Employing foreign nationals can provide a South African business with valuable skills, experience and international perspective.

It also creates legal responsibilities that cannot be delegated to the employee.

An employer cannot simply accept that a passport, visa or other immigration document is valid and assume that the person is entitled to perform the proposed work. The employer must establish whether the person may lawfully work in South Africa and whether the conditions attached to their status allow the particular employment.

Failure to do so may expose the employer—and potentially responsible individuals within the organisation—to criminal penalties.

What does the Immigration Act prohibit?

Section 38 of the Immigration Act 13 of 2002 regulates the employment of foreign nationals in South Africa.

It prohibits a person from employing:

• An illegal foreigner.
• A foreigner whose immigration status does not authorise employment.
• A foreigner on terms, in a capacity or in a position different from those permitted by their immigration status.

“Illegal foreigner” is the terminology used in the Immigration Act. It generally refers to a foreign national who is in South Africa in contravention of the Act.

A person may therefore hold a passport or immigration document and still not be authorised to perform the proposed work.

What must an employer do?

An employer must make a good-faith effort to determine the immigration status of a prospective foreign employee and establish whether that person is authorised to work.

Where a foreign national is employed, the employer must also comply with the recordkeeping and reporting obligations imposed by the Act and Immigration Regulations.

Depending on the circumstances, this may include retaining copies of the employee’s passport, visa or status document, recording the employment details and monitoring the conditions and expiry date attached to the person’s immigration status.

Compliance is not a once-off exercise completed when the employee is appointed. Immigration documents can expire, employment conditions can change and a person may move into a different role that is not covered by the original authorisation.

What are the penalties for knowingly employing an illegal foreigner?

Section 49(3) addresses a person who knowingly employs an illegal foreigner or a foreigner in violation of the Act.

A first conviction may result in a fine or imprisonment for a period not exceeding one year.

A second conviction may result in a fine or imprisonment for a period not exceeding two years.

A third or subsequent conviction may carry imprisonment for a period not exceeding five years, without the option of a fine.

These consequences follow a criminal conviction. They should not be presented as an automatic administrative penalty imposed whenever an immigration problem is discovered.

What if the employer fails to perform its statutory duties?

This is a separate issue.

Section 49(6) provides that a person who fails to comply with a duty or obligation imposed under sections 38 to 46 of the Act commits an offence and may, on conviction, face a fine or imprisonment for a period not exceeding five years.

The distinction matters.

Section 49(3) concerns knowingly employing a person in violation of the Act. Section 49(6) concerns failure to comply with statutory duties, including the employer obligations contained in section 38.

An employer should therefore not assume that avoiding deliberate misconduct is sufficient. Inadequate verification, poor recordkeeping and failure to monitor immigration status may create separate compliance risks.

Is seeing a visa enough?

Not necessarily.

The employer must consider what the document actually authorises.

Relevant questions may include:

• Is the document genuine and valid?
• Has it expired?
• Does it authorise employment?
• Is employment restricted to a particular employer?
• Is the employee permitted to perform the proposed role?
• Are there conditions limiting the nature or duration of the work?
• Has the person’s immigration status changed since appointment?

The words “work visa” are not the only relevant consideration. Permanent residents, recognised refugees and certain holders of other immigration documents may possess different employment rights. Each person’s documentation and proposed role must be assessed on its own facts.

A practical employer-compliance checklist

South African employers engaging foreign nationals should consider the following controls:

1. Verify the person’s passport and immigration documentation before employment begins.
2. Confirm that the person’s status permits the proposed employment, position and employer.
3. Retain the prescribed records securely and for the required period.
4. Record visa and document expiry dates in a monitored compliance system.
5. Reassess immigration permission when an employee changes position, employer, duties or employment structure.
6. Establish responsibility within human resources or compliance for monitoring foreign-national employees.
7. Obtain professional advice where a document is unclear, appears inconsistent or does not obviously authorise the proposed work.

What should an employer do if a problem is discovered?

Do not ignore it, conceal it or assume that the employee alone is responsible.

The correct response will depend on the document, the person’s current status, the nature of the employment and whether any statutory reporting obligation has arisen.

The employer should obtain advice promptly, preserve the relevant records and avoid taking action based on assumptions. Immigration compliance and employment-law consequences may need to be considered together.

The Gema Visa Services approach

Gema Visa Services assists employers with the immigration component of foreign-national employment compliance.

This may include:

• Reviewing the immigration status and work authorisation of foreign employees.
• Assessing whether a proposed role is permitted under the employee’s current status.
• Identifying visa-expiry and documentary risks.
• Developing an immigration compliance register.
• Advising on appropriate work visa pathways.
• Working with human-resource teams and other professional advisers where an integrated response is required.

The best time to identify an immigration problem is before the employee starts working—not when the organisation is already facing an inspection, investigation or compliance dispute.

If your organisation employs foreign nationals and is uncertain whether its records and verification processes are sufficient, contact Gema Visa Services for a professional immigration compliance assessment.