INDUSTRY JOURNAL Vol . 8
Accordingly , the question is : Is the HOA liable or potentially liable , in granting such access ?
Access can be said to be a sine qua non for the employee concerned to be able to render services . Purely from a logical point of view , the HOA is therefore materially instrumental in causing or allowing or facilitating or permitting the employment in question to exist / be performed , the HOA , of course , not being involved in or a party to the employment contract in question .
Section 42 of the Immigration Act is titled ‘ Aiding and abetting illegal foreigners ’. It reads that ‘ no person shall aid , abet , assist , enable , or in any manner help ( a ) an illegal foreigner or ( b ) a foreigner in respect of any matter , conduct , or transaction which violates such foreigner ’ s status , where applicable …’
Granting access to an illegal foreigner for the purposes of employment can only be seen as enabling the illegal foreigner ’ s illegal employment – a transaction which violates the foreigner ’ s status – for example , not being in possession of the necessary work permit .
Section 42 ( b ) provides for forbidden acts including , but not limited to : ( vii ) doing anything for him or her , or on his or her behalf in connection with his or her business or profession or occupation ;
( viii ) harbouring him or her , which includes providing accommodation .
If ‘ occupation ’ means to include employment , which it can reasonably be seen to mean , then by granting the illegal foreigner access to render services , it can surely only be seen to be aiding and abetting an illegal foreigner . The illegal foreigner is enabled to render services , purely and solely because access is granted .
Section 42 ( 2 ) provides that , in any criminal proceedings , it is no defence to aver that the status of the foreigner concerned , or whether he or she was an illegal foreigner , was unknown to the accused , if it is proved that the accused ought reasonably to have known of the status of the foreigner , or whether she or he was an illegal foreigner . This is pertinent because homeowners may be inclined to turn a blind eye to the issue . The HOA undoubtably knows the nationality of each person granted access , for example via biometrics . As to whether the HOA would have reasonably known the status of the foreigner , this is debatable . It depends on which documentation is relied upon and submitted by the foreigner to gain access .
If it is accepted that granting access is aiding and abetting ( which surely it is ), then it may be that the only reasonable thing to do in the circumstances would be to ask for a valid work permit from each entrant employee – more so where the homeowner is the employer ( as opposed to where the contractor is the employer ). In terms of contractors , it may be sufficient to require of the contractor to warrant that he / she has no illegal foreigners in his / her employment .
If the HOA ’ s actions , in granting access , are seen as a contravention , or , put differently , what a court would likely rule , then the decisions and actions of the HOA must follow , as a non-party to the employment relationship . Homeowners may be required to be informed and consulted with ( via the board or the trustees ).
Immigration Law – Asylum seekers
An asylum seeker who enters the country is initially issued with an asylum transit permit , which is valid for 14 days . Asylum is then applied for in terms of Section 21 of the Refugee Act . An asylum seeker ’ s permit is then issued , which is valid for six months . The asylum seeker has the right to work during this period . If granted asylum ( i . e . recognition of refugee status ), the asylum seeker is granted a permit valid for two years , during which time the asylum seeker may work . Application may be made for extension of the period . After five years ’ residence as a refugee , the person may apply for permanent residence .
In conclusion , and given the protection of the foreign nationals in employment law , and in order to protect the employer from the consequences of non-compliance with the relevant provisions of the Immigration Act , due process needs to be put in place .
Substantively , the employer may not employ any foreign national who is not entitled to work . Accordingly , valid and fair reason for terminating the employment of a foreign national , who is not in possession of the necessary statutory authorisation to work , exists .
Procedurally , and given the explained protection of foreign nationals , fair procedure must be ensured .
( Note – this article does not constitute legal advice ).
For more information contact : Gavin Mulvenna on 082 891 7093 , gavinm @ yourside . co . za or Tanja Barnard on 082 328 7101 , tanyab @ yourside . co . za
Gavin Mulvenna
59