Hiring Foreign Nationals in SA: What Employers Must Know About Legal Status, Labour Rights, and Risk

In 2025, South African employers are under increased scrutiny for hiring undocumented or non-compliant foreign workers. With stricter enforcement from the Department of Employment and Labour, non-compliance with the Immigration Act 13 of 2002, the Employment Services Act 4 of 2014 (ESA), and the Labour Relations Act 66 of 1995 (LRA) can lead to severe penalties, reputational harm, and costly labour disputes.

What the Law Says?

Section 38(1) of the Immigration Act makes it a criminal offence to employ:

• An illegal foreigner (not lawfully present in SA);

• A foreigner whose visa does not authorise them to work;

• A foreigner employed outside the terms or position permitted by their visa.

This prohibition is absolute. Employers cannot justify poor conditions, reduced pay, or lack of benefits based on an employee’s documentation status.

Labour Rights Apply. Even to Undocumented Workers

The Labour Relations Act (Section 213) and the Constitution (Section 23) afford all workers, regardless of citizenship, the right to fair labour practices. In the landmark Discovery Health v CCMA (2008) case, the Labour Court confirmed undocumented foreigners still qualify as employees under South African law.

Your Legal Duties as an Employer

Beyond avoiding illegal employment, Section 28(2) of the Immigration Act obliges employers to:

• Act in good faith

• Verify the work status of all foreign employees

• Track visa expiry dates and update HR systems accordingly.

Employers must also comply with FICA verification, refrain from discriminatory practices, and document their due diligence processes.

Penalties for Non-Compliance (Effective 2025)

Employers face escalating penalties for employing undocumented foreign nationals:

• First offence: Fine or 1 year imprisonment.

• Repeat offence: Up to 3 years imprisonment (no option of fine).

• Fines of R10 000 - R12 500 per undocumented worker.

• CCMA findings of unfair dismissal or labour rights violations.

• Potential for reputational damage and business risk.

  
  

Hiring Protocol: Best Practice in 2025

Before Employment:

• Obtain signed DHA consent to verify immigration status.

• Require a Police Clearance Certificate.

• Confirm that:

  • The visa is valid and unexpired

  • It authorises employment

  • Your company is named if applicable.

During Employment:

• Keep certified, up-to-date visa copies on file.

• Set 90-day alerts for visa expiry tracking.

• Require staff to report any immigration status changes.

What if a Foreign Worker Becomes Undocumented?

Do not dismiss summarily. You may only proceed with termination if:

1. The employee knowingly used fraudulent documents (Misconduct) or

2. Their status has lapsed, making them legally unable to work (Incapacity).

Follow LRA procedures:

• Provide written notice of concern

• Hold a fair hearing

• Allow representation

• Issue a reasoned, written outcome.

  
  

Even in detention cases (e.g. for immigration offences), the employer must meet minimum procedural fairness:

• Notify the employee or their family

• Offer opportunity to submit a statement

• Document all steps

• Consider a post-dismissal hearing if the process was flawed.

  
  

Risk & Compliance Summary

To protect your business:

• Vet every foreign employee thoroughly

• Centralise visa tracking

• Train your HR and compliance teams

• Act lawfully, even when dismissing non-compliant workers

• Seek legal guidance early to avoid CCMA losses.

  
  

Need help assessing immigration compliance or defending a CCMA claim involving a foreign national? Kern, Armstrong & Associates offers end-to-end legal support for employers navigating the complexities of cross-border hiring.