How can my employer validate a Zimbabwean citizen's permit?

The long answer

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.

Migrate With Q recommends the following steps:

• Email the verifications department of Home Affairs at VisaVerifications.Missions@dha.gov.za

• Call the verifications department: 012 406 4432

• Walk into the Department of Home Affairs to find out from an immigration officer.

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’ for the purposes of the Labour Relations Act (LRA). This means that the employee would have recourse to compensation in the case of an unfair dismissal, through the CCMA. Such employee would not be entitled to reinstatement as such an order would be in contravention of the Immigration Act.”

These principles were confirmed in the matter of Discovery Health Limited v CCMA & Others [2008] 7 BLLR 633 (LC) where the employee was dismissed after the expiry of his work permit. The employee referred an unfair dismissal dispute to the CCMA, where the question of the CCMA’s jurisdiction to hear the case was considered. The CCMA ruled that it did have jurisdiction to determine whether the employee had been unfairly dismissed and found further that the employee’s dismissal had been unfair.

In view of the CCMA’s ruling, the employer took the matter on review to the Labour Court. The Court held that the contract of employment between the employee and employer was valid, and remained so until it was terminated by the employer. The Court also found that the employee, despite being a foreign national, fell within the definition of an employee for the purposes of Section 213 of the LRA and thus enjoyed the protection afforded by the LRA.

“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.

Wishing you the best,
Athalie