A recent ruling by the High Court in Mthatha confirms that employing a foreign national without a valid work visa does not give an employer the right to bypass proper termination procedures.
On 27 May, the court found that the OR Tambo District Municipality had acted unlawfully when it abruptly ended the employment of Zimbabwean national Samuel Nyakudya – despite his not having a valid work permit at the time.
Nyakudya was initially granted a temporary residence permit that allowed him to live in South Africa and seek employment in the general work category under the Immigration Act. This permit expired on 30 April 2014. Shortly thereafter, he received a second general work permit, which began on 14 May 2014 and was valid until 31 March 2015.
He had worked for the municipality since 2009 as a research assistant on a contract basis. After the last term expired in March 2022, he continued working with the municipality’s approval.
In a letter dated 30 November 2023, the municipality informed Nyakudya of his termination, stating that his continued employment was “irregular and unlawful” because of the absence of a valid work permit. The municipality acknowledged in the letter that his contract had been extended “due to an oversight by personnel” and claimed the termination was necessary “to rectify the position”.
Instead of challenging his dismissal through the Commission for Conciliation, Mediation and Arbitration (CCMA), Nyakudya approached the High Court, seeking an order declaring the termination unlawful and constitutionally invalid. He also sought reinstatement and a costs order against the municipality.
Nyakudya argued that the termination violated the principle of legitimate expectation, and the municipality failed to follow fair procedures, particularly by not giving notice.
The municipality did not deny that Nyakudya had continued working beyond the expiry of his contract with its approval. However, it maintained his employment was unlawful because he no longer had a valid work permit.
Court’s reasoning
According to a blog by employment law experts Imraan Mahomed and Taryn York from Cliffe Dekker Hofmeyr, the court examined both the Immigration Act and the Basic Conditions of Employment Act (BCEA).
The court noted that section 38(1) of the Immigration Act prohibits employers from hiring illegal foreigners or foreigners whose immigration status does not authorise employment. Section 49(3) makes such employment a criminal offence.
“Having considered the above provisions, the court confirmed that the employment of an illegal foreigner in violation of the Immigration Act constitutes a criminal offence, which is punishable by the imposition of a fine or imprisonment upon conviction,” Mahomed and York wrote.
However, when evaluating the legality of the termination itself, the court turned to section 37(1) of the BCEA, which sets out the notice requirements for ending employment. Depending on the duration of employment, the law requires one week’s to four weeks’ notice.
“The court highlighted that the primary purpose of providing an employee with adequate notice of termination is to prepare them for a smooth transition,” they wrote.
Despite the immigration-related irregularities, the court found that the municipality had contravened the BCEA by failing to provide Nyakudya with notice.
Judgment and outcome
The court declared the termination unlawful and set it aside. However, it did not reinstate Nyakudya. In the judgment, Judge N Cengani-Mbakaza noted that the municipality claimed the position no longer existed in its organisational structure – a claim Nyakudya did not dispute.
“The applicant failed to counter this claim in his replying affidavit. The legal position is that a court can only grant an order that is practical, enforceable, and clear. Given the circumstances of this case, reinstatement is deemed impractical, making it impossible for the court to grant such a relief.”
The judge added that although compensation could be considered where reinstatement is not feasible, no such alternative relief was requested in Nyakudya’s application.
As a result, the termination of the contract of employment was declared unlawful and set aside.
The judge also ordered the municipality to pay the legal costs of the case, in line with the rules governing court procedures.
Legal implications
Mahomed and York noted that Nyakudya might have secured more favourable relief if he had pursued his claim at the CCMA or a bargaining council.
They added that the case reinforces that even if a foreign national is employed without a valid work visa, the employer is bound by the BCEA’s notice provisions.
Failing to provide such notice may result in the termination being unlawful.
“This is aside from the protections afforded to a foreign national under the Labour Relations Act 66 of 1995 to fairness in reasonable process pre-dismissal,” they concluded.
Read the full judgment here.
