Hiring Illegal Foreigners in South Africa: What Employers Need to Know About Labour Law and Immigration Compliance

In South Africa, employers must comply with the Immigration Act 13 of 2002 (“IA”) and the Labour Relations Act 66 of 1995 (“LRA”) when hiring workers, especially foreign nationals. A common misconception is that foreign nationals who lack the correct legal status or work authorisation have no protection under South African labour law. This assumption is not only legally flawed but also carries serious consequences for employers.

Is It Illegal to Employ Undocumented Foreigners in South Africa?

Yes. Section 38(1) of the IA strictly prohibits any person or business from employing:

An illegal foreigner;
A foreigner whose status does not permit them to work for that employer; or
A foreigner under terms, conditions or in a role different from what their visa allows.

This means that employing someone without a valid work visa, or whose permit is expired, places the employer at risk, even if the employee was initially hired in good faith. Employers who view undocumented foreign workers as a “cost-saving” solution should be aware that they are exposing themselves to civil and criminal liability.

Are Undocumented Employees Protected by Labour Law?

Yes. South African labour legislation still applies to illegal foreigners, even though the employment may be unlawful in terms of immigration law. Section 213 of the LRA defines an “employee” broadly as anyone who works for another and receives or is entitled to receive remuneration, regardless of their immigration status.

The implication is clear: even undocumented workers are entitled to fair labour practices. This includes protection against unfair dismissal.

When Can Employers Dismiss Illegal Foreigners?

Employers must comply with the LRA when terminating any employment relationship. Dismissal is only lawful if it is:

Substantively fair (based on valid reasons such as misconduct, incapacity, or operational requirements); and
Procedurally fair (following due process and consultation).

Notably, the Labour Court in First National Bank, a Division of First Rand Bank Ltd v CCMA and Others [2017] 11 BLLR 1117 (LC) held that the expiration of a work permit may be treated as incapacity. In such cases, dismissal may be permissible, but only after proper procedures have been followed.

What If the Dismissal Is Not Fair?

Employees, regardless of legal status, can approach the Commission for Conciliation, Mediation and Arbitration (CCMA) or Labour Court for relief if dismissed unfairly. Employers who fail to follow the correct procedures risk reinstatement orders, compensation awards, or reputational damage.

Criminal Consequences for Employers

Section 49(3) of the IA makes it a criminal offence to knowingly employ someone who is not legally permitted to work in South Africa. Convictions may result in:

A fine or up to 1 year imprisonment for a first offence;
2 years for a second offence; and
3 years for any further convictions.

Worse still, under section 38(2) of the IA, employers are presumed to know that a person is ineligible for employment unless they can prove otherwise. This legal presumption places a heavy burden on employers.

Legal Compliance and Risk Mitigation

To avoid liability:

Conduct immigration compliance checks during recruitment;
Keep records of valid work permits and expiry dates;
Establish internal processes for re-verification of immigration status;
Avoid assumptions and consult immigration or labour law experts where needed.