# Permanent residency less than 5y continuous work?



## walk714 (May 29, 2014)

Hi all,

I am trying to submit PR application and found my contract would be inadequate for, would you kindly advise me? My contact is 'Fixed Term", not permanent.

I work for more than 5 years *with fixed term *contract in same company, and I did not realize that the contract would be an issue for PR application.
HR previously told me that Company did not issue a new contract, which is normal in south africa for same position if employee extend to work. If so, company issue contract extension letter and the employee sign. 
Following their advice, I signed the contract extension every two years.

Qusetion 1 : Is HR advice legally correct? In the US or singapore, company make a new contract after completion agreed work period for me. I was speechless when hearing his feedback 4 years ago.... however, rule is a rule?

Qustion 2 : Do I need to submit "PERMANENT CONTRACT"?
Required documentation under the new immigration act, they mentioned "copied Permanent contract of documentation" for PR. In previous act, lawyer advised me that I could submit all extention letters would be replacable for 'permanent contract' with supporting letter from Company director, the letter mentions to promise permanent hiring the employee (me). Because, under previous act, Home and Affairs mentioned copied of contract documentation.


Question 3: No need for working 5years with permanent contract under the new rule? 
I have heard that it would be difficult to obtain Genearl work permit from authorities under the new act. On the other hand, if you are hired under permanent contract, you do not need to wait for 5 years. Woudl it be true?


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## kristybee (Jul 12, 2014)

1) The advice the HR gave is legally incorrect - since in your question 2, your employer PROMISED that HE WILL put you in a permanent position. If there was a reasonable expectation created by the employer that he will employ you on a permanent basis then the contract must qualify as a permanent contract. And you can actually go and sue your employer for it, or take him to the CCMA (the body that deals with Labour Law IN SOUTH AFRICA), so that you can resolve this matter, and you can be reinstated as an employee on a permanent contract basis.

2) After you took your employer to the CCMA by filling out all the relevant documentation he will be required to give you a contract on permanent basis - those extension letters making the promise to employ you on a permanent basis should also be filed with the CCMA.

3) Unfortunately you can ONLY GET permanent residency in SOUTH AFRICA after you have lived at least 5 years in RSA without interruption, notwithstanding your permanent work contract.


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## walk714 (May 29, 2014)

Hi kristybee

Thank you for your post and advice.

I should have taken second and third opinion before signing on the extension then.
So, HR should make an new contract every time I extend. Do I understand your message correctly?

For PR application, going to CCMA is not the best option unfortunately. Industry I work for or KZN culture? Act like the american or British in the office, They (Japanese and South African) would accuse me. Being subservient behavior could be the best option to survive at this moment. I have to keep good relationship to the company for supporting my PR application....

About Q3, I have been continuously worked more than 5 years, so I thought it would be alright same as you. However current new act requires [Permanent Contract], which I must obtain from the company. 

Life is so difficult and tough to expats now...


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## LegalMan (Dec 26, 2012)

kristybee said:


> 1) The advice the HR gave is legally incorrect - since in your question 2, your employer PROMISED that HE WILL put you in a permanent position. If there was a reasonable expectation created by the employer that he will employ you on a permanent basis then the contract must qualify as a permanent contract. And you can actually go and sue your employer for it, or take him to the CCMA (the body that deals with Labour Law IN SOUTH AFRICA), so that you can resolve this matter, and you can be reinstated as an employee on a permanent contract basis.
> 
> 2) After you took your employer to the CCMA by filling out all the relevant documentation he will be required to give you a contract on permanent basis - those extension letters making the promise to employ you on a permanent basis should also be filed with the CCMA.
> 
> 3) Unfortunately you can ONLY GET permanent residency in SOUTH AFRICA after you have lived at least 5 years in RSA without interruption, notwithstanding your permanent work contract.


@kristybee - Incorrect (1 and 3) and also risky (2).

walk714 - In essence, all you need is a new contract stating Permanent Contract of Employment. Your employer should agree to this. Also, based on a Permanent Contract of Employment you CAN apply for Permanent Residence.

Lastly, while the CCMA is available, I'd be VERY hesitant to ever take my employer there unless they grossly mistreated me. Your relationship with your employer will be ruined for good.


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## walk714 (May 29, 2014)

Hi Legalman

I do appreciate for your advice. All i need to survive for this tough moment is to be patient and to act to keep good relationship with the employer.

Again thank you for your advice. 

Regards,
walk714


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