With increasing immigration enforcement and workplace inspections, employers should be aware that South African law places legal obligations not only on foreign nationals, but also on the businesses that employ them.
The starting point is section 38 of the Immigration Act 13 of 2002. What does the law prohibit?
Section 38(1) provides that no person may employ:
- An illegal foreigner;
- A foreigner whose immigration status does not permit employment; or
- A foreigner who is employed outside the conditions of their
In short, if a foreign national does not have the legal right to work in South Africa, an employer may not lawfully employ that person.
What are an employer’s obligations?
Section 38(2) requires employers to make a good-faith effort to verify that a foreign employee is legally entitled to work in South Africa.
This includes:
- Inspecting visas and permits;
- Confirming that the visa authorises employment; and
- Keeping copies of the relevant
What if an illegal immigrant is found on my premises?
Section 38(5) creates an important presumption. If an illegal foreigner is found on
business premises, the law may presume that the person is employed by the business owner unless evidence proves otherwise.
What are the consequences?
Section 49(3) of the Immigration Act makes it a criminal offence to knowingly employ an illegal foreigner.
Penalties include:
- A fine or imprisonment of up to one year for a first offence;
- Up to two years for a second offence; and
- Up to five years for a third or subsequent
Final Thoughts
Employers should not assume that immigration compliance is solely the responsibility of the employee. The Immigration Act places a positive duty on employers to verify the status of foreign workers and imposes criminal penalties for non-compliance. Proper verification, record-keeping and ongoing monitoring of visa status remain essential for every business.
