Working without a work visa in South Africa
Can one work in South Africa without a work visa
SA Migration - 27 September 2022
Many foreign nationals leave their country to seek a better life in South Africa or immigrate to join their spouse, life partner or family. People who live in Africa leave their homes due to many reasons such as; poverty, fear for their lives and finding a job in a different country to support their families back home. A popular choice for foreign nationals is South Africa and as such seek employment when they have arrived in the country. In most cases, the foreigner in question does not qualify to apply for a South African work visa or any other type of visa and is therefore stuck in the dilemma to work without a work visa to survive.
If you are wondering how much does a work visa cost in South Africa, contact us
Today we focus on blogging about everything you need to know as an individual (employee) or business (employer) and what the consequences are when you employ a foreign national illegally. We suggest that you bookmark this post so that you are always in the know as we constantly work to improve this post with the best facts possible.
Who is defined as an illegal worker?
Table of Contents
- Who is defined as an illegal worker?
- Can you employ someone without a work visa?
- What are the consequences of hiring illegal immigrants in South Africa?
- What is the fine for employing illegal workers in South Africa?
- So how are the amounts determined or how are you sentenced to prison?
- Can I employ a Zimbabwean without a work visa?
- Do illegal workers have any rights?
- A person who has not entered South Africa through one of its official ports and presenting the necessary documents.
- A person who is not undertaking the same job as endorsed in the visa.
- A person who is not using a work visa in SA.
Can you employ someone without a work visa?
No, you are not allowed to employ someone without a South African work visa as this is illegal and the company or person can be fined or face imprisonment. The responsibility falls on the employer when they decide to employ a foreigner and the law does not penalize the foreigner for accepting or working with no visa.
It’s not an offence when you do the following:
- Accepting a job offer with a visa
- Signing a contract without a visa
Employers must remember that a foreigner who is employed without a work visa or whose work visa expires during his or her employment is still regarded as an employee of the company. The labour relations act stipulates that an employer may not dismiss a foreigner due to an expired visa or who is employed without a work visa.
An accompanying spouse may not work in South Africa, therefore there is no accompanying spouse work visa in South Africa. Accompanying spouses must apply for their own work visas.
Therefore it’s best to ask the foreign applicant whether he or she is in the process of applying for a visa or the company can offer to assist the person in obtaining a work visa, provided they qualify for a South African work visa. This way the employer is not held responsible and caught off guard when the Department of Home Affairs investigates the company or the foreigner. You should not assist a foreigner if they are illegal.
Employers need to verify the immigrant’s status when they produce a work visa and our guide: “How to spot a fake work visa in South Africa“, this guide will give you all the tips you need to look for when looking at a visa.
If the applicant does not qualify for a visa, the next option would be for them to apply for an asylum or refugee visa but this can take a while before they the visa for this.
What are the visa options for applicants?
- General work visa South Africa
- Intra company transfer visa
- Critical Skills Visa
- Corporate Workers Visa
What are the consequences of hiring illegal immigrants in South Africa?
The immigration act of South Africa stipulates that anyone who knowingly employs foreign applicants without work visas will be in direct violation of the act and will be fined or might face imprisonment which will not exceed 12 months for their first offence.
It is easy to get caught by the Department of Home Affairs, one of the company’s employees might report this and DHA will visit your workplace unannounced. This is why you should always follow the correct procedure even though it might take longer but it’s the best way to stay on the right side of the law and prevent any legal proceedings.
Therefore it is important to ensure that all foreign employees’ visas or visas are valid and that they are taking responsibility to renew their visas before it expires. When applying for a work visa, the company drafts an undertaking letter to DHA ensuring that at all times they’ll ensure that the applicant’s visa remains valid.
The Department of Home Affairs has over the past few years cracked down on employers who are illegally employing foreigners which is has stemmed from audits and investigations into suspected companies. Do not at any moment expect that DHA is ignoring the fact there are many illegal workers in SA and they are slowly but surely approaching it on a case by case basis.
What is the fine for employing illegal workers in South Africa?
The employer will be fined anything between R 7000.00 to R 50, 000.00 per illegal worker and as previously mentioned the employer can be arrested for 12 months or more depending on the severity of the case.
So how are the amounts determined or how are you sentenced to prison?
- An employer would need to prove that he or she was unaware that the applicant in question was an illegal foreigner. You need to prove to the Department of Home Affairs that you thought the immigrant was an ordinary South African citizen.
- Assisting an illegal foreigner in one of the following ways would increase the severity of your case: helping them obtain false or forged identification, giving them a place to stay or teaching them a particular skill.
- Not telling the truth.
Can I employ a Zimbabwean without a work visa?
A Zimbabwean who would like to work in South Africa must have a valid work visa or be a permanent resident holder. The Minister of Home Affairs decided that they will not renew the ZEP visa for Zimbabweans and that they had a 12-month grace period to regularise their stay through the normal immigration laws of South Africa.
So all Zimbabweans have 12 months to switch from their current ZEP visa to a South African temporary residence visa or they need to leave the country to return to Zimbabwe.
To stay on the right side of the immigration law, we recommend that you verify if they have a valid work visa and if not then make use of an immigration consultant to assist both the company and individual in applying for the correct visa.
Do illegal workers have any rights?
Many employers often employ illegal foreigners thinking that an illegal worker can be mistreated or underpay them significantly. The thought behind this is that they cannot seek assistance from the government or CCMA. Illegal workers can seek assistance from CCMA to seek recourse. If an employer is found guilty then compensation might be the best solution for the CCMA as reinstating the employee is a direct contravention of the immigration act.
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