Why migration law is commercial law — cross-border trade needs people, not just policies

The R12.5-billion redevelopment of South Africa’s six busiest land ports, Beitbridge, Lebombo, Oshoek, Kopfontein, Maseru Bridge and Ficksburg, is the single largest investment ever made by the South African government in border management.

Announced in April 2026 through a public-private partnership, it is being driven by a straightforward commercial logic. These six ports account for more than 80% of cross-border trade and passenger flows through SA’s land borders, and their dysfunction has a direct cost to the economy. The government’s own framing is instructive.

The Minister of Home Affairs cited research showing that a 5% reduction in border clearance time can increase intra-regional exports by approximately 10%. Infrastructure, however, can only solve part of the problem. The legal frameworks governing who may cross those borders and on what terms are equally determinative of whether trade happens at all.

The linkage between migration and trade is not a policy aspiration but rather a structural feature of international trade law. The General Agreement on Trade in Services governs cross-border trade in services through four modes of supply. Mode 4: the temporary movement of natural persons directly enables service providers to cross borders to supply services: the engineer at a client’s construction site, the compliance officer deploying across jurisdictions, the specialist advising on a transaction in another country.

AfCFTA Protocol on Trade in Services

The AfCFTA Protocol on Trade in Services adopts the same framework, covering the same four modes across its five priority liberalisation sectors: financial services, transport, business services, communications and tourism. In each of these sectors, services cannot be supplied without people moving. A favourable trade agreement creates the legal permission. Immigration law determines whether it can be exercised.

This is not merely a theoretical concern, and research on business migration in comparable economies has found that it is strongly associated with trade and investment ties, and that where immigration systems create friction for intra-corporate transferees, contractual service suppliers, and business visitors, the commercial relationships that Mode 4 is designed to facilitate are directly impaired.

SA’s own immigration framework reflects this reality, even if practice does not always follow principle. The preamble to the Immigration Act 13 of 2002 states that the act aims to promote economic growth by enabling the employment of needed foreign labour, facilitating foreign investment.

The Critical Skills Work Visa under section 19(4) exists precisely to address the gap between the skills the domestic labour market cannot supply and those commercial enterprises require to operate. In October 2024, the Department of Home Affairs introduced a points-based system for work visa applications; further evidence that skills-based migration is being structured as an economic instrument rather than a purely administrative process. The legislative intent, in other words, is explicitly commercial, and the difficulty arises in execution.

Recent judgments

Two recent judgments illustrate precisely where that gap bites and why businesses that treat immigration compliance as an administrative afterthought are exposed. 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 customers applied for a corporate visa to employ foreign nationals fluent in Zimbabwean and Malawian languages, languages that its clients spoke and in which its service was delivered.

The Department of Employment and Labour refused the benchmarking certificate required to proceed. The company (Mukuru) challenged that refusal on review. The Western Cape Division of the High Court dismissed the application, finding that Mukuru had failed to demonstrate, through documented training programmes and evidence of recruitment efforts, that no South African citizen or permanent resident could be trained to fill those roles.

Critically, the court held that the Immigration Act’s preamble requires that the need for foreign nationals and a commitment to training South Africans to meet that need must both form part of the portfolio of evidence in any corporate visa application. A commercially compelling argument is insufficient without the evidentiary foundation to support it.

This was reinforced, in a different sector, by Sitrusrand Boerdery (Pty) Ltd v Minister of Employment and Labour [2025] ZAGPPHC 758. A citrus farming company required 762 workers for its harvest season. It was advertised in a local newspaper, received 15 applications and found none suitable. It then applied for a corporate visa recommendation, asserting a local skills shortage.

Recruitment drive

The department conducted its own recruitment drive, which attracted 1,410 job seekers, of whom 1,006 were verified and referred to the applicant. The Adjudication Committee concluded that the required skills were available domestically and refused the application. The high court upheld that refusal as lawful, rational and procedurally fair.

The farm had a genuine operational need. The court nonetheless found that its recruitment efforts fell short of the requirements of the statutory framework. A single newspaper advertisement does not constitute a diligent search. The Employment Services System of SA database had matched nearly 6,000 candidates to the vacancy profile.

Together, these judgments illuminate a consistent and commercially significant principle: the statutory test for a corporate visa recommendation is not whether the employer found suitable candidates; it is whether the employer conducted a sufficiently diligent search, documented that search comprehensively, and addressed the question of local training. Businesses that apply without understanding this distinction will lose, regardless of the merits of their underlying need.

The practical implications extend beyond compliance. Immigration strategy is inseparable from market entry, workforce planning and project delivery. A company that cannot lawfully employ the personnel its operations require faces delays, contractual exposure and reputational risk.

These are commercial outcomes flowing from legal decisions that too many businesses still treat as HR matters. Emerging proposed amendments to the Immigration Act, including a dedicated start-up visa, an investment visa replacing the current business visa, and a new skilled worker visa pathway, signal that the regulatory environment is evolving.

Businesses that engage with these changes proactively and structure their immigration applications as legal instruments rather than form-filling exercises will be better positioned to move quickly when opportunities arise.

Trade agreements open markets, and people make those markets work. The legal frameworks that determine whether people may cross borders are not outside commercial law – they are part of it. DM

Alude Xuba is an admitted attorney of the High Court of South Africa and the founder and principal attorney of 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.

Disclaimer: This article is not legal advice. For more information, contact Xuba & Associates Attorneys Inc. at 010 500 1571 / 072 547 4269, hello@xubalaw.co.za