Legislation Overview
INDUSTRY JOURNAL Vol . 8
Legislation Overview
Employing Foreigners
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Employing a foreigner without a valid work permit is an offence and exposes the employer to fines and possible imprisonment . The employment of foreigners is regulated by the Immigration Act 13 of 2002 , as amended . The Immigration Act provides for the admission of foreigners to , their residence in , and departure from South Africa and matters connected therewith , including the ability of foreigners to work in South Africa . The Immigration Act is supplemented by the Immigration Regulations .
Section 38 of the Immigration Act provides that no person shall employ :
• An illegal foreigner ;
• A foreigner whose status does not authorise him or her to be employed by such person ; or
• A foreigner on terms , conditions or in a capacity different from those contemplated in such foreigner ’ s status .
In terms of Section 38 ( 2 ) of the Immigration Act , 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 . The liability thus rests with the employer .
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 for a fine or a period of imprisonment not exceeding one year for a first offence .
The Employment Services Act 4 of 2014 (‘ ESA ’), which came into effect in 2014 , further regulates the employment of foreigners . ESA has been introduced to promote employment , encourage productivity , decrease levels of unemployment and provide training for unskilled workers . One of the specific aims of ESA is to facilitate the employment of foreign nationals in a manner that is consistent with the objectives of the Immigration Act . ESA provides that an employee who is employed without a work permit is entitled to enforce any claim against his or her employer and which claim may arise from statute or the contract of employment .
In addition , the Labour Relations Act 66 of 1995 , as amended (‘ the LRA ’), is applicable , regardless of the legal status of employment .
Immigration Law – Zimbabwe Exemption Permit ( ZEP )
The decision not to renew the Zimbabwean Exemption Permit ( ZEP ), beyond a grace period to 31 December 2022 , was gazetted and notified of on 7 January 2022 . The grace period to apply for other permits under the Immigration Act , including work permits , was thus until 31 December 2022 . On 2 September 2022 the period was extended to 30 June 2023 .
ZEP holders will be required to leave South Africa in the event that their applications for a visa are declined , or face deportation . ZEP holders are entitled to continue rendering services during the grace period , provided that the ZEP holder can provide proof that a visa application has been submitted . The appropriate visa must thus be applied for without delay .
The requirements for obtaining a General Work Visa or a Critical Skills Visa are self-explanatory , and are here : http :// www . dha . gov . za / index . php / permanent-res / 10- immigration-services / 975-documents-required-general-workpermit http :// www . dha . gov . za / index . php / immigration-services / scarceskills-work-permits
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