Work permits vs. workplace rights: Understanding the Kolobi case

Kolobi, a foreign national from Lesotho, applied for a Mineral Resource Technician (C3) position at Sibanye Gold. Although she was shortlisted and interviewed, she was later recommended for a lower-level position (B5), which she accepted. She was informed that the next step would involve a screening process for background checks.

However, Kolobi was later told that screening for foreign nationals was not conducted, and the process stopped there.

The legal issue

Kolobi claimed unfair discrimination under Section 6(1) of the Employment Equity Act (EEA), alleging unclear and arbitrary treatment.

Sibanye Gold’s defence

Sibanye Gold argued the following:

• The job offer was conditional upon successful screening.
• The position was with a subsidiary that had not applied for a corporate visa and could not employ foreign nationals.
• Kolobi did not have the required authorisation to work in South Africa as per immigration laws.

The court’s decision

The court ruled that:

• Kolobi did not have a valid work permit.
• Sibanye Gold’s decision was based on compliance with immigration laws and was not arbitrary or discriminatory.
• There was no evidence of unfair treatment or irrational conduct.

As a result, Kolobi’s claim was dismissed, and Sibanye Gold’s actions were held to be lawful.

Key legal takeaways

• Employers can lawfully decline to hire foreign nationals without valid work permits. This is not considered discrimination under the EEA.
• Immigration laws take precedence over nationality-related claims under the EEA.
• Conditional job offers tied to pre-employment screening are not binding if the conditions are not met, protecting employers from unlawful hiring obligations.

Practical advice for employers

Employers must ensure their hiring processes comply with both labour and immigration laws. Even well-meaning hiring practices can lead to disputes if not carefully structured.

How LnP Beyond Legal can help

At LnP Beyond Legal, we specialise in helping employers navigate the complex intersection of labour and immigration law.

We assist HR teams with:

• Designing legally compliant recruitment processes.
• Drafting contracts that reflect regulatory requirements.
• Managing risks before they become disputes.

By working with our team, employers can ensure fair and lawful hiring practices that hold up under scrutiny, while staying focused on business growth, not legal pitfalls.

For advice or more information contact Riona Kalua, Head of our Labour and Employment Team.