14 January 2022
The Department of Home Affairs has been cracking down on foreign nationals currently employed in South Africa and has started auditing various businesses across the country to ensure compliance with the Immigration Act 13 of 2002. How do you as an employer ensure that you are not only compliant but also have not had the “wool pulled over your eyes”? This article will discuss your obligations in terms of the Act, steps you can take to ensure that you remain compliant and what may happen if you are found to be employing an undocumented foreign national.
In terms of section 38 of the Immigration Act 13 of 2002, the Act states the following as it relates to the employment of a foreign national:
The employer is therefore obligated to ensure that they take the necessary steps to ensure that all foreign nationals in their employ are legitimately documented and may perform work in the Republic, in line with the Immigration Act.
It is clear from the Act that the argument “I didn’t know” or “I can’t identify fraudulent documents” is not sufficient and will not be accepted as an excuse if the employer is ever audited. It is therefore necessary to find the balance between the requirement to act in good faith with regards to ascertaining the veracity of documentation and staffing requirements of your business.
In terms of the above, the employer need only demonstrate that they took reasonable steps to verify documentation. This means that if an undocumented foreign national is ever found in the employ of an employer, the employer can absolve themselves of any wrongdoing by demonstrating that they at least attempted to verify the documentation.
Employers may verify documents through the following channels:
- For asylum documentation, employers may scan the documents they receive to asm.verifications@dha.gov.za
- For work permits or other types of visas, employers may scan the documents they receive to visa.verifications@dha.gov.za
Both emails should return an acknowledgment of receipt that employers can file in their employee records to demonstrate their duty of good faith in the event that they are ever audited by the Department of Home Affairs.
If an employer is found to have foreign nationals in its employ without evidence of its duty of good faith, they face the risk of substantial penalties. S43(3) states that “Anyone who knowingly employs an illegal foreigner or a foreigner in violation of this Act shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one year provided that such person’s second conviction of such an offence shall be punishable by imprisonment not exceeding two years or a fine, and the third or subsequent convictions of such offences by imprisonment not exceeding three years without the option of a fine”. Employers are therefore urged to ensure that they take steps to avoid infringement.
Should you require any assistance in the verification of documentation or wish to book an ad-hoc Human Resources consultation where Invictus’ Human Resources Managers can make submissions for you, kindly contact our administration team or your designated Invictus consultant for further information.
