During the recent global mobility conference that was held by Xpatweb, the Department of Home Affairs (DHA) reiterated their intention to adopt a zero-tolerance approach regarding the employment of illegal foreigners in South Africa. This announcement was coupled with a stern warning aimed at employers, reminding them of the consequences they would face if they failed to comply with their obligations in terms of the Immigration Act 13 of 2002 (Immigration Act).

In accordance with the provisions of the Immigration Act, employers are strictly prohibited from employing illegal foreigners, foreigners whose status does not authorise them to be employed by a particular employer, and any foreigners on terms, conditions and/or in any capacity other than the capacity provided for based on their status. 

To ensure that employers do not employ illegal foreigners in contravention of the Immigration Act, employers must make a good faith effort to ascertain the status or citizenship of any foreigners they intend to employ. This could be in the form of verifying the validity of prospective employees' work visas, refugee or asylum permits through either the DHA, a third-party service provider such as the Managed Integrity Evaluation Services, or through conducting an immigration audit of all their current foreign employees. 

As part of its zero-tolerance approach, the DHA confirmed that employers who are found to have contravened the Immigration Act will be shown no mercy. Any person who contravenes the provisions of the Immigration Act shall be guilty of an offence and liable to either a fine or imprisonment upon conviction. 

The DHA's approach has been necessitated by years of employers failing to comply with the provisions of the Immigration Act through the consistent employment of illegal foreigners without valid work visas. 

To clamp down not only on the employment of illegal foreigners, and also to limit the number of foreigners that are employed in South Africa, the Department of Employment and Labour (DEL) intends to finalise the draft National Migration Policy and Employment Services Amendment Bill which, if implemented, will introduce quotas for the employment of foreign nationals in one or more sectors, occupations and regions within South Africa.  

In conclusion, employers will have to ensure compliance with their obligations and adhere to the various limitations that are intended by government to ensure that; the company only employs foreign nationals entitled to work in terms of our various legislation in South Africa and that prior to the hiring of a foreign national a good faith effort can be proven to have been made by the company.

Written by Hedda Schensema, Director in the Employment Law practice & Taryn York, Associate in the Employment Law practice at Cliffe Dekker Hofmeyr