come when we are at work, leaving us with just enough water to cook, bath and do the dishes, none for laundry." Tshapang Malesela, 22, from Schoonoord in Limpopo said: I don't recall the last time I saw a running tap, the taps in our village last ran when I was very young, we have since been relying on those who have boreholes to supply us with water at various costs, and the water is often very salty because we don't have money to get the cleaning chemicals. Residents can log water related call to Johannesburg Water using fault@ IOL News
Daily Maverick
19-06-2025
- Business
- Daily Maverick
SA's new labour migration policy — critics doubt its effectiveness, say it does not strike a balance
In a new policy white paper, the government makes several far-reaching proposals to restrict the employment of foreign citizens. Critics warn that instead of protecting jobs, the policy will do damage. South Africa has finally put forward a coherent plan to manage labour migration. The White Paper on National Labour Migrant Policy, which the Cabinet approved on 29 May, marks the government's first comprehensive attempt to define who gets to work here, and under what conditions they will be allowed to do so. It arrives as the unemployment rate remained stubbornly high at 32.9% in the first quarter of 2025. In this climate, political pressure to prioritise South African jobs has grown, as evidenced by rising xenophobia and misinformation about migrant numbers, the white paper states. Immigrants made up 8.9% of employed workers in 2022, largely in sectors where local participation is low, such as construction, agriculture, logistics and informal trade. The proposed policy is trying to prioritise South African workers while acknowledging regional and sectoral reliance on foreign labour. Whether it succeeds is another matter. 'What might create South African jobs in the short term may ultimately harm the country's ability to recruit skilled workers, attract investment and promote trade,' said Professor Loren Landau, a migration researcher based at Oxford University and the University of the Witwatersrand. The policy is designed to inform proposed amendments to the Employment Services Act (ESA), with the aim of imposing stricter control on how foreign nationals are hired in South Africa. The crux of the reform is sector-specific quotas that will cap the number of foreign nationals employers can hire in certain industries and occupations once the amendments have been passed by Parliament. 'Internationally, the practice of reserving the right of occupational choice is not uncommon in democracies,' said Sashin Naidoo, employment law lawyer at Cliffe Dekker Hofmeyr. Employers will also need to prove that no suitably qualified South African was available for the job, submit a skills transfer plan and pay foreign and local workers on par. The ESA did not set out the practical requirements for these skills transfer plans, said Taryn York, senior associate employment lawyer at Cliffe Dekker Hofmeyr. 'However, it does say the minister may make regulations setting out these requirements.' Failure to comply could result in fines of up to R100,000, a prospect that has employers on edge. 'Although a drive to increase employment of local workers is admirable, the task of skills transfer and upskilling of employees should not also be placed at the feet of the private sector,' said Jaco Swart, national manager of the National Employers' Association of South Africa. The proposed changes will introduce more uncertainty for migrant workers. Mandla Masuku, president of the Migrant Workers Union of South Africa (Miwusa), said most migrants were not in the country by choice but because of unforeseen circumstances in their home countries. 'Some have been here for many years,' Masuku said. 'They've got families, they've got properties. If they are going to be affected by these policies, it is not going to affect them alone.' He also raised concerns that migrants might not fully grasp how the policy would be enforced or what their rights would be under a new system. When quotas clash A legal showdown may be brewing between the Employment Equity Act and the ESA. Although recent proposed amendments to the former included sectoral transformation targets, the ESA's amendments go a step further, granting the minister of labour the authority to impose hard quotas on the hiring of foreign nationals. 'We've got these two pieces of legislation, one having a quota and one having a sector target,' said Imraan Mahomed, director of employment law at Cliffe Dekker Hofmeyr. 'There is already existing authority in the Constitutional Court that has found that the imposition of quotas is unconstitutional. 'The minister distances himself from any consideration that sectoral targets are quotas. It's not going to be a sectoral target in relation to foreigners, it's going to be a quota. I suspect there's going to be a legal challenge when it comes to these quotas.' The policy is presented as a dual-purpose tool: to promote local employment and safeguard migrant rights. As with most of the government's ambitions, the execution is where reality starts to wobble. 'The government has typically based its policies on a relatively poor reading of the true economy or the impact of immigration on it,' Landau said. 'While dramatically underestimating the positive impacts of immigration, it dramatically overpromises on its capacity to regulate labour conditions and migration.' Masuku, too, was sceptical of the policy's effectiveness. 'I suspect that it will be just another policy that is there, maybe for the purpose of proving a point to citizens. But, in terms of practicality, I don't think it will have a huge impact.' Swart echoed these doubts: 'The issue is not that employers are unwilling to appoint South African citizens, it is simply that the skills are not locally available, a consequence of a failed education system. 'The current proposal does not strike a balance, nor will it assist the unemployment crisis or ensure a skills transfer in the country.' A regional vision One of the policy's more progressive features is its regional outlook. It aligns with AU and Southern African Development Community frameworks and proposes the introduction of SADC visas, which are intended to ease cross-border work and allow for portable social protections. Lee Masuku, senior associate lawyer in employment law at Cliffe Dekker Hofmeyr, said these would include a special work visa in the SADC region, special traders' visas and SADC small and medium enterprise visas. The policy also calls for updated labour agreements with neighbouring states like Zimbabwe, Lesotho and Mozambique, but Landau views these gestures as superficial. 'The existing policies may or may not reshape the labour market, but they do send a clear message to the region that South Africa is now more unilateral than ever. Given how much of its market is regional… this will likely hurt business and job creation,' he said. The policy also largely ignores where most migrant workers actually operate: in the informal sector, undocumented and unprotected. Asked whether the policy protected informal migrant workers, Landau answered: 'Simply put, no.' He added that it lacked mechanisms that recognise or protect the humanity and labour rights of migrant workers outside formal employment. Masuku warned further that employers might exploit undocumented migrants more if fewer legal work routes existed. For all its talk of order and oversight, the white paper admits that the policy is based on sparse and outdated data, and promises a better information system. The scattering of administrative data, the policy's lack of alignment to international standards, missing indicators and minimal use of both administrative and statistical data by policymakers are some of the key challenges the white paper identifies. 'A more robust reading of the regional economy which includes informal trade, fast fashion, small and unregistered business development in and through South Africa might suggest that national employment and regional obligations are complementary, not at odds,' Landau said. York gave a warning to employers operating in the agriculture, hospitality, tourism and construction sectors, saying they should prepare for the introduction of quotas on hiring foreign nationals. According to Masuku, Miwusa has a close relationship with the labour union federation Cosatu and consulted with it to better understand the policy. 'We must work together to ensure that workers, regardless of their nationality, are not [negatively] affected by these kinds of policies,' he said. DM This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.
Daily Maverick
18-05-2025
- Politics
- Daily Maverick
Employers and schools can no longer claim ignorance of cyberbullying
South Africa has a robust set of laws to tackle cyberbullying in schools and workplaces. However, in classrooms, offices and online chats, the updating and enforcement of these policies remain deficient. In 2021, a video of 15-year-old Limpopo schoolgirl Lufuno Mavhunga's violent assault at the hands of a fellow learner went viral. Following the assault, Mavhunga took her own life. An investigation by the South African Human Rights Commission found that the school had failed in its duty of care, ignoring pleas from her family and failing to act when alerted. 'We have very good laws,' said Dr Sershiv Reddy, senior lecturer in the department of mercantile law at the University of Johannesburg. 'But sometimes we are impeded by enforcement, maybe due to the lack of funding or other resources.' South Africa's legislative toolkit, including the Protection from Harassment Act (2011) and the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda, 2000), offers remedies for victims of harassment and discrimination. These protections often vanish in the policy void between written laws and day-to-day practice. No adults in the room 'More than 95% of our children have access to the internet,' Reddy said 'The keyword is access. It doesn't mean that they may have a mobile device at home, but it means they have access via other means. That could be through a school computer, through the library, [or] an internet café.' Seventy percent of children access the internet without their parents knowing, and more than half of South African schoolchildren have been victims of cyberbullying, Reddy said. In 2018, the Ipsos Research Institute ranked South Africa fifth in a global survey of 28 countries measuring cyberbullying rates. And it's not just children. Anli Bezuidenhout, employment law director at Cliffe Dekker Hofmeyr, pointed out that teachers and employees are also victims of online harassment. WhatsApp and HR While bullies have migrated to WhatsApp groups, Instagram direct messages (DMs) and Zoom calls, schools and workplaces seem stuck in a pre-digital era, failing to proactively update policies. 'Where in the past we may have had policies relating to sexual harassment, we now often see those policies haven't been broadened to also deal with issues such as cyberbullying,' Bezuidenhout said. This is despite the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, which came into effect four years ago. It states that employers (including schools) should have anti-harassment policies that also cover digital spaces. Bezuidenhout explained that the code introduces the requirement to review other policies, such as a company or school's social media policy. Off the clock, still on the hook Tim Fletcher, director and chair of dispute resolution at Cliffe Dekker Hofmeyr, describes the Protection from Harassment Act as 'a fairly draconian remedy', but one that is easily obtainable. Victims can approach the magistrate's court, whether in their area, the perpetrator's, or where the incident happened, to secure an interim protection order, Fletcher said. This order becomes effective the moment it is served, and if unchallenged, it converts into a final order with an attached warrant of arrest. Pepuda, meanwhile, offers even broader powers through the Equality Court, allowing action on virtually any ground undermining dignity. And critically, cyberbullying outside of working hours is still grounds for disciplinary action. 'It's off-duty misconduct, you're against the school conduct, against the company's conduct, bringing the company into disrepute. I would still be able to discipline such an individual,' Aadil Patel, head of employment law at Cliffe Dekker Hofmeyr, said. How does this affect you? The boundaries between public and private, workplace and home, have blurred. WhatsApp groups, private DMs and social media posts are not outside the law's reach. Cyberbullying at school or at work is not something you have to endure quietly. The legal system offers tools for protection. But those tools only work if victims and communities know they exist, and use them.
