recent raids on businesses employing illegal foreign nationals in Cape Town
underscores the Department of Labour’s mission to ensure that employers comply
with labour legislation as it relates to the employment of foreign nationals,”
says Advocate Tertius Wessels, Legal Director at Strata-G Labour Solutions.
9 May, raids were conducted in China City in Milnerton and Canal Walk in
Century City where 25 foreign nationals were arrested for contravening the
Immigration Act. In addition, a manager at one of the businesses was charged
with contravention of the Act, which regulates the employment of foreign
nationals in South Africa.
says many employers provide employment to foreign nationals without
understanding the legal implications of their decision. “There is a
misconception that if someone is a foreign national, normal labour laws, such
as the Basic Conditions of Employment Act and Labour Relations Act, do not
apply to them.
is important that employers know that foreign employees, including those who do
not have valid work visas or permits, are afforded legal protection in terms of
South Africa’s labour laws and they enjoy all the rights, privileges, duties
and obligation of a ordinary South African citizen. They are also protected against
unfair dismissal and/or unfair labour practices,” he adds.
must ensure that when they dismiss a foreign national, it is done for a fair
reason and in accordance with fair processes. “Employers should not be under
the false impression that South Africa’s labour law does not apply to foreign
nationals or that foreign nationals do not have any recourse against their
employers,” says Wessels.
adds if people are in the country illegally, they can be deported. 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 to a fine or a period of imprisonment
not exceeding one year for a first offence.”
employing foreign nationals, 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. It is up to the
employer to check if the individual has valid enabling documents to work in
South Africa. “Employers also need to check the expiry date and make sure the
employment contract is for the duration of the work permit.
such employees must take steps to renew the documentation timeously. If they
don’t, the employer will have grounds to terminate their services,” concludes