As I’m sure you must know, in terms of section 38(2) of the Immigration Act, the employer must try by all means to ascertain the status of the persons he employs and ensure that he does not employ an illegal foreigner.
Section 49(3) of the Immigration Act says 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 to a fine or a period of imprisonment not exceeding one year for a first offence.
It is also as well to heed what Labour Guide says about the law:
“The law does not declare that a contract of employment concluded without the required permit is void nor does it provide that a foreigner who accepts work without a valid permit is guilty of an offence. What is prohibited is the act of ‘employing’ a foreign national in violation of the law. All the liability is therefore attributed to the employer and the law does not penalise the action of the foreign person who accepts work or performs work without valid authorisation. It is the illegal employment of a foreigner that is prohibited.”
“Therefore,” it goes on, “a foreign national whose work permit expires whilst employed, or who is employed without a relevant work permit is still an ‘employee’
“It is important to understand that employers must still act fairly towards foreign employees, regardless of the legality of the employment.”
In other words, every employee in South Africa is protected by the LRA, not just citizens.
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