“Ignorance of the law excuses no man.” (John Selden)

Government is increasing inspections aimed at employers of undocumented foreign nationals. Businesses may be the most obvious targets, but an ordinary household employing a domestic worker or gardener is also an employer.

The current law prohibits an employer from employing anyone who:

• is unlawfully in South Africa
• whose status does not allow them to work
• or whose documents do not permit the particular work they are doing

Employers must make a good-faith effort to establish that the person is entitled to perform the work for which they are employed.

What should you check?

A passport is not enough. It establishes identity and nationality but does not necessarily give its holder permission to work in South Africa.

Ask for the document on which the person relies for their right to work. Check that it appears genuine, has not expired and authorises the work being performed. Keep a copy and record when it must be checked again.

Permanent residents, recognised refugees, asylum seekers and holders of exemption permits do not all have the same right to work or the same conditions attached to their status. Domestic work and gardening are also not on the critical-skills list, making the ordinary work-visa route difficult in practice.

A person may nevertheless be entitled to work through permanent residence, refugee status, asylum documentation permitting employment or an exemption permit, such as the Zimbabwe Exemption Permit. The important question is whether the particular document authorises the particular work. If in doubt, ask us.

What if the documents do not check out?

There may be no quick administrative solution. Continuing to employ someone who is not entitled to work can expose the employer to criminal liability, but dismissing the person immediately can create a separate employment dispute.

Foreign workers do not lose their employment rights merely because their immigration status is irregular. In a recent case, the High Court set aside the immediate termination of a municipal employee whose work permit had expired. The municipality could not use his immigration status to avoid giving him the notice required by employment law.

If a check reveals a problem, speak to us before continuing or ending the employment relationship. The employer’s immigration obligations and the worker’s employment rights must both be addressed.

What could the Bill change?

The Employment Services Amendment Bill would introduce additional duties when employing foreign nationals. As currently drafted, an employer may have to establish that no suitable South African citizen or permanent resident is available for the vacancy and prepare a plan for transferring skills to South African employees, unless an exemption applies.

The Minister could also set limits on the employment of foreign nationals in particular sectors, occupations or areas. Employers outside the public sector with fewer than ten employees would be excluded from these quota provisions, but not necessarily from the Bill’s other requirements.

The proposed penalties are significant. An initial contravention could attract a fine of up to R100,000, with higher maximum fines for repeated non-compliance.

These fines would not apply only to employing undocumented workers. An employer could employ someone who is legally entitled to work but still contravene the proposed law by failing to conduct the required recruitment check or prepare a skills-transfer plan.

Is the Bill already law?

No. The Bill is before Parliament and may change before it becomes law.

However, employers already have a legal duty to ensure that foreign employees are entitled to work in South Africa and to perform the particular work for which they were hired. Breaching the existing law can already result in criminal penalties. The Bill would add further duties and penalties.

Employ a foreign national at your business or home? Speak to us if you are uncertain about their documents or your obligations.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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