It is not uncommon for South Africans to employ a foreign national with a work visa and then subsequently discover that the work visa has expired. Employing people who do not have a valid work visa is a criminal offence. This article briefly summarises considerations for an employer in this situation.

Foreigners require valid work visas to work in South Africa. The Immigration Act 13 of 2002 (“Immigration Act”) prohibits employment of foreigners whose status does not authorise them to be employed or employed by that specific employer (section 38). Where a foreigner has a work visa but the terms and conditions or capacity of his/her current employment is different from what is allowed by the visa, such employment is also prohibited.

It is the employer’s obligation to verify and ascertain the status and citizenship of its employees. A duty to make a good faith effort is placed on employers. It will be presumed that the employer knew that such person was undocumented or prohibited to work unless it can be shown that the employer made a good faith effort to ascertain the status and citizenship of that person.

The Department of Home Affairs has been clear that there will be consequences for employers who contravene the Immigration Act. These consequences could be a fine or imprisonment not exceeding one year for a first offence in terms of section 49(3) of the Immigration Act. The punishment is harsher for second- or third-time offenders.

However, terminating employment on the basis that a work permit has expired constitutes a dismissal. An employer must therefore follow the usual legal processes for a dismissal. Whether or not such dismissal is fair will depend on the circumstances of each matter. It is therefore important to obtain legal advice in this situation. 

 This article does not constitute legal advice nor replace the need to seek advice. It also does not contain all the information relevant to the subject matter. Each situation is different and must be evaluated on its own merits. For advice on related matters, our contact details are below.