Written by Roy Bregman, admitted attorney with over 51 years’ experience in employment and immigration law.
Introduction
Employing Foreign Nationals South Africa has become an increasingly important issue for businesses operating across multiple sectors of the economy. South Africa’s workforce includes a significant number of foreign nationals who contribute valuable skills and expertise, but employing foreign workers also creates a complex intersection between immigration law and employment law. The Immigration Act 13 of 2002 prohibits the employment of foreign nationals without valid work authorisation, while the Labour Relations Act 66 of 1995 (LRA), the Basic Conditions of Employment Act 75 of 1997 (BCEA), and the Constitution guarantee fair labour practices to “everyone.”
Two landmark cases – Discovery Health Limited v CCMA [2008] BLLR 635 (LC) and Nyakudya v O.R Tambo District Municipality (Case No. 862/2024, Eastern Cape High Court, decided 27 May 2025) – establish a clear legal position that every employer dealing with employing foreign nationals South Africa should understand.
When employing foreign nationals South Africa, employers must comply strictly with the Immigration Act 13 of 2002. Section 38(1) prohibits any person from employing an illegal foreigner, a foreign national whose status does not authorise employment, or a foreigner employed on terms inconsistent with their visa conditions. In addition, section 38(2) places a positive legal duty on employers to make a good-faith effort to verify the immigration status of all employees. This obligation is ongoing and does not end once the recruitment process is complete. Where an employer knowingly employs a foreign national in violation of the Act, section 49(3) creates criminal liability, including fines or imprisonment of up to one year for a first offence and up to three years for repeated violations.
For businesses employing foreign nationals South Africa, the practical implication is clear: employers must actively monitor work permit expiry dates, maintain accurate employment records, and engage with affected employees well before permits lapse. The legal duty to verify immigration status is continuous and forms a critical part of employer compliance obligations under South African immigration law.
Under South African law, including when dealing with employing foreign nationals South Africa, the protection of fair labour standards is broad and intentionally inclusive. Section 23(1) of the Constitution guarantees that “everyone” has the right to fair labour practices, which extends to all workers regardless of immigration status. Section 185(a) of the Labour Relations Act (LRA) further reinforces that every employee has the right not to be unfairly dismissed. Importantly, the definition of “employee” in section 213 of the LRA does not expressly require a valid employment contract as its foundation, and courts have interpreted this provision purposively to include individuals who work for another person and receive remuneration, even where there are immigration irregularities.
In addition, Chapter Five of the Basic Conditions of Employment Act (BCEA) requires employers to provide written notice of termination and to comply with statutory minimum notice periods based on length of service. This means that even in the context of employing foreign nationals South Africa, employers must still follow fair procedure and statutory notice requirements when ending employment relationships, regardless of immigration status.
Discovery Health Limited v CCMA [2008] BLLR 635 (LC): Can a Foreign Worker Without a Valid Permit Be an “Employee”?
The Facts
In the context of employing foreign nationals South Africa, the case of German Lanzetta, an Argentinean national employed by Discovery Health as a call centre agent from 1 May 2005, illustrates the legal risks employers face when immigration status changes during employment. Lanzetta’s work permit, which had been issued for a previous employer, expired at the end of December 2005. On 4 January 2006, Discovery Health called him to a meeting and issued a letter stating that because his work visa had expired, “there is no longer a legal basis for your employment,” and terminated his employment with immediate effect. No disciplinary hearing or fair procedure was followed.
Lanzetta subsequently referred an unfair dismissal dispute to the CCMA. Discovery Health challenged the CCMA’s jurisdiction, arguing that the employment contract was unlawful due to the expired permit and that Lanzetta therefore did not qualify as an “employee” under the LRA. On this basis, the employer contended that the CCMA had no authority to hear the matter.
The Court’s Decision
Acting Judge Van Niekerk, in the context of employing foreign nationals South Africa, dismissed Discovery Health’s review application and upheld the CCMA’s jurisdiction on two independent grounds. First, the court held that the contract of employment was not automatically rendered void merely because one party had breached the Immigration Act. While the Act criminalises the employer’s conduct, it does not expressly declare such employment contracts invalid.
Second, and more broadly, the statutory definition of “employee” under the Labour Relations Act (LRA) does not depend on the existence of a valid common-law contract of employment. Instead, it extends to anyone who works for another and receives remuneration. The court warned that to interpret the law otherwise would create an opportunity for unscrupulous employers to exploit undocumented workers, taking their labour and then refusing payment or dismissing them without following any fair process, while avoiding legal accountability. This outcome would directly undermine the constitutional right to fair labour practices in South Africa.
The Facts
In the context of employing foreign nationals South Africa, the case of Samuel Nyakudya, a Zimbabwean national employed as a research assistant by the O.R Tambo District Municipality from 2009, highlights the risks of prolonged administrative oversight in managing work permits. His employment was renewed repeatedly over more than a decade, and after his last formal contract expired in March 2022 he continued working with the municipality’s knowledge and approval. In November 2023, the municipality issued a letter terminating his employment with immediate effect, citing both the expiry of his contract and the fact that his work permit had lapsed (apparently as early as June 2018). No prior notice was given, and no incapacity process was followed.
In the context of employing foreign nationals South Africa, the municipality’s own papers conceded that the continued employment resulted from an “oversight” by its personnel, underscoring that employers remain responsible for tracking and managing immigration compliance even where administrative failures occur internally.
The Court’s Decision
Acting Justice Cengani-Mbakaza, in the context of employing foreign nationals South Africa, declared the termination unlawful and set it aside, following the principles established in Discovery Health. The court confirmed that an employee’s undocumented status does not automatically entitle an employer to dismiss them summarily. Even where the employment of a foreign national is prohibited by law, employers are still required to follow the fair procedures set out in the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA), including an incapacity process where the issue is a legal inability to continue working rather than misconduct.
The court further emphasised that the Immigration Act places the duty of verification squarely on the employer. In this case, the municipality had years in which to identify and address the permit issue but failed to do so, and therefore could not rely on its own administrative oversight as justification for immediate termination. While the court did not order reinstatement due to the abolition of the position, it awarded costs against the municipality, reinforcing the obligation on employers to manage immigration compliance proactively when employing foreign nationals South Africa.
Conclusion
In the context of employing foreign nationals South Africa, the legal position established by these two decisions can be summarised clearly. While an employer who employs a foreign national without valid work authorisation faces real criminal exposure under the Immigration Act, this risk does not override or displace employment law protections. It does not create a “get out” allowing employers to bypass the requirements of the Labour Relations Act (LRA) or the Basic Conditions of Employment Act (BCEA). The employee retains full status as an “employee” and remains entitled to the full protection of South African labour law.
Accordingly, when employing foreign nationals South Africa, any termination of employment, even where it arises from immigration non-compliance, must still follow a fair procedure. In practical terms, this requires initiating an incapacity inquiry, providing proper statutory notice, and engaging meaningfully with the employee regarding the possibility of regularising their immigration status before any dismissal is considered.
The case law further highlights a proactive compliance duty on employers. Businesses should regularly audit the work authorisation status of all employees, maintain accurate records of permit expiry dates, and engage employees well in advance of any lapse. In practice, prevention through proper monitoring and compliance systems is significantly more cost-effective and legally safer than resolving disputes through litigation.
Can I dismiss a foreign employee immediately if their work permit expires?
No. The expiry of a work permit does not entitle an employer to dismiss an employee summarily or without notice. The courts require a fair incapacity process, proper written notice in accordance with the BCEA, and an opportunity for the employee to be heard before termination.
Is an employment contract with a foreign national who has no valid work permit automatically void?
No. The Labour Court confirmed in Discovery Health Limited v CCMA that the Immigration Act criminalises the employer’s conduct but does not expressly declare such contracts void. The contract remains valid and the worker retains employee status under the LRA and BCEA.
Does POPIA prevent me from asking a job applicant about their work permit status at interview?
No. Section 38(2) of the Immigration Act imposes a positive legal duty on employers to ascertain the immigration status of those they employ. This obligation cannot be deferred until after recruitment is complete. Verifying immigration status at interview is a legal requirement, not an optional step.
What process must an employer follow when a foreign employee’s permit expires?
The employer should engage the employee as soon as the permit expiry is identified (ideally before it lapses), discuss the feasibility of renewal or regularisation, and, if continued employment is not legally permissible, initiate an incapacity inquiry with proper notice as prescribed by the BCEA and any applicable disciplinary code.
Can a foreign worker without a valid permit refer a dispute to the CCMA?
Yes. The CCMA has jurisdiction over any person who qualifies as an “employee” under the LRA, and courts have confirmed that immigration irregularity does not automatically remove that status. A foreign national who is unfairly dismissed may refer a dispute to the CCMA regardless of permit status.
What are the criminal consequences for employing an undocumented foreign national?
Under section 49(3) of the Immigration Act, an employer who knowingly employs an illegal foreigner or a foreigner in violation of the Act is guilty of an offence and liable to a fine or imprisonment not exceeding one year for a first conviction, two years for a second, and three years (without the option of a fine) for a third or subsequent conviction.
Need Expert Legal Guidance on Employing Foreign Nationals South Africa? Whether you are managing a workforce that includes foreign nationals, dealing with a work permit compliance issue, or facing a potential CCMA dispute, professional legal support is essential to avoid costly mistakes and ensure full compliance with immigration and labour law requirements.
Bregman Moodley Attorneys has the expertise to protect your business, guide you through complex regulatory obligations, and provide practical, risk-focused solutions tailored to your employment and immigration challenges.
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