The position regarding the employment of an illegal foreigner and or a foreigner without legal status is predominately governed by the Immigration Act 13 of 2002 (“the Immigration Act”) which must be read in conjunction with the Employment Services Act 4 of 2014 (“the Employment Services Act”).
Section 38(1) of the Immigration Act expressly provides that no person shall employ an illegal foreigner; a foreigner whose status does not authorise him or her to be employed by such a person, or a foreigner on terms, conditions or in a capacity different from those contemplated in such a foreigner’s status.
It is clear from the above provision that the Immigration Act strictly prohibits any and or all employment of an illegal foreigner and or foreigner without status to work in South Africa.
Therefore, contrary to the common practice of many employers in South Africa, neither the Immigration Act nor any other legislation promulgated in South Africa permits an employer to employ illegal foreigners and or foreigners without legal status to work, and subject such employment to terms and conditions that are less favourable to the employee (for example paying the employee an amount less then the minimum wage) as a consequence of the employee being an illegal foreigner and or a foreigner without status to work in South Africa
It is worth noting that the Labour Relations Act 66 of 1995, as amended (“the Labour Relations Act”) is applicable regardless of whether such employee is an illegal foreigner and or foreigner without legal status. As such, the said employee is entitled to protection against such unfair labour practice.
In the case of Discovery Health Limited v Commission for Conciliation, Mediation and Arbitration and Others the court stated that the contract of employment concluded by Discovery Health and the employee was not invalid, despite the fact that the employee did not have a valid work permit to work for Discovery Health Limited in South Africa. For this reason, the said employee was considered an employee as defined by section 213 of the Labour Relations Act and thus was entitled to refer the dispute concerning his unfair dismissal to the CCMA. The court further stipulated that even if the said employment contract was said to be invalid on the basis that Discovery Health Limited was prohibited from employing the employee on the basis of section 38(1) of the Immigration Act, the employee was nonetheless an employee as envisaged by section 213 of the Labour Relations Act and was entitled to enforce his rights as contemplated in the Labour Relations Act.
The right to fair labour practice is further echoed by section 23 (1) of the Constitution of the Republic of South Africa which provides that everyone has a right to fair labour practices. This right is in no manner guaranteed for citizens only.
Further, not only does the Immigration Act prohibit the employment of illegal foreigners however, section 28(2) of the Immigration Act bestows upon an employer an obligation to act in good faith in ascertaining that no illegal foreigner is employed by him or her and or places the obligation of an employer to ascertain the status or citizenship of those he or she employs.
Employers therefore must take caution and guard against employing an illegal foreigner; a foreigner whose status does not authorise him or her to be employed by such a person, or a foreigner on terms, conditions or in a capacity different from those contemplated in such a foreigner’s status, as the employer stands the risk of criminal sanctions such as a fine, imprisonment and may face a negative award at the CCMA or Labour Court, should that employee refer the matter to the applicable forum based on an unfair labour practice or unfair dismissal.