Important warning to anyone who employs foreign workers in South Africa

Anyone who employs foreign workers must still comply with employment laws, and dismissing any such worker, even if they don’t have a valid work permit, is unlawful. 

This is the message from Webber Wentzel experts Nivaani Moodley, Jamie Jacobs, and Bianca Rutherfoord-Jones.

The experts cited a recent High Court judgement that serves as a notable warning for anyone currently employing foreign workers.

The experts noted that the recent judgment of the Eastern Cape High Court in Mthatha declared the dismissal of a foreign national employee unlawful, despite the individual’s failure to have a valid work visa.

“The case underscores the complexities of managing foreign national employment in South Africa and reinforces the obligation on employers to comply with both immigration and labour laws,” the firm said. 

The case, Nyakudya v O.R. Tambo District Municipality, involved a Zimbabwean national who had been employed by the municipality on a fixed-term basis since 2009. 

He had initially been employed under a general work visa, but the visa had expired several years before his eventual dismissal in November 2023. 

The experts explained that neither the employer nor the employee took steps to renew or replace the visa. Still, the municipality continued to employ him until the day he was let go.

In its termination letter, the municipality cited the expired visa and the employee’s lack of legal work status as the reasons for the dismissal. 

However, the employee challenged this, arguing that the dismissal was procedurally unfair and violated his constitutional right to fair labour practices. The Court agreed.

The Court acknowledged that employing a foreign national without a valid work visa is a contravention of section 38 of the Immigration Act.

However, it added that this breach does not remove the worker’s right to fair treatment in the workplace. 

Foreigners have the same labour rights as South Africans 

Quoting a precedent set in Discovery Health v CCMA, the Court reiterated that section 38 of the Immigration Act was not intended to limit the constitutional right to fair labour practices. 

This means foreign workers without valid work permits still enjoy protection under South African labour law.

“The Court reaffirmed the principle that foreign national employees should not be deprived of labour remedies just because their contracts are invalid due to a lack of a valid work visa,” said Webber Wentzel.

The Court ultimately ruled that the dismissal was unlawful and set it aside. However, it did not order reinstatement, stating it would not be practical under the circumstances.

It did not award compensation. However, the municipality was ordered to pay the legal costs of the case.

This ruling sends a strong message to employers that dismissals must always be based on lawful grounds and carried out through a fair procedure, regardless of an employee’s immigration status.Simply citing an expired visa is not enough.

According to Webber Wentzel, employers must carefully balance compliance with their obligations under the Immigration Act and applicable labour legislation. 

“The Court reaffirmed that compliance with the Immigration Act does not override an employee’s right to fair labour practices,” the firm said. 

The firm advised all employers who hire foreign nationals to implement regular due diligence and verification processes to ensure that every employee has a valid legal status to work in South Africa. 

“Failure to comply with immigration laws can result in criminal penalties, including fines or imprisonment of up to one year,” it warned. 

However, the firm added that compliance with immigration rules must not come at the expense of labour rights. 

The Webber Wentzel experts explained that employers must also ensure that foreign national employees are afforded the same procedural fairness as South African employees.

The experts added that this may include offering assistance where a work visa has expired or is nearing expiry.