Introduction

Employing foreign nationals requires employers to consider two legal frameworks simultaneously. Employers must comply with South Africa’s immigration laws and ensure that foreign nationals are authorised to perform the work for which they are employed. At the same time, foreign nationals employed in South Africa may enjoy the protections afforded by South African labour legislation. The difficulty arises when these frameworks appear to conflict.

What happens when an employee’s work authorisation expires? What if the employee is working outside the conditions of their visa? Does the employment relationship automatically become invalid, or can the employer simply terminate the employee’s employment?

The answer depends on what exactly is unlawful and what legal consequences flow from that irregularity. Section 38 of the Immigration Act 13 of 2002 prohibits an employer from employing an illegal foreigner or a foreigner in a position or on conditions not permitted by their visa or work authorisation. It also requires employers to make a good-faith effort to verify and monitor the immigration status of employees.

However, immigration non-compliance does not automatically place an individual outside the protection of the Labour Relations Act 66 of 1995 (LRA), nor does it necessarily bring the employment relationship to an immediate end. Case law shows that employers must distinguish between different forms of illegality before deciding how to respond.

The Legal...

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