What trustees and directors need to know about employing foreign nationals

With immigration enforcement activities increasing across South Africa, Sectional Title (ST) trustees and homeowners’ association (HOA) directors need to make sure that all staff employed in their community housing schemes are legally authorised to reside and work in the country.

So says Andrew Schaefer, MD of leading property management company Trafalgar, who notes that many trustees are unaware that the law places the responsibility for compliance squarely on the employer, even in residential estates and complexes.

“Sectional Title Body Corporates and HOAs are employers in the eyes of the law. That means they carry full legal responsibility for checking that any foreign national they employ has the correct immigration documentation and the legal right to work in SA.”

The South African Police Service (SAPS) and the Department of Home Affairs (DHA) have recently stepped up joint immigration enforcement operations countrywide, with officials conducting on-site inspections and spot checks to identify foreign nationals who may be in the country illegally or working without valid permits, he says.

“And these inspections are not limited to big businesses. Residential estates, ST schemes and even small retailers are being visited, so trustees and directors should not assume that they are ‘under the radar’ of the DHA. Rather, they should be proactive and seek help from a reputable and knowledgeable managing agent with a dedicaterd HR department, or a labour practitioner or attorney specialising in immigration law to make sure that their schemes are fully compliant. Trafalgar employs internal HR personnel to assist all clients, no matter what size, with full payroll and labour compliance.”

In simple terms, the employment of foreign nationals in SA is governed mainly by the Immigration Act, supported by the Employment Services Act and standard labour legislation such as the Labour Relations Act and Basic Conditions of Employment Act. This legislation provides that employers must:

*Not employ anyone who does not have the legal right to work in SA;

*Ensure that any prospective foreign employee has a valid and unexpired work permit that is appropriate to the position;

*Keep copies of all relevant documents on file including the employment contract, ID or passport copy, work permit or asylum seeker document (where applicable) and bank account confirmation letter of any foreign employee; and

*Monitor expiry dates and ensure that permits are renewed on time.

“The law requires employers to make a genuine, good-faith effort to verify a person’s nationality and status before employing them, and to keep checking it throughout the employment relationship,” says Schaefer. “A foreign national is anyone who is not a South African citizen, regardless of how long they have lived in the country. This includes SADC nationals, asylum seekers, refugees, temporary work visa holders and permanent residents, and each of these categories comes with different documents and conditions, so trustees cannot assume that a passport alone is sufficient.

“Some permits allow work, some don’t, and some only allow work under strict conditions. Getting this wrong could have serious consequences, because under the Immigration Act, employers who knowingly – or negligently – employ someone without proper authorisation can face heavy fines and even criminal charges.”

And to complicate matters even further, he says, labour law applies to foreign workers as much as to SA employees. “Even if an employee’s work permit is invalid, they are still regarded as an employee under labour law. This means trustees can face unfair dismissal claims if matters are handled incorrectly.

“However, an experienced managing agent should understand the full legal landscape, and will help the trustees to verify documentation, put proper employment contracts in place and track permit expiry and renewal dates.

“Trustees volunteer their time and should not have to navigate complex immigration and employment legislation alone. Working with a professional managing agent significantly reduces risk and protects the scheme from the dangers of non-compliance.”

Indeed, says Schaefer, the message to trustees and directors of community housing schemes is clear: “Employing foreign nationals is perfectly legal in SA – but only if it is done correctly. And in the current enforcement environment, that compliance is no longer optional. It is essential for protecting the scheme, its owners and its finances.”