How Migration Law Aligns with Commercial Law: The Importance of People in Cross-Border Trade Beyond Policies

The transformation of South Africa’s busiest land ports—Beitbridge, Lebombo, Oshoek, Kopfontein, Maseru Bridge, and Ficksburg—amounting to an investment of R12.5 billion, signifies the most substantial commitment by the South African government to border management thus far.

This project was unveiled in April 2026 through a partnership between public and private sectors, motivated by sound commercial rationale.

These ports account for over 80% of cross-border trade and passenger traffic at South Africa’s land borders, and the inefficiencies present incur hefty costs on the economy.

The government’s approach to the issue is particularly enlightening.

As stated by the Minister of Home Affairs, studies suggest that a modest 5% reduction in processing time at borders could potentially boost intra-regional exports by about 10%. However, infrastructure enhancements can only solve a portion of the overall dilemma.

The regulations governing who may cross these borders and under what circumstances are also pivotal in determining the feasibility of trade.

The intersection of migration and trade is not merely a desired policy effect; it is a fundamental aspect of international trade law.

The General Agreement on Trade in Services (GATS) establishes the guidelines for cross-border trade in services through four distinct modes of supply.

Mode 4, which addresses the temporary movement of natural persons, allows service providers to traverse borders to deliver their services—examples include engineers at construction sites, compliance officers operating across regions, and specialists advising on international transactions.

The AfCFTA Protocol on Trade in Services adopts a similar framework, encompassing the same four modes across five vital liberalization sectors: financial services, transport, business services, communications, and tourism.

In each of these sectors, providing services necessitates the movement of individuals.

A beneficial trade agreement lays the legal foundation.

Immigration laws determine whether that foundation can be effectively utilized.

This issue is more than theoretical; research on business migration in comparable economies shows a strong correlation with trade and investment. When immigration policies create obstacles for intra-corporate transferees, contractual service providers, and business visitors, the commercial relationships intended to be facilitated by Mode 4 are significantly obstructed.

South Africa’s immigration framework recognizes this truth, although actual practices may not always reflect stated intentions.

The preamble of the Immigration Act 13 of 2002 highlights that the Act is intended to foster economic growth by enabling the employment of essential foreign labor, facilitating foreign investment, and allowing entry for individuals with exceptional talents or qualifications.

The Critical Skills Work Visa under section 19(4) was explicitly designed to address gaps in skills that the local labor market cannot fulfill but are essential for business operations.

In October 2024, the Department of Home Affairs introduced a points-based system for work visa applications, further emphasizing that skills-based migration is viewed as an economic asset rather than merely an administrative function.

The legislative intent is evidently commercial, yet challenges emerge during implementation.

Two recent judicial decisions illustrate exactly where this gap exists and why companies treating immigration compliance as merely administrative risk their exposure.

In Mukuru Financial Services (Pty) Ltd and Another v Department of Employment and Labour (2022) 43 ILJ 1171 (WCC), a fintech company providing cross-border money transfer services to unbanked African clients sought a corporate visa to hire foreign nationals fluent in Zimbabwean and Malawian dialects—languages spoken by its clientele.

The Department of Employment and Labour denied the necessary benchmarking certificate.

Mukuru challenged this refusal through a review process.

The Western Cape High Court dismissed the application, citing the company’s inability to provide documented training programs and recruitment proof that no South African citizen or permanent resident could fill those positions.

Crucially, the court established that the preamble of the Immigration Act requires that both the justification for employing foreign nationals and a commitment to training South Africans must be included in any corporate visa application.

A compelling business rationale alone is insufficient in the absence of supporting documentation.

This principle was reaffirmed in another case, Sitrusrand Boerdery (Pty) Ltd v Minister of Employment and Labour [2025] ZAGPPHC 758.

A citrus farming operation required 762 workers for the harvest, but after advertising in a local newspaper, they received only 15 applications, none of which were suitable.

The company then sought a corporate visa recommendation, citing a local skills shortage.

The Department undertook its own recruitment effort, garnering 1,410 applicants, with 1,006 being verified and recommended back to the business.

An Adjudication Committee concluded that the necessary skills were indeed available within the local market and denied the application.

The High Court upheld this denial as lawful, rational, and procedurally correct.

Despite the farm’s legitimate operational needs, the court found that its recruitment attempts did not meet statutory requirements.

Simply placing a single newspaper advertisement does not constitute a comprehensive search.

The ESSA database indicated that nearly 6,000 candidates matched the job profile.

Together, these cases illustrate a significant and ongoing principle: the statutory criteria for a corporate visa recommendation not only consider the existence of suitable candidates but also evaluate whether employers have conducted a thorough search, documented their efforts comprehensively, and addressed local training requirements.

Businesses applying without understanding this distinction will face difficulties, regardless of their valid needs.

The practical implications extend beyond compliance issues. An immigration strategy is crucial for market entry, workforce planning, and project delivery.

A company that cannot lawfully employ the staff it needs will encounter operational delays, contractual vulnerabilities, and reputational risks.

These represent commercial consequences arising from legal rulings that many firms still mistakenly regard as HR challenges.

Proposed changes to the Immigration Act—including a specific start-up visa, a new investment visa to replace the current business visa, and new pathways for skilled worker visas—suggest that the regulatory environment is evolving.

Businesses that proactively engage with these developments and regard their immigration applications as legal instruments, not just administrative tasks, will be better positioned to seize emerging opportunities.

Trade agreements expand markets, but the movement of people ensures those markets operate effectively.

The legal frameworks governing border crossings are interwoven with commercial law; they are not separate entities.

*Alude Xuba is a qualified attorney of the High Court of South Africa and the founding attorney at the boutique business and IP law firm, Xuba & Associates Attorneys Inc. He has a keen interest in corporate and commercial law, intellectual property law, artificial intelligence, and litigation. The opinions expressed by Alude Xuba do not necessarily represent those of The Bulrushes.

Disclaimer: This article is not intended as legal advice. For further inquiries, please reach out to Xuba & Associates Attorneys Inc. at 010 500 1571 / 072 547 4269, hello@xubalaw.co.za

Sources Consulted

Legislation

1. Immigration Act 13 of 2002 (SAFLII)

Subordinate Legislation / Gazette Notices

1. Critical Skills List, October 2023 — GN R3934

(https://lawlibrary.org.za/akn/za/act/gn/2024/5448/eng@2024-10-18)

1. Points-Based System Notice, October 2024 — GN 5448

(https://lawlibrary.org.za/akn/za/act/gn/2024/5448/eng@2024-10-18)

Case Law

1. Mukuru Financial Services (Pty) Ltd and Another v Department of Employment and Labour (2022) 43 ILJ 1171 (WCC)
2. Sitrusrand Boerdery (Pty) Ltd v Minister of Employment and Labour and Others [2025] ZAGPPHC 758 (22 July 2025)

International Instruments

1. General Agreement on Trade in Services (GATS) (WTO) –

(https://www.wto.org/english/tratop_e/serv_e/gatsqa_e.htm)

1. AfCFTA Protocol on Trade in Services (tralac) –

(https://www.tralac.org/resources/infographic/16187-trade-in-services-in-the-afcfta-factsheet.html)

Government / Official Sources

1. SA News – R12.5bn border overhaul announcement, April 2026 –

(https://www.sanews.gov.za/south-africa/r125bn-border-overhaul-boost-trade-security-and-traveller-experience)

Legal Commentary

1. Cliffe Dekker Hofmeyr – Proposed amendments to South Africa’s immigration laws and policies, January 2026

1. BizCommunity – High Court upholds corporate visa refusal: implications for businesses, August 2025

(https://www.bizcommunity.com/article/high-court-upholds-corporate-visa-refusal-implications-for-businesses-957854a)

1. Webber Wentzel – Unfairly excluding South Africans from employment opportunities

(https://www.webberwentzel.com/News/Pages/unfairly-excluding-south-africans-from-employment-opportunities-in-favour-of-foreign-nationals-regarded-discrimination.aspx)