Immigration Act

Employing a foreigner without a valid work permit is an offence and exposes the employer to fines and possible imprisonment The employment of foreigners is regulated by the Immigration Act 13 of 2002, as amended.

The Immigration Act provides for the admission of foreigners too, their residence in, and departure from South Africa and matters connected therewith including the ability of foreigners to work in South Africa.

The Immigration Act is supplemented by the Immigration Regulations.

Section 38 of the Immigration Act provides that no person shall employ:

• An illegal foreigner;
• A foreigner whose status does not authorise him or her to be employed by such person; or
• A foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.

In terms of section 38(2) of the Immigration Act, a duty is placed on an employer to make an effort, in good faith, to ensure that no illegal foreigner is employed by it and to ascertain the status or citizenship of the persons it employs. The liability thus rests with the employer.

Furthermore, section 49(3) of the Immigration Act provides that anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act shall be guilty of an offence and liable for a fine or a period of imprisonment not exceeding one year for a first offence.

The Employment Services Act 4 of 2014 (“ESA”), which came into effect in 2014, further regulates the employment of foreigners. ESA has been introduced to promote employment, encourage productivity, decrease levels of unemployment and provide training for unskilled workers. One of the specific aims of ESA is to facilitate the employment of foreign nationals in a manner that is consistent with the objectives of the Immigration Act. ESA provides that an employee who is employed without a work permit is entitled to enforce any claim against his or her employer and which claim may arise from statute or the contract of employment.

In addition, the Labour Relations Act 66 of 1995, as amended (“the LRA”) is applicable, regardless of the legal status of employment.

Immigration Law-Zimbabwe Exemption Permit (ZEP)

The decision not to renew the Zimbabwean Exemption Permit (ZEP), beyond a grace period of 31 December 2022 was gazetted and notified of, on 07 January 2022. The grace period to apply for other permits under the Immigration Act, including work permits, was thus until 31 December 2022. On 02 September 2022, the period was extended to 30 June 2023.

ZEP holders will be required to leave South Africa in the event that their applications for a visa are declined, or face deportation. ZEP holders are entitled to continue rendering services during the grace period, provided that the ZEP holder can provide proof that a visa application has been submitted. The appropriate visa must thus be applied for without delay.

The requirements for obtaining a General Work Visa or a Critical Skills Visa are self-explanatory, and are here-

http://www.dha.gov.za/index.php/permanent-res/10-immigration-services/975-documents-required-general-work-permit
http://www.dha.gov.za/index.php/immigration-services/scarce-skills-work-permits

Amendments to the law

 The Employment Services Act is proposed to be amended by the Draft National Labour Migration Policy and Employment Services Amendment Bill, published on 28 February 2022. The Bill and Draft Policy was developed to provide, inter alia, a legal framework for the regulation of the employment of foreigners. The Department of Employment and Labour will take a more active role in matters relating to the employment of foreigners. Quotas, per sector and occupational category, are proposed to limit the number of foreigners employed in South Africa to protect employment opportunities for South Africans. Small employers (to be defined) will be excluded from complying with quotas. 

 A new Chapter 3A will provide for new requirements imposed on employers employing foreign nationals, including determining that there is no South African that has the skills to perform the work and to prepare a skills transfer plan in respect of any position in which a foreign national is employed. The new Section 12D reiterates that an employee who is employed in contravention of the law is entitled to enforce any claim that they may have in terms of any statute (e.g. LRA, BCEA, UIF, EEA), collective agreement or contract. The Bill prescribes imprisonment for up to 24 months for certain offences and fines are increased to an amount not exceeding R 100,00.00.

Employment of Foreigners

There is an ill-conceived view that employers may circumvent employment law when it comes to employing foreigners. Foreign employees, including those who do not have valid working visas, are afforded legal protection from unfair dismissal under the LRA.

Section 213 of the LRA defines an ‘employee’ as:

• Any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, and remuneration; and
• Any other person who in any manner assists in carrying on or conducting the business of an employer.

Also, the Constitution of the Republic of South Africa, Act 5 of 2005 provides in section 23(1) that everyone has the right to fair labour practices and not only citizens.

The law does not declare that a contract of employment concluded without the required permit is void, nor does it provide that a foreigner who accepts work without a valid permit is guilty of an offence. What is prohibited is the act of employing a foreign national in violation of the law. All of the liability is therefore attributed to the employer and the law does not penalise the action of the foreign person who accepts work or performs work without valid authorisation. It is the illegal employment of a foreigner that is prohibited. The employer is thus not exonerated because the employee failed to take steps to obtain the required visa or work permit.

Therefore, a foreign national whose work permit expires whilst employed, or who is employed without a relevant work permit is still employed for the purpose of the LRA. This means that the employee would have recourse to compensation in the case of unfair dismissal. Such employees would not be entitled to reinstatement as such an order would be in contravention of the Immigration Act-the employee would not be reinstated as this would mean that the illegality of the contract of employment is being condoned.

These principles were confirmed in the matter of Discovery Health Limited v CCMA & Others (2008) 7 BLLR 633 (LC) where the employee was dismissed after the expiry of his work permit. The employee referred an unfair dismissal dispute to the CCMA, where the question of the CCMA’s jurisdiction to hear the case was considered. The CCMA ruled that it did have jurisdiction to determine whether the employee had been unfairly dismissed, regardless of the status of the contract of employment.

On review, the Labour Court held that the contract of employment between the employee and employer was valid, and remained so until it was terminated by the employer. The Court also found that the employee, despite being a foreign national, fell within the definition of an employee for the purpose of section 213 of the LRA and, as a consequence, enjoyed the protection afforded by the LRA.  Discovery’s argument that the applicant could not be deemed an employee by virtue of the unlawfulness of the contract of employment, was rejected. The court decided that the Immigration Act merely subjects employers to criminal sanctions if they employ foreigners without work permits and that it is not the intention of the legislature to visit such contracts with nullity. The illegal worker is thus still considered to be an employee for the purposes of the LRA. From a procedural point of view the employer must be able to demonstrate that it has done all possible to assist the employee in obtaining a valid work permit.

In Sithole v MEIBC and Others (2018) 39 ILJ 472 (LC), the Labour Court ruled that the employer must thus act fairly towards employees, regardless of the legality of the employment. The court has ruled that if the effect of section 38(1) was to render the contract of employment void, then the unfairness and inequality that could flow would be obvious. The facts included a refusal by the employer to assist in obtaining the relevant documents that would have enabled the employee to obtain a work permit and a mere 3 days to secure a work permit.

The law clearly places the onus on the employer to comply with the relevant legislation and holds the employer liable for non-compliance. The provisions of the law, namely the Immigration Act and the provisions of the ESA must be complied with by the employer.

Pertinent provisions of the Immigration Act relating to the employment of foreigners by homeowners/contractors and the potential liability of the HOA)

Employment of foreigners is, as noted above, regulated by Sections 38 and 49 of the Immigration Act.

The employment in question is or can be between: –

• The HOA and the employee; or
• A homeowner and the employee; or
• A contractor (utilized on the property) and the employee.

In terms of i) above the HOA, in the capacity of the employer, is bound by the same law, as is a homeowner/contractor as an employer, in respect of employment.

The pertinent questions relate to the HOA not being the employer, but the homeowner, or the contractor, being the employer.

The employee’s access to the premises is then at the discretion and behest of the HOA (both where the homeowner is the employer or the contractor is the employer). The employee of the homeowner or contractor cannot render services, if access is declined.

Accordingly, the question is, is the HOA liable, or potentially liable, in granting such access?

Access can be said to be a sin qua non for the employee concerned to be able to render services. Purely from a logical point of view, the HOA is therefore materially instrumental in causing or allowing or facilitating or permitting the employment in question to exist/be performed, the HOA, of course not being involved in or a party to the employment contract in question.

Section 42 of the Immigration Act is titled “Aiding and abetting illegal foreigners”. It reads that no person shall aid, abet, assist, enable, or in any manner help (a) an illegal foreigner or (b) a foreigner in respect of any matter, conduct, or transaction which violates such foreigner’s status, where applicable…”

Granting access to an illegal foreigner for the purposes of employment can only be seen as enabling the illegal foreigner’s illegal employment – a transaction that violates the foreigner’s status – for example, not being in possession of the necessary work permit.

Section 42(b) provides for forbidden acts including, but not limited to –

(vii) doing anything for him or her, or on his or her behalf in connection with his or her business or profession, or occupation;

(viii) harbouring him or her, which includes providing accommodation.

If “occupation” means to include employment, which it can reasonably be seen to mean, then granting the illegal foreigner access to render services, can surely only be seen to be aiding and abetting and illegal foreigner. The illegal foreigner is enabled to render services, purely and solely because access is granted.

Section 42(2) provides that, in any criminal proceedings, it is no defence to aver that the status of the foreigner concerned, or whether he or she was an illegal foreigner, was unknown to the accused if it is proved that the accused ought to reasonably to have known of the status of the foreigner, or whether she or he was an illegal foreigner. This is pertinent because homeowners may be inclined to turn a blind eye to the issue. The HOA undoubtedly knows the nationality of each person granted access, for example via biometrics. As to whether the HOA would have reasonably known the status of the foreigner, is debatable. It depends on which documentation is relied upon and submitted by the foreigner, to gain access.

If it is accepted that granting access is aiding and abetting (which surely it is), then it may be that the only reasonable thing to do in the circumstances is to ask for a valid work permit from each entrant employee – more so where the homeowner is the employer (as opposed to where the contractor is the employer). In terms of contractors, it may be sufficient to require of the contractor to warrant that he/she has no illegal foreigners in his/her employment.

If the chances of the HOA’s actions, in granting access, are seen as a contravention, or put differently, what would a court likely rule, then the decisions and actions of the HOA must follow, as a non-party to the employment relationship. Homeowners may be required to be informed and consulted with (via the board or the trustees).

Immigration Law – Asylum Seekers

An asylum seeker who enters the country is initially issued with an asylum transit permit, which is valid for 14 days. Asylum is then applied for in terms of Section 21 of the Refugee Act. An asylum seekers permit is then issued which is valid for 6 months. The asylum seeker has the right to work during this period. If granted asylum (i.e. recognition of refugee status) the asylum seeker is granted a permit valid for 2 years, during which the asylum seeker may work. Application may be made for the extension of the period. After 5 years of residence as a refugee, the person may apply for permanent residence.

In conclusion, given the protection of foreign nationals in employment law, and in order to protect the employer from the consequences of non-compliance with the relevant provisions of the Immigration Act, due process needs to be put in place.

Substantively the employer may not employ any foreign national who is not entitled to work. Accordingly, a valid and fair reason for terminating the employment of a foreign national, who is not in possession of the necessary statutory authorisation to work, exists.

Procedurally, and given the explained protection of foreign nationals, a fair procedure must be ensured.

(Note-this article does not constitute legal advice). Gavin Mulvenna